MR. NSIKAK MATHIAS OKON v. THE STATE (2019)

MR. NSIKAK MATHIAS OKON v. THE STATE

(2019)LCN/13130(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of April, 2019

CA/C/378C/2018

RATIO

CRIMINAL LAW: BURDEN OF PROOF UNDER CRIMINAL LAW

It is settled that the burden of proof in a criminal case is constantly on the prosecution from the beginning to the end of trial, see ABBEY VS. STATE (2017) LPELR-42358 which held:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi vs The State {1993} 7 NWLR (PT.307) 511 at 531 Paras A-C: Solola vs The State (2005) 5 SC (PT. 1) 135.”Per GALINJE, J.S.C. PER YARGATA BYENCHIT NIMPAR, J.C.A.

CRIMINAL LAW: STANDARD OF PROOF IN CRIMINAL CASES
The standard of proof is beyond reasonable doubt as settled by the apex Court in a plethora of cases. There are three acceptable forms the prosecution can proffer evidence in proof of a crime, namely:
i. Eye witness account
ii. By the confession of the accused and
iii. Circumstantial evidence.
See the case of ORISA VS. STATE (2018) 11 NWLR (PT. 1831) 435; AYEDATIWOR VS. STATE (2018) 11 NWLR (PT. 1631) 542; EMEKA VS. STATE (2001) VOL.8 LRCN 2343.PER YARGATA BYENCHIT NIMPAR, J.C.A.

ENDORSEMENT: WHETHER AN ENDORSEMENT ALONE CAN INVALIDATE A CONFESSIONAL STATEMENT

The law is settled and as held in a plethora of cases that non endorsement alone cannot invalidate a confessional statement, see EHIMIYEIN VS. STATE (2016) LPELR-40841 (SC) which held:
“Attestation of an accused person’s confessional statement before a superior police officer is in compliance with the Judge’s Rules. It is an administrative practice. It is not a legal requirement and its noncompliance will not render inadmissible the confessional statement. See R vs. Nwigboke (1959) 5 SCNLR 248; Egboghonome vs. The State (1993) 7 NWLR (Pt.306) 383; Edhigere vs. The State (1996) 8 NWLR (pt. 464) 1.” Per NGWUTA, J.S.C PER YARGATA BYENCHIT NIMPAR, J.C.A.

CONFESSIONAL STATEMENT: WHEN THE COURT CAN ADMIT AND USE CONFESSIONAL STATEMENT

When can the Court admit and use a confessional statement. The apex Court answered the question in this way:
“It is settled law that the extra-judicial statements made by a prisoner are admissible in evidence at the trial of the prisoner, and if it is evident that they were made voluntarily by the prisoner, such evidence become admissible against him. Also the oral confessional testimony of an accused person at his trial is admissible and become upon those facts part of the evidence that the Court may consider to determine whether he is or not guilty of the offence for which he was charged?. See AMALA VS. STATE (2004) LPELR- 453(SC).PER YARGATA BYENCHIT NIMPAR, J.C.A.

CONFESSION: THE COURTS CAN CONVICT AN ACCUSED BASED ON A CONFESSIONAL STATEMENT

The law is that, the Court can convict on a confessional statement retracted at the trial if satisfied that the accused person made the statement and as to the circumstances which give credibility to the contents of the confession. But it is desirable that; before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: MUFUTAU AREMU VS. THE STATE (1991) 7 NWLR (PT.201) 1 at 15; BASSEY VS. THE STATE (1993) 7 NWLR (PT.306) 469 AT 479, OTUFALO VS. THE STATE (1968) NMLR 261 at 265 – 266, NSOFOR VS. THE STATE (2002) 10 NWLR (PT.775) 274 at 293.”PER YARGATA BYENCHIT NIMPAR, J.C.A.

CONFESSIONAL STATEMENT: COURT TO TEST THE WEIGHT ATTACHED TO SUCH STATMENT FIRST
Over the years, the Courts have also developed a 6 way test to further verify the authenticity of a confessional statement before reliance by the trial Court to convict, it is trite that the Court can convict on the confessional statement alone when proved. The Court is required to test the truth or determine the weight to attach to a confessional statement before it can convict on it was restated in the case of NWACHUKWU VS. STATE (2007) LPELR-8075(SC) thus:
“It needs be emphasized as this is also settled that it is desirable to have outside the accused person’s confession, some corroborative evidence no matter how slight, of circumstances which make it probable that the confession is true and correct, as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Onochie & Ors.Vs. The Republic (1966) NMLR 307 and R vs. Sykes (1913) 8 CAR 233 @ 236. The test would also include the Court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial. See Queen vs. Obiasa (1962) 1 ANLR 65; (1962) 2 SCNLR 402; Ikpasa vs. Attorney-General of Bendel State (1981) 9 SC 7 and Akpan vs. The State (1992) 6 NWLR (PT.248) 439 @ 460; (1992) 7 SCNJ. 22 and many others.”PER YARGATA BYENCHIT NIMPAR, J.C.A.

WHEN CONFESSIONAL STATEMENTS WILL NOT BE ACCEPTED BY THE COURTS
It is therefore settled that the only confessional statement excluded in determining the guilt of an accused person is one not voluntarily made, see ABDULLAHI VS. STATE (2013) 11 NWLR (PT. 1366) 435.PER YARGATA BYENCHIT NIMPAR, J.C.A.

CONFESSIONAL STATEMENT: THE BEST TIME TO OBJECT TO A CONFESSIONAL STATEMEN

The best time to object to the admissibility of a confessional statement is at the point it is being sought to be tendered. 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

MR. NSIKAK MATHIAS OKON Appellant(s)

AND

THE STATE Respondent(s)

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): The Appellant and his wife were arraigned before the High Court of Justice of Akwa Ibom State sitting at Ikono Judicial Division, for the offence of murder. He was alleged to have murdered one Aniekan Sylvester on or about the 27th day of January, 2018 at Ikot Ekan village. Appellant pleaded not guilty to the charge and trial proceeded, at the end the trial Court presided over Hon. Justice Beneath Ilaumo found the Appellant guilty, convicted and sentenced him to death while discharging the 2nd accused person. Aggrieved by the said decision the Appellant filed a Notice of Appeal on the 29th March, 2018 setting out 7grounds of appeal.

Facts leading to the appeal are straight forward and can be simply presented by stating that the Appellant was alleged to have killed one Aniekan Sylvester with a matchet over the suspicion that he was seeing his wife. The wife stays with the Appellant?s mother while he stays in Odukpani, Cross River State. It was when he visited his wife that the deceased called his wife to say he was coming to see her and the Appellant heard the

conversation, encouraged the wife to ask him to come, he did and the Appellant waylaid the deceased, used a matchet to inflict grievous and deadly injuries on him. The Appellant also destroyed the motorcycle belonging to the deceased. There was one other person with the Appellant who was holding a matchet sharpner and who pursued the deceased into the bush. The deceased ran into the bush and his corpse was picked up in the bush some days later. When the father of the deceased (PW2) complained about the disappearance of the deceased in the village, a search was conducted by the community leading to the arrest of the Appellant and his wife and their arraignment and conviction of the Appellant. The prosecution called 4 witnesses while the Appellant testified for himself.

The Appellant?s brief settled by DAVID G. UDO ESQ., is dated 5th November, 2018 filed on the 8th November, 2018 and deemed on the 26th November, 2018. The brief distilled 6 issues for determination as follows:
i. Whether the prosecution proved the guilt of the Appellant in any of the prescribed methods of proving the guilt of any person suspected of having committed a crime.

ii. Whether the extra judicial statement of the Appellant filed along with the information as at 17th May, 2013 and as at 12th November, 2013 has any evidence/confirmation of interpretation by the statement recorder in the same manner as the statement tendered and admitted by the trial high Court as exhibits 1 and 3.
iii. Whether the hearsay evidence of the prosecution witnesses which did not controvert and debunk the evidence of the eye witnesses actually proved the case of the prosecution beyond reasonable doubt as held by the trial High Court.
iv. Whether the testimony of the eye witness who pursued the deceased from one village toward another village and evidence of the Appellant wife who saw the deceased running away from the scene of crime was controverted in any manner by the prosecution.
v. Whether there was any evidence before the trial Court from either the prosecution or the defence which guided the trial Court to arrive at the conclusion that it was the Appellant who pursued the deceased into the bush at Ikot Akpan village and gave him several matchet cuts.

vi. Whether the extra judicial statements of the Appellant admitted by the High Court as exhibits 1 and 3 after serious objections passed the true test of confessional statement to qualify for reliance by a Court of Justice.

The Appellant also filed a Reply Brief dated 28th January, 2019 on the same date.
The Respondent?s brief settled by IME C. AKPAN ESQ., was filed on the 18th January, 2019 and deemed as properly filed and served on the 22nd January, 2019. It merely reproduced the issues formulated by the Appellant. The Respondent therefore adopted the issues formulated by the Appellant for determination in this appeal. The Court shall adopt issue one as donated by the Appellant because it is all encompassing and because the Appellant also argued some aspects of issues two and six under the said issue one. In fact all the remaining issues can be conveniently resolved under issue one. The said issues for determination are hereby collapsed into issue one. In resolving issue one the submissions made in respect of all the other issues shall be considered.

The Appellant arguing issue one submitted that the burden of proof in any criminal trial is on the prosecution and

three known methods of proof are: eye witness account; circumstantial evidence and confessional statement of the accused, relying on ORISA VS. STATE (2018) 11 NWLR (PT. 1631) 435; AYEDATIWOR VS. STATE (2018) 11 NWLR (PT. 1631) 542 and EMEKA VS. STATE (2001) VO. 88 LRCN 2343. He argued that in this appeal the prosecution called 4 witnesses while the Appellant and his wife as co accused testified for the defence. He reviewed the evidence of witnesses before the Court. Learned counsel for the Appellant then submitted the evidence of DW2 (2nd Accused) corroborated that of the Appellant and posed some questions for consideration which I summarize here:
i. Whether Exhibit 3 was interpreted to the Appellant as it has a different handwriting on the said document; who interpreted to the accused and why the need for interpretation at point of tendering in evidence.
ii. Can Exhibit pass the test required for a confessional statement as to the fact that the appellant caused the death?
iii. Why were other witness statements not interpreted?

Appellant listed the ingredients essential for a charge of murder as stated in OLADEJO VS. STATE (2018) 11

NWLR (PT. 1630) 238; NJOKWU VS. STATE (2013) 9 NWLR (PT. 1360) 417 and JIMMY VS. STATE (2013) 18 NWLR (PT. 1386) 229 and said only the first ingredient was proved and without linking the Appellant to the cause of death therefore the prosecution failed, citing DARLINGTON VS. FRN (2018) 11 NWLR (PT. 1629) 152; ALAO VS.STATE (2015) 17 NWLR (PT. 1488) 245 and AKPAN VS. STATE (2016) 9 NWLR (PT. 1516) 110 to submit that the prosecution failed to prove all the ingredients of the offence.

On issue two the Appellant argued that as at the date of filing, being 17th May, 2013 for charge No. HKN/10C/2013 and 12th November, 2013 for charge No.HKN/16C/2013 there was no evidence of interpretation by the recorder in the manner of Exhibit 1 and 3 being statements of the Appellant. He agreed that PW3 and Pw4 recorded the statements which were admitted as Exhibits 1 and 3 respectively. Appellant observed that there is no signature of a superior Police officer on Exhibit 1 as recommended by the Court in STATE VS. MASIGA (2018) 8 NWLR (PT. 1622) 383. On Exhibit 3 the appellant contended that it does not bear any indication that it was interpreted to the accused and the

statements filed with the charge are different from the copies tendered going by the character of the handwriting and columns, therefore the exhibits were altered and should not have been admitted and relied upon, citing SHURUMO VS. STATE (2011) VOL. 196 LRCN 199; ABDULLAHI VS. STATE (2013) 11 NWLR (PT. 1366) 435 and LASE VS. STATE (2018) 3 NWLR (PT. 1607)502.

The Appellant challenged the decision to admit Exhibits 1 and 3 in spite of the objection on their being involuntarily made. He referred to the oral evidence of the Appellant in which he told the Court he was beaten and tortured to sign what was interpreted to him contrary to the apex Court?s decision in BELLO VS. COP (2018) 2 NWLR (PT. 1603) 267 and inspite of that the statement was still admitted. Arguing in the alternative, learned counsel submitted that assuming the statements were properly admitted, the Court failed to pass them through the test as settled in a number of authorities such as OKPAKO VS. STATE (2018) 9 NWLR (PT. 1624) 213; UGBOJI VS. STATE (2018) 10 NWLR (PT. 1627) 346; DAIRO VS. STATE (2018) 9 NWLR (PT. 1619) 399 and IFEANYI VS. FRN (2018) 12 NWLR (PT. 1632) 164.

He also referred to a number of decisions for the meaning of confession and Sections 28 and 29 of the Evidence Act to submit that Exhibit 1 and 3 were inadmissible in law for failing to conform to required standards such as interpretation, endorsement by a superior officer; it contains alterations and the fact that there was an objection to their admissibility. Appellant also argued that the Ibibio version of the Appellant?s statements were not tendered and therefore the said exhibits are worthless. Furthermore, the Appellant submitted that there was no corroboration as required and relied on SALIU VS. STATE (2014) 12 NWLR (PT. 1420) 65 and OGEDENGBE VS. STATE (2014) PT. 1421 338 to urge the Court to expunge the said exhibit 1 and 3 and re-evaluate the evidence before the Court particularly the strong defence by the Appellant because the Court below relied on hearsay evidence.

On issue three the Appellant submitted that all prosecution witnesses gave hearsay evidence as none of them witnessed the commission of the crime. He contended that the only eye witness to the incident was the man who pursued the deceased into the bush and who was not called by

the prosecution but the statement of the said eye witness to the police was admitted as Exhibit ID3 and it was also recorded without evidence of interpretation. He also referred to the evidence of the 2nd accused which he considered uncontroverted and submitted that the evidence points to self defence as the stranger was dragging his wife into the bush, citing CHUKWU VS. STATE (2013) 4 NWLR PT. 1343 1 and ADEYEYE VS. STATE ( 2013) 11 NWLR (PT. 1364) 47. Learned counsel submitted that the assailant pushed his motorcycle towards the appellant while the third party not called as witness pursued the man into the bush with an instrument used to sharpen a matchet, therefore the Appellant was acting in self defence. On the damaged motorcycle, Appellant contended that it was while the Appellant was going back to his duty post that he saw the motorcycle already damaged, and therefore the Court should have given the Appellant the benefit of doubt as highlighted in his written address before the trial Court on as who actually killed the deceased. On the basis of that he urged the Court to set aside the conviction and sentence, citing

ONONUJU VS. STATE (2014) 8 NWLR (PT.1409) 345; ORJI VS. STATE (2008) 10 NWLR (PT. 1094) 31; OLALEKAN VS. STATE (2001) vol. 92 LRCN 3385; ARCHIBONG VS. THE STATE (2007) VOL. 143 LRCN 228 and AFOLAHAN VS. STATE (2018) 8 NWLR PT. 1621 223.

On issue four the Appellant argued that the accused persons testified to an unknown person running into the bush, this was the person dragging Appellant?s wife and that this piece of evidence was not controverted but that the Court relied on hearsay evidence of the prosecution witnesses to convict the appellant, relied on UDO VS. STATE (2018) 8 NWLR PT. 1622 462 to support the submission that the evidence of eye witness is of great value. He also referred to the extra judicial statement of the eye witness, ID3. He also submitted that the Appellant was not allowed to identify the corpse of the deceased as the one he pursued into the bush therefore the findings that it was the Appellant who gave the deceased the matchet cuts is perverse and should be set aside, citing ADAMU VS. STATE (2014) 10 NWLR PT. 1416 441 which admonished trial Courts to consider all defences available to the accused.

?On issue five, the Appellant argued that there was no

credible, compelling direct evidence and no circumstantial evidence with which to convict the Appellant. That the requirement for credible evidence creates no room for speculation, citing RABIU VS. STATE (2010) 10 NWLR (PT.1201) 127; JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217; ODOGWU VS. THE STATE (2013) 14 NWLR (PT. 1373) 74 and ANYASADOR VS. STATE (2018)8 NWLR (PT. 1620) 107 to urge the Court to hold that there was no evidence to support the conviction.

Issue six is on the extra judicial statement of the Appellant, (Exhibit 1 and 3), the Appellant contended that they did not qualify as confessional statement. He adopted his arguments under issue one and two and further argued that there was serious objection to their admissibility and asked when the exhibits were interpreted to the Appellant by the recorders because they do not qualify as direct evidence to prove the offence, relied on ISAH VS. STATE (2018) 8 NWLR PT.1621 346. Continuing, Appellant said the prosecution witnesses gave hearsay evidence and the mode of examining the witness was contrary to the decision in OKORO VS. THE STATE (2012) VOL. 207 LRCN 115. On the absence of the Ibibio version of

the Appellants statement to the police, he relied on ISIAKA VS. STATE (2011) ALL FWLR PT. 583 1966; NSOFOR VS. STATE (2004) 18 NWLR (PT. 905) 292 and ADEYEMI VS. STATE (2013) 3 NWLR (PT. 1340) 78. Appellant urged the Court to find for him and set aside the conviction.

The Respondent in arguing the appeal reviewed the facts leading to this appeal and submitted that the prosecution can prove a charge by one of three ways, namely: confessional statement; circumstantial evidence and eye witness account as decided in UDOEBRE VS. STATE (2000) 6 SCN. Learned counsel submitted that the Court can convict on a confessional statement that has been proved as voluntarily made, citing MOHAMMED VS. STATE (2007) 11 NWLR (PT. 1045) 308. Counsel admitted that the eye witness to the crime was the 2nd accused but the statements of the Appellant to Pw1 and others who went to bring him from Cross River State, also Appellant?s confession at the village square admitting that he used a matchet on the person he met talking to his wife, thus confessed to the killing. That the conviction was based on cogent evidence that the Appellant killed the deceased and

the Court believed the witnesses along Exhibit 1 and 3, relied on IKE VS. THE STATE (2010) 5 NWLR (PT. 1186) 41; IKEMSON VS. THE STATE (1989) 3 NWLR (PT. 110) 455; NTAHA VS. STATE (1972) 4 SC 1 and SULE VS. STATE (2009) 382 NSCQR 1069 to submit that a confession is an admission as defined in Section 28 of the Evidence Act.

On the contention that there are different versions of Exhibit 3, the Respondent submitted that the appellant cannot raise that issue at this stage when he should have made it part of his objection at the trial Court because objection to admissibility is made at the trial Court, relied on GONI VS. GAMBO (2003) 17 NWLR (PT. 849) 411. In any case, counsel submitted that the Court below compared the two versions and arrived at the decision that they are the same document. Furthermore, the ruling was not challenged on appeal or in this appeal. Learned counsel to the Respondent submitted that the trial Court considered all the contentions on the confessional statement and the ruling has not been appealed against being an interlocutory ruling, the Appellant needed leave to appeal against it and none was sought here. On ID3, learned counsel submitted

that it was not tendered as Exhibit and the Court below did not take it in to consideration in arriving at the decision because the maker did not testify.

Reaching to the submission that the confessional statement was incomplete, the Respondent said it was the statement of the 2nd accused who was discharged and not the Appellant herein and referred to pages 142 and 145 of the record of appeal.

On the evaluation of evidence, Respondent argued that the Court properly did its duty to arrive at the guilt of the Appellant in view of the evidence before it from the oral confession and the written confessional statements before the Court.

Arguing on issue two, learned counsel submitted that the issue of endorsement or a version of the statement of the accused recorded in Ibibio was resolved by the trial Court; that page 125 reflects the objection while the ruling is at page 128 where the Court below held that the recorder understands English and Ibibio, therefore there was no Ibibio version of the statement. Counsel submitted that the ruling was also not appealed against and referred the Court to pages 120- 128 of the record of Appeal. Again, counsel

contended that no leave was sought to appeal against the interlocutory ruling and relied on AKINTARO VS. EEGUNGBOHUN (2007) 9 NWLR (PT. 1038) 103. Respondent observed that there was no objection on the voluntariness of the confessional statements marked as Exhibit 1 and 3, therefore the trial Court was right to rely on the confessional statements to find the Appellant guilty. On the six way test recommended for a confessional statement, learned counsel submitted that Exhibit 1 and 3 were corroborated by the evidence of PW1, PW2 and PW3 who all heard the direct oral confession of the Appellant, the matchet allegedly used was tendered without objection and the corpse was found and identified, citing OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 25 in support.

Continuing on issue three the Respondent submitted that the burden to prove guilt is on the respondent and the ingredients to prove the offence are settled. That prosecution witnesses and exhibits satisfied all the requirement of law. Counsel added that the Appellant did not catch the deceased doing anything with his wife and the deceased was not armed but the appellant allowed jealousy to make

him take life unlawfully. The cause of death was obvious and there was no need to call a medical doctor, relied on LORI V STATE (1990) 1 ACLR 269; ADAMU KANO VS. THE STATE (1968) NMLR 227; AKPUENYA VS. THE STATE (1976) 11 SC 269 and PRICEWILL VS. THE STATE (1994) 7-8 SC (PT.II) 226 to submit that the killing was premeditated and planned going by established facts and a man is presumed to intend the consequences of his act, citing SULE VS. STATE (2009) VOL. 38 NSCQR 1069; OKORA VS. THE STATE (1988) 3 NWLR (PT. 81) 220 and BATURE VS. THE STATE (1994) 1 NWLR (PT. 320) 264. Respondent submitted that there was corroboration and the circumstantial evidence also a bound to justify the judgment.

Arguing further, the respondent?s counsel on issue four submitted that the issue does not flow from ground 4 as contended because ground 4 complain about evaluation of evidence by the trial Court which is different from the issue argued as issue 4 and generally issues must flow from grounds because there cannot be an independent issue and therefore issue 4 is in competent and must be struck out because it does not arise from any ground of appeal.

On issue 5, learned counsel submitted that the only eye witness outside the accused persons was one Nyakno who was not called as a witness, however, the evidence before the Court established the offence and there was no evidence that somebody was dragging Appellant?s wife into the bush. Moreso, the prosecution is not bound to call a particular number of witnesses as long as the evidence presented can establish the ingredients of the offence, citingNKEBISI VS. STATE (2010) 5 NWLR (PT. 1188) 471; OKPULOR VS. THE STATE (1990) 7 NWLR (PT. 164) 589. Respondent argued that the defence could have called the said Nyakno if he was useful to the defence because the prosecution was not under any obligation to call him, citing ALONGE VS. I. G. POLICE (1959) 4 F.S.C. 203.

Arguing further on this issue, the Respondent submitted that the Appellant confessed at the village square and the evidence of PW1, PW2 and PW3 cannot be hearsay because they heard the Appellant admit to the crime with details and therefore the offence was established by evidence.

On issue 6, the Respondent submitted that once again the issue does not flow from the ground of appeal. The issue

talks of propriety of the admissibility of Exhibit 1 and 3 while ground 7 complains about corroboration, and therefore the issue cannot stand, counsel urged the Court to discountenance same. And that would mean ground 7 is abandoned and should be struck out, citing FAYEMI VS. ONI (2010) 17 NWLR (PT. 1222) 326 and IKEMSON VS. STATE (1989) 3 NWLR (PT. 110) 457. Finally, counsel urged the Court to dismiss the appeal for lacking in merit.

In reply the Appellant on the confessional statement submitted that there is no direct admission of guilt by the Appellant before the Court and what the witnesses heard is hearsay. He relied on the document tendered for identification purposes only and marked 1D3 and the case of AYINDE VS. STATE (2018) 17 NWLR (PT. 1647).

On challenge to admissibility of documents on appeal, learned counsel to the Appellant submitted that the Court frowned at instances of interlocutory appeals, citing BRAITHWAITE VS. DALHATU (2016) 13 NWLR (PT. 1528) 32 and SOCIETY BIC S. A. VS. CHARZIN IND. LTD. (2014) 4 NWLR (PT. 1398) 497 and that the rules of the Court provides for interlocutory appeals and final appeals in one notice of appeal as held in

KAKIH VS. PDP (2014) 15 NWLR (PT. 1430) 374. He referred to Section 24(2) (b) of the Court of Appeal Act; Section 241(1), 243 of the 1999 Constitution as Amended as the relevant provision applicable to the appeal and not the 1979 Constitution, he relied on DUNALIN INV. LTD. VS. BGL PLC (2016) 18 NWLR (PT. 1544 262.

On the interpretation of statements recorded for suspects, the appellant submitted that none of the statements was interpreted to the suspects before the charge was filed and the record of appeal speaks for itself. He asked when it was that the interpretation was done, and whether it was while the Appellant was in prison custody and who were the witnesses to the interpretation? He submitted that Exhibit 1 and 3 are not reliable. On the matchet tendered, Appellant argued that the matchet used to hack down the deceased is in Mbiaho, Cross River State. So Exhibit 5 is not the matchet used.

On formulation of issues, Appellant admitted that the rules do not allow formulation of issues from outside the grounds and the issue formulated from ground 4 and 5 are valid, relying on DONALD VS. SALEH (2015) 2 NWLR (PT. 1444) 529 and SHEIDU VS. STATE

(2014) 15 NWLR (PT. 1429) 1. On abandonment of ground 7, Appellant submitted that the Respondent made a summersault and therefore the arguments should be discountenanced. He finally urged the Court to allow the appeal.

RESOLUTION
The main issue in this appeal is whether the Respondent proved the guilt of the Appellant as provided by law. It is settled that the burden of proof in a criminal case is constantly on the prosecution from the beginning to the end of trial, see ABBEY VS. STATE (2017) LPELR-42358 which held:
“Section 135 (2) of the Evidence Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi vs The State {1993} 7 NWLR (PT.307) 511 at 531 Paras A-C: Solola vs The State (2005) 5 SC (PT. 1) 135.”Per GALINJE, J.S.C
The standard of proof is beyond reasonable doubt as settled by the apex Court in a plethora of cases. There are three

acceptable forms the prosecution can proffer evidence in proof of a crime, namely:
i. Eye witness account
ii. By the confession of the accused and
iii. Circumstantial evidence.
See the case of ORISA VS. STATE (2018) 11 NWLR (PT. 1831) 435; AYEDATIWOR VS. STATE (2018) 11 NWLR (PT. 1631) 542; EMEKA VS. STATE (2001) VOL.8 LRCN 2343.

The trial Court is required to evaluate the totality of evidence before it in arriving at a decision. The Appellant was found guilty of the offence of murder and was convicted and sentenced accordingly. The prosecution called 4 witnesses and none of them gave eye witness account of how the Appellant committed the offence. There are before the Court confessional statements of the Appellant tendered as Exhibit 1 and 3. The testimony of PW1 the village chairman was certain about what the Appellant told the village meeting in his presence, which is a confession as to the commission of the crime with details as contained in the confessional statements. He was cross examined but his evidence was unshaken. PW2 is the father of the deceased. He also heard at the village square how the Appellant confessed to the

crime. He was also cross examined but maintained his testimony. The Investigating Police Officers, PW3 and PW4 recorded written statements from the Appellant and these are confessional statements.

The learned senior counsel for the Appellant classified the evidence of the PW1 and PW2 as hearsay evidence and that the Court should not have relied upon it to convict the Appellant. What the Pw1 and Pw2 told the Court was not what another person said but what they heard directly from the Appellant and what he said in their presence. Hearsay evidence is defined in the case of AROGUNDARE VS. STATE (2009) LPELR-559(SC) as follows:
“In the case of Subramaniam vs. Public Prosecutor, (1956) 1 WLR 965 at 969, hearsay evidence was described in the following terms; – “Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made”. From the above, it is clear that the

purpose for which a statement made by a person to the witness is tendered in Court determines its admissibility since if the intention of introducing the evidence is to establish the truth of the statement/evidence it would be hearsay and inadmissible but would be admissible if the purpose or intention is to establish the fact that the statement was made by the person concerned.” Per ONNOGHEN, J.S.C (P. 23, paras. B-D)
Furthermore, what constitutes hearsay was also explained in the case of GANIYU VS. STATE (2014) LPELR-23404 (CA) thus:
“In Law what constitutes hearsay evidence was defined by the Supreme Court in the case of OJO VS. GHARORO (2006) 2 – 3 SC. 105 as follows: It is a piece of Evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person e.g. the statement of a witness who is himself not called as a witness but what he said is repeated by another witness who is called.” Per BAGE, J.S.C

My lord Bage JCA (as he then was) explained it in the simplest form possible. If PW1 and PW2 said they were told by some other person present

at the meeting that the Appellant admitted committing the offence, that would have been hearsay but they were present and heard themselves what the Appellant said, what they told the Court corresponds with the content of Exhibits 1 and 3, the confessional statements made to the Police and duly tendered in evidence. It is therefore direct evidence and not through a third party, it therefore cannot be described as hearsay evidence. The two witnesses named who they heard confess and they were witnesses of what was said. They could have seen, touched and to tell the Court what they heard through their senses. It was direct evidence and not hearsay. If they were not at the village square themselves to hear firsthand, then the argument of the Appellant could hold but not when they heard without an intermediary. The contention is untenable; I agree with the Respondent that the evidence of PW1 and PW2 is not hearsay evidence.

Having resolved the challenge to the evidence of PW1 and PW2 and found the evidence reliable, the Court shall proceed to determine the reliability of the confessional statements before determining whether the prosecution

proved the offence alleged. The Appellant tried to impugn the confessional statements alleging they lack the endorsement of an interpreter because the Appellant does not understand English, the language of the Court. This was covered by issue two donated by the Appellant. PW3 and PW4 recorded the statements respectively. Exhibit 1 is alleged to lack a Superior Police Officer?s endorsement and therefore invalid. The question is whether non endorsement can make a confessional statement inadmissible? The practice is desirable but is not the law. The law is settled and as held in a plethora of cases that non endorsement alone cannot invalidate a confessional statement, see EHIMIYEIN VS. STATE (2016) LPELR-40841 (SC) which held:
“Attestation of an accused person’s confessional statement before a superior police officer is in compliance with the Judge’s Rules. It is an administrative practice. It is not a legal requirement and its noncompliance will not render inadmissible the confessional statement. See R vs. Nwigboke (1959) 5 SCNLR 248; Egboghonome vs. The State (1993) 7 NWLR (Pt.306) 383; Edhigere vs. The State (1996) 8 NWLR (pt. 464) 1.” Per NGWUTA, J.S.C

When can the Court admit and use a confessional statement? The apex Court answered the question in this way:
“It is settled law that the extra-judicial statements made by a prisoner are admissible in evidence at the trial of the prisoner, and if it is evident that they were made voluntarily by the prisoner, such evidence become admissible against him. Also the oral confessional testimony of an accused person at his trial is admissible and become upon those facts part of the evidence that the Court may consider to determine whether he is or not guilty of the offence for which he was charged?. See AMALA VS. STATE (2004) LPELR- 453(SC).
See also the case of STATE VS. MASIGA (2017) LPELR-43474(SC) where the EKO, JSC said:
“Section 29 of the Evidence Act, 2011 empowers the trial Court to exclude a confession that appears to it to have been unfairly obtained from the accused in order to incriminate him. The Court is accordingly empowered “not to allow such confession to be put in evidence against him” unless the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner

not contrary to the provisions of Section 29 of the Act . It is mandatory under Section 29 of the Act, that the only admissible confession is the confession that was not obtained by oppression of the maker, or in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable the said confession.”

?Therefore, as long as the confessional statement was voluntarily made, it will be admitted but before a Court relies on such a statement, there is a protocol to be followed particularly where such a statement was retracted, see SUNDAY VS. STATE (2017) LPELR-42259(SC), it held:
“The circumstance of the present case is the existence of a confessional statement retracted at the trial. Can the Court convict on such a confessional statement. The law is that, the Court can convict on a confessional statement retracted at the trial if satisfied that the accused person made the statement and as to the circumstances which give credibility to the contents of the confession. But it is desirable that; before a conviction can properly be based on such a retracted confession, there should be some corroborative

evidence outside the confession which would make it probable that the confession was true. See: MUFUTAU AREMU VS. THE STATE (1991) 7 NWLR (PT.201) 1 at 15; BASSEY VS. THE STATE (1993) 7 NWLR (PT.306) 469 AT 479, OTUFALO VS. THE STATE (1968) NMLR 261 at 265 – 266, NSOFOR VS. THE STATE (2002) 10 NWLR (PT.775) 274 at 293.”
Over the years, the Courts have also developed a 6 way test to further verify the authenticity of a confessional statement before reliance by the trial Court to convict, it is trite that the Court can convict on the confessional statement alone when proved. The Court is required to test the truth or determine the weight to attach to a confessional statement before it can convict on it was restated in the case of NWACHUKWU VS. STATE (2007) LPELR-8075(SC) thus:
“It needs be emphasized as this is also settled that it is desirable to have outside the accused person’s confession, some corroborative evidence no matter how slight, of circumstances which make it probable that the confession is true and correct, as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Onochie & Ors.

Vs. The Republic (1966) NMLR 307 and R vs. Sykes (1913) 8 CAR 233 @ 236. The test would also include the Court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial. See Queen vs. Obiasa (1962) 1 ANLR 65; (1962) 2 SCNLR 402; Ikpasa vs. Attorney-General of Bendel State (1981) 9 SC 7 and Akpan vs. The State (1992) 6 NWLR (PT.248) 439 @ 460; (1992) 7 SCNJ. 22 and many others.”
It is therefore settled that the only confessional statement excluded in determining the guilt of an accused person is one not voluntarily made, see ABDULLAHI VS. STATE (2013) 11 NWLR (PT. 1366) 435.

The best time to object to the admissibility of a confessional statement is at the point it is being sought to be tendered. In this case, the Appellant who was represented by counsel objected to the admissibility of Exhibit 1 on the following grounds:
i. Statement not recorded by the accused himself.
ii. The statement was made in Ibibio and the Ibibio version was not accompanied.

iii. No superior police officer endorsed the statement.
iv. Accused denies the signature attribute to him on the statement.

There was no objection taken as to the voluntariness of the statement. PW3 who recorded the statement told the Court that he cautioned the Appellant and he volunteered a statement.

The trial Court in its ruling on the objection held that where the recorder understands both languages, there will be no need for a vernacular version and therefore the absence of it in this case is because the Pw3 understands both languages. The Appellant argued otherwise. Any way as contended by the Respondent, there is no appeal against the ruling and no leave to appeal against the interlocutory ruling along the final judgment seeing that time to appeal against the interlocutory ruling had lapsed. The law is trite that a party seeking to appeal against an interlocutory ruling must do so within time constitutionally allowed, in this case within 14 days and with leave of Court, see KAKIH VS. PDP (supra).
?Since no leave was sought and no appeal was filed within time, the Appellant therefore cannot challenge the ruling without leave and in an appeal against the final decision

simultaneously, see GARUBA & ORS. Vs. OMOKHODION & ORS. (2011) LPELR-1309(SC) and ONWE & ORS. VS. NWAOGBUINYA & ORS. (2001) LPELR-2709(SC) which held as follows:
“One of the authorities relied upon by learned counsel for the Respondents is Ogigie vs. Obiyan (1997) 10 NWLR (PT. 524) 179. In that case, the question that arose for the determination of this Court was whether the Appellants could properly appeal against the interlocutory ruling of the trial Court with the grounds of appeal filed against the final judgment of the trial Court. In the lead judgment delivered by Uwais C.J.N. (as he then was), this question was considered and determined at page 195, thus: – “Now, no reference was made throughout the judgment of the trial Judge to the issue of applicability of Land Use Act or Bendel State Legal Notice No. 22 of 1978. Such references were made only in the ruling delivered on the 31st May, 1984. Can the Appellants, therefore, raise such interlocutory issue in the appeal against the judgment I respectfully think not. Although a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against

the final judgment, and this is to be encouraged in order to avoid unnecessary delay by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved. BySection 25 subsection (2)(a) of the Court of Appeal Act, 1976, the period prescribed for appealing against an interlocutory decision is 14 days, while the time prescribed for appealing against a final decision is three months. In order to marry the two appeals together one has to obtain leave to appeal out of time against the interlocutory ruling. Clearly, this has not been done in this case. Therefore, the appeal against the ruling of the learned trial Judge, which contains the point about the applicability of the Land Use Act and Legal Notice No. 22 of 1978 as to whether the land in dispute is situated in an urban area or rural area so as to determine the trial Judge’s jurisdiction is incompetent.” Per EJIWUNMI, J.S.C.
The contention of the Appellant that the position under the 1999 Constitution is different is not tenable.

Another area of contention is the recording of the confessional statement. The law is settled on when a police

officer recording the statement of a suspect who does not understand English but the Recorder understands both languages to record such statement in English as long as he testifies. See SUNDAY VS. STATE (2014) LPELR-24415(CA) which held as follows:
“It is the practice and in fact the law that, statements of accused persons should, whenever practicable, be taken or recorded in the language in which they are made. This is so, so as to avoid technical arguments which could be raised, as in the instant case. Furthermore, it serves the purpose of ensuring the correctness and accuracy of the statements. Though it is desirable that such statements be made in the language in which the maker said it is not ipso facto inadmissible merely because this practice was not followed. In other words, where the police records the statement of an accused in a language other than that in which the accused made his statement and later interpret it to the accused in the language in which he spoke, the statement may still be admitted in evidence, despite the fact that it was not recorded in the language in which he made his statement. It is necessary to point out that there are

two scenarios that may arise in the process of recording the statement of an accused person. The first scenario may arise where both the recorder and the accused, who makes the statement do not understand each other; and a third party interprets the statement between the accused and the recorder and vice versa. In such a scenario, for the statement to be admissible, both the interpreter and the policeman who did the recording must testify. The second scenario arises where the recorder understands the language in which the accused makes the statement. He listens to the accused person speak in that language which both he and the recorder understand; and the recorder simultaneously translates and writes down whatever the accused says in the official language of the Court; which is the English language. In such a scenario therefore, the police officer is both the interpreter as well as the recorder, thus playing the dual role of an interpreter and recorder. In such a circumstance, the statement so made and recorded is admissible, once it has been duly proved. See for this.R. vs. Oguewu (1949) 12 WACA p.483.
It is a constitutional requirement that a statement

is recorded in the language understood by the Appellant and later translated into English. However, where the recorder also understands both languages, he is allowed to translate directly from that particular language to English but indicate it was made in the language understood by the Appellant and translated by the recorder. The apex Court had cause to pronounce on a similar scenario thus:
“The last complaint raised by appellant’s counsel is that exhibit 5 was not translated into Efik. It is a constitutional requirement that if an accused person does not understand English at all and he makes a statement it must be recorded in the language he speaks or understands and later translated into English. See: Section 36(6) of the Constitution of Federal Republic of Nigeria 1999 (as amended). Where, as in the present appeal, the Appellant was cautioned in English and he signed the caution before making his statement which was recorded in English, the Appellant cannot thereafter be heard to complain that the statement was not translated into Efik. See Queen Vs. Zakwakwa of Yaro (1960) 1 NCC 8; Nwali vs. State (1991) 3 NWLR (PT.182) 663. In the latter case

where the appellant’s statement was recorded in Ibo and translated to English language, the Supreme Court held that since both versions (Ibo and English) were tendered in evidence, the Court of Appeal could rely on the English translation since the appellant did not disown the statement in English as not being the correct version of what he said and was recorded in Ibo…” Per AKAAHS, J.S.C in ASUQUO VS. THE STATE (2016) LPELR- 40597 (SC).
It is desirable as decided in the case of Ajidahun vs. State (supra) that confessional statements should be recorded in the language it was made. In other words, whether the statement is recorded personally by the accused in his language or narrated to a police officer who does the recording, it is desirable that the recording be in the language the statement is made. The fact that the statement was not first recorded in the language understood by the accused before being translated into English will not ipso facto render the English translation inadmissible. The issue is one of accuracy and correctness of the statement and not an issue that will automatically render the statement inadmissible.

See Olalekan VS. State (2001) 18 NWLR (PT. 746) 793 @ 819H – 820B:
“…The observation of the Court in R. vs. Ogbuewu (supra) that statements should be whenever practicable, recorded in the language in which it was made is a practical wisdom directed to avoid the kind of technical arguments even if unreasonable, capable of being raised by learned counsel. It is not an invariable practice; but a practice to ensure correctness and accuracy of the statements made by accused persons. It is pertinent to state that in R. vs. Ogbuewu (supra) the situation which is identical as in the instant case, that Appellant agreed he made the statement. In Ogbuewu’s case appellant was taken before the District Officer who caused the statement to be read to him in the Ibo language and the interpreter did so, and gave evidence that the Appellant admitted that he had made the statement. Similarly in that case the Appellant was taken before a Superior Police Officer, Mr. Stephen Tavero where Exhibit A was read over to him and he signed that it was correct.” See ADEYEMI VS. STATE (2012) LPELR-7956(CA).

As observed above, the practice is to ensure correctness in

the recording of the statement and since the Appellant retracted it, he cannot also challenge the content of the statement for lacking the vernacular version. The argument of the Appellant is self-contradictory, in one breath he says he is an illiterate whose statement should have been recorded in Ibibio and in another breath, he says because he did not write the statement himself it should be discountenanced. All the issues raised are not legal requirements and they can only affect the weight to be attached to the content of the statement but cannot make the statement inadmissible. Moreso, he signed the word of caution signaling that he understood it.

?On Exhibit 3, the second confessional statement made by the Appellant, he submits that the statement was re-prepared and tendered by the prosecution, it is the second confessional statement but Appellant only raised an objection that the statement was not endorsed by a superior police officer, and not on the grounds of objection listed earlier and which were targeted at Exhibit 1. Once again there was no objection on the ground of involuntariness of making the statement. So the areas of objection only go to weight.

The trial Court over ruled the objection and there is no appeal against the ruling. The Appellant having retracted the statement, the Court only had the duty to ensure there is evidence outside the confession to confirm that the confession was possible and this the Court did. The evidence of PW1 and PW2 is evidence outside the confession in Exhibit 1 and 3. Did the Appellant have the opportunity of committing the crime, he sure did going by the evidence before the Court, was the confession possible, yes, it was because this was coming after the oral confession at the village square, there was also the destroyed motorcycle, the corpse of the deceased and the sudden movement of the Appellant?s wife from their village to Odukpani, Cross River State and his mother too moved to another location immediately after the incident. He was in the village on the day of the incident but left the following day only to return to take his family away. All these surrounding fact confirm that the said exhibits 1 and 3 are true.

The allegation that the statement of the Appellant was re-prepared before it was tendered is most uncharitable. The record shows that the copy attached

to the proof of evidence was incomplete and the Court directed that a complete copy with all pages be reproduced from the original and served and that was the statement of the second accused person that was discharged. It was not in respect of the Appellant?s statement. In any case, the original was tendered and in evidence. The omission to attach the confessional statement with all pages to the proof of evidence did not occasion a miscarriage of justice and therefore the objection is misconceived.

On the failure to call the third party (Nyakno) who was with the Appellant at the time of offence, the Appellant had the opportunity to call him if he was relevant to his case, particularly because the prosecution did not call him. There is no law compelling the Respondent to call a number of witnesses or a particular witness as long as it can establish its case by other witnesses called. It is therefore, a misconception by the Appellant to think it can impute that as the prosecution withholding evidence. The Appellant could have called him as his witness. The Appellant?s counsel relied heavily on the statement of the said Nyakno tendered

for identification purposes only (ID3). A document tendered as ID is for identification purposes only and not evidence the Court can rely upon, see NIGERIA PORTS PLC. VS. BEECHAM PHARMACEUTICAL PTE LTD. & ANOR. (2012) LPELR-15538(SC) which held thus:
“… A trial or appellate Court must not rely on a document not tendered as an exhibit before it. See: Oladele vs. Aromolaran ll (1996) 6 NWLR (Pt.453) 180 at 226.”

The said ID3 is not evidence before the Court and cannot therefore be referred to nor relied upon in this appeal.

I also agree with the Respondent?s counsel that a party cannot raise a fresh issue not canvassed at the trial Court on appeal without leave of Court, the Appellant in several places tried to introduce fresh issues not canvassed before the trial Court. It is not allowed, seeAKINTARO VS. E. EGUNGBOHUN (2007) 9 NWLR (PT. 1038) 103.

There was no eye witness account before the Court and therefore issue 4 donated by the Appellant did not arise from the judgment before the Court. A ground of appeal must arise from the judgment, and it is settled Principle of Law that grounds of appeal must arise or flow from or related

to judgment appealed against. See: NDIC VS. OKEM ENTER. LTD. (Supra) and UGO VS. OBIEKWE (1989) 2 SC. (PT. 11) 4. And same goes for issues for determination, see FAYEMI VS. ONI (2010) 17 NWLR (PT. 1222)326. Neither grounds nor issues for determination can be independent of the judgment appealed against after all an appeal is a re-hearing. Issue four is hereby struck out.

The Respondent also urged the Court to strike out ground 7 which is a complaint about corroboration of Exhibit 1 and 3 and issue 6 was purportedly distilled there from. I have read the said ground 7 and some of the particulars are definitely not flowing from the ground of appeal. It is not the business of the Court to do a surgical operation in separating good particulars from the bad ones. Particulars are part of a ground of appeal and therefore any defect in one of the particulars, render the entire ground or grounds of appeal incompetent because separating good from bad is not the duty of the Court, see NWADIKE VS. IBEKWE (1987) 4 NWLR (PT. 67) 719. I therefore agree that the particulars to ground 7 are diverse and not related to the ground so it does explain the area of complaint as

represented by the said ground. It is therefore incompetent and is hereby struck out. In any case the validity of the confessional statements had been resolved earlier in this appeal under the main question whether the prosecution proved its case by evidence.

There is enough evidence which is cogent and compellable to find the Appellant guilty of the offence charged. There was no contradiction in the evidence of the prosecution witnesses, if any, it was the Appellant who retracted his confession in the box during oral evidence. He had given a detailed account of how the offence was committed but made a summersault to vary the story which in fact, did not give a logical occurrence of events and therefore unconvincing. That notwithstanding, with enough evidence, the trial Court was right to have arrived at the conclusion it did. The required evidence is that which will establish the ingredient of the offence of murder which are:
i. That the deceased died
ii. That the killing was unlawful
iii. That the death of the deceased was caused by the act of the accused
iv. That the act or omission of the accused which

caused the death of the deceased was intentional or done with the knowledge that death or grievous bodily harm was its probable consequence.

The Court below dutifully evaluated the evidence and arrived at the conclusion rightly. The Respondent as found by the trial Court established the said ingredients with cogent and credible evidence.

The evidence of the Appellant cannot be considered as eye witness account when he is the accused person. Eye witness is a third party who witnessed the commission of the offence and is retelling what he saw, it is the best form of evidence, see AKINLOLU VS. STATE (2015) LPELR-25986(SC) which held thus:
“The law is trite that the best form of evidence is where the eye witness is direct and his evidence gives an on the spot narration of the event as it happened.”

It is not the same as the Appellant telling his story in different versions. Whatever he says must be verified from facts outside him. When the facts were fresh in his mind he spoke the truth and only changed the story after being in prison custody pending trial. I disagree that there were doubts which could go to the benefit of the Appellant. The

circumstantial facts weigh against the Appellant. Counsel to the Appellant was merely focusing on the latter version of what the Appellant said forgetting the first version which is most probable and can be verified from the cuts seen on the corpse, the destroyed motorcycle and his sudden relocation of his wife and children the next day after the incident.

Appellants counsel argued that the Court below should have considered all defences available to the Appellant that is trite and settled position of the law. The question to ask is which defence is likely to arise from the facts of the case in hand? Provocation which is the nearest going by the facts is available because the surrounding facts disclose a premeditated murder all because the deceased called his wife. Defence of accident is also not in the contemplation of the facts. The Court considers the defence disclosed by the peculiar facts of the case. The Court will not go on a wild chase searching a defence and even when the Court identifies a defence, the facts of the case must speak to the defence. In this case self defence cannot also avail the Appellant, the facts show he was the assailant. He prepared

the matchet before way laying the deceased. If he caught the deceased on his wife then provocation could arise but here was a mere telephone call long before the attack. Will a reasonable man be provoked to take life because another man spoke to his wife.The Appellant had enough time to reflect on his action therefore, he did not commit murder in the heat of passion. They were not fighting and the manner he descended on the deceased confirms the premeditation. The defence of self defence is not available to the Appellant.

I agree with the Respondent that the trial Court acted on available evidence to convict the Appellant particularly the confessional Statements which were voluntarily made and on it alone the Court can convict. The circumstantial evidence further reinforces the findings made by the trial Court. The appeal lacks merit and is hereby dismissed.

The judgment of the Court below delivered on the 9th January, 2018 in charge No: HKN/16C/2013 is hereby affirmed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Yargata Byenchit Nimpar, JCA. I agree

with the reasoning and conclusion. I also agree that the appeal lacks merit and I also dismiss the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother Yargata B. Nimpar, JCA, just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of merit and should be dismissed. I too dismiss the appeal and affirm the judgment of the trial Court.

Appearances:

David G. Udo, Esq.For Appellant(s)

Ime C. Akpan, Esq.For Respondent(s)

Appearances

David G. Udo, Esq.For Appellant

AND

Ime C. Akpan, Esq.For Respondent