ROBERT v. STATE (2020)

ROBERT v. STATE

(2020)LCN/15417(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/C/198C/2019

RATIO

EVIDENCE: RELEVANCE E OF HEARSAY EVIDENCE

Where the evidence seeks to establish the truth of what was told by another person, it is hearsay but where the evidence seeks to establish only the fact that a statement was made that evidence will not be taken hearsay. ITODO V STATE (2020) 1 NWLR (prt 1704) 1 at 40. PER MUHAMMED LAWAL SHUAIBU, J.C.A

CONFESSIONAL STATEMENT: RELEVANCE OF AN ORAL EXTRA-JUDICIAL CONFESSION

An extra judicial confession, though made orally, as was the case herein carries equal weight with the one made in writing. See Uchenna Nwachukwu vs The State (2002) 7SC (pt. 1) 124 per Iguh, J.S.C. It then follows that the retraction of the confessional statement by the accused person in his oral evidence in Court during trial, and once the Court is satisfied of the truth of the confession becomes of no moment. That alone can be relied upon to ground a conviction. See James Chiokwe vs. The State (2012) LPELR – 19716 (SC) per Ariwoola J.S.C., see also Onyejekwe vs. The State (1992) 4 SCNJ 1 at 8, Bature vs. The State (1994) 1 SCNJ 19 at 29 and Akpan vs. The State (2001) 7 SCNJ 567 at 580 amongst many others. The case of Onungwa vs. The State (1976) 1 SC (reprint) 74 per Idigbe is equally illuminating, having held that an admission made by any person charged with a crime suggesting the inference that he committed the offence is a relevant fact and admissible in evidence against the maker. PER HAMMA AKAWU BARKA, J.C.A.

CONFESSIONAL STATEMENT: WHETHER A RETRACTION OF A VOLUNTARY CONFESSIONAL STATEMENT BY AN ACCUSED PERSON DOES NOT RENDER SUCH STATEMENT INADMISSIBLE

What remains to be said therefore in this case is that the conviction of the Appellant was justified in fact, and in law, in spite of the insufficient reasons for the conviction as contained in the summation by the learned trial judge.

This is because it is trite law that mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See ULUEBEKA v. STATE (2000) 4 SC (Pt. 1) 203; IDOWU v. STATE (2000) 7 SC (Pt. 11) 50.
And, also that the law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. See EFFIONG v. STATE (1998) 8 NWLR (Pt. 562) 362 SC; ALARAPE v. THE STATE (2001) 14 WRN 1 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

DAVID RUBBIN ROBERT APPELANT(S)

And

THE STATE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Akwa Ibom State High Court sitting in Okobo Division presided over by Hon. Justice Gabriel F. Ette.

The Appellant was arraigned before the Court on a one count charge of Murder, contrary to Section 326(1) of the Criminal Code, Cap. 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
At the trial, the prosecution called four (4) witnesses:
PW1 – Okon, Effiong Okon
PW2 – Chief Edet Etim Edet
PW3 – Inspector Samuel Udo
PW4 – Dr. John Frank.

The prosecution also tendered the following exhibits:
1. Statement of the Appellant dated 21/4/2011 – Exhibit 1.
2. Photograph showing the deceased and its negative – Exhibits 2, 2A and 2B.
3. Post Mortem Report – Exhibit 3.

The case of the prosecution was that on the 11th day of April, 2011 at Obot Inwang Okobo in Okobo Judicial Division, the Appellant, David Rubbin Robert murdered one Udo Nyong alias Ette Akan.

PW1, Okon Effiong Okon testified on 8th May, 2015 that in the month of January, 2011, he saw the deceased, Emmanuel Nyong Ibuot alias Ette Akanwho came and reported a matter to him. The report was about the palm fruit plantation he bought. He reported that he went and harvested from the palm plantation he bought when the Appellant David Rubbin Robert came to the plantation, beat him up and chased him out of the plantation. PW1 testified that he resolved the differences between the deceased and the Appellant after which the deceased made a remark to the Appellant, “is this not what you wanted to kill me in the bush over?” meanwhile, the Appellant in response retorted “I will still kill you in the same bush”. PW1 stated that, the Appellant swore on oath before him that he would kill Emmanuel Nyong (Ette Akan, the deceased) in the same bush and bury him in the boundary of the plantation. Few months later, the body of the deceased was found in the same plantation where the Appellant had retorted to kill and bury the deceased. PW1 observed that when they found the corpse of the deceased, his head was buried at the boundary of the said plantation when he visited the scene and confirmed where the head of the deceased was buried. (pages 68-69 of the Record of Appeal). PW2, Chief Edet Etim Edet testified on 9th June, 2015 that on 14/4/2011, while in his house, PW1 came and informed him that the deceased, Emmanuel Nyong Ibuot had been killed in the farm and he accompanied him to the scene of the crime. PW2 confirmed that when he reached the scene, he found the body of the deceased, the head was severed from his body and buried in the boundary of the farm. PW2 clarified that Emmanuel Nyong Ibuot is also called Udo Nyong or Ette Akan. Further, PW2 went with PW1 and reported the incident at the Police Station whilst he carried out further inquiries as the village head. In the course of his inquiries, it was reported that the Appellant had threatened to kill the deceased. When the Appellant was confronted with his threat against the deceased, PW2 testified that the Appellant remained speechless. Thereafter, the Appellant said he was guilty and even pleaded with the village to save him and set him free. When emphasized that what he did was evil, the Appellant admitted he knew as he was a dead man but that the community should save him. Thereafter, the Appellant was handed over to the Police. (pages 73-74 of the Record of Appeal). PW3, Inspector Samuel Udo attached to Genocide Section, State CID, Uyo, testified on 12th January, 2016 as the Investigating Police Officer (IPO) corroborating the evidence of PW1 and PW2 as well as confirming that the deceased is dead. The PW3 recorded statement from the Appellant, took photographs of the deceased which were tendered through him as Exhibits. PW4, Dr. John Frank, a consultant pathologist who conducted the autopsy concluded that the victim (deceased) was beheaded. The post mortem report was then tendered through PW4. (pages 80-91 of the Record).

The Appellant, David Rubbin Robert herein testified first on 10th January, 2017 denied being a farmer in his life time, but a fisherman, and denied knowing the deceased. The matter was later adjourned to 17th January, 2017 where the Appellant retracted from his earlier testimony and admitted knowing the deceased and being a farmer besides fishing. The Appellant denied killing the deceased and alleged that he went fishing on 9th April, 2011 and returned on 11th April, 2011 which he never stated in his extra-judicial statement to the Police at the earliest opportunity. The Appellant admitted he had dispute with the deceased as regards the plantation but that it had been resolved by PW1 and they went their separate ways. The Appellant further claimed to have vacated the plantation to the deceased. He denied threatening to kill the deceased as well. (pages 97-100 of the Record of Appeal.)

At the end of the trial, the Appellant was convicted of the offence of murder as charged.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing two (2) grounds of Appeal on 14/5/2018.

Appellant’s Brief of Argument was filed on 6/5/2020 but deemed filed on 4/6/2020. It is settled by Chief Victor Iyanam.
Respondent’s Brief of Argument was filed on 5/10/2020 was deemed filed on the same date. It is settled by Uwemedimo Nwoko, Esq. Hon. Attorney General, Akwa Ibom State.

Learned counsel for the Appellant nominated a sole issue for the determination of the Appeal. It is:
Whether the circumstantial evidence relied upon by the learned trial judge to convict the Appellant for the offence of murder was sustainable in the circumstance.

Learned counsel for the Respondent also submitted alone issue to wit:
Whether from the totality of the evidence, the prosecution proved its case beyond reasonable doubt as required by law.

On the sole issue for determination, learned counsel for the Appellant submitted that the learned trial judge in his summation on page 119 (paragraph 5) of the Record stated:
In the case at hand, no eye witness account was tendered in evidence by the prosecution, indeed learned Attorney for the prosecution in his address submitted that the prosecution through the medium of circumstantial evidence has proven the essential ingredients of the crime against the accused person. The burden of proof in a criminal trial lay totally on the prosecution. However, to prove the allegation, the prosecution has to meet with the required standard of prove (sic: proof) which in a murder trial is proof beyond reasonable doubt.

The learned trial judge continued from page 119 to page 120 of the Record thus:
In this case, all the prosecution witnesses are in agreement that the accused threatened that he will kill the deceased if he sets foot on the plantation again. PW1 testified on that score as one who heard the accused person make the threat. Other witnesses testified of hearing through other parties and I hold such evidence inadmissible. The law is settled that in order to hold an accused liable for murder, the chain of causation must not be broken. See AIGUOREGHIAN v. STATE (2004) 3 NWLR (Pt. 860) 368. In this case, I believe the evidence of the PW1 as true that the accused person did utter the threat as against the denial by the accused person. It is in evidence that the deceased informed his family members and other family members of the threat before it happened. (Emphasis supplied).

Clearly, said counsel, the learned trial judge relied exclusively on circumstantial evidence to come to his conclusion of guilt and sentence of death. He submitted that the evidence recorded by the trial judge on page 85 of the Record of Proceedings shows that the dispute was in January, 2011. The deceased died on the 11th April, 2011 in the plantation belonging to the Ministry of Agriculture. Page 91 of the Record shows that the Medical Examiner conducted his examination of the body on the 27th May, 2011 when the body was already decomposing and had been embalmed by the family of the deceased. He submitted that the learned trial judge failed to exercise appropriate restraint while dealing with this matter of circumstantial evidence. In his haste, he stated on page 120 (paragraph 3):
The accused raised the issue of the arrest of a co-suspect by name Eno Bassey Ntekim. One extra-judicial statement in the file by one Ikwa Ibom Gordon Usen corroborates that fact. It was the province of the Police to investigate the culpability of the said Eno Bassey Ntekim and I believe they did and, in their wisdom, extricated him. It does not fall within my jurisdiction to reopen and judicially investigate that fact and I do not intend to do so.

Indeed, the learned trial judge, said counsel, was not expected to investigate on behalf of the Police or the prosecution. He was only expected to discharge and acquit the accused under those circumstances where doubts were all-pervading and circumstances were completely unwarranted.

He referred to the Supreme Court decision in VALENTINE ADIE v. THE STATE (1980) 1-2 SC 73 where Idigbe J.S.C. speaking for the apex Court relied on the case of UKORAH v. THE STATE (1977) 4 S.C. 167 to caution on the limits of circumstantial evidence and submitted that from the state of evidence before the Court, the situation of the case would still not tilt in favour of the prosecution, even if a hundred witnesses testified that they heard the Appellant threaten to kill the deceased under those circumstances in January, 2011.

He referred to the case of ANI v. STATE (2009) 16 NWLR (Pt. 1168) pg. 446, the burden of proving that any person is guilty of a crime subject to the provision of Section 141 of the Evidence Act, is on the person who asserts it, and that the standard of proof is beyond reasonable doubt.

He specifically submitted that for the Court to convict the accused person on allegation of murder, the prosecution must prove beyond reasonable doubt the following essential ingredients of murder:
(i) That the deceased died.
(ii) That the death of the deceased was caused by the accused person.
(iii) That the act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was the probable consequence.

On this, Appellant’s counsel referred to the cases of KALU v. THE STATE (1988) NWLR (Pt. 90) 503; UBANI v. THE STATE (2004) FWLR (Pt. 191) 1533 and MICHEAL v. THE STATE (2003) FWLR (Pt. 431) 875.

He submitted that circumstantial evidence to be sustainable, must be cogent, complete, compelling and unequivocal. It must not be sentimental or based on suspicion. He submitted that the following facts were ignored by the trial Court:
(i) The accused person had informed the trial Court that prior to the time he met and fought with the deceased at the Palm Plantation, he had earlier informed the family of his master who gave the Palm Plantation to him that he would not want to continue using the farm again.
(ii) During the arbitration before the Chief, the accused person informed the Chief that he is going to vacate the farm by the end of January, 2011 while the deceased died in April, 2011 after he handed over the farm to the family of his master.
(iii) There was another person named Eno Bassey whom the deceased had dispute with concerning cassava which belonged to the forest guard.
(iv) That the dispute he had with the deceased was settled amicably between the two parties by the village head since January, 2011 while the deceased dies in April, 2011 after handing over the Palm Plantation to the owner.
(v) That none of the prosecution witnesses saw him killing the deceased, thus, evidence adduced was mere hearsay and based on suspicion and as such cannot take the place of legal proof.

Learned counsel for the Appellant concluded that mere circumstance of suspicion however strong cannot take the place of legal proof and cannot ground a conviction in the absence of cogent and compelling evidence. He referred to the cases of ABACHA v. STATE (2002) LPELR – SC 2390/2001 (-R); ABIEKE v. STATE (1975) 9-11 SC. 97; JOSEPH LORI v. STATE (1980) 8 11 SC.

He urged us to resolve the sole issue in favour of the Appellant and set aside the judgment of the trial Court.

Learned counsel for the Respondent submitted the law is that the guilt of an accused for the commission of the offence charged can be established by any or all of the following ways:
a. The confessional statement of the accused.
b. Circumstantial evidence.
c. Eye witness evidence.
He referred to the case of TAIYE v. STATE (2015) ALL FWLR (Pt. 805) 42 @ 57 and added that where direct testimony of eye witness is not available or where the accused has not confessed to the commission of the offence, the Court is permitted to infer from the facts proved, the existence of other facts that they may logically infer the guilt of an accused person. He referred to the case of IBINA v. STATE (1989) 5 NWLR (Pt. 120) 238.

Respondent’s counsel also reiterated the three essential ingredients of the offence of murder through the case of OBIDIKE v. STATE (2014) ALL FWLR (Pt. 733) p. 1899 @ p. 1932.

He submitted that there is common ground that the deceased, Udo Nyong alias Ette Akan died. That it is not in contention by the Appellant or his counsel that the deceased corpse was found and discovered on 11th April, 2011 at Obot Inwang Village, in Okobo Local Government Area. Exhibit 1, Statement of the Appellant, Exhibits 2, 2A and 2B, the photograph of the deceased and Exhibit 3, Autopsy Report all confirm that the deceased is dead. Thus, the prosecution has successfully proved beyond reasonable doubt the first ingredient of the offence.

On whether the death of the deceased resulted from the act of the accused person, Respondent’s counsel submitted that there is a strong positive and circumstantial link between the act of the Appellant and the death of the deceased. He submitted that the circumstantial evidence before the Court revealed that the Appellant caused the death of the deceased. He submitted that the circumstantial evidence before the Court revealed that the Appellant threatened, he would kill the deceased and bury him in the boundary of the plantation in dispute in the presence of witnesses. That it was the same boundary the head of the deceased was buried in tandem with the threat of the Appellant.

On this, learned counsel for the Respondent emphasized through the evidence of PW1 that the Appellant swore on oath before PW1 that he would kill the deceased in the same bush and bury him in the boundary of the plantation. And, that truly, the deceased head was found buried at the boundary of the plantation.

Learned counsel for the Respondent then reviewed the testimony of PW2 who testified inter alia that when he confronted the Appellant with the death of the deceased as the village head, the Appellant remained speechless. Thereafter, the Appellant said he was guilty and even pleaded with the village to save him and set him free. When emphasized that what he did was evil, the Appellant admitted he knew as he was a dead man but that the community should save him.

Learned counsel for the Respondent submitted that the evidence of what PW1 and PW2 heard directly from the Appellant is not hearsay. He referred to Section 126 (b) of the Evidence Act, 2011 and the case of ABOKOKUYANRO v. STATE (2012) 2 NWLR (Pt. 1285) 530 where this honourable Court held that where a witness gives account of information of what he hears directly from another person, the information cannot be termed hearsay.

He submitted that the evidence of PW1 and PW2 were admissible not being hearsay. He added that the said evidence of PW1 and PW2 were never challenged or controverted under cross examination.

He referred to the cases of IGHALO v. THE STATE (2016) 17 NWLR (Pt. 1540) p. 1; ESENE v. THE STATE (2017) LPELR 41912 (SC.) per Ogunbiyi J.S.C. to say that where an adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter led in evidence.

Learned counsel for the Respondent also referred to the cases of MOSES JUA v. THE STATE (2010) 1-2 SC. 96 and ARCHIBONG v. STATE (2006) 14 NWLR (Pt. 1000) p. 349 and justified the conviction of the Appellant on the ground that circumstantial evidence is very often the best evidence. It is evidence of a combination of circumstances against an accused person, none of which on its own, provides the Court with cogent proof of guilt but when viewed together create strong conclusion of his guilt with the highest degree of exactitude.

On the attempt by the Appellant to make reference to one Eno Bassey as the person that could have murdered the deceased being that the said Eno Bassey was arrested as co-suspect, Respondent’s counsel submitted that this line of argument is a mere afterthought as the Appellant never made reference to the said Eno Bassey in his extra judicial statement to the Police, Exhibit 1. PW3, the IPO was never cross examined as regards Eno Bassey in Court during trial. There is no evidence before the Court that the deceased was ever threatened by the said Eno Bassey as in the instant case that PW1 testified that the Appellant had beat up the deceased in respect of the disputed land. There is also no clear evidence that the PW1 and PW2 who reported the case to the Police ever mentioned the name of Eno Bassey.

Notwithstanding, said counsel, the learned trial judge in all fairness considered the defence of the Appellant that Eno Bassey was arrested on the allegation that he could have murdered the deceased when he held thus:
The accused raised the issue of the arrest of a co-suspect by name Eno Bassey Ntekim. One extrajudicial statement in the file by one Ikwa Ibom Gordon Usen corroborates that fact. It was the province of the Police to investigate the culpability of the said Eno Bassey Ntekim and I believe they did and, in their wisdom, extricated him.

Learned counsel for the Respondent submitted further that on the other hand, there is evidence on record that the Appellant is looking for means to exculpate himself from blame. On 10/1/2017, the Appellant denied everything when he first testified that he did not know the deceased and that he has never been a farmer all his life which the matter was adjourned. On 17/1/2017, the Appellant retracted and admitted knowing the deceased as well as being a farmer. Again, in his evidence in Court on 17/1/2017, the Appellant testified that he had gone fishing and was not in the village at the time of death of the deceased, he only returned to be confronted by PW1 who caused his arrest meanwhile such fact was never stated in Exhibit 1, the extra judicial statement of the Appellant at the earliest opportunity. (pages 98-99 of the Record of Appeal).

On this score, counsel noted that the second ingredient of the offence of murder has also been proved beyond reasonable doubt.

Learned counsel for the Respondent submitted on the third ingredient that in order to determine whether the accused person had an intention to murder, the law has set down some criteria, some of which are:
(i) The nature of the weapon used.
(ii) The part of the body which was brutalized by the lethal weapon; and
(iii) The extent of the proximity of the victim with the lethal weapon used by the accused person.
He referred to the cases of ILIYASU v. STATE (2015) ALLFWLR (Pt. 793) p. 1961 @ p. 1985; IDEN v. STATE (1994) 8 NWLR (Pt. 365)p. 719.
Respondent’s counsel submitted that in the instant case, PW4, Dr. John Frank, a consultant pathologist who conducted the autopsy concluded that the victim (deceased) was beheaded. Exhibits 3 tendered through PW4 also confirmed that the deceased was beheaded. PW1, PW2 and PW3 testified that they observed that the head of the deceased was severed from his body and buried at the boundary of the plantation. He referred to the cases of ATIKU v. STATE (2010) 9 NWLR (Pt. 1199) P.241; ZUBAIRU v. STATE (2015) ALLFWLR (Pt. 794) p.178 @ 192 and submitted that the prosecution established the 3rd ingredient beyond reasonable doubt.

Learned counsel for the Respondent concluded that the circumstantial evidence relied upon by the learned trial judge to convict the Appellant for murder was substantial and sustainable. And, indeed that the circumstantial evidence cogently, irresistibly, positively, unequivocally, unmistakably and conclusively points to the Appellant as the one who killed the deceased.

He referred to the case of AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72 to say that there is no yardstick for the measure of circumstantial evidence as each case depends on its own facts.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He urged us to affirm the conviction of the Appellant.

DETERMINATION OF THE SOLE ISSUE
The case of the Appellant in this Court and indeed in the Court below is/was to attack the sufficiency of the summation of the trial Court on the nature and cogency of the circumstantial evidence by which the Appellant was convicted. It will be recalled that in summing up the case against the Appellant, the learned trial judge held as follows on pages 119-120 of the Record of Appeal:
In this case, all the prosecution witnesses are in agreement that the accused threatened that he will kill the deceased if he sets foot on the plantation again. PW1 testified on that score as one who heard the accused person make the threat. Other witnesses testified of hearing through other parties and I hold such evidence in admissible. The law is settled that in order to hold an accused liable for murder, the chain of causation must not be broken. See AIGUOREGHIAN v. STATE (2004) 3 NWLR (Pt. 860) 368. In this case, I believe the evidence of the PW1 as true that the accused person did utter the threat as against the denial by the accused person. It is in evidence that the deceased informed his family members and other family members of the threat before it happened.
Besides, when he started his defence, the accused person denied knowing the deceased, nor being a farmer, his counsel took a date. On the return date, he now admitted knowing the deceased as well as being a farmer, that, to my mind, betrayed mind-set bent on telling lies to conceal a fact. The circumstances of the murder of the deceased is in tandem with the threat allegedly made by the accused person, to wit, to kill the deceased and bury his head on the boundary. That is how the deceased was found. The accused made spirited effort to extricate himself that he had no further problem with the deceased after their conflict in January, 2011 had been settled. The threat to murder was made after that settlement and it betrayed an unholy intention towards the deceased, the settlement notwithstanding.
The accused raised the issue of the arrest of a co-suspect by name Eno Bassey Ntekim. One extra judicial statement in the file by one Ikwa Ibom Gordon Usen corroborates that fact. It was the province of the Police to investigate the culpability of the said Eno Bassey Ntekim and I believe they did and, in their wisdom, extricated him. It does not fall within my jurisdiction to reopen and judicially investigate that fact and I do not intend to do so.
I am convinced from the totality of the evidence adduced before me that the accused person, David Rubbin Robert, murdered Emmanuel Nyong Ibuot and that he actually intended such act which resulted in the said unlawful killing. I therefore find him guilty as charged and convict him accordingly.

On appeal before us, learned counsel for the Appellant insisted not unreasonably that the above summation would not have been sufficient to convict the Appellant for the offence of murder. Indeed, that the above emphasis in the case of the prosecution that the Appellant swore and/or threatened to kill the deceased and bury him in the boundary of the palm plantation remains evidence of suspicion even when the threat came to pass and the deceased head was found buried at the boundary of the palm plantation.

Incidentally, the evidence of PW2 which indicated that the Appellant confessed the crime to the village head – PW2, though reviewed by the learned trial judge and highlighted on appeal by the learned counsel for the Respondent, did not attract the necessary emphasis either by the learned trial judge or by counsel to the parties on appeal.

At page 74 of the Records of Appeal, PW2, Chief Edet Etim Edet, the village head of ObotInwang village concluded his examination in Chief as follows:
I asked the accused if he swore on oath as alleged that anytime the deceased is found in the plantation, he will murder him? I further informed the accused person that his threat to kill the deceased has manifested.
The accused person stood for some time and remained speechless. Thereafter, the accused person said he was guilty. He also pleaded with the village to save him and set him free. When I emphasized that what he did was evil, he said he knows that he is already a dead man but that the community should save him.
At that instance, I informed the accused that the community cannot save him. In the company of the accused, the PW1 and the father of the accused person, we took him and handed him over to the Police at Okobo division.
I made a statement to the Police.
The above quoted evidence of PW2 is not only direct evidence by virtue of the provision of Section 126 of the Evidence Act but also a confession of guilt of the crime to PW2 by the Appellant by Sections 27 and 28 of the Evidence Act.
It seems to me therefore that this is a typical case for the application of the provision of Section 15 of the Court of Appeal Act 2004 alongside the provision of Order 4 Rule 4 of the Court of Appeal Rules 2016. In other words, this Court must necessarily exercise all the powers of the Court below and determine the merits of the real question in controversy between the parties without regard that any ground for allowing the appeal or for affirming or varying the decision of the Court is not specified in any such notice.
In the instant case, the confession of the Appellant before PW2, the village head, is corroborated by the evidence of PW1, PW3, PW4 and more particularly the Autopsy Report Exhibit 3 to justify the conviction of the Appellant for the offence charged.
I think the problem in this case is that neither the trial judge nor the prosecuting counsel in the Court below was too sure to affirm the legal effect of the evidence of PW2, not only as a direct evidence of what he heard from the Appellant himself, rather, than hearsay evidence but also that what PW2 heard from the Appellant constitutes a confession under the provision of Sections 27 and 28 of the Evidence Act 2011.
On appeal before us, learned counsel for the Respondent rightly referred to the provision of Section 126 (b) of the Evidence Act 2011 to justify the fact that the evidence of PW2 on what the Appellant told him was/is direct evidence. Section 126 (b) of the Evidence Act says:
“126. subject to the provisions of part III, oral evidence shall in all cases whatever, be direct if it refers to –
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.”
Furthermore, in the case of ABOKOKUYANRO v. STATE (2012) 2 NWLR (Pt. 1285) p. 530 this honourable Court held that where a witness gives account of information of what he hears directly from another person, the information cannot be treated as hearsay.
It goes without saying that the evidence of PW2 as to the confession to him by the Appellant was not challenged or contradicted in evidence. Rather, at page 76 of the Record of Appeal under cross-examination by Ayewunmi Esq., for the defence, PW2 emphatically confirmed the confession made to him by the Appellant.
Question: In all what you are telling this Court, you did not witness when the deceased was killed?
Answer: The accused had accepted before me that he killed the deceased and also threatened to kill him before the PW1.
In ESENE v. THE STATE (2017) LPELR 41912 (SC), Ogunbiyi J.S.C. speaking for the Supreme Court said:
Where an adversary or a witness called testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness testimony as true, cross examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either, a Court can take his silence as an acceptance that the party does not dispute the fact.
See also IGHALO v. THE STATE (2016) 17 NWLR (Pt. 1540) p.1.
What remains to be said therefore in this case is that the conviction of the Appellant was justified in fact, and in law, in spite of the insufficient reasons for the conviction as contained in the summation by the learned trial judge.

The only issue in this appeal is resolved against the Appellant.
The appeal lacks merit and it is accordingly dismissed.

The judgment, conviction and sentence of the Appellant by Hon. Justice Gabriel E. Ette on 30th May, 2017 in charge No. HOK/3C/2011 are hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: The judgment just read by my Learned brother MOJEED ADEKUNLE OWOADE, J.C.A., was made available to me in draft before now. I agree with the reasoning and the conclusion to the effect that the appeal is lacking in merit.

It would seem that the lower Court accorded less weight to the oral confession made by the appellant before the PW1. That should not have been so. An extra judicial confession, though made orally, as was the case herein carries equal weight with the one made in writing. See Uchenna Nwachukwu vs The State (2002) 7SC (pt. 1) 124 per Iguh, J.S.C. It then follows that the retraction of the confessional statement by the accused person in his oral evidence in Court during trial, and once the Court is satisfied of the truth of the confession becomes of no moment. That alone can be relied upon to ground a conviction. See James Chiokwe vs. The State (2012) LPELR – 19716 (SC) per Ariwoola J.S.C., see also Onyejekwe vs. The State (1992) 4 SCNJ 1 at 8, Bature vs. The State (1994) 1 SCNJ 19 at 29 and Akpan vs. The State (2001) 7 SCNJ 567 at 580 amongst many others. The case of Onungwa vs. The State (1976) 1 SC (reprint) 74 per Idigbe is equally illuminating, having held that an admission made by any person charged with a crime suggesting the inference that he committed the offence is a relevant fact and admissible in evidence against the maker.

My Learned brother in the lead judgment exposed the justice of the case even though the lower Court failed to fully appreciate the nature of the evidence in that regard. For this and the fuller and exquisite reasons in the lead judgment, I also dismiss the appeal as lacking in merit and thereby affirm the conviction and sentence imposed on the appellant as decided on the 30th of May, 2017 in charge with No. HOK/3C/2011.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of previewing the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, J.C.A., in which the appeal was dismissed. I hereby endorse the reasons in arriving at the conclusion that this appeal is moribund and should be dismissed.

By virtue of Section 28 of the Evidence Act, a confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime and is deemed relevant against the person who made it as long as it was voluntarily made.
In the light of the above, the appellant in this case having admitted orally of killing the deceased to PW2 but pleaded for forgiveness must be taken to have confessed to the commission of the crime charged in the context of Section 28 of the Evidence Act. Apart from the said confession, the circumstantial evidence pointing to the guilt of the appellant for the murder of the deceased, Emmanuel Nyong Ibuot alias Ette Akan, and severing the head from the body wherein he buried same in the boundary of the farm are irresistibly strong and pointed. The evidence of the prosecution clearly shows premeditation. The appellant swore on oath that he would kill the deceased in the same bush and bury him in the boundary of the plantation. Few months later, the body of the deceased was found in the same plantation where the appellant retorted to kill and bury the deceased. The evidence of PW1 and PW2 in this case are direct evidence and not hearsay. Where the evidence seeks to establish the truth of what was told by another person, it is hearsay but where the evidence seeks to establish only the fact that a statement was made that evidence will not be taken hearsay. ITODO V STATE (2020) 1 NWLR (prt 1704) 1 at 40. The evidence of PW1 and PW2 established what they personally saw and heard from which the trial Court could tie up the circumstances using inferences easily reaching the compelling and irresistible conclusion that the appellant killed the deceased. There is therefore no substance in this appeal and I too dismiss the unmeritorious appeal.

Appearances:

CHIEF VICTOR IYANAM, ESQ. For Appellant(s)

UWEMEDIMO NWOKO, ESQ. (Attorney General of Akwa Ibom State) For Respondent(s)