MURITALA OLADAPO v. THE STATE
(2014)LCN/6762(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 15th day of January, 2014
CA/I/90/07
RATIO
CRIMINAL LAW: WHETHER THE ONUS LIES ON HE WHO ALLEGES TO PROVE BEYOND REASONABLE DOUBT
There is no doubt that it is now a principle of law devoid of celebrations that the onus is usually on he who alleges to prove and the standard of proof in all criminal trials is beyond reasonable doubt. The pertinent question now is what is “proof beyond reasonable doubt”? It is trite that “proof beyond reasonable doubt” does not mean certainty of truth but means a high degree of probability of the accused’s commission of the alleged offence. In the ancient but famous case of Miller v Minister of Pensions (1947) 2 All E. R. 372 at 373 H, Denning, J. (as he then was) gave a legal meaning of proof beyond reasonable doubt this way:
“The degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to defeat the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt.”
The above reasoning was fully adopted by our Supreme Court in LORI V. THE STATE (1980) 12 NSCC 269 – 279. The doubt that can avail an accused person must have evidential basis and the mind of the court must by it be thrown into a state of uncertainty as to the true circumstances as it occurred and in particular as to whether the suspect had committed it. See State v. Akpabio (1993) 4 NWLR (PT 286) 204 at 224 H. Per SOTONYE DENTON WEST, J.C.A.
WHETHER THE MAKER OF A MEDICAL REPORT MUST TESTIFY IN ALL CASES WHERE EVIDENCE OF MEDICAL REPORT IS REQUIRED
It is law that it is not compulsory that a medical doctor or maker of medical report must testify in all cases where evidence of medical report is required. See Section 55(1) and (3) of Evidence Act 2011 (formerly Section 42(1)(a) and the case of John Mamudu Buba V. The State (1992) NWLR Pt 215, 1; Ozoemena vs. State (1998) 10 NWLR (Pt. 571) 632 @ 648; Chewmoh vs. State (1986) 2 NWLR (Pt.22) 331. Per SOTONYE DENTON WEST, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
MURITALA OLADAPO Appellant(s)
AND
THE STATE Respondent(s)
SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice J. O. Bada of the Osun State High Court of Justice delivered on 28th day of February, 2005 as he then was. The Appellant as an accused person was arraigned at the Osun State High Court of Justice, holden at Osogbo, Osun State on the 13th day of March, 2003 for the offence of murder contrary to S.319 of the Criminal Code cap 30 vol. II Laws of Oyo State, 1978 as applicable to Osun State. The statement of offence and its particulars are contained at page 4 of the record of proceedings.
Upon his arraignment on the said date the charge was read to the Appellant who pleaded not guilty to the said charge and trial commenced therein. The prosecution called six (6) witnesses while the Appellant testified for the defence. See pages 22-37 of the record of proceedings.
At the conclusion of the trial, the learned trial judge delivered his judgment convicted the Appellant for murder as charged and sentenced him to death. See pages 40 – 51 of the records of proceedings.
The Appellant being dissatisfied with the judgment of the learned trial judge filed a Notice of Appeal to this court.
The parties filed and exchanged their respective briefs in this appeal. The Appellant in his Brief of Argument dated and filed on 7/7/2009 formulated two (2) issues for determination as follows:
(i) Whether the conviction of the Appellant for the offence of murder by the learned trial judge on the basis of Exhibit “D” (a post mortem result) as well as Exhibit “E” and “EI” (retracted confessional statements of the Appellant) is sustainable in view of the improper evaluation of the aforementioned Exhibits by the Court.
(ii) Whether the prosecution proved the charge of murder against the Appellant beyond reasonable doubt as required by S.138 of the Evidence Act.
The Respondent in their own Brief of Argument dated 30th day of November, 2009 but filed on 1st December, 2009 adopted the issues as identified by the Appellant but captured in a more concise form as follows:
(i) Whether the prosecution proved the charge of murder against the Appellant beyond reasonable doubt as required by Section 138 of Evidence Act.
(ii) Whether Exhibits “D”, “E” and “E1” were properly evaluated and relied upon by the lower court.
The issues as identified by the parties in this appeal are the same; there is just interplay of semantics. In the consideration of this appeal, this court will adopt the issues as couched by the Appellant for being encompassing. Therefore, the issues for determination in this appeal are:
(i) Whether the conviction of the Appellant for the offence of murder by the Learned trial judge on the basis of Exhibit “D” (a post mortem result) as well as Exhibit “E” and “E1” (retracted confessional statements of the Appellant) is sustainable in view of the Improper evaluation of the aforementioned Exhibits by the Court.
(ii) Whether the prosecution proved the charge of murder against the Appellant beyond reasonable doubt as required by S.138 of the Evidence Act.
ARGUMENT
ISSUE ONE
Whether the conviction of the Appellant for the offence of murder by the learned trial judge on the basis of Exhibit “D”‘ (a post mortem result) as well as Exhibit “E” and “E1” (retracted confessional statements of the Appellant) is sustainable in view of the improper evaluation of the aforementioned Exhibits by the Court.
On the above issue, the learned Appellant’s counsel, O.O. Ojutalayo Esq submitted mainly among other numerous arguments that the learned trial judge erroneously relied on the content of Exhibit D in making a find on the cause of the deceased’s death and in convicting the Appellant for the offence of murder. It was argued that in the concluding portion of his judgment, the learned trial judge held as follows:
“The medical report Exhibit ‘D’ showed that there was grimacing appearance of terrible pain during the mutilation procedure by the accused person caused her death”
It was further submitted that the alleged author of Exhibit ‘0’ was not an eye witness to the mutilation. Also that Exhibit ‘D’ by its very nature is the opinion of an expert in medical science, which is outside the experience of the learned trial judge. Consequently, it was submitted that notwithstanding the fact that the said Exhibit ‘D’ was properly admitted through PW6 who allegedly obtained it in the course of his investigations, it was imperative that the medical expert was called to testify before the trial judge and be subjected to cross examination as to his qualification, experience and credibility of his opinion to determine whether his testimony has any evidential value or not.
Similarly, it was the contention of the learned Appellant’s counsel that by virtue of Sections 57 and 65 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria 1990, there is no justifiable ground upon which the learned trial judge formed an opinion as to the content of Exhibit ‘D’ before placing much reliance on it in view of the fact that the author of the aforementioned Exhibit was not cross examined as to the basis of his opinion contained in the aforementioned Exhibit ‘D’ and neither was there any evidence on records to show that the author of the contents of the said Exhibit ‘D’ was dead; neither was he subpoenaed as his evidence was vital for the lower court to form an opinion as to the guilt or otherwise of the Appellant.
It was submitted that the learned trial judge made an endeavor to justify the use of Exhibit ‘D’ as a basis for finding the Appellant guilty as charged when he made the finding as can be seen at page 50 of the records of proceeding as follows:
“Before Exhibit D was admitted it was revealed that the Doctor who prepared the report is no more in the service of Osun State Government, he retired some years ago and all effort to trace him proved abortive” The above quotation according to the learned counsel was not borne out of the records of the court as PW6 through whom Exhibit O was tendered did not give evidence as to the whereabouts of the author of the contents. That the trial lower court built a case for the prosecution against the principles of law as held in Kalu v. The State (1988) 10 – 11 SCNJ 1, AG Federation v. Abubakar (2007) 10 NWLR (PT 1041) Pg 1 @ 182- I 83 Para A-B
It was further contended that the instant case on appeal is clearly distinguishable from the case of Nwachukwu v. The State (2002) 7 SCNJ @ 230 where the Supreme Court held that medical report as to the cause of death of the deceased tendered by the prosecution under Section 42 of the Evidence Act without caning the medical Doctor who allegedly prepared same was not fatal to the case of the prosecution in view of the fact that the Appellant never made any application to have the alleged author of the medical report to be summoned for the purposes of cross examination as no miscarriage of justice was occasioned thereby. That in the instant appeal, Appellant’s objection to the tendering of Exhibit “D” through PW6 on the ground he was not the maker was overruled by the trial judge on the basis that PW6 can tender it, the author having retired from the service of the Government. Lines 22-23 of page 28 of the record of proceedings were referred to.
It was further contended that Exhibit “E” which was the retracted confessional statement of the Appellant relied upon by the learned trial judge in convicting him for the alleged offence of murder failed to address the material evidence necessary to prove the ingredients of the alleged offence to wit: an intent to kill the deceased as held in Ikemson v. The State (1989) 3 NWLR (PT 110) @ 455.
It was submitted that although Exhibit ‘E’ as well as other extra judicial statements made by the Appellant which were confessional in nature were admitted without objection, the learned trial judge has a duty to test Exhibit ‘E’ in the light of other evidence to determine the veracity of its contents before it could be relied upon for the conviction of the Appellant for the alleged offence. It was argued that the trial judge ought to have subjected Exhibit ‘E’ to test with a view to ascertaining its veracity.
Reliance was place on Ojegele v. The State (1988) 1 NWLR (Pt 71) 414, Dawa v. State (1980) 8-11 SC 236: Udofia v. State (1984) 12 SC 139
It was submitted that the weight attached to Exhibit ‘E’ by the trial judge was not justifiable and occasioned miscarriage of justice to the Appellant as there was no corroborative evidence to justify the use of the aforementioned Exhibit. Reference was made to the case of Nwachukwu v. State (2007) 7 SCNJ 230 @ page 254.
This court was urged to interfere with the verdict of the trial court by re-evaluating the aforementioned Exhibits with a view to arriving at a proper conclusion in the interest of justice.
On her own part, Mrs. A.A. Adewemimo Esq, Counsel for the prosecution submitted mainly that the submission of the Appellant’s counsel was misconceived in view of what actually transpired at the lower court. That the steps leading to the admission of Exhibit “D” was clearly stated at page 28 of the records of appeal to the effect that the prosecution sought to tender the Exhibit “D’ but was objected to by the learned counsel for the accused on the ground that the author of the said Exhibit “D” should come to tender it on which the learned trial judge rightly overruled the objection on the basis that a document as in this appeal must not be tendered by the author.
On Exhibit ‘E’ and ‘E1’, it was contended that from the submission of the Appellant’s counsel, it is not in dispute that Exhibit ‘E’ and Exhibit ‘E1″ are confessional statements. That at page 28-29 of the records of this appeal, Exhibit “E’ and its translation Exhibit E1 were admitted with no objection from the defence. It was contended that the appropriate time to raise an objection against the tendering of a confessional statement is the time sought for it to be tendered. The case of Alarape v. The State (2001) 2 SCNJ 162 @ 182 Lines 6 – 17 was referred to.
On whether it was compulsory for Exhibit ‘E’ to be corroborated before a court can rely on it, it was submitted that Exhibit ‘E’ being a confessional statement need not be corroborated so long as it is voluntary and direct. The case of Solola v. The State (2005) 30 WRN page 89 @ page 127 Lines 30 – 45 was referred to.
It was finally submitted that the Exhibits in issue here were properly evaluated by the trial lower court and this court was urged to so hold.
RESOLUTION OF ISSUE ONE (1)
Whether the conviction of the Appellant for the offence of murder by the learned trial judge on the basis of Exhibit “D” (a post mortem result) as well as Exhibit “E” and “E1” (retracted confessional statements of the Appellant) is sustainable in view of the improper evaluation of the aforementioned Exhibits by the Court.
It was the main contention of the Appellant that the author of Exhibit “D” was never called for cross examination despite his counsel’s application that the medical doctor should be invited to “tender” the report and that there was no credible evidence to show that the prosecution could not secure the attendance of the medical doctor. Finally that Exhibit “D” is worthless since its maker was not cross examined to test the veracity of the report in accordance with the provisions of section 44(1) (A) of the Evidence Act. This can be seen in paragraphs 4:11- 4:29 of the Appellant’s brief of argument.
The above submission is in my opinion with due respect to the learned counsel to the
Appellant misconceived in view of what transpired before the Lower Court. Steps leading to the admission of the Exhibit “D” (post mortem) is clearly stated at page 28 of the records of appeal. At the stage that the prosecution sought to tender the post mortem report the learned counsel to the accused objected, and the only reason for objection was that the doctor should come and tender the report”. The reply of the learned counsel to the state was that: “since the IPO got the report in his capacity as IPO, it is admissible.”
The court then ruled as follows:
“There is no doubt that this witness is the IPO in this case and the report was given to him in the course of his investigation, therefore he can tender it since the doctor who prepared it has retired from service of government”.
Therefore, the post mortem report is admitted in evidence and it is marked as Exhibit “D”.
It is law that it is not compulsory that a medical doctor or maker of medical report must testify in all cases where evidence of medical report is required. See Section 55(1) and (3) of Evidence Act 2011 (formerly Section 42(1)(a) and the case of John Mamudu Buba V. The State (1992) NWLR Pt 215, 1; Ozoemena vs. State (1998) 10 NWLR (Pt. 571) 632 @ 648; Chewmoh vs. State (1986) 2 NWLR (Pt.22) 331.
Section 55(1) of the Evidence Act, 2011 provides:
“Either party to the proceedings in any criminal case may produce a certificate signed by a Government pathologist and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.”
Section 55 (3) provides thus:
“Notwithstanding subsections (1) and (2) of this Section, the court shall have the power, on the application of either party or on its own motion, to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the court if it is of the opinion that either for the purpose of cross examination or for any other reason, the interest of justice is so requires.”
From the clear wordings of the above provisions of the Evidence Act, S 55(1) and (3) talks about “the production” of signed and the calling of the maker of or signatory to the certificate to give evidence (or testify) in court. The two provisions it is submitted cannot be the same. The court is given discretion exercisable upon the application of either party or the court suo motu to summon the maker of the certificate to testify. The next issue is what was the ground of objection or application of the learned counsel to the tendering of Exhibit “D” before the Lower Court?
The counsel to the Appellant simply asked that the doctor should come and tender the report. This cannot by any stretch of imagination or interpretation be taken to mean the same thing as a request or application that the doctor is to give evidence so that he can be cross examined or that the doctor is required for cross examination.
In Nwachukwu V. The State (2002) 12 NWLR (PT.782) 543 AT 564 A-C, the Supreme Court held that an accused person who fails to apply for the (named) officer to give evidence cannot thereafter challenge the proceedings. See further: Bada vs. State (1992) 1 NWLR (Pt. 215) 1 @ 16.
The Appellant in this case, only challenged the tendering of Exhibit “D” by PW6, (a Police Officer) on the ground that the document being tendered was not authored by him and nothing more. But Section 55(1) of the Evidence Act, 2011 clearly allows the production of the certificate by either party in the absence of the maker and production may be taken as sufficient evidence of the facts stated therein. That is why Section 55(3) allows either party to request the presence of the maker for cross examination. However, Section 55(3) will only avail a party who has requested the presence of the maker of the certificate “to give evidence” before the court and not merely to “tender” the certificate.
Thus, the Appellant having failed to invoke the discretionary power of the court as provided for under Section 55(1) itself gave power to the court to accept the production of Exhibit “D” as full proof of facts contained in it even in the absence of the maker.
On whether Exhibit “D” was properly evaluated, the Lower Court held first at page 38 of Record that “the medical report, Exhibit “D” showed that there was a grimacing appearance of terrible pain during the mutilation procedure”. At page 48 of the Record the Lower Court held as follows:
“And in Exhibits “D” the cause of death was said to be due to Hypovolaemic/Neurogenic shocks as a result of the brutal mutilation of the head and neck off the main body.
It was also stated among others in the report that … “The separated head showed a grimacing appearance of terrible pain during the mutilation procedure”..
The Lower Court relied among others, on that Exhibit “D” and took it as sufficient evidence of the facts stated therein. Therefore, it will be right for the trial court to have relied on Exhibit “D” and the court is fully protected by the provision of Section 55(1) and (3) of the Evidence Act, 2011.
In the case of State V. Ajie (2000) 11 NWLR (Pt 678) 434 at 446 F,-F, the Court held that a medical officer in the service of a State for the purpose of undertaking a post mortem examination is a pathologist and his report is therefore a certificate as contemplated by the subsection (-Section 55(l) (a) of the Evidence Act 2011. The certificate when admitted is sufficient evidence of the facts stated therein.
It is a trite law that a documentary evidence speaks for itself. The facts as stated on the post mortem report (Exhibit “E’) are very clear, “…The separated head showed a grimacing appearance of terrible pain during the mutilation procedure. And that death was due to shocks as a result of the brutal mutilation of the head and neck off the main body”. Speculations by the Appellant’s counsel that the Lower Court ought to have examined the possibility of any dosage of herbal drugs or concoctions to have possibly caused what was clearly described is clearly unfounded and this court so holds.
On Exhibit ”E” and “E1”, it was the submission of the Appellant that the Lower Court made “wrong and parochial evaluation” of Exhibit “E” & “E1”. That the Exhibits having been retracted ought to have been corroborated before any reliance was placed on it. Also that the Lower Court ought to have searched for the particular act of the Appellant which was responsible for the death of the deceased whether it is the administration of the herbal solution in treatment of the deceased or a premeditated killing of the deceased.
From the records of this appeal, it is not in dispute even from the submission on behalf of the Appellant on Exhibit “E” and “E1”, that it is confessional. But, the questions that need be addressed, is: can Exhibit “E” be referred to as retracted confessional statement? Is it mandatory for a confessional statement to be corroborated before it can be relied upon to convict an accused person?
At pages 28-29 of the Record of Appeal Exhibit “E” and its translation Exhibit “E1” were admitted with no objection from the defense. It is the law that the time to raise an objection and retract a confessional statement is at the time it is sought to be tendered, and not any time thereafter. In Nwachukwu v. The State (supra), the Supreme Court addressing this issue held as follows:
“The retraction or denial by the Appellant of making it was during his evidence in-chief. It is now firmly settled as regards documentary evidence, that the proper time for taking an objection to its admission is when it is sought to be tendered and not later”.
See also Alarape v. The State (2001) 2 SCNJ 162 @ 182 Lines 6 – 17.
Apart from the denial that Appellant did not kill the deceased, there is nowhere in the record the Appellant denied the making of Exhibit “E” and “E1”. Thus, the Appellant having failed to raise any objection to admissibility of Exhibit “E” and “E1” at the stage when they were tendered, Exhibit “E” and “E1” cannot properly be referred to as a retracted confessional statement and this court so holds.
On whether it is mandatory for a confessional statement to be corroborated before a court can rely on it to convict an accused person, it is the view of this court so long as the confession was made freely and voluntarily and it is direct, positive is enough to sustain a conviction, it does not require corroboration. In the case Nwachukwu v. The State (supra) at page 569, it was held as follows:
“There is no doubt in my mind that Exhibit A was a confession by the Appellant of his guilt. The Lower Court said it that Exhibit A was quite direct and positive enough to warrant a conviction. I cannot agree more, In Olalekan V. State (2001) 18 NWLR (Pt.764) 793 at page 824 – H, this Court, per Onu, JSC held that where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an accused person, the statement is enough to ground conviction.
Thus, even without those corroborative acts, the Appellant could perfectly be convicted solely on his voluntary confession by an accused person is the best evidence a criminal court can conveniently admit to convict its maker … ”
See also Solola V The State (2005) 30 WRN page 89 at page 127 lines 30 – 45.
Further, in Durugo vs. State (1992) 7 NWLR (Pt.255) 525 @ 541, Wali, JSC (as he then was) held thus:
“The clear words in Section 27(2) (now Sections 28 and 29 of the Evidence Act, 2011) does not mention requirement of corroboration before basing a conviction on confession alone.”
In any case, whenever it is necessary that confessional statement be corroborated, it must necessarily be by oral evidence of an eye witness. Any other type of evidence will suffice. See: Aremu vs. State (1991) 7 NWLR (Pt. 201) 1 SC; Monday Edhighere vs. State (1994) 5 NWLR 312 @ 323.
I am given to agree that even if corroboration is necessary in respect of Exhibit E and E1, the evidence of prosecution witnesses and Exhibit D would have eminently satisfied that requirement. The appellant did not deny that the deceased was last seen with him and that he dismembered the deceased body and may be, kept the head of the deceased as a memorabilia in his ceiling and buried the dismembered body of the deceased in a shallow grace in his house.
In this appeal, the trial lower court at page 50 of the records held that “furthermore, in Exhibit “E” the accused stated that they wanted to use the deceased for money. He stated that be and Abiodun killed the deceased”.
Also at page 51 of the records, the Lower Court held that “There is evidence according to Exhibit “E” that the accused wanted to use the deceased for money making purpose. And in pursuance of this purpose the accused cut off the head of the deceased completely from the main body. The judge also relied on Exhibits “K1” and “K2” at page 49 in convicting the Appellant.
Exhibit “E” being a confessional statement need not be corroborated, on the authority of the above cited cases. What is more, in this appeal, the court did not even rely solely on Exhibit “E” as argued by the Appellant.See pages 48-51 of Records of appeal.
It is also trite law that documentary evidence speaks for itself and it is the view of this court that the contention of Appellant’s counsel was misconceived and so cannot hold water in view of the circumstances of this case.
On the whole, this court holds that the trial lower court properly evaluated and rightly relied on the Exhibits in issue here to convict the Appellant. This issue is hereby resolved in favour of the Respondent.
ISSUE II
“Whether the Prosecution proved the charge of Murder against the Appellant beyond reasonable doubt as required by Section 138 of the Evidence Act.”
ARGUMENT
The Appellant’s counsel submitted on this issue that it is the cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution which fact should be proved beyond reasonable doubt by virtue of Section 138 of the Evidence Act. The case of Odu v. State (2001) 5 SCNJ 115 @ page 121 was referred to.
It was further contended that having regard to the totality of the evidence adduced at the trial before the learned trial judge regarding the circumstances surrounding the death of the deceased, it is doubtful if the prosecution discharged the burden of proving the alleged charge of murder against the Appellant beyond reasonable doubt.
It was submitted that the charge preferred against the Appellant for which he faced trial and was convicted is murder contrary to Section 319 of the Criminal Code and to justify conviction for murder, the prosecution must prove beyond reasonable doubt the following ingredients:
(b) That the death of the deceased resulted from the act of the accused and
(c) That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable result or consequences.
The following undermentioned crises were referred to: Edwin Ogba v. State (1992) 2 NWLR (Pt 227) 64 @ 198, Akinfe v. The State (1998) 3 NWLR (Pt 85) 792; Omah v The State (1985) 3 NWLR (Pt 12) 236
It was argued that in the bid to prove their case, the prosecution called six witnesses while the Appellant testified in his own defence and it was beyond contention that none of the witnesses who testified on behalf of the prosecution was an eye witness to the circumstances that led to the death of the deceased. Consequently, the prosecution relied on circumstantial evidence in order to prove the alleged offence of murder against the Appellant.
It was submitted that the decision of the learned trial judge convicting the Appellant for murder at the end of the trial and sentenced to death was unreasonable and cannot be supported having regard to the circumstantial evidence adduced at the trial,
On her own part, the learned counsel for the prosecution submitted that the prosecution proved the offence of murder alleged herein beyond reasonable doubt as the six (6) witnesses were called and several exhibits were tendered including the confessional statement of the Appellant. Further that from the evidence adduced by the prosecution through PW6, the head and the dismembered body of the deceased including 2 stained cutlasses among other things was found in the house of Appellant who led the Police to the place.
It was also contended that the prosecution relied on both circumstantial evidence and the voluntary confession of the appellant to prove the ingredients of the offence of murder and it is submitted that both evidence were accordingly evaluated and rightly relied upon by the lower court. Pages 36-37 and 48-50 of the records of appeal were referred to. It was argued that it is a trite law that a case can be proved beyond reasonable doubt by either direct or circumstantial evidence or voluntary confession of the accused person. The case off Adio & Anor v. State (2005) 4 ACLR 296 @ 309 – 310 was referred to.
This court was urged to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE II
There is no doubt that it is now a principle of law devoid of celebrations that the onus is usually on he who alleges to prove and the standard of proof in all criminal trials is beyond reasonable doubt. The pertinent question now is what is “proof beyond reasonable doubt”? It is trite that “proof beyond reasonable doubt” does not mean certainty of truth but means a high degree of probability of the accused’s commission of the alleged offence. In the ancient but famous case of Miller v Minister of Pensions (1947) 2 All E. R. 372 at 373 H, Denning, J. (as he then was) gave a legal meaning of proof beyond reasonable doubt this way:
“The degree is well settled. It needs not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to defeat the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt.”
The above reasoning was fully adopted by our Supreme Court in LORI V. THE STATE (1980) 12 NSCC 269 – 279. The doubt that can avail an accused person must have evidential basis and the mind of the court must by it be thrown into a state of uncertainty as to the true circumstances as it occurred and in particular as to whether the suspect had committed it. See State v. Akpabio (1993) 4 NWLR (PT 286) 204 at 224 H.
To prove the case against the Appellant at the Lower Court, the Prosecution called 6 witnesses and tendered exhibits that include the statements of the Appellant in which he confessed that he killed the deceased. See Exhibits E, E1, G, G1, H, H1, J1, J2, K1, K2 and K3. From the evidence adduced by the prosecution through PW6, the head and the dismembered body of the deceased including 2 stained cutlasses among other things were found in the house of the Appellant who led the Police to the place.
In the instant appeal, the prosecution relied on both circumstantial evidence and the voluntary confession of the accused to prove the ingredients of the offence of murder.
It is trite law that a case can be proved beyond reasonable doubt by either oral evidence or by circumstantial evidence or voluntary confession of the accused, See Adio & Anor v. State (2005) 4 ACLR 296 at 309 or 310.
The contention of the Appellant as regards whether the case against him was proved beyond reasonable doubt has to do with the two ingredients of the offence of murder, viz:
i. that the death of the deceased resulted from the act of the ‘accused or was caused by him;
ii. That the death of the accused was intentional with the knowledge that death or grievous bodily harm was it probable cause.
See page 32 paragraph 6.01 of the Appellant brief of argument.
To prove the cause of death as being the act of the Appellant the prosecution relied on the evidence of PW4 & PW5 and the confessional statements of the Appellant and the Doctor’s post mortem report, Exhibit “D”. See pages 36-37 of Record. The Lower Court in determining whether this ingredient was proved beyond reasonable doubt referred copiously to evidence of PW2, PW4, Exhibit “D” (the post mortem report), the confessional statements of the Appellant, especially Exhibits K1 and K2, where the accused said that he slaughtered the deceased, Exhibit “E” where the accused states that they wanted to use the deceased for money rituals. See page 47 line 248 to page 50 of Record. It must be stated at this juncture that the admissibility of the statements of the accused was never objected to at the trial. The Court adjudged Exhibits K1 and K2 as confessional (see page 49 of Record) and also relied on Exhibit E. The Lower Court on the evidence referred to above, made his findings and concluded as follows:
“A critical look at the evidence proffered by the prosecution, statements made by the accused and his evidence on oath showed that he is a liar and a criminal, I do not believe him.
In view of the foregoing, my conclusion is that the death of the deceased (Sakiratu Abeki) resulted from the brutal mutilation of the head and neck of the decision off the main body. The accused himself admitted dismembering the body of the deceased but he said that deceased was already dead before he dismembered her body.”
From the records of this appeal, the Appellant confessed that he killed the deceased for money making ritual. The confessional statements were tendered without any objection. PW6 testified on oath that the head and the dismembered body of the deceased were recovered from the house of the Appellant, and the post mortem report states that death was due to hypovolaemic/neurogenic shocks as a result of the brutal mutilation of the head and neck off the main body. It is the view of this court that both the circumstantial evidence and voluntary confession of the Appellant proved beyond reasonable doubt this ingredient of the offence of murder, that is, that the act of the Appellant caused the death of the deceased. This court so holds.
The prosecution at the trial also relied on the circumstantial evidence and voluntary confession of the Appellant. Reliance was also placed on Exhibit “D” and other Exhibits. The Lower Court while adjudging this ingredient proved and relied on Exhibit “E” and “D” and the court concluded as follows:
“There is evidence according to Exhibit “E” that the accused wanted to use the deceased for money making purposes. And in pursuance of this purpose the accused cut off the head of the deceased completely from the main body and she died.
The medical report Exhibit “D” showed that there was grimacing appearance f terrible pain during the mutilation procedure by the accused.” See page 51 of Record.
Exhibit “E” is a confessional statement admitted without objection from the Appellant and PW6 also gave evidence that the head of the deceased was found in the ceiling at the house of the Appellant.
It is therefore the humble view of this court that the finding and conclusion of the Lower Court is reasonably and this court so hold.
Far from being too emphatic, may I point out at this point that generally, the prosecution proved the charge against the Appellant beyond reasonable doubt and that the Lower Court was right to have convicted the Appellant on the circumstantial and voluntary confession evidence proffered by the prosecution.
In Adio & Anor. vs. State (Supra) at page 309 and 310, the Supreme Court held that:
“Circumstantial evidence can prove a case beyond reasonable doubt but far above those methods of proof is voluntary confessional of guilt by an accused himself. A free and voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without further corroboration to warrant a conviction”
Furthermore, in Nwachukwu v. The State (2002) 12 SCM (PT.2) 447 at 469, the Supreme Court unanimously held on voluntary confession as follows:
“There is no doubt in my mind that Exhibit “A” was a confession of the Appellant of his guilt. The Lower Court said it that Exhibit “A” was quite direct and positive enough to warrant a conviction. I cannot agree more.
In Olalekan v. State (2001) 18 NWLR (Pt.746) 793 at page 824 – H, this Court, Per Onu, JSC held that where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an accused person, the statement is enough to ground conviction …thus even without those corroborative acts, the Appellant could perfectly be convicted solely on his voluntary confessional statement. I am of the opinion that a positive direct and voluntary confession by an accused person is the best evidence a criminal court can conveniently admit to convict its maker. The admission of a confessional statement which has satisfied all the requirements of the law to be “confessional, properly so called can satisfy the burden of proof required of the prosecution to discharge in order to secure a conviction.”
In this appeal, the evidence proffered by the prosecution shows that the deceased was see last with the Appellant, her head and dismembered body were found in his possession in his house where he took the Police to. The head of the deceased was found in the ceiling while the other parts were buried in a shallow grave in the house. The Appellant confessed; in his statements to Police that he cut the head of the deceased and that he killed her for money making ritual. The statements were admitted without objection from the Appellant, the doctor’s report also confirms the story of the Appellant. It is the view of this court that the circumstantial evidence is cogent, positive and direct to ground conviction.
It is my view further that medical report, opinion or evidence is often the testimony or opinion which an expert gives in relation to some scientific, specialized, technical or professional matters. It is the evidence of the person qualified to speak with some amount of authority by reason of their special training skill, mastery or familiarity with the subject matter in question that can be allowed to give an opinion. There is no doubt that an opinion of an expert especially in the employment of government expressed in writing can be tendered in evidence by another other than the author. It is however imperative to note that such expert opinion ought to be tendered by the author especially for the purposes of cross examination, peculiarity and technicality of the said opinion which demands some expert answers as the author is presumed to be knowledgeable in the field as expressed in the document to be tendered in evidence.
In the instant appeal, there was no evidence to the effect that the author of Exhibit D was dead or that it was in practicable to summon him to give evidence. The evidence to the fact that the author had retired from the service of government and could not be called to give evidence is to my mind of no moment.
Be that as it may, the global trend is geared toward abolition of death sentence as two wrongs can never make a right. The recent decision of our apex court in the corruption case involving Chief Olabode George in Suit No. SC/180/2012 (per John Afolabi Fabiyi, JSC and SC.217/2012 (per Kumai Bayang Akaahs) gave credence to this global outcry against death sentence. Chief Olabode George was sentenced to prison by High Court of Lagos State. After he has finished serving the prison terms, the apex court exculpated him of any criminal wrong doing. Had same being death by hanging and he had been hanged, same cannot be reversed. Death sentence once carried out, can never be reversed. No human can create life. The cautionary adage that “it is better to let go off the hook one thousand men than to hang to death one innocent man”, cannot be more pertinent.
On the whole, this appeal fails and the decision of the Lower Court convicting the Appellant is hereby affirmed. However, the death sentence of the Appellant is hereby reduced to life imprisonment in view of the foregoing and sanctity of life.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment of my learned brother Sotonye Denton-West JCA, I do agree with the judicial conclusion that the appeal lacks merit. In the instant case, the only logical consequence of the judicial conclusion is to affirm the judgment of the court below.
For this reason I am unable to agree with the post-script sentiment expressed by my learned brother Sotonye Denton-West JCA of commutating the appropriate sentence of death penalty to life imprisonment.
Such powers of commutation of death penalty to life imprisonment as expressed by my learned brother is ultra vires the courts, it properly belongs to the executive and/or legislative arm of government. It does not lie within the province of the judicial arm of government to execute or to make laws. At the same time, the courts have frowned on the usurpation of the powers of one arm of government by another arm of government.
Indeed, the principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach into the powers of the other.
See: A-G, Abia State V. A-G, Fed. (2003) 4 NWLR (Pt. 809) 124. Amadi V. NNPC (2000) 6 SC (Part 1) 66 at 94 – 95.
For a court of law to competently interfere with constitutional duties of the executive and/or the legislature there must be controversy.
Controversy in this sense must be one that is appropriate for judicial determination.
See: Asogwa v. Chukwu (2003) 4 NWLR (Pt. 811) 540.
In the instant case, there was no appeal on the sentence imposed by the court below on the appellant neither was there any other controversy in relation to the appeal that called for the commutation of the death penalty imposed on the appellant to life imprisonment after affirming the judgment of the court below.
In any event, where a mandatory sentence is prescribed by law as in the instant case death penalty, the court cannot impose a lesser sentence.
See: Balogun V. A-G Ogun State (2002) 6 NWLR (Pt. 1029) 1.
Also, in Nigeria, the offence of murder as well as armed robbery carries the maximum capital punishment. In the cases of Okoro V. the State (1988) 14 NWLR (Pt. 184) 181 and Akinyemi V. State (1999) 6 NWLR (Pt. 607) 449, it was held that death penalty and its method of execution is lawful and valid in Nigeria as it is sanctioned by Sections 30(1) and 31(1)(a) of the then Constitution of Nigeria t979.
This is such that neither life imprisonment nor a sentence of ten years can be regarded as sufficient punishment of murder, notwithstanding the fact that the accused had remained in prison custody for ten years awaiting trial. See: Yahaya V. State (2002) 3 NWLR (Pt. 754) 289. For these reasons, I affirm the conviction and sentence imposed on the appellant by the court below (the High Court) in this case.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was opportuned to read in draft the lead judgment just delivered by my learned brother DENTON-WEST, JCA and I am in agreement with the reasoning and conclusion reached therein, save as it relates to the sentence.
Whilst the prosecution in a charge of murder which carries death sentence is expected by law to prove its case beyond reasonable doubt that does not mean that it can only do so by calling a host of witnesses. Aside from the testimony of eye witnesses, conviction can be secured based on the evidence of one credible witness or even on the confessional statement of the accused person. A statement such as Exhibit E-E1 which were made freely without any proof of coercion and which were tendered before the trial court without any objection to its admissibility would not necessarily be required to be corroborated before the court can convict on it.
Exhibit E-E1 coupled with other relevant facts which I hold as duly proffered and proved , by the prosecution are enough in the circumstances to ground the conviction of the appellant. In my view the appeal is of no consequence and cannot succeed. For this and the fuller reasoning of His lordship in the lead judgment, I also dismiss the appeal and affirm the conviction of the appellant. Also affirmed is the death sentence imposed by the learned trial Judge as I view same to be the mandatory sentence for capital offences.
Appearances
O.O.Ojutulayo Esq.For Appellant
AND
A. A. Adewemimo MrsFor Respondent
