OVUOKEROYE v. STATE (2020)

OVUOKEROYE v. STATE

(2020)LCN/15369(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, September 02, 2020

CA/AS/624C/2018

RATIO

WORDS AND PHRASES: ARSON

CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ARSON
Now what are the ingredients of the offence of Arson? They are as follows:
1. That fire was set to a building or structure
2. That the fire was set by the accused person(s)
3. That the fire was set by the accused willfully
4. That the fire was set by the accused person unlawfully.
Okhiria V. State (2016) LPELR 40144 (CA). PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

AKPOBASA OVUOKEROYE APPELANT(S)

And

THE STATE RESPONDENT(S)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal involving the conviction of the Appellant and his sentence to a term of imprisonment for nine years commencing from the date of the conviction; being 16th day of December 2014. He had spent 3 years awaiting trial.

Appellant was one of the children of the complainant, whose house was burnt. The Appellant was said to have just lost his brother, of the same mother who had been divorced by the complainant, his father; was said to have been the arsonist and supposedly in retaliation for the manner his brother died and was purportedly buried by his father.

Hurt feelings of the estrangement from the victim of the Arson, was also conjectured as the motive for the offence alleged.
At the trial of the Appellant on a one count charge of Arson under Section 443 of the Criminal Code, Cap C21 Volume 1, Laws of Delta State of Nigeria 2006, the prosecution called 4 (four) witnesses as follows;
Lucky Dede – PW1, Ohwofasa
Okpobasa – PW2, Umogu
Lucky – PW3 and sergeant
Utazi Ezekiel, PW4

The Appellant testified for himself and called no witness. Exhibit ‘B’ was tendered and admitted as his confessional statement.
After the Addresses of learned counsel for the parties and the Courts evaluation of the evidence and addresses as made, the Appellant was convicted as charged and sentenced accordingly.

Dissatisfied with the conviction, the Appellant has by his Notice of Appeal dated 24-4-2018 and filed on 25-4-2018 as contained on pages 57-60 of the Record transmitted to this Court on 19-12-2018 but regularized by leave granted on 25-6-2020 enlarging the time to so transmit and to deem same as regularly filed within time, come before this Court.

Appellant’s Brief of Argument dated 1-7-2019 and filed 7-7-2019 was deemed filed within time and regularly on the 25-6-2020, just as the Respondent Brief dated 21-8-2019 and filed 22-8-2019 was also deemed on the said 25-6-2020.
Upon the Grounds of Appeal, the Appellant formulated 3 (three) Issues for determination thus;
1. Whether the prosecution proved its case against the Appellant beyond reasonable doubt. (Ground 3 of the Notice of Appeal).
2. Whether the lower Court was right in failing to resolve the serious contradictions in the evidence of the prosecution witnesses in favour of the Appellant (Ground 2).
3. Whether the lower Court was right in failing to consider the defence that the Appellant did not make the extra judicial statement tendered by the prosecution (Ground 1).

On its part the respondent donated a sole Issue for determination, to wit;
Whether having regard to the evidence adduced by the prosecution, the trial Court was right when it held that the prosecution proved the essential ingredients of the offence of arson against the Appellant beyond reasonable doubt.

The Appellant argued his Issues 1 and 2 together and argued Issue 3 distinctly. I, however, think that the Appellant’s Issues 2 and 3 can all be encapsulated with Issue Number one and argued together; for all that means is that, the Respondent/prosecution had not proved the guilt of the Accused person beyond reasonable doubt in the face of the contradictions and failure to consider the denial of the extra-judicial statement tendered by the prosecution.

Be that as it may, I shall consider the submissions as made and determine the appeal on the all encapsulating common Issue one of the respective parties.

ARGUMENTS BY THE APPELLANT
Arguing his Issues 1 and 2 jointly, the Appellant’s learned counsel submitted that the prosecution had not proved its case beyond reasonable doubt and that the Court was wrong in failing to resolve the serious contradictions in the evidence of the prosecution witnesses in favour of the Appellant.

That the PW1, Lucky Dede only testified to seeing fire burning the building and he rushed there and saw 3 people running out of the building and held the Appellant, being one of those 3 people running out of the building. The PW1 in cross-examination, however admitted in cross-examination that he did not see the Appellant setting the building on fire.

PW2 – the victim of the arson had stated that he was the father of the Appellant and that it was his tenants that reported the fact of the burning of his house to the police as he was not around when the incident happened. That the Appellant was the son of his estranged and divorced wife and he had lost one of his sons of the same mother with the Appellant who then threatened to kill him. That he had told his said Appellant/son and mother not to come near him; before the incident happened.
That he was told that his estranged wife led thugs to burn down his house.

PW3 – Umogu Lucky testified that he had gone to Mario street to make some purchases and there he saw the Appellant and a woman destroying the house. And Appellant poured petrol to the house and when fire was on, he ran out to the road. That a boy, woman and a girl were responsible for putting the fire while acting together and that the house burnt was fenced round.

Counsel submitted that whilst PW3 had told the police in his statement contained on page 6 of the record, that the house destroyed was close to the store where he went to make his purchases, when he in Court said it was in the house destroyed that he went to make purchases. That PW4 – Utazi Ezekiel was only told of what he testified to and that the statement of Francis Nzelum who made the report was not tendered.

That there being contradictory evidence, proceeding to convict on the statement of the Appellant which he had denied making was untenable. That the inconsistency Rule applied to the evidence of the prosecution witnesses.

That PW1 stated that he saw three people running out of the building and however in cross-examination that he did not see with his eyes the person that set the house on fire.
That PW2 did not know who committed the act, except that he was told that his divorced wife led thugs to burn down his house.

That the so-called eye witness gave contradictory statement as to where the store where he went to make purchases was. That having also stated that the house was fenced round; how he was able to see through the fence to see the Appellant pouring petrol and setting the building ablaze was strange.

The learned counsel submitted that where there are material contradictions in the evidence of the prosecution, the accused as the Appellant herein, should be given the benefit of the doubt and acquitted.
Ogoala V. State (1991) 22 NSCC (pt 1) 366 at 376 per Nnaemeka – Agu JSC and Ibrahim V. State (1991) 22 NSCC (pt 1) 587 at 594 per Belgore, JSC referred to.

The learned counsel referring to Sections 135 (1) (2) and 139 of the Evidence Act, 2011 and submitted that it is the basic principle of our criminal Justice system that it is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt and that every doubt must be resolved in favour of the accused person.
Orji Vs. The State (2008) 6 MJSC 169 and Shande Vs. State (2005) 12 MJSC 152 relied upon, Emine V. State (1992) 7 NWLR (pt 256) 658 at 667 also relied. That the contradictions in this appeal related to factors and circumstances that could make it possible for the Appellant to commit the offence.

The Cases of Isiaka Vs. State (2012) ALL FWLR (pt 645) 381 st 395 and State V. Danjuma (1997) 5 NWLR (pt 506) 512 at 529 in emphasizing that the cardinal principle of law, per Section 137 (now 139 of the Evidence Act is that the burden of proof of guilt is on the prosecution and it is static; once done and doubt is raised, the benefit of doubt must be given to the accused person.

That the Issues 1 and 2 should be answered in the negative in favour of the Appellant that the prosecution did not prove the case against the Appellant beyond reasonable doubt and that the prosecution was not right in not resolving the contradictions in the evidence in favour of the Appellant.

ON ISSUE THREE

Whether the lower Court was right in failing to consider the defence that the Appellant did not make the extra-judicial statement tendered by the prosecution.

It was argued that the Court did not consider the defence of not making the extra judicial statement.
It was however, argued that Courts must be wary of convicting on extra-judicial confessions to the police, as there is a “growing juridical approach to confessional statements obtained by the police from accused persons.

That the Appellant having testified that he did not go to school and was only forced to sign the statement Exhibit ‘B’ as he can neither read nor write but can only sign his signature and was in this case tortured into submitting to sign the statement – Exhibit ‘B’.

That this defence was not considered; whereas a defence, no matter how stupid, bogus, incongruous or unpalatable it may be, the trial Court was bound to look at it and to come to a decision one way or the other.
Opayemi V. State (1985) 12 NWLR (pt 5) 101; Okafor Vs. The State (1990) 1 NWLR (pt 169) 332; Kim V. The State (1992) 4 NWLR (Pt 223) 17 at 51; Uwaekweghinya V. State 4 ACLR 1 at 17.

It was submitted that his conviction on his confessional statement alone ought to be upturned. Reference was made to Commissioner of Police Vs. Ude (2012) ALL FWLR (pt 642) 1691 at 1717.

It was also argued that there was no compliance with the requirement for endorsement by a superior police officer, and that it was necessary in this instant case.

That the Appellant had successfully raised the Defence of non est factum and the trial Court was wrong in treating same as a matter of mere retraction of the statement rather than a total denial the making thereof.

That if the evidence of the prosecution had been properly evaluated, the Judge would have found in favour of the denial of the making of the statement – Exhibit ‘B’. That the evidence of PW1 was not consistent with the confessional statement. That PW2 statement to the police can’t be consistent with the Exhibit ‘B’.

That PW3 evidence was so contradictory such as the denial of telling the police that where he went to buy something was close to the house burnt and the enclosed nature of the house and his ability to see through to witness what the Appellant was doing with petrol and in the house.

That these conflicting evidence of PW3 cannot also corroborate the Appellant’s statement to the police and therefore since doubt had been created, that statement ought to have been rejected, and the Appellant ought not to have been convicted for the offence. Idiok V. State (2008) 23 WRNI at 18 Per Ogbuagu, JSC.

It was also submitted that where the circumstances do not support the conviction as upon the facts herein analyzed, it cannot be safe to conclude that no one other than the Appellant committed the offence.

That it could be the three persons the PW1 and PW3 said they saw at the scene of crime or even the thugs that PW2 said his divorced wife was said to have taken to the scene of crime. That it was also possible that an entirely different set of people committed the crime as the police did not call Mr Francis Nzelum who made the original complaint to the Police on the matter on 27th October, 2011,when the incidence just occurred as contained in the report of PW4 – pages 2-3 of the Record.

Learned counsel wondered why the statement of Francis Nzelum made on 27-10-2011 was not tendered, him being a vital witness who ought to have been called by the prosecution.

The case ofOgudo V. State (2012) 15 WRNI at 26 per Rhodes Vivour, JSC on the need to call a vital witness was relied upon; and urged that calling Nzelum who reported to the police at the earliest would have cleared the doubts on the incident, viewing the contradictions and that the presumption following the failure to call him should be resolved in favour of the Appellant.

That the trial Court was wrong in not holding that the Appellant did not make the extra judicial statement tendered by the prosecution. We have therefore, been urged to resolve this issues in favour of the Appellant and to ultimately hold that the prosecution did not prove the charge beyond reasonable doubt and to allow the appeal and set aside the conviction and sentence and discharge and acquit accordingly.

RESPONDENT’S SUBMISSION
For the Respondent, it was submitted that there was no doubt that the Appellant had the duty of proving the guilt of an accused beyond reasonable doubt and either by (a)Direct evidence of eye witnesses (b)Circumstantial evidence or (c)by admission and confession of the accused person(s).
Edamine V State (1996) 3 NWLR (pt 58) 530 at 531, Itu V. State (2016) 5 NWLR (pt 1506) 443; Adeyemo V. State (2015) 16 NWLR (Pt 1485) 311 at 329; Section 135 (1) of the Evidence Act, 2011.OKORO V. STATE (1998) 12 SC (pt II) 83.

The Learned Counsel submitted that what was required was proof beyond reasonable doubt and not proof beyond every shadow of doubt;
That in the offence of Arson, the prosecution needed to prove all of the ingredients of the offence to wit;
1) That fire was set to a building
2) That the fire was set by the accused person(s)
3) That the accused set the fire willfully
4) That the fire was set by the accused person unlawfully.
Okhiria V. State (2016) LPELR 40114 (CA).

It was submitted that the prosecution had proved all the ingredients enumerated above; particularly by the evidence of PW1 and PW3.

Relies on the evidence of PW1 at page 16 of the record. Referred also to PW3 and submitted that the eye witness account by PW3 was unchallenged, that there was no inconsistency in the evidence of the witnesses and after all the extra judicial statements of the witnesses were not tendered and cannot be relied upon for the submission.
That the statements were not brought to the attention of the witness to contradict him on portions that must first have been brought to his notice. Sections 237 and 238 of the Evidence Act, 2011. Kwaghshir Vs. State (1995) 3 NWLR (pt 386) 651 at 661.
That there was no such contradiction brought to the attention of any prosecution witness.

The Learned Counsel also submitted that guilt may be proved by documentary or oral evidence alone or even by the evidence of one witness alone, so long as it is cogent and credible, Ezeakorham Nkebisi & Anor V. The State (2010) 5 NWLR (pt 1183) 471. That the evidence of PW2 was not discredited and therefore, it was deemed admittedIsaac Gaji & Ors Vs. Emmanuel Paye (2003) 5 SCNJ 20.

That the statements of both PW1 and PW3 were consistent with their evidence. That Exhibit ‘B’ was free and voluntary and could rightly found the conviction and the question of retraction was irrelevant.
That Exhibit ‘E’ was corroborated by PW1 and PW3. Sunday Effiong V. State (1998) 8 NWLR (pt 562) at 362; Solola V. State (2005) ALL FWLR (pt 269) 1751 relied to show that the evidence go to show that the Exhibit ‘B’ was true. Reproducing the said confessional statement – Exhibit ‘B’ it was submitted that it constituted an admission by the Appellant that he willfully and unlawfully burned the house of PW2.

That the retraction of the said confessional statement does not mean that the Court cannot act on it. That all the Court will do is to consider the retraction in the light of other evidence available Ubierho V. State (2005) ALL FWLR (pt 254) 805 at 819 per Oguntade, JSC Edamine V. State (1996) 4 NWLR (pt 438) 530 at 537 SC.

On the non-endorsement by a superior police officer confirming that the statement was voluntary and confessional, it was submitted that there was no such legal imperative as it was a Rule of practice. Edhigere Vs. The State (1996) 8 NWLR (pt 464) 1.

On the desirability of calling Francis Nzelum who made a statement and lodged the compliant to the police, it was argued that the prosecution had the discretion as to who and what number of witnesses it chose to call. Ulofor V. The State (2006) 6 NSCQR (pt 1) 209.Essien Victor V. State (2013) 54 (pt 2) NSCQR 691 at 710 relied on.

We have been urged to dismiss the appeal as lacking in merit and to affirm the decision on the ground that the Appellant had proved the charge beyond reasonable doubt.

RESOLUTION
The appeal herein, from the facts and evidence led, can be determined on the sole issue whether the prosecution had proved the charge of Arson against the Appellant beyond reasonable doubt.

The offence of Arson is defined in the Delta State Criminal Code Cap C21 Vol. 1, Laws of Delta State of Nigeria 2006, as follows:
Any person who willfully and unlawfully sets fire to any of the following things –
a) Any building or structure whatever, whether completed or not;
b) Any vessel, whether completed or not;
c) Any stack of cultivated vegetable produce, or of mineral or vegetable fuel;
d) A mine, or the workings, fittings, or appliances of a mine is guilty of a felony, and is liable to imprisonment for life.
Now what are the ingredients of the offence of Arson? They are as follows:
1. That fire was set to a building or structure
2. That the fire was set by the accused person(s)
3. That the fire was set by the accused willfully
4. That the fire was set by the accused person unlawfully.
Okhiria V. State (2016) LPELR 40144 (CA)
As rightly pointed out by both learned counsel, the proof of the commission of offence as herein alleged is proof beyond reasonable doubt. Section 135 and 139 of the Evidence Act 2011, and the myriad of cases too many to cite have made this a trite point.

The commission of a crime is proved either by oral direct evidence of an eye witness, documentary evidence, confessional statements or even by circumstantial evidence that is so strong and over whelming that the facts and circumstances make it more probable that the facts are true.

The prosecution was vehement that the evidence of PW1- Lucky Dede and PW3 – Umogu Lucky were direct evidence of eye witnesses upon which the Court rightly convicted. It was also argued that the Exhibit ‘B’ was such an unequivocal confession that the offence charged was further proved by the said Exhibit and that the evidence of the said prosecution witnesses strengthened it such that it cannot be said to have been retracted with any consequential adverse effect on its great probability and value.

Now, the evidence of PW1: It is obvious to me that the evidence of PW1 is not as straight forward and unambiguous as the prosecution and the Court took it.
The said PW1 saw 3 people coming out of a building and he held one of them which he said was the convict/Appellant herein and then joined others in putting off the fire on the house.

The PW1 did not go further to tell the Court as to who those others were or name any of those he joined in putting off the fire. What was done to the man he said he held and “we tied him down.”

On the evidence of PW1 it is clear that he did not see the Appellant setting the house ablaze.
He was only seen running out with 3 other people; any of who, or all of who or even none of who may have set the house ablaze. There was no evidence led that there were no other persons within the house, such that circumstantially the Appellant and the 2 others running out of the compound could be implicated.

The PW3 also testified to seeing the Appellant and a woman destroying the house.
That he saw Appellant pouring petrol to the house and he ran out to the road and later returned to find that the house was on fire. That he thereafter noticed that the boy was held.

The PW2 only established the fact that his house was burnt and no more. The material point in the evidence of PW3 to the effect that he saw the Appellant pouring petrol to the house and thereafter he saw fire in the house and ran out. Though he also said the Appellant and a woman were destroying the house and he asked them why they were doing that and the Appellant said, it was a family affair and he, the PW3 should leave him alone; I wonder why no other person within the house saw this incident or talked about it. What type of destruction, the PW3 did not say; and with what tool, the Court was not told either.

If the Appellant did pour petrol and set fire, (though not proved), had it been proved by evidence or circumstances that it was willful? Nothing was said about the mensrea or the mental element of this offence.

It is part of the ingredients of the offence which must be proved even if inferentially. No such evidence or address was alluded to it at the trial.

The offence of Arson has not be shown to be a strict liability offence. This portion of evidence was not contradicted in any way, though.
Circumstantially, it could be inferred that it was an act done pursuant to setting the house ablaze. The house having been testified to unrebuttingly to have been burnt and fire seen, may be inferred as been burnt by the Appellant solely or in concert with others seen running out of the building or still within the building then; none of who was charged for any complicity. This may have either been as a result of halfhearted investigation or the exercise of discretion in terminating the investigation upon arresting the Appellant. Else, why he alone, when a girl and a woman were also said to be seen destroying the house.

Although doubts was sought to be cast on the evidence of PW3 on account of the fact that he said he had gone to buy beans at a store near the house and yet later said the store was in the compound where the house was destroyed, I do not take, this as a material contradiction as the fact that the house has been burnt was established. The arrest of the Appellant by PW1 as he was running out may be a circumstantial evidence on identity.

However, why were the many others mentioned by the PW2 in his statement to the police as contained in pages 9-10 of the record not interrogated or also put on trial? That would have narrowed down to a most credible point the whole truth of the matter, as relating the possible perpetrators.

Be that as it may, the Appellant was identified only if circumstantially to be one of the culprits.
The other evidence to consider is the Exhibit ‘B’.

There is no doubt that the statement, Exhibit ‘B’ was denied (is disowned). The Appellant said he did not make it – but was only forced to sign same after a bout of torture.
I find the denial as contradictory and ambiguous, as it is not possible not to have made the statement at all and at the same time saying it was by torture. The later will mean that the Appellant concedes to the making of the statement by him and however that it was not a product of his freewill.
That will be different from a mere retraction.
In this case where the Appellant insisted on the fact that he was tortured and made to sign the statement, I take it that it was a case of not merely recoiling or resiling from the statement. It was not as held by the trial Judge, a case of retraction of evidence. Even then a retracted evidence is none the less still admissible in evidence.
It is the weight to attach to the statement that really matters. See Ubierho Vs. State (2005) ALL FWLR (pt 254) 805 at 819 Edamine Vs. State (1996) 4 NWLR (pt 438) 530 at 537.
Torture had been alleged.

The Appellant had in Exhibit ‘B’ shown that he had grievances against the treatment metted out to him by his father (PW2) who had always pushed him out of the house after the Divorce of his mother. He had shown how, pained he was with the loss of his brother without the father letting them know about it and was therefore prepared to do the worst in vengeance.

This piece of evidence was consistent and corroborated by the evidence of the victim – father, i.e the PW2 in this case, who also suspected thuggery with possibility of linkage with his divorced wife, the mother of the Appellant who had shown his pain in Exhibit ‘B’.

The making of Exhibit ‘B’ and by Appellant was probable. What remains is to ask could the other 2 persons that escaped not be part of the thugs imagined or told the PW2?

The next question is, was that statement (exhibit ‘B’) a product of torture as claimed? It does not appear to be as, nowhere was evidence led by the Appellant to show that he was treated for any injury as he claimed.

However, the Appellant denied been tied down by anybody on the date of the incident. He said he was in his place of work at Ojemi Haulage on the date of the alleged Arson. He named the Managing Director as Mr. Ojemi. Although this fact is not stated in Exhibit ‘B’ to warrant any investigation of same as an alibi, the said statement in all honesty does not qualify as a confessional statement.

It is said to have been obtained after words of caution and yet shows at the close thereof as having been recorded by the Appellant himself. It states thus:
“A suspect’s statement recorded by himself in English Language having been read and believe to be correct and signed.”

Indeed the so called words of caution as couched is clearly one depicting a suspect cautioning himself and not the investigating police officer doing the cautioning; indeed, what is also intriguing is that the evidence of PW4, the I.P.O started with only the coverage of the trial within trial on 29-10-2013 when Utazi Ezekiel testified. See from page 25 to 34 of the record for the proceedings.

Indeed the chilling tale of torture in the nature of Sgt Utazi Ekeziel hitting the Appellant with a gun in the mouth – saying he did not want to speak the truth, bringing out a knife which he stabbed him on his chest and shoulder and with a gun over his head, he was forced to sign the paper which he did as a result of the torture, appears exaggerated and hyperbolic as no medical evidence was tendered in corroboration of any treatments or injuries from stab wounds (or was it a natural healing pursuant strong immunity?);

The complaint may not, however, be waved or shoved with a mere dismissal as PW4 – Sgt Utazi Ezekiel no where testified as to what he saw as relating the offence; rather, I find his hearsay evidence at page 26 of the record where he stated “when interviewed by the D.P.O, he told the D.P.O that he burnt his father’s house and when he sees his father he will kill his father and kill himself. When asked if he was ready to write down what he had said, he said yes and requested for paper and biro, so I took accused to the Divisional Crime Branch office, Epan where I gave accused person Biro and paper and the accused person made his statement under caution and voluntarily.
After writing his statement, the accused person read the statement over and signed it. Based on his confessional statement, I took accused person before a senior officer who attested the said statement of the accused person.
I can identify a copy of the statement of the accused person and the attestation form.”

It is obvious from the narration above that the Appellant did not make the statement before the DPO or before the Divisional Crime officer. Indeed, it was written solely at the pleasure of PW4, who did not tell the Court that it was before the Divisional Crime Officer, but merely said he took the Appellant to an unnamed or unidentified senior officer who attested the said statement.
The said attestation was not tendered as the copy thereof sought to be tendered was objected to and withdrawn; it not being part of the proof of evidence and thus springing a surprise on the Appellant. The prosecution did not attempt to call the said or purported senior officer who allegedly attested the statement;
This was not done as the Exhibit ‘B’ would have contradicted it, as the said exhibit ‘B’ not having been signed by anybody inspite the indication thus “A suspect statement recorded by himself in English language, having read and believe be corrected and signed.”
Though the above appears unintelligible and reflective of the caliber and quality of the investigative arsenals of our land (a product and subset of the dwindling capacity of all aspects, of our National life though, we must keep hope alive as giant strides are made; though with nepotic placements and putrid qualifications that breed incompetence and in efficiency), it places this Court in the position to draw the inference that if such counter signing or attesting officer existed and had done as attempted to be held out by the conclusion in Exhibit ‘B’ such a person would have signed.
It was, therefore, an attempt at damage control of the false statement that the futile attempt at tendering the attestation form was made.
The non-tender and non-calling of such an attester raises the presumption that had such a person been called, the evidence would have been unfavourable to the prosecution. See Section 149 of the Evidence Act, 2011.
The simplistic general statement of the law stated by the trial Court is right but not applicable in the circumstance of this appeal. Having claimed that it was done, the prosecution cannot take solace or cover in the law that it is not mandatory for attestation to be done merely because he could not prove his assertion. Parties, inclusive of the prosecution must be consistent. SeeKelani Vs. Ajide (2015) SC1.
Was the prosecution then recanting or retracing its steps from the testimony that the Appellant was taken to a superior police officer for attestation of his so-called confessional statement? This must be so, as he relies on Awosika Vs. State (2010) 9 NWLR (pt 1198) 49 per Alagoa, JCA and for which the trial Court agreed with him that a confessional statement cannot be faulted on the ground that the police officer who endorsed the statement was not called to tender the statement and to testify on same.
…that the documents in official records may be tendered by another police officer etc…
The trial Court indicated that the Appellant was on the run when arrested. Where did he run from and from whose custody, it was not testified to. There was no evidence of the death of his said brother which he denied knowledge of and thus statements about his brother as in Exhibit ‘B’ to raise any corroboration as claimed is in doubt.
Indeed, I will be content to hold that no such person existed to do any such a thing. The credibility of the prosecution’s case is in doubt in this aspect, therefore.
This, therefore, to me, gives the credence to the Appellant’s contention that he did not make exhibit ‘B’.
Exhibit ‘B’ was foisted on the Appellant based on the supposition by the PW2, and the purported interview between the Appellant and DPO as stated by the hearsay testimony of the PW4.
The so-called eye witness accounts that are not conclusive and not pointedly too, at the guilt of the Appellant and no other, cannot corroborate Exhibit ‘B’ which I find speculative. As it is, both the testimonies of witnesses and record and the Exhibit ‘B’ are not such evidence that can alone or together sustain any conviction.
This is because, in a criminal trial, the guilt of the accused person, who is presumed innocent until proven guilty, must be subjected to a merciless scrutiny in the consideration of all the facts and circumstances.
See Shande Vs. The State (2006) 5 LRCN 127.
In Shande’s case supra, the victim was heard crying in a room with the door locked. Upon forcing the door open, the PW1 saw, the accused/Appellant in the room with 2 of accused’s children and PW1 there and the deceased burning with fire and was rushed to the hospital, where she died.
Tendered as Exhibits were a 4L Gallon, (Exhibit) kerosene inside the 4L gallon (Exhibit 1A) some burnt pieces of cloths Exhibit 2; some grass – Exhibit 3; medical report on the post Mortem on the deceased, Exhibit 5;
In the matter on appeal before us, I wonder aloud why there was not in evidence anything said about any container or gallon or the like containing petrol as found in the vicinity of the arson or on the Appellant at the time of the incident; who arrested him; was any attempt made to find out from his employer that he said, he was working with on the date alleged? Why was none of the tenants in the victim’s house called by the prosecution to testify?
There appears to be a conspiracy theory yet unravelled by the investigation and prosecution in this matter.
Nowhere in the Exhibit ‘B’ is it indicated that the statement was read over and explained to the Accused/Appellant as enjoined by the practice directions, on statements by Accused persons to investigators; rather, it is stated that the Accused person read the statement over and signed.
Obviously, this matter evokes the application of the immortal words of Acholonu, JSC in Shande V. State(supra) at page 139-140 of the report, where his Lordship stated “…. I agree with the lead Judgment (which I read in draft) of my learned and noble Lord Ejiwunmi. The appraisal of the facts of this case at the trial stage and the decision of the immediate Court below, I must confess leave very much to be desired. It is difficult following the sequence of events that took place whether there was indeed proof beyond all reasonable doubt. When an accused is being tried for any offence whatsoever, because of the principle of law ingrained in our constitution that he or she shall be presumed innocent, it beholves of the Court to subject every item of facts raised for and against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake. Where there is a doubt in the mind of the Court either as to the procedure or failure to address on very important latent issues that assail or circumscribe the case, the Court should acquit and discharge.
Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well-developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly inconsistent with the guilt of the accused and inconsistent with any other rational conclusions.
Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conservable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilty or innocence in which case doubt has been created.”
In the matter on appeal, the nearest evidence was the claim to have seen the Appellant poured petrol on the building and a short while after, there was fire.
Assuming it was so, who touched the building with fire? Having the petrol poured (if true), it only being an inflammable substance, It must be ignited. Who and with what, was not seen and stated.
It was not testified to that the Appellant did ignite the fire. The PW3 said “I did not see with my eyes who set the fire”
There are questions galore in the investigation, prosecution and surrounding circumstances that it cannot, be said with certainty that it is the Appellant and no other person or persons that could have committed the offence. The PW3 did not see with his eyes who set the building on fire. He said so.
There is no doubt that circumstantial evidence or even suspicion may exist but suspicion alone is not enough to ground a conviction as it could be any other person(s) within the house either willfully or accidentally or a thug or any of those that claimed to have witnessed the inferno.
I do not see from the evidence of PW1, PW2 and PW3 any, corroborative link with Exhibit ‘B’ as held by the trial Court.
If there is, it is not as relating to the Appellant in view of the views I have espoused herein.
Even then, mere presence at the locus criminis alone is not proof of the commission of a crime.
If PW1 tied the Appellant upon holding him at the scene of the crime, the question is, with what did he tie him and where, in the face of the said inferno? Was it to a stake, pole, where and with what? Was he taken to the police there after? It was not so testified to; the PW1 did not go to the police with the Appellant. There is a yawning gap, such that makes the appellant’s denial of being tied by anybody on that said date of incident more probable of belief.
The overwhelming and wholesale belief in the evidence of the PW1, PW2 and PW3 and indeed the Exhibit ‘B’ by the trial Court is, to me, not founded on a safe and strong pedestal.
A very sad incident. One may never tell, the PW2, the victim, in the sea always as a captain of a ship in the course of Duty could have enemies lurking around within and without; could be from matrimonial problems or anything; at the fullness of time, all shall be revealed! But should those not proven guilty in accordance with our laws be punished? I don’t think that will be justice.
Time does not run against criminal prosecution, so discreet investigations may continue, but the appeal herein has merit.

I resolve the lone issue in favour of the Appellant and accordingly allow the appeal.
In consequence, I set aside the Judgment in the said suit No. EHC/17C/2012 and quash the conviction and sentence to 9 years imprisonment as imposed on the Appellant by E. I. Oritsejafor; J of the High Court of Justice, Delta State of Nigeria in the said suit.
The Appellant, Okpabasa Ovuokeroye is acquitted and discharged.
Appeal Allowed.
Broken homes, Breeds suspicion, Pains and calamities and constitute a fertile ground for infestation by weeds: But the Lord heal all, as He is allowed to lead.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother MOHAMMED A. DANJUMA, JCA.
I am in complete agreement with his lordship’s reasoning and conclusion in the appeal.
Accordingly, I too, allow the appeal and abide by the consequential orders contained in the leading judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now the judgment just delivered by my learned brother MOHAMMED A. DANJUMA, JCA, and I agree with the judgment.
The appeal is meritorious and accordingly it succeeds. The judgment of the lower Court is hereby set aside.

I abide by all consequential orders in the lead judgment.

Appearances:

Jonathan Ekperusi, Esq. For Appellant(s)

A. Okoh, Esq. For Respondent(s)