OFFISHY OGUN V. THE STATE
(2012)LCN/5666(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of November, 2012
CA/B/307C/2010
RATIO
“(d) What is corroboration? This was explained by Coker JSC in OKABICHI & ORS V. THE STATE (1975) 1 ALL NLR 7 thus: “Corroboration is evidence which may be direct or circumstantial but in any case it is the duty of the court to ascertain that whatever evidence is being used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular. See RV MADAN (1938) 4 WACA 39.” Per AWOTOYE, J.C.A.
“(e) When a confessional statement of an accused is attested to by a senior police officer, it is not necessary to call the senior police officer as a witness by the prosecution, as the procedure of such attestation is a mere administrative procedure and not a legal requirement. See RV NWIGBOKE (1959) SCNLR 248; EGBOGHOME V. THE STATE (1993) 7 NWLR (PT. 306) 383. However, the evidence of the attesting officer, in my view, becomes relevant to give strength to a challenged weak evidence of the Investigating police Officer when the confessional statement is retracted by the accused and when there is no other strong corroboratory evidence. It does not have a nuisance value” Per AWOTOYE, J.C.A.
CRIMINAL LAW AND PROCEDURE: DUTY OF THE PROSECUTION IN CRIMINAL TRIAL
“(a) In every criminal case, it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. See AKHIMIEN V. THE STATE (1987) NWLR (PT. 52) or (1987) 3SC. 734; IGBABELE V. THE STATE (2006) 6 NWLR (PT. 975) page 100; AGBO V. THE STATE (2006) 6 NWLR (Pt. 977) page 545; OTEKI V. A.G. BENDEL STATE (1986) 2 NWLR (PT. 24) Page 648.” Per AWOTOYE, J.C.A.
CRIMINAL LAW AND PROCEDURE: MURDER: INGREDIENTS THAT MUST BE PROVED UNDER THE OFFENSE OF MURDER
“The following ingredients must be proved beyond reasonable doubt before a person can be convicted of murder: 1. That there was a killing 2. That the killing was unlawful 3. That it was the act or omission of the accused person that caused the death of the deceased 4. That the accused had intended to cause the death of the deceased Despite the major lacuna already pointed out in the prosecution’s case, the trial court went ahead to rely solely on the retracted confessional statement of the Appellant.” Per OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
OFFISHY OGUN Appellant(s)
AND
THE STATE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the accused who was sentenced to death by hanging by Azinge on 15/6/2010 on conviction for the offence of murder by Azinge J of Delta State High Court. The prosecution opened its case on 17/7/2007 and closed it on 25/11/2008 before Osadebay-Akpononu J. (Mrs.).
On 20/1/09 the defence made no-case submission which was subsequently overruled by Azinge J on 17/3/2009. The accused later gave evidence after which the learned trial judge gave judgment and convicted him on 15/6/2010.
The prosecution in its case, called 3 prosecution witnesses – namely Mrs. Doris Seiyafa, senior sister to the deceased Chukwute Ogbodolu. She identified the corpse of the deceased; Francis Nkadi Nwachokor, a consultant pathologist who did the autopsy and Sergeant victor Dauladi Force No. 152980 who did the investigation.
It is significant to note that
(a) no eye witness was called as a witness and
(b) the 3rd PW, Sergeant Dauladi did not complete his evidence under cross-examination.
(c) The 3rd PW who tendered the statement of the accused was described by the trial judge as “a recalcitrant and undisciplined police IPO “whose altitude and conduct” is very irritating and offensive” to the court and smacks of gross force in very bad light. See pages 65- 66 of Record of Appeal.
(d) the learned trial Judge relied heavily on said statement deeming that it was corroborated by the evidence of PW2.
In her judgment the learned trial Judge found as follows on page 98 of Record.
“… I find and hold strongly that the prosecution has adduced enough evidence to prove the case of murder against the accused person beyond reasonable doubt. The accused is therefore found guilty of the offence of murder… and he is hereby convicted accordingly.”
Being dissatisfied with the judgment the appellant vide his Notice of Appeal filed on 16/8/2010 appealed to this court.
The grounds of appeal (shorn of the particulars) are:
”GROUND ONE
The learned trial Judge erred in law when it convicted the Appellant for the offence of murder based on Exhibit A.
GROUND TWO
The learned trial erred in law in holding that Exhibit A was corroborated by the evidence of PW2.
GROUND THREE
The learned trial Judge erred in law in convicting the appellant when the prosecution failed to prove the offence as charged beyond reasonable doubt as required by law.
GROUND FOUR
The judgment of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the evidence.”
After transmission of record of appeal the appellant filed his brief of argument settled by Ayo Asala his counsel on 21/9/2010. The respondent filed his brief of argument on 19/5/2011. It was deemed properly filed on 29/11/2011.
Ayo Asala learned counsel for the appellant formulated two issues for determination on behalf of the appellant.
They are:
“(1) Whether the learned trial judge was right to have retied on Exhibit A to convict the Appellant for the offence of murder.
(2) Whether from the totality of the evidence on the record the lower court was right in convicting the appellant for the offence of murder.”
On Issue No 1:- Learned counsel submitted that the learned trial judge was wrong to have relied on Exhibit A the retracted statement of the accused in convicting the appellant for the offence of murder inspite of the fact that the accused retracted the statement. He submitted that the retracted statement was challenged and so should not have been taken as true and correct. He relied on SHEHU V. THE STATE (2010) ALL FWLR (PT. 523) page 1841 at 1866; NWACHUKWU V. THE STATE (2008) 6 ALLR 336 at 356 – 366 and some other cases. He submitted that there was no other evidence apart from the statement to link the accused to the crime.
He further argued that the failure of PW3 to make himself available for cross-examination left very serious doubt on his evidence. He cited AIGBANGBE V. THE STATE (1998) 1 A.C.L.R. page 168 at 208. He added that the learned trial judge ought to have rejected the evidence of PW3 including Exhibit A as PW3 did not make himself fully available for cross-examination.
Learned counsel referred to the case of OKWA V. IWEREBOR & ORS (1969) ALL NLR page 83 at 86 where Ademola C.J.N. stated the law thus:
“The law as to the position of a witness who died before cross-examination on his evidence in chief appears to be settled. It is clear that it is accepted that such evidence is legal but the weight to be attached to such evidence should depend upon the circumstances of each case.”
Learned counsel for the appellant further referred to HALSBURY LAWS OF ENGLAND 3RD EDITION VOLUME 15 PARA 800 where it is stated that “no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination”. He finally urged the court to hold that this appeal succeeds on this issue resolving the issue in the appellant’s favour.
On Issue No. 2, Ayo Asala, appellant’s counsel contended that the lower court was wrong to have convicted the appellant for the offence of murder as there was no eyewitness account that it was the appellant that killed the deceased and the circumstances did not positively identify the appellant as the killer. He submitted that the learned trial Judge did not evaluate the evidence adduced before her. He cited MOGAJI V. ODOFIN (1978) 4SC, 91, 93 – 94.
Learned counsel further argued that the failure on the part of the prosecution to call the vital witness and tender the weapon used to commit the offence was fatal to the prosecution’s case. He relied on THE STATE V. AJIE (2000) FWLR (PT. 16) 2831 at 2844.
He finally urged the court to resolve the second issue in the appellant’s favour, allow the appeal and discharge and acquit the appellant. In the Respondent’s brief settled by Chief V.E. Otomiewo, Hon. Attorney-General and Commissioner for Justice, Delta State, learned counsel formulated two issues for determination. They are:
“(1) Whether the learned trial judge was right to have relied on Exhibit A to convict the Appellant for the offence of murder.
(2) Whether there was evidence upon which the learned trial judge relied on when he held that the prosecution proved its case against the appellant beyond reasonable doubt.”
On issue No. 1, Hon. Attorney-General for Delta State submitted that the learned trial Judge was right to have relied on the extra-judicial statement of the appellant i.e. Exhibit A in convicting him. He referred copiously to the contents of Exhibit A and stated the learned trial Judge complied with the Provision of S.27 (2) of the Evidence Act in relying upon it. He argued further that the retraction of the statement by the appellant did not render the confessional statement inadmissible. He cited BATURE v. THE STATE (1994) 1 ALL NWLR (PT.320) 267; ALARARE V. THE STATE (2001) 84 LRCA, 600 at 622; UBIERHO V. THE STATE (2006) 5 LRCNCC 201 at 215. He stated that an accused could be convicted based on the confessional statement so long it was free and voluntary. He relied on EGBOGHOME V. THE STATE (1993) 7 NWLR (PT. 306) page 385.
Learned counsel for the Respondent on the issue of non-conclusion of cross-examination of PW3, submitted that this was not fatal to the case as same was not prejudicial to the defence of the appellant. He urged the court to resolve this issue in the Respondent’s favour.
On Issue No. 2, Hon. Attorney-General of Delta State submitted that the learned trial Judge rightly convicted the accused. He stated that the learned trial Judge sought and relied on the evidence of PW2 to corroborate Exhibit A. He added that attestation of confessional statement was not mandatory. He relied on KASS V. THE STATE (1994) 5 NWLR (PT. 344) 269 at 289 and IKPO V. THE STATE (1995) 9 NWLR (PT.421) 540 at 559.
He contended further that the non-tendering of the knife allegedly used by the appellant to stab the deceased as exhibit was not fatal to the prosecution’s case. He cited STATE V. USMAN (2007) 5 ACLR 34 Ration 18. He finally urged the court to dismiss the appeal.
I have carefully considered the evidence adduced at the lower court, as well as the submission of learned counsel as canvassed in their respective adopted briefs of argument.
I have gone through the various issues formulated by parties. I am of the considered view that issue No. 2 as formulated by the appellant is wide enough to embrace all other issues. I therefore adopt issue No 2 as formulated by appellant as the sole issue for determination in this appeal.
For clarity’s sake I still restate the issue:
WHETHER FROM THE TOTALITY OF THE EVIDENCE ON THE RECORD, THE LOWER COURT WAS RIGHT IN CONVICTING THE APPELLANT FOR THE OFFENCE OF MURDER.
From the record of appeal, the prosecution opened its case on 17/7/2007 before Hon. Justice F.N. Osadebay-Akpunonu (Mrs.) PW1 gave evidence on that day. PW2 gave evidence before the same Judge on 7/8/2007 PW3 was the I.P.O. He gave evidence on 22/7/2008 before the same Osadabay-Akunonu J., who also foreclosed the evidence of PW3 and closed the prosecution’s case on 25/11/2008.
On 20/1/2009, no-case submission was made before another Judge Azinge (Mrs.) J. Ruling on the no-case submission was delivered on 17/2/2009 by the same Hon. Justice Azinge (Mrs.).
From the record before me, none of the PW1 – PW3 gave evidence before the learned trial Judge so she could not have had the opportunity to assess their respective demeanour.
The accused gave evidence and was cross-examined on 17/3/09. Judgment was later delivered on 15/6/2010. In the Judgment of the learned trial Judge, she relied heavily on the evidence of PW2, Dr. Francis Nkedi Nwachokor and Exhibit A the confessional statement allegedly made by accused.
It is important to quote part of the evidence PW2 gave under examination in chief. He gave evidence on pages 52 – 53 inter alia thus:
“PW2- Sworn on Holy Bible and states in English Language. My names are Francis Nkadi Nwachokor. I live at No. 5 Meye Close GRA Warri. I am a Medical Practitioner, consultant pathologist with the Hospital Management of Delta State and attached to Central Hospital Warri. On the 8th of December 2007, I was on duty at Central Hospital Warri that is my duty post when one ASP Clifford Asuquor from Asaba State CID asked that post mortem be done on the body of Chukwute Ogbogolo whose body was said to be lying at the Central Hospital Mortuary, I proceeded to carry out autopsy based on the coroner’s request, the authority for me to carry out the postmortem which the ASP Clifford Asuquor. There one Doris Seyiefa identified the body, she is the immediate elder sister to the deceased, on examination, I found a slim built dark complexioned young man that is the body of young man or estimated age of about 32 years.”
PW2 gave thus evidence on 7/8/2007 and yet he gave evidence to the effect that it was on 8/12/2007 that he was asked to conduct the postmortem on the body of the deceased. As afore-stated this witness did not give evidence before Azinge J. who delivered judgment. I shall comment more on this later in this Judgment Exhibit A on which the learned trial Judge also relied was tendered by the I.P.O. who had been strongly condemned by the Judge before whom he gave evidence. This witness did not make himself available for conclusion of cross-examination. It is significant to note that on page 61 of the record of appeal the accused objected to the admission of the statement on the ground that he was not the maker. One can safely state that the accused person did not have reasonable time and sufficient time to cross-examine the I.P.O.
The record on page 62 shows this clearly thus.
CROSS-EXAMINATION: I have been in the police force for nineteen years. No, I did not accompany the PW1 and PW1 to the mortuary where the deceased was deposited. The scene of the crime was No.93 Okere Road Warri. The chairman of Oki Street, one Aduria, I cannot remember his surname. It is not correct that I recorded the case of assault and not a case of murder in the police crime diary.”
It was at point that the case was adjourned for further cross-examination of the PW3 i.e. IPO. He never came back to court for further cross-examination.
Was the learned trial Judge right to have relied on the above evidence to convict the accused?
Before answering the above question there is need at this juncture to state some principles of law pertinent to this appeal.
(a) In every criminal case, it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. See AKHIMIEN V. THE STATE (1987) NWLR (PT. 52) or (1987) 3SC. 734; IGBABELE V. THE STATE (2006) 6 NWLR (PT. 975) page 100; AGBO V. THE STATE (2006) 6 NWLR (Pt. 977) page 545; OTEKI V. A.G. BENDEL STATE (1986) 2 NWLR (PT. 24) Page 648.
(b) Fair hearing is said to have been done where parties are allowed equal opportunity to present evidence to cross-examine witnesses and for the trial court to make findings which are supported by evidence. See ARIORI V. ELEMO (1983) 1 SC. 13 at 81; OMONIYI V. GENERAL SCHOOLS BOARD, AKURE & ORS (1988) 4 NWLR (pt. 89) page 449; EJINDU V. OBI & ORS (1997) 1 NWLR (PT. 43) where the principle of fair hearing has been abandoned in any proceeding, such shall be set aside. See EJINDU V. OBI & ORS (SUPRA).
(c)When an accused retracts a confessional statement what weight does the court attach to such statement?
This question was answered by Obaseki JSC, in DAWA V. THE STATE (1980) 8 – 11 SC. 236 at 267 – 268 as follows:
On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in RV SYKES (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in KANU V. THE KING (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a Judge must ask himself are:-
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made is it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession Possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
“If the confessional statement passes these tests satisfactorily, a condition founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it, on appeal it will be hard to sustain”
(d) What is corroboration? This was explained by Coker JSC in OKABICHI & ORS V. THE STATE (1975) 1 ALL NLR 7 thus:
“Corroboration is evidence which may be direct or circumstantial but in any case it is the duty of the court to ascertain that whatever evidence is being used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular. See RV MADAN (1938) 4 WACA 39.”
(e) When a confessional statement of an accused is attested to by a senior police officer, it is not necessary to call the senior police officer as a witness by the prosecution, as the procedure of such attestation is a mere administrative procedure and not a legal requirement. See RV NWIGBOKE (1959) SCNLR 248; EGBOGHOME V. THE STATE (1993) 7 NWLR (PT. 306) 383.
However, the evidence of the attesting officer, in my view, becomes relevant to give strength to a challenged weak evidence of the Investigating police Officer when the confessional statement is retracted by the accused and when there is no other strong corroboratory evidence. It does not have a nuisance value.
I shall view the facts of the case in this instant appeal in the above light. In the first place, in my respectful view it was wrong of the learned trial Judge to have relied on the evidence of witnesses who did not give evidence before her. From the record of appeal, it is clear that she took over the matter after the prosecution had closed its case on 20/01/2009 (See page 66 of record of appeal). Her Lordship could not assess the demeanour of the witnesses and could not see their evidence being tested under cross-examination by the defence.
As a result of this the learned trial Judge relied on the evidence of a witness who had been described as “undisciplined and recalcitrant” by Osadebay-Akpunonu J. who heard the witness.
To my mind, in a situation where the accused has retracted his statement, stating that he did not make the said statement, the demeanour of the IPO who tenders the statement gives strength or otherwise to such a statement. How could an undisciplined and recalcitrant officer who claimed to have taken a statement which the accused had strongly denied be believed, moreso when the learned trial Judge did not have the opportunity of watching his demeanour when he gave evidence? How could an officer who refused to come to court for conclusion of cross-examination be believed when it was reasonable to hold that he ran away because he did not want his deceitful and wicked acts to be exposed to the court under further cross-examination? How could the court have overlooked the fact that the failure of the IPO to come for further cross-examination caused a denial of right to fair hearing of the accused/appellant? How on earth could the evidence of PW2 constitute corroboration to the statement of the accused Exhibit A, when the issue was not the death of the deceased but who killed him? PW2 gave evidence as to cause of death after conducting autopsy on the body of the deceased. The autopsy report was not referred to by PW3 neither was it tendered by him inspite of the conflicting dates given by PW2 and PW3 on the date of the autopsy.
Not only that, why on earth was the eye-witness to the crime who made statement to the police as per pages 17 – 18 of record of appeal not called as a witness? When she was the only eye-witness and the accused had not admitted the commission of the offence? All the above stated ought to have created serious doubts in the mind of the trial Judge which ought to have been resolved in favour of the accused. It should be noted that a high degree of proof is necessary to secure a conviction of murder. The prosecution in my humble opinion failed to prove the guilt of the accused. The fact that the deceased was stabbed was not the issue. What was in issue was whether or not the accused stabbed him. The fact that the deceased was stabbed was known to the IPO. It is reasonable to hold that he mischievously included the fact in the said statement, having regard to his demeanour. This could not be held to be a form of corroboration.
True, assessment of credibility of witnesses is the exclusive right of the trial court and an appellate court will not interfere with findings of facts having from the assessment of witnesses unless in very exceptional cases.
See ASANYA V. THE STATE (1991) 1 NWLR (PT. 150) PG. 422; BAMGBADE V. BALOGUN (1994) 1 NWLR (PT. 323) 778. However I hold that this is one of the very exceptional cases where this court can interfere.
In the light of all the above, I resolve all the issues in favour of the appellant as the prosecution failed to prove its case beyond reasonable doubt.
This appeal has merit. It is hereby allowed. The Judgment and conviction of the trial court is hereby set aside. In its place I order that the accused is discharged and acquitted.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother TUNDE OYEBANJI AWOTOYE JCA, and I am in complete agreement with his reasoning and conclusion that this appeal be allowed. I will add a few words.
The appellant was arraigned and charged at the trial court with the offence of murder punishable under Section 319 (1) of the Criminal Code Law of the defunct Bendel State 1976 as applicable to Delta State. He was accused of stabbing to death of one Chukwutie Ogbogolo on the 22nd day of July, 2005 at Warri in Delta State. The prosecution called three (3) witnesses and tendered Exhibit ‘A’, a confessional statement purported to have been made by the appellant while only the appellant testified in his own defence. He denied ever making any confessional statement. At the end of the trial, the learned trial Judge, relying on exhibit ‘A’ convicted the appellant of murder and sentenced him to death by hanging. The appellant being dissatisfied with the said judgment has brought this appeal.
Both Counsels identified two similar issues for determination. Both issues can be crystallised into the question whether from the totality of the evidence before the trial court the Appellant should have been convicted as charged.
The first question is whether the learned trial Judge was wrong to have relied on Exhibit ‘A’ in convicting the Appellant of murder while rejecting the evidence given by the Appellant to the effect that he did not make Exhibit ‘A’.
It is to be pointed out that during the trial, the Appellant had objected to the admission of Exhibit ‘A’ on the ground that he did not make the statement or any other statement. The Appellant had reiterated this denial when giving his oral evidence.
There is a difference between a statements retracted where the accused denied making it as opposed to where the accused claimed that the statement was not voluntary. The trial court where a statement has been retracted is obliged to be careful of the weight to be attached to such evidence.
It is trite that a court can convict on the confessional statement of an accused person alone as long as it is direct, positive and unequivocal. See EGBOGHOME V. THE STATE (1993) 7 NWLR Pt. 306 Page 385; ALARAPE V. THE STATE (2001) 84 LRCN 600 at 622. It seems to me that the real question before this court is not whether the court could convict the Appellant on the basis of his confessional statement alone, but whether Exhibit ‘A’ is in fact direct, positive and unequivocal.
In SOLOLA V. STATE (2005) All FWLR Pt. 269 Pg. 1751 at 1782 it was held as follows:
“A confessional statement is the best evidence in our criminal proceeding. It is a statement of admission of guilt by the accused and the court must admit it in evidence. Unless it is contested at the trial, our procedural law requires that the trial Judge should conduct trial within trial for the purpose of determining the admissibility or otherwise of the statement. Once a confessional statement is admitted, the prosecution needs not prove the case against the Accused beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the Accused”
There is no doubt that since exhibit ‘A’ is a retracted confessional statement, it was desirable to have outside the exhibit some other corroborative evidence or circumstances which would make the statement probable and also link the accused person with the commission of the offence. The law is that the trial court ought to have tested the veracity or otherwise of exhibit ‘A’ by comparing the evidence given in it with other facts and circumstances outside the statement in order to see whether they support, confirm or corroborate the statement. See Nwachukwu V. The State (2008) 6 ACLR 336 at 355 and 356; Kazeem v. State (2009) All FWLR Pt. 455 Pg. 1749 at 1771.
The facts of this case must be distinguished from the case of Uguru v. State (2005) 4 ACLR 523 at 535 which the trial Judge relied on to convict the appellant. In Uguru v. State supra, the appellant was caught while attacking the deceased and the issue determined by that case was whether it was the injury inflicted by the appellant on the deceased that caused his death.
I have read Exhibit ‘A’ the confessional statement and also the evidence of the Appellant person on oath. Exh. ‘A’ contains what the Appellant was alleged to have written wherein he said that he had happened on the deceased and his sister, one Rukeve Omoka in his grandmother’s room while the former was attempting to rape the latter. This had led to a confrontation where the Appellant had supposedly stabbed the deceased to death. During examination and cross-examination of the Appellant at the trial court, the Appellant denied having a sister by that name. He denied also living in the house where the murder was committed as contained in the said ‘Exhibit A’. The prosecution failed to produce Rukeve. They also did not attempt to explain the connection between Rukeve and the Appellant. The prosecution also failed to prove conclusively that the Appellant had before the murder, been a resident of the house where the deceased was killed. There was also no single eye witness evidence to place the Appellant at the scene of the crime. There were no eye witness account and the circumstances surrounding the crime as presented by the prosecution did not positively identify the Appellant as the killer. None of the witnesses called by the prosecution witnessed the crime.
To worsen the situation, the officer who was alleged to have taken down the confessional statement was not available for cross examination.
The Appellant’s testimony on oath was that he was a victim of mass arrest.
The Appellant had stated in his oral evidence before the court as follows:
“On the 22nd July, 2005, I was at Hausa quarters sewing shoes. That day I was sewing shoes, when I saw people running so I was unable to run because of my bad leg so the army got hold of me. I was not the one who murdered Chukwutie. When the army arrested me they were shooting and they took me to their vehicle where some other people were lying there, the army slapped me and told me to lie down in the vehicle. They took us to ‘A’ Division, the next day the other people were bailed remaining only me in the cell”.
There was a controversy at the trial court as to how the Appellant was arrested. The prosecution through PW3 stated that the Appellant was arrested and brought to the station by one Mr. Adinna, the complainant but failed to call Mr. Adinna as a witness. It is conceded that the prosecution is not bound to call a host of witnesses or a particular witness to prove its case. However, the prosecution is bound to call a material whose testimony will shed light on the circumstances grounding the charge.
The following ingredients must be proved beyond reasonable doubt before a person can be convicted of murder:
1. That there was a killing
2. That the killing was unlawful
3. That it was the act or omission of the accused person that caused the death of the deceased
4. That the accused had intended to cause the death of the deceased
Despite the major lacuna already pointed out in the prosecution’s case, the trial court went ahead to rely solely on the retracted confessional statement of the Appellant. This in my humble but firm view is wrong. It does not appear to me that the learned trial judge considered the whole circumstances of the case and the evidence before making the finding that the Appellant is guilty of murder as charged. In the circumstances, I also set aside the conviction of the Appellant and Appeal Allowed.
TOM SHAIBU YAKUBU, J.C.A.: I read before now, the draft of the judgment of this court, just delivered by my Lord, TUNDE O. AWOTOYE, JCA.
I am in total agreement with his Lordship’s reasoning and conclusion that the appeal herein has onions and that it be allowed. I too allow it and set aside the conviction and sentence of death placed on the head of the appellant. He does not deserve facing the hangman’s noose!
He is accordingly discharged and acquitted.
Appearances
AYO ASALAFor Appellant
AND
ENENMO O.F. with him H. OGHOGHOMEHFor Respondent
