UKOH & ANOR v. STATE (2022)

UKOH & ANOR v. STATE

(2022)LCN/16572(CA)

In the Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, February 09, 2022

CA/C/79C/2020

Before Our Lordships:

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. ALICE JOSEPH UKOH 2. JOE EDET ESIO APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE STANDARD OF PROOF IN CRIMINAL MATTERS

The law is firmly settled that the prosecution will only succeed in proving the charge by ensuring that all the necessary and vital ingredients of the charge or charges are proved beyond reasonable doubt by credible evidence. See YONGO V. C.O.P (1992) 8 NWLR (prt. 257) 36, ALONGE V. I.G.P. (1959) SCNLR 516, ONUBOGU V. STATE (1974)9 SC I, BABUGA V. STATE (1996)7 NWLR (prt. 460) 279 and ALIYU V STATE (2019) 11 NWLR (prt. 1682) 108. PER SHUAIBU, J.C.A.

THE POSITION OF LAW ON OFFENCE OF MURDER

The provision of Section 327 (a) of Criminal Code, Cap 38 of the Laws of Akwa Ibom State of Nigeria, 2000 provides that “any person who attempts unlawfully to kill another is guilty of a felony, and is liable to imprisonment for life.” Thus, the essential requirement of the offence of attempted murder is the intention to kill unlawfully. See EZEUGO V. STATE (2013)9 NWLR (prt. 1360) 508. An attempt to commit murder can also be inferred from such circumstances as the nature of a wound inflicted on the victim by an accused person.

THE POSITION OF LAW ON SENTENCE HEARING

Section 311 of the Administration of Criminal Justice Act (ACJA) 2015 deals with sentencing hearing and in Subsection (3) thereof it provides that a Court, after conviction, shall take all necessary aggravating and mitigating evidence or information in respect of convict that may guide it in deciding the nature and extent of sentence to pass on the convict in each particular case.
It is not the case of the appellants that they were sentenced in excess of what the extant statute stipulates but that had the trial Judge considered the sentencing hearing as contained in the Administration of Criminal Justice Act, the sentence would not have been the same. I need to emphasis here that a convict cannot hang on mere procedural irregularities even where it occur, to gain acquittal unless he can show that the irregularities in procedure led to substantial miscarriage of justice. Thus, the accused person must show that in the absence of such procedural irregularities a different result would have been obtained at the end of the trial. See IDI V. STATE (2019)15 NWLR (prt. 1696) 448.
Gleaning from the record of appeal particularly the appellants’ allocutus at pages 97-99 they were offered opportunity to address the trial Court to express remorse and explain personal circumstances that might be considered in sentencing. Again, the sentencing passed on the appellants (first offenders) not being the maximum, are in my view in line with aims and objectives of the sentencing guidelines contained in the Administration of Criminal Justice Act (ACJA) 2015. I also resolve issue No.2 against the appellants. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the conviction of the appellants for accusation of witchcraft and attempted murder contrary to and punishable under Section 211 (b) and 327 (a) of the Criminal Code Cap 38, Vol. 2 of the Laws of Akwa Ibom State of Nigeria, 2000.

The appellants were among the four (4) persons arraigned before the High Court of Akwa Ibom State, sitting at Oron Judicial Division on three counts charge of conspiracy to attempt to murder, accusation of witchcraft and attempted murder. The charge No. HOR/9C/2017 reads as follows:-
“Count 1: Statement of offence
Conspiracy contrary to Section 552 of the Criminal Code, Cap 38 Vol.2 Laws of Akwa Ibom State of Nigeria, 2000.
Particular of offence
Alice Joshua Ukoh, Mary Edet Esio, Mercy Effiong Asuquo and Joe Edet Esio on 20th day of December, 2015 at No.26 Anwanamba Street in Oron Local Government within Oron Judicial Division conspired amongst yourself to commit felony to wit, Attempted murder.
Count 2: Statement of offence
Accusation of witchcraft contrary to Section 211(b) of the Criminal Code, Cap.38, Vol.2, Laws of Akwa Ibom State of Nigeria, 2000.
Particulars of offence
Alice Joshua Edet on the 20th day of December, 2015 at No. 26 Anwanamba Street in Oron Local Government within Oron Judicial Division accused one Okon Edet Okon “M” of being a wizard.
Count 3: Statement of offence
Attempted murder contrary to Section 327 (a) of the Criminal Code, Cap. 38, Vol.2 Laws of Akwa Ibom State of Nigeria, 2000.
Particulars of offence
Alice Joshua Ukoh, Mary Edet Esio, Mercy Effiong Asuquo and Joe Edet on the 20th day of December, 2015 at No. 26 Anwanamba Street in Oron Local Government within Oron Judicial Division attempt to murder one Blessing Okon Edet “F”.

The learned trial Judge did not find all the accused persons guilty of conspiracy to commit the felony of attempted murder but found the 1st accused guilty of the offence of accusation of witchcraft. Furthermore, the 1st, 2nd and 3rd accused persons were not found guilty of attempt to murder Blessing Okon Edet but only found the 4th accused person guilty on the said count 3 that is, attempted murder of Blessing Okon Edet. At the end, the 1st accused was sentenced to twelve (12) months terms of imprisonment but suspended all but 3 months while the 2nd accused was sentenced to ten years imprisonment.

It is against this decision that the appellants appealed to this Court in the notice of appeal filed on 24/9/2019 but amended by leave of this Court on 21/6/2021.

The appellants distilled two issues from the four amended grounds of appeal as follows:
1. Whether in the event of insufficient evidence or no evidence to support a conviction of the 1st and 4th defendants (appellants) on the count charges the learned trial Judge was right to convict the defendants and sentenced them to three months and ten years imprisonment respectively.
2. Whether the learned trial Judge was right in sentencing the defendants to Three months and Ten years imprisonment respectively without option of fine as first offenders.

The respondent also formulated two issues for determination of the appeal thus:-
1. Whether the learned trial Judge was correct to hold that the prosecution had proved the guilt of the appellants beyond reasonable doubt to secure conviction and sentencing against the appellants.
2. Whether the trial Judge was right in convicting the 2nd appellant to a term of ten (10) years imprisonment.

Arguing issue No.1, learned counsel for the appellant Offisong Umoh Esq. argued that the totality of the evidence presented by the prosecution did not establish the essential ingredients for the offence of attempted murder. He contended that the essential ingredients of attempted murder are:-
(a) Attempts unlawfully to kill another or
(b) With intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do such act or omission being of such a nature as likely to endanger human life.

In aid, counsel referred to OMOTAYO V. THE STATE (2013)2 NWLR (prt.1338) 233 at 257.

Still in contention, counsel submitted that the evidence of the prosecution did not disclose premeditative action to commit the offence of attempted murder by the 2nd appellant but rather shows a spontaneous action occasioned by the event at the material time and that no mens rea was established.

Counsel referred copiously to the testimony of pw1 at pages 39 and 43 of the record in alluding that same contains unending discrepancies resulting from sentiments which the witness brought into the case. Had the learned trial Judge appreciated the import of the said evidence, counsel submitted that the appellants would not have been convicted.

On issue No.2, counsel contended that the non-compliance with post-conviction procedures by the learned trial Judge had adversely affected the sentences imposed on the appellants relying on Section 311 of the Administration of Criminal Justice Act which provides that the Court shall take all the necessary aggravating and mitigating evidence in deciding the nature and extent of the sentence to impose on convicts. He submitted that if the trial Court had availed itself of the factors listed in Section 311 (2) (a)–(d) of ACJA aforesaid, the sentences would not have been the same.

In his response to issue No.1, learned counsel Anietie Inyang submitted that the prosecution have led credible and cogent evidence that linked the appellants with the offences charged. And when an adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. He referred to the cases of OFORLETE V. STATE (2000) 8 ACLR 369 at 403 and ALI V. STATE (2012) 7 NWLR (prt. 1299) 209 to the effect that where the evidence of witnesses remained unchallenged under cross-examination, the Court is not only entitled to act on or accept such evidence but is bound to do so provided that such evidence by its very nature is not incredible.

It was also the submission of the respondent that they have proved the essential ingredients of the offence charged. And the trial Court having admitted the oral testimonies of the prosecution witnesses being relevant, cogent and credible, the logical thing to do was to find the appellants guilty as charged.

Counsel finally submitted that it is preposterous for the appellants to even contemplate that the trial Court can impose a sentence of fine when the statutes did not provide for it.

On issue No.2, counsel submitted that intention and overt acts are elements of attempted murder and that the prosecution in Exhibit A as well as in the evidence of prosecution witnesses established all the essential elements of the offences charged. He further submitted that extra-judicial statements of the appellants’ Exhibits “B” and “E” being confessional in nature, their respective evidence that derogates from these statements were rightly ignored by the trial Court. Reliance was placed on MBENU V. THE STATE (1988)7 SC (prt. 111) 71 at 82.

RESOLUTION
It is pertinent to state at this juncture that the two sets of issues formulated in the respective briefs are identical, though couched differently. Issue No.1 questions the evaluation of evidence by the trial Court while issue No.2 relates to the propriety of sentence imposed on the appellants by the trial Court.

The law is firmly settled that the prosecution will only succeed in proving the charge by ensuring that all the necessary and vital ingredients of the charge or charges are proved beyond reasonable doubt by credible evidence. See YONGO V. C.O.P (1992) 8 NWLR (prt. 257) 36, ALONGE V. I.G.P. (1959) SCNLR 516, ONUBOGU V. STATE (1974)9 SC I, BABUGA V. STATE (1996)7 NWLR (prt. 460) 279 and ALIYU V STATE (2019) 11 NWLR (prt. 1682) 108.

I have stated from the onset that the appellants though jointly charged on three counts of conspiracy to murder and attempted murder, they were all discharged and acquitted for conspiracy while the 2nd appellant alone was convicted for attempted murder and sentenced to ten years imprisonment. The 1st appellant who was also arraigned for accusation of witchcraft was found guilty and sentence to imprisonment for twelve months but suspended to three months.

The provision of Section 327 (a) of Criminal Code, Cap 38 of the Laws of Akwa Ibom State of Nigeria, 2000 provides that “any person who attempts unlawfully to kill another is guilty of a felony, and is liable to imprisonment for life.” Thus, the essential requirement of the offence of attempted murder is the intention to kill unlawfully. See EZEUGO V. STATE (2013)9 NWLR (prt. 1360) 508. An attempt to commit murder can also be inferred from such circumstances as the nature of a wound inflicted on the victim by an accused person.

In OFORDIKE V. STATE (2019) 5 NWLR (prt. 1666) 395 at 422, the Supreme Court has held that where an accused person is prevented from committing the complete offence, a conviction for attempt to commit the offence may be sustained. Furthermore, the last act by the accused person immediately before the main act that would have resulted in the commission of the offence is an attempt to commit the offence.

Pw2 in the case at the trial narrated how she and her husband were severely beaten by the accused persons and how the 4th accused person in particular pushed her and used his shoe in wounding her face. At page 47 of the record of appeal, pw1 stated further that:-
“I was taken to the chemist where some drugs where purchased for me to take that night. The next day we returned to the station police took my statement. They issued police report and I was taken to the hospital. I was taken to Iquita General Hospital. I was examined by a Doctor. He administered treatment and admitted me.”

The evidence of pw2 is in tandem with the findings of the Doctor (pw3) who examined her and stated inter alia at page 51 of the record that:-
“When I examined her, I noticed that she was in pains. There was a blood soaked dressing on the wound on the right wrist. The left side of her face I noticed was swollen and hyper pigmented which means that it was dark and tender upon touch. The swelling on the face extended to the bridge of her nose. The left eye was swollen and completely closed. On the left side of frontal area of the face, there was a depressed spot with bony edge on the posterior aspect of the right wrist, there was laceration bleeding actively. There were generalized hyper pigmented spots (i.e. dark spots on her body).

It is instructive to note that the evidence of pw2 and pw3 were not in any way discredited in the course of cross-examination which conclusively point to the fact that the 2nd appellant attempted to unlawfully cause the death of pw2 having pushed her down stumped on her face with his shoe which resulted in the severe injuries described by pw3. It is thus my view that the prosecution have proved the offence of attempted murder beyond reasonable doubt against the 2nd appellant.

As regards the offence of accusation of witchcraft as contained in count 2 of the charge, Section 211 (b) of the extant law provides that “any person who accuses or threatens to accuse any person with being a witch or with having the power of witchcraft is guilty of a misdemeanor, and is liable to imprisonment for two years”.

A witchcraft is a religious practice involving magic and affinity with nature, usually within a pegan tradition. Thus, for the prosecution to prove the offence of accusation of witchcraft under Section 211 (b) of the Criminal Code of Akwa Ibom State, it must prove the following: (a) The making of the accusation of witchcraft, (b) the accused person directed the accusation to a particular person.

At the trial, pw1 narrated that the 1st appellant accused him of being a wizard and that he wanted to bewitch her child. Furthermore, in her extra-judicial statement, Exhibit B, 1st appellant admitted calling pw1 a witch and the excerpt of the said statement as reproduced in the judgment of the trial Court reads:-
“On the 13/12/2015 Okon Edet Okon’s fowl was making a hail of noise and disturbed the whole yard which was not ordinary but his own witch he possessed by using his fowl, then I told him clearly about his witch attitude that his own witch by any means cannot catch me. He repeated that he will deal with me to see. I report same to my husband. That same man made such a vow and that person today is not alive so I will no longer keep quiet for him to kill me.”

Although, the 1st appellant at the trial denied calling pw1 a wizard but a confessional statement does not become inadmissible even if the accused person denied having made it. See IKEMSON V. STATE (1989) 3 NWLR (prt.110) 455. After all, the 1st appellant did not object to the admissibility of Exhibit B and the law is settled that the appropriate time to object to the admissibility of a statement said to be a confession is, when the statement is sought to be tendered. Thus, it is too late to seek to retract confessional statement after its admission without objection from the defence. See ISHAYA V. STATE (2019) 4 NWLR (prt. 1661) 76 at 91–93.

On the appellants’ contention of discrepancies in the evidence of pw1, a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other evidence says or contains some minor difference in details. See CHUKWUNYERE V. STATE (2018) 9 NWLR (prt. 1624) 249. A careful perusal of the evidence of pw1 reveals that the discrepancy was of insignificant nature and that same have not affected the material aspects of the testimony of the pw1.

In the light of the foregoing, the prosecution have also proved beyond reasonable doubt that the 1st appellant directed her accusation of witchcraft to no other person but pw1, Okon Edet Okon. I therefore unhesitatingly resolve issue No.1 against the appellants.

Issue No.2 as stated elsewhere in this judgment deals with irregularity of post-conviction procedure. Section 311 of the Administration of Criminal Justice Act (ACJA) 2015 deals with sentencing hearing and in Subsection (3) thereof it provides that a Court, after conviction, shall take all necessary aggravating and mitigating evidence or information in respect of convict that may guide it in deciding the nature and extent of sentence to pass on the convict in each particular case.
It is not the case of the appellants that they were sentenced in excess of what the extant statute stipulates but that had the trial Judge considered the sentencing hearing as contained in the Administration of Criminal Justice Act, the sentence would not have been the same. I need to emphasis here that a convict cannot hang on mere procedural irregularities even where it occur, to gain acquittal unless he can show that the irregularities in procedure led to substantial miscarriage of justice. Thus, the accused person must show that in the absence of such procedural irregularities a different result would have been obtained at the end of the trial. See IDI V. STATE (2019)15 NWLR (prt. 1696) 448.
Gleaning from the record of appeal particularly the appellants’ allocutus at pages 97-99 they were offered opportunity to address the trial Court to express remorse and explain personal circumstances that might be considered in sentencing. Again, the sentencing passed on the appellants (first offenders) not being the maximum, are in my view in line with aims and objectives of the sentencing guidelines contained in the Administration of Criminal Justice Act (ACJA) 2015. I also resolve issue No.2 against the appellants.

In the result, the appeal is unmeritorious and it is accordingly dismissed. The judgment of the lower Court delivered on 2nd day of July, 2019 is hereby affirmed.

BALKISU BELLO ALIYU, J.C.A.: I agree with the far-reaching judgment of my learned brother, M. L. Shuaibu, JCA, which I read in draft before today. I join him to dismiss this appeal for lack of merit. I affirm the judgment of the High Court of Akwa Ibom State sitting at Oron, delivered on the 2nd July, 2019 in respect of Charge No: HOR/9C/2017.

ADEMOLA SAMUEL BOLA, J.C.A.: I have read in advance, the draft copy of the judgment by my learned brother, MUHAMMED LAWAL SHUAIBU, JCA I am in complete agreement with his reasons and conclusion; which I adopt as mine.

This appeal lacks merit. The judgment of the lower Court is affirmed. The appeal is dismissed.