UDOH v. STATE
(2020)LCN/15694(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/C/376C/2018
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
HammaAkawuBarka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
CHRISTOPHER MARCUS UDOH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
ISSUES ON APPEAL NOT RAISED DOES NOT FORM PART OF THE JUDGEMENT OF THE COURT
A good starting point for the resolution of Appellant’s issue No. 1 is to say in agreement with the learned counsel for the Respondent that the issue of contradictions in the evidence of prosecution and/or improper processing of confessional statement are new issues on appeal as they were not raised by the defence in the Court below and indeed do not form part of the judgment of the Court below. Such issues can only be raised on appeal with leave of the appellate Court which was neither sought or obtained in the instant case. See TUKUR v GOVT. OF TARABA STATE [1997] 6 SCNJ 81 @ 99; ESANGBEDO v STATE [1989] LPELR – 1163 [SC]; AG, ADAMAWA v WARE [2006] 25 NSCQR 125; OLORUNFEMI v NIG. EDUCATIONAL BANK LTD. [2003] 5 NWLR [Pt. 812] 1. MOJEED ADEKUNLE OWOADE, J.C.A.
MERE RETRACTION OF VOLUNTARY CONFESSIONAL STATEMENT IS ADMISIBLE
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 IKPO v STATE [2016] LPELR 40114 [SC]; GALADIMA v STATE [2017] LPELR 41909; NSOFOR v THE STATE [2006] 5 LRCN CC 218 @ 220; ULUEBEKA v STATE[2000] 4 SC [Pt. 1] 203; IDOWU v STATE [2000] 7 SC [Pt. 11] 50. MOJEED ADEKUNLE OWOADE, J.C.A.
CORROBORATION OF EVIDENCE
And, as demonstrated by the reliance of the learned trial judge on the direct evidence of Pw1 and the evidence of Pw2, corroboration is any independent evidence which confirmed in some material particular not only that a crime has been committed but also that it was committed by the accused person. See AMADI v STATE [1993] 8 NWLR [Pt. 314] 644 SC; SIWOBI v C.O.P. [1997] 1 NWLR [Pt. 482] 411 CA. MOJEED ADEKUNLE OWOADE, J.C.A.
And, as demonstrated by the reliance of the learned trial judge on the direct evidence of Pw1 and the evidence of Pw2, corroboration is any independent evidence which confirmed in some material particular not only that a crime has been committed but also that it was committed by the accused person. See AMADI v STATE [1993] 8 NWLR [Pt. 314] 644 SC; SIWOBI v C.O.P. [1997] 1 NWLR [Pt. 482] 411 CA. MOJEED ADEKUNLE OWOADE, J.C.A.
THE CONFESSION OF AN ACCUSED PERSON TO A CRIME IS THE DETERMINATION OF HIS GUILT
Indeed, confession of an accused person to the commission of a crime plays a major part in the determination of his guilt and a Court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus. See OKEKE v STATE [2003] 15 NWLR [Pt. 842] 25 SC.
MOJEED ADEKUNLE OWOADE, J.C.A.
DEFINITION OF TRIAL AND THE FUNCTION OF THE TRIAL COURT
This is because, a trial is not an investigation and investigation is not the function of a Court.
A trial is the public examination and demonstration of a contest between the parties. The function of the trial Court is to decide on the basis of the tested evidence and the assertions between the parties. In the cases of OGBUDU v ODOGBO [1967] NMLR 221 and EVOYOMA v DAREGBA [1968] NMLR 389, the Supreme Court reiterated the principle that the judge must discover the truth from the evidence presented by the parties, and that he cannot call a witness whom he thinks might throwsome light on the facts. Just as a Court cannot dictate to the prosecution which witness to call or direct the trend of its investigation as softly suggested by the learned counsel for the Appellant in his treatment of issue No. 3.
MOJEED ADEKUNLE OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honorable Justice Eno Isangedighi sitting in High Court of Akwa Ibom State, Ikot Ekpene Judicial Division which was delivered on 24th May, 2018.
The Appellant was charged and tried at the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division for Murder contrary to Section 326 (1) of the Criminal Code Cap. 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000 and Attempt to perverse the course of justice contrary to Section 128 (3) of the Criminal Code, Cap. 38, Vol. 2, Laws of Akwa Ibom State of Nigeria, 2000.
The prosecution in proving its case called two witnesses. The case of the prosecution against the Appellant was that on the night of 31st December, 2008 the Appellant slaughtered and burnt his son Gabriel Christopher Marcus [deceased] with fire to death and on the 1st of January, 2009 he buried the child and planted plantain on the grave to hide his heinous act.
The Appellant entered his defense and called no witness. He admitted in his extra-judicial statement that on the 31st night he poured petrol on the deceased and sethim on fire till he was dead, buried him and then planted plantain on the grave to hide his act. But while giving evidence in Court, he resiled from his extra-judicial statement.
The learned trial judge relied on the confessional statement of the Appellant as corroborated particularly by the evidence of Pw1 and Pw2 and convicted only for the offence of Murder.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing three (3) grounds of appeal in this Court on 9/8/2018.
Appellant’s brief of Argument filed on 19/5/2020 was deemed filed on 28/5/2020. It is settled by G. A. Umoh, Esq. Respondent’s brief of Argument filed on 7/7/2020 was also deemed filed on 14/9/2020. It is settled by Angela Mick-Akpabio, Esq. Principal State Counsel in the Akwa Ibom State Ministry of Justice.
Learned counsel for the Appellant nominated three (3) issues for the determination of the appeal as follows:
1. Whether the lower Court was right in concluding that the accused person caused the death of the deceased despite the contradictions in evidence. [Ground 1]
2. Whether the learned trial judge was right in findingthe Appellant guilty of murder even when none of the ingredients of the offence was proved against the accused person. [Ground 2]
3. Whether the learned trial judge was right in holding that the prosecution has proved its case beyond reasonable doubt despite the fact that the evidence of the prosecution had raised several doubts. [Ground 3]
Learned counsel for the Respondent similarly formulated three (3) issues for the determination of the appeal thus:
i. Whether the lower Court was not right in concluding that the accused person caused the death of the deceased in the absence of any material contradiction in the evidence.
ii. Whether the learned trial judge was not right in finding the Appellant guilty of Murder when all the ingredients of the offence were proved against the Accused person.
iii. Whether the learned trial judge was not right in holding that the prosecution has proved its case beyond reasonable doubt in the absence of any doubt.
The submissions of the learned counsel for the Appellant on Issue No. 1 could be roughly divided into three compartments:
a. contradictions in the evidence of prosecution
b. improper processing of Confessional Statement
c. insufficient corroboration of the Confessional Statement.
On [a] above, learned counsel for the Appellant submitted that the learned trial judge was wrong in concluding that the Appellant caused the death of the deceased despite the contradictions in evidence as to the account and manner of death of the deceased. He submitted that the learned trial judge did not properly consider the contradictory evidence of the prosecution witnesses.
That, whereas in the Appellant’s purported statement tendered by the prosecution and admitted as Exh. 1, the Appellant purportedly stated thus:
On the night of 31/12/2008 at about 10pm, I was angry and I decided to pour him a petrol and set him fire and killed him. When he died buried him at my frontage of my compound and I planted plantain on his grave. [Page 6 of Supplementary Records].
Still on contradictions, learned counsel for the Appellant submitted that the attempt by Pw1 to incorporate her initial statement to tally with the purported confessional statement of the Appellant by adding that the Appellant sealed the pit toilet and plantedplantain sucker on it, was a total after-thought as it is unbelievable that the Appellant would seal a whole pit toilet used by other people too, as initially testified by Pw1, and plant plantain on it within that short period of time.
Appellant’s counsel added that it is particularly impossible for the investigation officers who visited the scene not to have discovered the plantain planted, taken pictures and tendered in Court and even testify to that effect.
He submitted that from the foregoing facts, the contradiction touches on the 1st & 2nd ingredients of Murder [there was death of a human being; and it was caused by the act of the Appellant] which he said ought to be resolved in favour of the Appellant. He submitted that contradictory evidence is when a piece of evidence asserts or affirms the opposite of what the other asserts or affirms or when they give inconsistent accounts of the same events relying on the cases ofEKE v THE STATE [2011] 3 LPELR – 1133 [SC]; OKOZIEBU v THE STATE [2003] 11 NWLR [Pt. 83] 327. But concedes that for a contradiction to be held fundamental, it must touch substantially, on the element of theoffence sought to be proved. Trivial contradiction should not vitiate a trial.
On this, Appellant’s counsel referred to the cases of GAMBO MUSA v THE STATE [2009] LPELR – SC -323/2006; EKEZIE v STATE, CA/E/6C/1999 [2016] LPELR – 40961 [CA]; ANKWA v THE STATE [1993] NWLR [Pt. 269] 276.
On [b] above, learned counsel for the Appellant submitted that the learned trial judge erroneously admitted and relied on the purported confessional statement of the Appellant. The purported extra-judicial statement did not satisfy all the requirements of the tests of a confession and was not properly processed. He noted purported contradictions in the execution of the confessional statement as follows:
i) We refer My lords to page 8 of the Supplementary Record of Appeal which indicated that the confessional statement was read in English and interpreted in Ibibio whereas the Appellant is from the Annang tribe.
ii) The said Mfon Philip’s signature is not found on the admission note at all. [see pages 7 & 8 of the supplementary records].
iii) Oweleke who purportedly worked with Mfon Philips was not part of the process, or did notsign the purported confession note himself.
iv) The names of the Police Officers were unknown or not disclosed neither was the name of the Senior Police Officer who presided over the process disclosed in any of the documents or prosecution’s evidence.
v) There is no evidence whatsoever to show that statements were taken from the parents of the Appellant who were said to have been at home when the purported crime was committed.
He submitted that the learned trial judge erroneously concluded that the purported confessional statement is consistent with other facts. However, that the dates the Pw1 and the Appellant gave as having met in the village at UsukOsungObotAkara are different and inconsistent.
On [c] above, learned counsel for the Appellant submitted that the only corroboration relied upon by the learned trial judge is culled from the same retracted extra-judicial statement of the Appellant admitted as Exhibit 1 despite objection by the defence counsel and denial of the statement by the Appellant. Appellant’s counsel submitted that Pw1 accepted on record in her evidence that her testimony are hearsay but that the trialCourt looked away when she told the Court that one of the informants was in Court. He referred to the case of OHUNYON v STATE [1996] LPELR- 2363 [SC] to say that the conviction herein is speculative as the Court did not bother about prosecution’s inabilities to present direct evidence even when some were available to them and the available evidence was not even circumstantial enough to sustain the conviction.
Appellant’s counsel referred to the case of NWOKEARU v STATE [2010] 15 NWLR [Pt. 1215] p. 12, and suggested that the trial Court ought to have rejected the evidence of Pw1 under the inconsistency rule as the attempt by Pw1 to incorporate her initial statement to tally with the purported confessional statement of the Appellant by adding that the Appellant sealed the pit toilet and planted plantain sucker on it, was an afterthought as it is unbelievable that the Appellant would seal a whole pit toilet used by other people too.
He urged us to resolve issue No. 1 in favour of the Appellant and hold that the lower Court was not right in concluding that the Appellant caused the death of the deceased despite the contradictions inevidence.
On the submissions of the learned counsel for the Appellant on [a] of issue No. 1 above, Respondent’s counsel answered that the learned trial judge was right in concluding that the Appellant caused the death of the deceased having not found any contradiction in the evidence of the prosecution as to the manner of the death of the deceased. He submitted that there was no contradiction in the evidence of the prosecution witnesses and the Appellant being in total agreement with that position never raised, canvassed or argued any issue of contradiction in the evidence before the trial Court.
Respondent’s counsel referred to the cases of TUKUR v GOVT. OF TARABA STATE [1997] 6 SCNJ 81 @ 89; ESANGBEDO v STATE [1989] LPELR – 1163 [SC] and submitted that the Court has no jurisdiction to take an appeal from matters not canvassed at the lower Court.
In relation to the [b] portion of Appellant’s issue No. 1, where the Appellant alleged amongst other things that:
(i) That it is indicated in the confessional statement that the confessional statement was read in English and interpreted in Ibibio whereas the Appellant is from Annangtribe.
(ii) That the signature of the IPO who recorded the statement is not on the admission note.
(iii) That Pw2 who worked with the said IPO did not sign the confession note.
(iv) That names of the Police Officers were unknown and the name of the Senior Police Officer who presided over the process is not disclosed.
Learned counsel for the Respondent again contended that the above are fresh issues raised on appeal without leave of Court. He referred again to the cases of TUKUR v GOVT. OF TARABA STATE [1997] 6 SCNJ 81 @ 89; AG, ADAMAWA v WARE [2006] 25 NSCQR 125; OLORUNFEMI v NIGERIAN EDUCATIONAL BANK LTD. [2003] 5 NWLR [Pt. 812] 1, which cannot be countenanced in this appeal.
Still on item [b] of Appellant’s issue 1, particularly on the alleged inconsistency between the evidence of Pw1 and Exh. 1, Appellant’s confessional statement on the dates that Appellant and Pw1 met each other at their village compound. Respondent’s counsel submitted that the evidence as to dates when Pw1 and Appellant met in their compound does not in any way touch on the substance of the case. He referred to the cases of SELE v STATE [1993] 1 SCNJ 15 @ 22– 23; ANYASODOR v STATE [2018] LPELR – 43720 [SC] and submitted that it is only when contradictions or inconsistencies are fundamental or substantial to the main issues in question before the Court that the Appellant can benefit therefrom, but that inconsistencies will be of no moment when they do not touch on any of the ingredients of the offence charged.
On Appellant’s item [c] in issue No. 1 and the contention that the only corroboration relied upon by the trial judge is culled from the same denied extra judicial statement of the Appellant, Respondent’s counsel submitted that the learned trial judge was absolutely right to have acted on the confessional statement purportedly retracted by the Appellant.
Learned counsel for the Respondent submitted first that the confessional statement of the Appellant was retracted at the time the Appellant was giving his evidence in Court. After, referring on this to the case of DIBIE v STATE [2007] 9 NWLR [Pt. 1038] pg. 37, Respondent’s counsel submitted that the trial Court actually subjected the Appellant’s Confessional Statement to the requisite test to make it probable thatthe confession was true.
He referred to the cases of ACHABUA v STATE [1976] 12 SC 63 and YAHAYA v STATE [2016] LPELR – 40254 [CA] and submitted that it is sufficient if corroborating evidence is only circumstantially connecting or tending to connect the Accused with the commission of the crime.
On the Appellant’s contention that the trial Court relied on the hearsay evidence of Pw1, Respondent’s counsel submitted that the trial Court clearly stated that he did not rely on any of the evidence of Pw1 that came to her through the information of a third party, but on her personal confrontation with the Appellant. He submitted that Pw1 was consistent with evidence of her direct confrontation with the Appellant when she stated at page 54 of the Record as follows:
… the Accused himself told me that he killed the deceased because he was a witch….
Finally, on the Appellant’s contention that Pw1’s evidence ought to be rejected on the basis of the inconsistency rule, Respondent’s counsel submitted that the Appellant’s reference to the case of NWOKEARU v STATE [2010] 15 NWLR [Pt. 1215] is misplaced. Thatthe extra judicial statement of Pw1 is not legal evidence that can be acted upon when in fact Pw1 was not confronted with the fact that his evidence in Court contradicted his statement to the Police.
A good starting point for the resolution of Appellant’s issue No. 1 is to say in agreement with the learned counsel for the Respondent that the issue of contradictions in the evidence of prosecution and/or improper processing of confessional statement are new issues on appeal as they were not raised by the defence in the Court below and indeed do not form part of the judgment of the Court below. Such issues can only be raised on appeal with leave of the appellate Court which was neither sought or obtained in the instant case. See TUKUR v GOVT. OF TARABA STATE [1997] 6 SCNJ 81 @ 99; ESANGBEDO v STATE [1989] LPELR – 1163 [SC]; AG, ADAMAWA v WARE [2006] 25 NSCQR 125; OLORUNFEMI v NIG. EDUCATIONAL BANK LTD. [2003] 5 NWLR [Pt. 812] 1.
For whatever it is worth and going into specific examples cited by the learned counsel for the Appellant there might be minor discrepancies in between the content of the Appellant’s confessional statement Exh.1 and theevidence of Pw1 but largely in relation to the key issues in the case the evidence of Pw1 indeed and as noted by the learned trial judge corroborates the Confessional Statement on the fact of death and on the key element that the death of the deceased was caused by the Appellant in the instant case.
Interestingly, learned counsel for the Appellant himself conceded that minor contradiction which did not affect the credibility of witnesses will be of no avail to the appellant. Contradiction, to be worthy of note, must relate to the substance and indeed the vitiate ingredients of the offence charged. And that trivial contradictions should not vitiate a trial. See GAMBO MUSA v THE STATE [2009] LPELR – SC-323/2006; ANKWA v THE STATE [1993] NWLR [Pt. 269] 276; EKEZIE v STATE CA/E/6C/1999 [2016] LPELR- 40961 [ CA].
In the instant case, the contradictions if any in between the evidence of Pw1 and Appellant’s Exhibit 1, the Confessional Statement did not touch on any of the ingredients of the offence charged and are of no moment. See SELE v STATE [1993] 1 SCNJ 15 @ 22 – 23; ANYASODOR v STATE [2018] LPELR – 43720 [SC].
In relationto the Appellant Confessional Statement Exhibit 1, the learned trial judge was not only right to have treated same as a Confessional Statement but also to have followed laid down guidelines in utilising the portion of direct evidence offered by Pw1and the evidence of Pw2 to corroborate Exhibit 1, in convicting the Appellant of the offence charged.
The learned trial judge indeed went out of his way to note and to warn himself not to utilise the third party information or hearsay evidence offered by Pw1 in corroborating the Appellant’s Confessional Statement Exh.1. It is significant that at cross-examination on page 54 of the Record of Appeal, Pw1 witnessed in part as follows:
…. I did not see the killing of the deceased but the accused person himself told me that he killed the deceased because he was a witch. I did not see the burning but the accused told me that he killed and burnt the deceased because that is how a witch should be treated. I did not see but I was shown the spot where the accused buried the deceased and planted plantain over the pit toilet where he dumped the remains of the child… … …
It is trite law that mereretraction of a voluntary Confessional Statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See IKPO v STATE [2016] LPELR 40114 [SC]; GALADIMA v STATE [2017] LPELR 41909; NSOFOR v THE STATE [2006] 5 LRCN CC 218 @ 220; ULUEBEKA v STATE[2000] 4 SC [Pt. 1] 203; IDOWU v STATE [2000] 7 SC [Pt. 11] 50.
And, as demonstrated by the reliance of the learned trial judge on the direct evidence of Pw1 and the evidence of Pw2, corroboration is any independent evidence which confirmed in some material particular not only that a crime has been committed but also that it was committed by the accused person. See AMADI v STATE [1993] 8 NWLR [Pt. 314] 644 SC; SIWOBI v C.O.P. [1997] 1 NWLR [Pt. 482] 411 CA.
Issue No. 1 is resolved against the Appellant.
On issue No. 2, learned counsel for the Appellant submitted that the learned trial judge convicted the Appellant even when there was no evidence of proof of death of the deceased.
On this note, learned counsel for the Appellant reiterated the ingredients of the offence of murder to wit:
a) The death of a human being
b) That it wascaused by the act of accused
c) That the act or acts were done with the intention of causing death or
d) The accused herein knew that the death would be the
probable consequence of his act or acts.
On this, Appellant’s counsel referred to the cases of SUNDAY OMINI v THE STATE [1999] 12 NWLR [Pt. 630] 168 @ 182; UGURU v STATE [2002] 9 NWLR [Pt. 771] 90 @ 106; GIRA v STATE [1996] 4 NWLR [Pt. 443] 375; NWAEZE v STATE [1996] 2 NWLR [Pt. 428] 1; OGBA v STATE [1992] 2 NWLR [Pt. 282] 164.
He added that until and unless the prosecution is able to prove these ingredients conjunctively against the accused person the prosecution’s case is bound to fail. He submitted that in the instant case, there is no evidence that any medical evidence or any pictures from the acclaimed crime scene was tendered in Court in order to ascertain that any death occurred, that rather this whole matter is built on speculations and conjunctures. That it is fictional that a whole body of a person would be burnt to ashes without trace of the remnant and the exact location or place. That it is also fictional that the Police knew where the body was buried butdid not make attempt to exhume same, at least to corroborate the purported complain.
He repeated that the evidence of Pw1 and Pw2 on the manner of death of the deceased was merely hearsay evidence which ought not to be admitted. On this, he referred to the cases of DIKKO & ORS. v ABDUL & ORS. [2014] LPELR- 23625 [CA]; FRN v SARAKI [2017] LPELR- 43392 [CA].
Appellant’s counsel submitted that the actual fact of death, the manner of death or the actual act that led to the death of the deceased is unknown and it would amount to speculation to tie the facts as narrated by the Pw1 and Pw2 to the death of the deceased. That, the prosecution therefore failed to establish death.
On this, counsel referred to the case of ANKPEGHER v STATE [2018] LPELR- 43906 [SC]. Learned counsel for the Appellant further submitted on issue No. 2 that Exhibit 1 is not the written and signed statement of the Investigating Police Officer as envisaged by Section 49 of the Evidence Act 2011. He reproduced the provision of Section 49 of the Evidence Act 2011 and placed emphasis on the adjunct word “AND” which means that both requirements (a) Thedefence does not object to his statement being admitted: AND (b) The Court consents to the admission of the statement are necessary in admitting such documents.
He concluded that if Exhibit 1 is expunged from the records, there will be no credible evidence upon which a reasonable Court can convict the Appellant of the charge of Murder.
In reaction to Appellant’s issue No. 2, learned counsel for the Respondent also reiterated the ingredients of the offence of murder through the cases of AFOSI v STATE [2013] 13 NWLR [Pt. 1371] 329 and ALI v STATE [2015] 19 NWLR [Pt. 1466] 1 @ 6. He added that in proving the ingredients of the offence of Murder the prosecution can employ any of the following ways:
a) By the confession of the accused; or
b) By evidence of eye witness; or
c) By circumstantial evidence.
He referred to the case of ANTHONY ITU v THE STATE [2016] LPELR – 26063 SC. He reproduced excerpts from the Appellant’s Confessional Statement Exh.1 and the evidence, cross-examination of Pw1 to say that the Respondent prosecution established both the fact of death and the act that caused death.
On the issue of theabsence of medical evidence, Respondent’s counsel submitted that the law is that Medical Report on cause of death is desirable but not a necessity. That where the facts and circumstances of a case as shown by evidence before the trial Court, leaves no room for reasonable doubt as to cause of death, medical evidence is unnecessary as to cause of death. And, the Court can in the absence of medical report properly infer the cause of death from the evidence and circumstances of the case. He referred to the cases of UMAR v STATE [2015] LPELR- 40758 [CA]; THE STATE v HARUNA [2017] LPELR – 43351 [CA].
Learned counsel for the Respondent emphasised that the admission by the Appellant to Pw1 that he killed the witch that was troubling him cannot be termed “hearsay”. He referred to the case of AROGUNDADE v STATE [2009] ALL FWLR [Pt. 469] pg. 409 where the Supreme Court held that “where a witness said that the Accused had confessed the crime to him would not amount to hearsay”.
On the admissibility of Exhibit 1, learned counsel for the Respondent justified the tendering of the Appellant’s Confessional Statement by Pw2after he laid the necessary foundation before the Court that “…. Mfon Philips who investigated the matter in my team died in March 2013”. He was a Sgt. I can identify his signature and handwriting very well….” Also, that “…. I read through the Exhibit after Mfon Philips recorded the statement …”
He submitted and urged us to hold that the confessional statement of the Appellant tendered by Pw2 is not the statement of the Investigating Police Officer under Section 49 of the Evidence Act and thus that Section 49 of the Evidence Act is not applicable in the circumstance of the case. He submitted that in the absence of the Police Officer that recorded the confession, any of his colleagues who could lay proper foundation is competent to tender it in evidence. He referred to the case of JOHN v STATE [2011] 18 NWLR [Pt. 1278] 353 SC.
He urged us to resolve issue No. 2 in favour of the Respondent.
Learned counsel for the Appellant has raised two perhaps three points in relation to issue No.2. The first is the effect of the absence of a medical report in the trial. In the ensuing argument on this point,Appellant’s counsel also indirectly raised the issue of the absence of the corpus delicti. And, finally on issue No.2 attacked the procedure for the admissibility of Exhibit 1.
Learned counsel for the Respondent has adequately replied the Appellant’s counsel on the position of the law where the prosecution has not produced any medical report as to the cause of death.
The law is that Medical Report on cause of death is desirable but not always necessary. In other words, the Court can properly infer the cause of death from the circumstances in the absence of medical report. See UGURU v STATE [2002] 9 NWLR [Pt. 771] 90 SC; UMAR v STATE [2015] LPELR – 40758 [CA]; THE STATE v HARUNA [2017] LPELR – 43351 [CA].
Again, a conviction for murder can be sustained in the absence of corpus delicti, that is without actually seeing or producing the body of the deceased person, where there is strong direct evidence as in the instant case to justify such conviction. See IGABELE v STATE [2004] 15 NWLR [Pt. 896] 314 CA; AIGUOREGHIAN v STATE [2004] 3 NWLR [Pt. 860] 367 SC; UBANI v STATE [2003] 18 NWLR [Pt. 851] 22 SC; BABUGA v STATE [1996]7 NWLR [Pt. 460] 279 SC; ARICHE v STATE [1993] 6 NWLR [Pt. 312] 757 SC.
Now, the antecedents to the admissibility of Exhibit 1 could be seen starting from pages 59 – 60 of the Record of Appeal:
Mfon Philips who investigated the matter in my team died in March, 2013. He was a Sgt. I can identify his signature and handwriting very well. After the accused made statement, he was taken to a superior Police Officer, his statement was read to him and he admitted same to be true and correct. The statement was obtained by the IPO, Late Sgt. Mfon Philips. I can identify the handwriting and signature on the document shown to me as those of Late Sgt. Mfon Philips.
Aniefiok: Seeks to tender.
Nwani: We object. The witness has said that the recorder of the statement is dead. The witness has not established the death of Sgt. Mfon Philips. He was not the one who attested to the statement. The witness did not participate in the investigation of this case. Urge Court to admit the statement and mark same as “rejected”.
Aniefiok: Witness has laid proper foundation to the tendering of this statement. He was in the team that investigatedthe matter. The IPO has been shown to have died. The document being relevant can be tendered through this witness. See Section 49 Evidence Act 2011. See also MAGAJI v NIG. ARMY [2008] 8 NWLR [Pt. 1089] 338 @ 358.
Nwani rejoins: The defence has objected. Pray Court to reject the statement.
Court: Ruling reserved.
It would be seen from the above that the prosecution Respondent did not in fact raise any objection to the admissibility of the said Confessional Statement Exhibit 1 either on account that it was not voluntarily made or that it was nevertheless inadmissible in law.
The learned trial judge proceeded to give a considered ruling contained on pages 62 – 64 of the Record of Appeal whereby he placed reliance on the provision of Section 49 of the Evidence Act in admitting the said Exhibit 1 in evidence. Section 49 of the Evidence Act 2011 provides thus:
Notwithstanding anything contained in this Act or any other law but subject to this section where in the course of any criminal trial, the Court is satisfied that for any sufficient reason, the attendance of the IPO cannot be procured, the written and signed statement of suchofficer may be admitted by the Court if-
(a) the defence does not object to the statement being admitted; and
(b) the Court consents to the admission of the statement.
Before us in this appeal, learned counsel for the Appellant submitted that Exhibit 1 is not the written and signed statement of the Investigating Police Officer as envisaged by Section 49 of the Evidence Act 2011. Learned counsel for the Respondent agreed with that point and explained that the Appellant’s confessional statement Exhibit 1, was nevertheless admissible in law, the prosecution having raised objection to its admissibility and Pw2 having laid the necessary foundation of the admissibility of Exhibit 1 consequent on the death of Sgt. Mfon Philips who he said was part of his investigation team as Assistant Superintendent of Police.
I think it is now too late in the day for the learned counsel for the Appellant to attempt to impeach Exhibit 1.
The larger question now is whether in the circumstance of the case Exhibit 1 was admissible in law and not whether or not its admissibility must necessarily be within the confines of the provision of Section 49 of the Evidence Act, 2011 .
This is because where evidence is admissible under certain conditions, the trial Court can admit and act on it if there was no objection when it was tendered and an appellate Court will not entertain any complaint on the admissibility of such evidence. See ALADE v OLUKADE [1976] 2 SC 183.
It was under similar circumstances as the present one that ALOMA MARIAM MUKHTAR, JSC speaking for the Supreme Court held in the case of STEPHEN JOHN & ANOR v THE STATE [2011] 18 NWLR [Pt. 1278] 353 @ 368 held as follows:
Before the confessional statement of the 1st Appellant was admitted in evidence, Pw3 gave the following evidence inter alia:
The statement of the first accused was recorded by Sergeant Attah Idu. He is now on transfer to Lagos. The statements were all recorded on the same day; at the same place that is the anti-robbery section of the State CID. I have been with Sgt. Atta Idu since 1999 in the Police Force. I can identify his hand writing and signature. If I see the statement I can recognise his handwriting and signature. I see this statement. It is recorded by Sgt. Idu.
The supra reproduced evidence of Pw3explained the reason why the maker was not in Court to tender the confessional statement, and the fact that he identified the handwriting of the maker of the said exhibit 3 lends credence to its admissibility. The contention that exhibit 3 was inadmissible because it was not tendered by the maker, is in the circumstance, of no moment. Besides, when the said exhibit 3 was about to be tendered, there was no objection by the learned counsel for the defence, as is reflected on pages 67 – 68 of the printed record of proceedings. Having not objected to the admissibility of the confessional statement (exhibit 3), this omission translated to the fact that the 1st Appellant was comfortable with the admission, and saw no reason to challenge its admissibility.
In any event, an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at a correct decision. And, the powers of the Court of Appeal with respect to the determination of appeal before it are by way of re-hearing, with all the powers of a Court offirst instance. See OREDOYIN v AROWOLO [1989] 4 NWLR [Pt. 114] 172 SC; INAKOJU v ADELEKE [2007] 4 NWLR [Pt. 1025] 423 SC; JADESIMI v OKOTIE-EBOH [1986] 1 NWLR [Pt. 16] 264.
The learned trial judge was right in finding the Appellant guilty of murder as all the ingredients of the offence were proved by Exhibit 1 as corroborated by the evidence of Pw1 and Pw2.
Issue No. 2 is resolved against the Appellant.
Learned counsel for the Appellant adopted his argument on his issues 1 & 2 for the treatment of his issue No. 3. He submitted that in criminal trial as in the instant case, prosecution must prove its case beyond reasonable doubt. He submitted that from the evidence of the prosecution, several pertinent questions of doubts arise thus:
a) Did the Police actually conduct proper investigation by going to the house of the accused person?
b) Was the investigation properly carried out?
c) Did the Police give a report as to the result of investigation?
d) Where is the report?
e) Did the Police take pictures of the crime scene to wit; the purported ash on the ground, the pit or plantain sucker?
f) Did they take statementsfrom mentioned witnesses especially the acclaimed Uyo Ezekiel Udoh and the Appellant’s father?
He submitted that if proper investigation was carried out, Pw2 [IPO] would have given the details of such an exercise in evidence in chief. This, he said amounted to withholding of evidence that would have been adverse to the prosecution’s case contrary to Section 167 (d) of the Evidence Act 2011. He referred to the case of SMART v STATE [2016] LPELR – 40827 [SC].
Appellant’s counsel submitted that Pw2 gave evidence in Court [page 59 of the records] indicating that he was a member of the investigating team and was at the scene of the crime without tendering any picture of the ash, the purported blood stained pit toilet floor or the scene of the crime. There was no evidence of any dug-up burnt body parts from the scene, no eye witness account, no medical report and no evidence or proof of any death at all. Pw2 could not produce such evidence because there was no such evidence. No family members’ statement was recorded at all, including those who purportedly saw the blood stains. In fact Pw2 stated emphatically at page 59 of therecords that “the scene of the crime visited, Autopsy could not be conducted.
After referring to the case of SOLOLA & ANOR v THE STATE [2005] LPELR- 3101 [SC] on the requirement of proof beyond reasonable doubt. Learned counsel for the Appellant submitted that the evidence of the prosecution had raised several other questions of doubts as follows:
a) Is there any possibility that the Accused Person confessed to committing the crime and he did not lead the IPO to where he claimed to have buried his son’s remains?
b) Why was Uyo Ezekiel Udoh, who purportedly saw blood stains in the toilet, and who was in Court, not made to testify? [page 50 of records of appeal.
c) Why did any of her siblings whom Pw1 also under cross examination, [page 54 of records] claimed were around and saw the accused go back to Benin, not testify as witnesses to corroborate her evidence? Pw1’s evidence should have been corroborated by another witness in order to test its credibility.
d) Why was none of the other [eye witnesses] of the house or compound, including the Appellant’s father, not called to testify in Court?
Learnedcounsel for the Appellant referred to the case of ADAMU v STATE [2017] LPELR – 41436 [SC] pointing out the prosecution is not bound to call every person linked to the scene of the crime to come and testify, however, there are vital witnesses whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution’s case. Appellant’s counsel raised further questions as follows:
e) Pw1 testified [pages 49 – 50 of the records] that the accused person killed the deceased on the 31st of December, 2008 and that Pw1’s daughter was called by the acclaimed Uyo Ezekiel Udoh to inform her about the murder. Why did this concerned neighbour [Uyo Ezekiel Udoh] choose to inform Pw1 on the 6th of January, 2009, of the murder, if the deceased had since been murdered on the 31st of December?
f) How did the Appellant successfully burn a whole human being without a trace without alerting any neighbor’s curiosity or even his father in the house?
g) On the next day, why did the Appellant’s father and “those who noticed blood stains and the remains of the child dumpedtherein…” not raise an alarm or report the matter to the necessary authorities, after witnessing or suspecting such a heinous crime and ‘running’ as stated in page 50 of the records of appeal?
h) If the Appellant truly did kill his son, how did he get so comfortable to remain in the same house with the father who purportedly knew that his son murdered his grandchild, for 6 days after committing such an offence? [see page 51 of records of appeal] and also considering that the neighbours who saw blood stains, already know that someone has been murdered?
i) The Appellant’s defence was entirely overlooked as clearly recorded in pages 79 – 81 of the records.
i) At page 80 he stated- “On 3rd February, 2009, I was brought out of the cell by Sgt. Mfon Phillips, in company of the Pw1. At the interrogation room, I was asked if I knew why I was interrogated. I told them yes, and I told them about the money my step sister had borrowed from me. I was ordered to shut up and laid on a table. I was beaten seriously. Thereafter, I was returned to the cell. The Pw1 told [mocked] me that I will rot in the cell. I was in cellfor a whole week. On 18th February, 2009, Sgt. Mfon Phillips brought me out to his office. I wrote out my statement and signed same.”
ii) At page 81 the Appellant stated, “I informed the Court that I wrote my statement by myself. I can identify that statement if shown to me. Exhibit 1now shown to me is not the statement I wrote. The signature on Exhibit 1 is not my signature. My signature is also not on Exhibit 2.”
He concluded on issue No. 3 that with the above doubts, from the totality of the evidence of the prosecution witnesses, the prosecution has failed to prove death and urge us to resolve issue No. 3 in favour of the Respondent.
Learned counsel for the Respondent also adopted his submissions and arguments on his issue 1 & 2 in respect of issue No. 3. Learned counsel for the Respondent submitted that the contention of the Appellant’s counsel that there was doubt in the case of the prosecution is unsubstantiated. That in a criminal trial where it is suggested that a piece of evidence cause doubt in the prosecution’s case, it is necessary to show, unless such is manifest or evident from the records whataspect of the case is doubtful by reason of the evidence. He referred to the cases of ADEYEMI v STATE [1991] LPELR 172 [SC] and UDOSEN v STATE [2007] 4 NWLR [Pt. 1023] pg. 125.
On the questions raised by the Appellant’s counsel in paragraph 4.3.4 a. b. c. d. e. f, 4.3.5 4.3.6, 4.3.8 (a)(b)(c)(d)(e)(f)(g)(h) of the Appellant’s brief Respondent’s counsel submitted that those issues were never raised and argued at the trial Court nor ruled upon to warrant an appeal before this Court. The issues are merely speculative. Respondent’s counsel added that it is a firmly established principle of law that an appeal is a review of the decision of the trial Court. An Appellant is not allowed to raise on appeal a question not raised, tried or considered by the trial Court. He referred to the case ofIORVER& ORS. v STATE [2013] LPELR – 20783 [CA].
In further reply to Appellant’s issue No. 3, learned counsel for the Respondent repeated his own arguments on issues Nos. 1 & 2 for example that:
(i) the evidence relied on to establish a charge of Murder may be direct and/or circumstantial-UBANI & ORS. v THE STATE[2003] NSCQR 276 @ 277; IJIOFFOR v STATE [2001]6 NSCQR [Pt.1] 209; USMAN v STATE [2013] 12 NWLR 76 @ 90.
(ii) a voluntary confession of guilt provides the most satisfying, the best and strongest evidence against an accused person- OLATUNBOSUN v STATE [2011] ALL FWLR [Pt. 555] at 341; NKIE v FRN [2014] 13 NWLR [Pt. 1424].
He [Respondent’s counsel] reasoned that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt and simply means that there is credible evidence upon which the Court can safely convict even if it is upon evidence of a single witness or perhaps only the confessional statement of an accused person. He referred to the cases of AHMED v STATE [2001] LPELR [SC]; AFOLALU v STATE [2010] 6 – 7 MJSC and UDO v STATE [2006] 7 SC.
He urged us to resolve issue No. 3 in favour of the Respondent.
Both the learned counsel for the Appellant and the learned counsel for the Respondent became unduly prolix and repetitive in the treatment of issue No. 3.
Meanwhile, I adopt my decisions on issues Nos. 1 & 2 in the resolution of issue No. 3. Learned counsel for the Respondent hit the nail on its head byre-emphasising that the conviction of the Appellant was based on the Appellant’s Confessional Statement Exhibit 1 corroborated by the evidence of Pw1 & Pw2. Indeed, confession of an accused person to the commission of a crime plays a major part in the determination of his guilt and a Court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus. See OKEKE v STATE [2003] 15 NWLR [Pt. 842] 25 SC.
Learned counsel for the Appellant on the other hand became unduly speculative in the treatment of issue No. 3 and raised sundry issues that did not arise in the decision of the Court below particularly in paragraph 4.3.4 at page 12, paragraph 4.3.8 at pages 14 to 16 of the Appellant’s brief of Argument. There is no gainsaying that an appeal is generally regarded as a continuation of an original suit rather than as an inception of a new action. An appeal should be a complaint against the decision of a trial Court. Thus in the absence of such adecision on a point, there cannot possibly be an appeal against what has not been decided against a party.
See NDIC v S.B.N. PLC [2003] 1 NWLR [Pt. 801] 311 CA; OREDOYIN v AROWOLO [1989] 4 NWLR [Pt. 114] 172 SC; BABALOLA v STATE [1989] 4 NWLR [Pt. 115] 264 SC; JUMBO v BRYANKO INT. LTD. [1995] 6 NWLR [Pt. 403] 545 @ 547 CA; NGIGE v OBI [2006] 14 NWLR [Pt. 999] 1 CA.
Indeed, and yet for another reason neither the trial Court nor an appellate Court could answer those numerous speculative questions posed by the learned counsel for the Appellant in the treatment of issue No. 3. This is because, a trial is not an investigation and investigation is not the function of a Court.
A trial is the public examination and demonstration of a contest between the parties. The function of the trial Court is to decide on the basis of the tested evidence and the assertions between the parties. In the cases of OGBUDU v ODOGBO [1967] NMLR 221 and EVOYOMA v DAREGBA [1968] NMLR 389, the Supreme Court reiterated the principle that the judge must discover the truth from the evidence presented by the parties, and that he cannot call a witness whom he thinks might throwsome light on the facts. Just as a Court cannot dictate to the prosecution which witness to call or direct the trend of its investigation as softly suggested by the learned counsel for the Appellant in his treatment of issue No. 3.
While the paramount consideration is the truth, the judge is not permitted to search for the truth by any means. See DURUMINIYA v C.O.P [1962] NNLR 70; R v WILCOX [1961] ALL NLR 631. In all the circumstances of the case, me learned counsel for the Respondent was right to have said that the prosecution proved the guilt the Appellant in the instant case beyond reasonable doubt
Issue No 3 is resolved against the Appellant.
Having resolved the three (3) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The judgment. conviction and sentence of the Appellant by Hon. Justice Eno Isangedighi in Charge No, HT/I3C/2012 on 24/5/2018 are hereby affirmed.
HAMMA AKAWU BARKA, J.C.A.: This case displayed the brutal killing of a son by his father on the mere belief that the deceased was a witch. The tower Court having found the charge proved, this the appeal to this Courtraising three issues.
My Learned brother MOJEED ADEKUNLE OWOADE brilliantly considered the issues argued and correctly in my view resolved the same against the appellant. I wholly align with the reasoning and conclusion reached, and also dismiss the appeal
The conclusion and sentence imposed by the trial Court is hereby upheld.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in advance the lead judgment just delivered by my brother, Mojeed A. Owoade, JCA. My noble lord has painstakingly considered all the issues canvassed and argued in the appeal. I agree entirely with the reasoning and conclusion reached n dismissing the unmeritorious appeal.
I too dismiss the appeal an affirm the judgment of the lower Court.
Appearances:
G. A. UMOH, Esq. For Appellant(s)
ANGELA MICK-AKPABIO, Esq, Principal State Counsel, MOJ, Akwa Ibom State.For Respondent(s)
