UMANAH v. STATE
(2020)LCN/15721(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, March 20, 2020
CA/C/333C/2019
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
YargataByenchitNimpar Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
UTIBE AKPAN UMANAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
THE BURDEN OF THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT
it is trite that the burden of linking the cause of death of the deceased to the Appellant is not discharged by leading evidence to say that the Appellant confessed to committing the crime. It is necessary for the prosecution to prove beyond reasonable doubt what and who caused the death and not the fact of death only. He referred to the cases of PIUS ODOCK & ORS. VS. STATE (2007) 7 NWLR (PT. 1033) 369 and OFORLETE VS. STATE (2000) 12 NWLR (PT. 631) 415. In thelatter case, this Honourable Court stated that:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the Person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.” Per ABIRU, J. C. A. (Pp. 29-30, paras D.D). MOJEED ADEKUNLE OWOADE, J.C.A.
THE ADMISSIBILITY OF CIRCUMSTANTIAL AND HEARSAY EVIDENCE
It is important at this stage to touch on the insistence of the Learned Counsel for the Respondent that the evidence of PW1 and PW2 though not direct is circumstantial evidence. There is a world of distinction between hearsay evidence and circumstantial evidence, the chief of all being that circumstantial evidence is admissible evidence but hearsay evidence is generally inadmissible evidence. Indeed, the Rule against Hearsay Evidence is a rule of exclusion of evidence. The learned trial judge in the instant case put the matter beyond doubt when he relied on the decision of the Supreme Court in the case of Ahi vs. State (1999) 7 NWLR (pt. 612) 641 at page 122 of the Record of Appeal to say that “Where the only witness to a crime isthe Accused person alone, whatever any other witness would testify to as to the unlawful act is hearsay and not circumstantial evidence.” MOJEED ADEKUNLE OWOADE, J.C.A.
THE CERTAINTY AS TO THE CAUSE OF DEATH AND PROVING BEYOND REASONABLE DOUBT
“—Where there is no certainty as to the cause of death, the enquiry should not proceed further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are actual questions to be answered by a consideration of the evidence.”
Finally, in the case of Princewill vs. State(1994) LPELR – 2926 (Sc) IGUH J.S.C. spoke for the Supreme Court at page 22 thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“…It is trite law that to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused could have caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused to the exclusion of all other possibilities. See State vs. Christopher Omoni (1996) 2 ALL NLR 317; Valentine Adie vs. State (1980) 1-2 Sc, 116 at 122-123, R. V. Johnson Nwokocha (1949) 12 W. A. C. A. 453 at 455 and R. vs. Izobo Owe (1961) 1 ALL NLR 680.” MOJEED ADEKUNLE OWOADE, J.C.A.
THE ESSENCE OF CROSS-EXAMINATION IS TO TEST THE ACCURACY OF THE WITNESS
“The platform on which the lower Court placed his reasoning for the conviction is weak and unjustifiable. A Court or Tribunal should never act on the evidence of a witness whom the other party wants to cross-examine, but cannot be reproduced or located for cross-examination after he must have been examined in chief. The most honourable thing for the lower Court would have been that the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the Court or the lower Court should not have attached any weight to it because the essence of cross-examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross-examination should know that all his evidence goes to naught.”
The reason for the above as stated by OBASEKI JSC in the case of ARIORI & ORS. VS. ELEMO &ORS. (1983) LPELR – 552 (Sc) at page 44 is that trials must be conducted according to all the legal rules formulated to ensure that justice is done to the parties to the case. MOJEED ADEKUNLE OWOADE, J.C.A.
THE AIM OF CROSS-EXAMINATION IS TO WEAKEN THE CASE OF THE OTHER PARTY
“The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined to also allow the cross-examining party the opportunity of stating its representing its case through the witness of its opponents. In ensuring that an accused person’s right to fair hearing is manifestly protected, such accused person must be given the opportunity to examine either in person or by his legal practitioner the witnesses called by the Prosecution. The entire trial process revolves around this art of cross-examination.”
See SHOFOLAHAN VS. STATE (2013) LPELR 20998 CA. MOJEED ADEKUNLE OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of the High Court of Akwa Ibom State, Ikot Ekpene Judicial Division in charge NO: HT/17C/2014.
Initially presided over by Hon. Justice Eno. H. Isangedighi and later taken over by Hon. Justice NFN Ntong who delivered judgment on Friday 28th June, 2019. In the said judgment, the Appellant was found guilty of an offence of murder and sentenced to death by hanging on the 15th day of May, 2014, the Appellant was first charged at the High Court of Justice Akwa Ibom State at the Ikot Ekpene Judicial Division before Hon. Justice Eno. H. Isangedighi on information filed on the 29th day of April, 2014 for alleged offence of murder of Aniekere Samuel Udo Udo (M) and UdoetteMafiong (M) contrary to Section 326 (1) of the Criminal Code Cap. 38, Vol. 2 Laws of Akwa Ibom State of Nigeria 2000 before whom Appellant pleaded guilty to the charge but a plea of not guilty was recorded and entered for him and a full trial commenced before Hon. Justice NFN Ntong on 9th November, 2016 whereof Appellant denied committing the alleged offence but wasfound guilty and sentenced to death by hanging.
The Appellant on 30th August, 2012 while asleep was purportedly told by two angels that his friends or juniors Aniekere Samuel Udo UdoUsoro (M) and UdoetteMafiong (M) are witches and who normally suppressed Appellant in his sleep. Immediately Appellant woke up from his sleep, he picked up a matchete and went straight to the field where they used to play football together and allegedly matcheted the two victims to death as directed by his angels.
The prosecution called three (3) witnesses namely: Samuel Udo UdoUsoro – PW1, Akpan Sunday Ben – PW2 and Sgt. AgborAgbor – PW3 and tendered six (6) Exhibits including Exhibit ‘E’ Accused/Appellant’s alleged extra judicial statement made to police at State C. I. D on 6th September, 2012.
The Appellant in his defence testified personally and did not call any other witness. At the end of the trial, the learned trial judge convicted the Appellant as charged on the basis of the Appellant’s alleged confessional statement Exhibit ‘E’ even when the evidence of PW3 who tendered Exhibit ‘E’ was inchoate and inconclusive.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing four grounds of Appeal in this Court on 6th August, 2019
Appellant’s Brief of Argument filed on 28th November, 2019 was deemed filed on 23rd January, 2020. It is settled by G. A. Umoh Esq. Respondent’s Brief of Argument filed on 22nd January, 2020 was deemed filed on 23rd January, 2020. It is settled by Ekaete Uwemedimoh Essien Esq., Principal State Counsel, Akwa Ibom State. Learned Counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
1. Whether the prosecution proved the ingredients of the offence of murder against the Appellant beyond every reasonable doubt to sustain the conviction and sentence to death by hanging?
2. Whether the lower Court was right in relying solely on Exhibit ‘E’ in convicting the Appellant especially when Exhibit ‘E’ was tendered by PW3 whose testimony was inconclusive.
Learned Counsel for the Respondent similarly distilled two (2) issues for the determination of the appeal. They are:
1. Whether from the totality of the evidence adduced at the lower Court, the prosecution had proved the offence of murder against the Appellant beyond every reasonable doubt to sustain the conviction and sentence to death by hanging as required by law.
2. Whether the learned trial judge was right to have relied solely on Exhibit ‘E’ tendered through PW3 that was rightly received in evidence without objection to convict the Appellant on the offence of murder.
On issue one, Learned Counsel for the Appellant submitted that the prosecution did not prove its case beyond reasonable doubt in view of the quality of evidence adduced at the trial to sustain the offence of the murder which carries death sentence at conviction.
On this, Appellant’s Counsel referred to the cases of Nkebisi vs. State (2010) LPELR – 2046 (SC) pp. 28-29 Chukwu vs. State (2012) LPELR- 9829 (SC) p.23.
Learned Counsel for the Appellant further referred to the cases of Maigari vs. State (2013) 17 NWLR (pt. 1384) 425, Igabele vs. State [2004] 15 NWLR (pt.896) 314 and submitted that the prosecution can prove its case through the confessional statement of the accused, circumstantial evidence orevidence of eye witness.
He submitted that the prosecution in the instant case marshaled 3 witnesses (PW1, PW2 and PW3), none of whom were eye witness. Evidence of PW1 and PW2 were not direct in nature as they were merely informed by different persons who were alive as at the time of the trial but were not called as witness in the trial.
Appellant’s Counsel referred to excerpts from the evidence of PW1 and PW2 on pages 90- 92 of the Record of Appeal. He submitted that PW3 was the Investigating Police Officer (IPO) who testified on the 23rd day of January, 2017 and tendered amongst other exhibits the extra judicial statement of the accused person which was admitted and marked Exhibit ‘E’, the IPO after then disappeared and never presented himself for cross-examination by the defence Counsel for about one year six month before he was foreclosed. Concerning evidence of PW3, the learned trial judge said counsel had this to say in the judgment:
“PW3 being a Public Officer paid salaries and other allowances with public funds ought to be more diligent and respectful to all the arms of Government. His inconclusive testimony before this Court is a trash. It is evidence that has not been tested and therefore lacks credibility. This Court cannot attach any probative value to it since it did not pass through the fire power of cross examination” – (page 120 of the records of Appeal).
That in defence, the Appellant in his evidence in chief stated:
“…I was arrested by my village people to the police on the accusation that I killed one Udoette and Eniekere Samuel. Yes, I knew them, they were my neighbours. I do not know anything about them. I do not know where the two people I mentioned are now. I know they are dead but I do not know the cause of their death, I did not kill them I have not ever had any misunderstanding with them” – (pg 109 of the Record of Appeal).
He submitted that the nature and quality of evidence required in law in the instant case wherein there is no eye witness except the Accused/Appellant who resiles his extra judicial statement is as elucidated by this Honourable Court in a recent case of ALI SAIDU vs. THE STATE (2016) LPELR-41172 (CA) thus:
“The Law is that where an accused person who is not arrested at the scene of crime denies the commission of the offence or retracts his confessional statement and there is no direct evidence of an eye witness, the prosecution must produce cogent, compelling and irresistible circumstantial evidence, to secure a conviction. Such circumstantial evidence which may inure the prosecution is any number of circumstances which are accepted and make a complete and unbroken chain of evidence pointing strongly to the commission of the crime by the accused person. Ukorah vs. State (1977) 4 SC 111, @ 115-116, Adie vs. State (1980) 1-2 SC, 116, Omotola vs. State (2009) 2-3 Sc 7, Adesina & Anor. Vs. State (2012) LPELR 9722, Ubani vs. State (2003)18 NWLR (pt. 851) 22.” Per WAMBAI, J.C. A. (Pp. 34-35, Paras. E-B)
The question, said Counsel, that directly begs for answer from the position of the law enunciated above is: can it be said that from the totality of prosecution evidence on record, prosecution made a complete and unbroken chain of evidence pointing strongly to the commission of the crime by the Appellant? The answer he said is NO, because evidence of PW1 & PW2 not being eye witnesses’ account were at best only able to establish the first ingredient of the offence of murder (the fact of death) that is, that Aniekere Samuel Udo Udo and Ette Maffiong died and nothing more while that of PW3’s evidence was inconclusive and worthless. So the question: who killed the deceased person? Was not answered throughout the trial and is still shrouded in doubt.
He submitted that, it is trite that prosecution must establish unequivocally that the Appellant by his act or omission caused the death of the deceased persons by linking the cause of death to the act of the Appellant with cogent evidence. He referred to the cases of UDOSEN VS. STATE (2007) 4 NWLR (PT. 1023) 125, OCHE VS. STATE (2007) 5 NWLR (PT. 1021) 214 and EKPOISONG VS. STATE (2009) 1 NWLR (PT. 1122) 354.
He submitted that in the instant case the only evidence that ventured though unsuccessfully to link the Appellant to the offence charged was the testimony of PW3 which was most unfortunately inconclusive, inchoate and ineffective as PW3 was never presented for cross examination by the defence Counsel.
That PW1 and PW2 were not eye witnesses and their evidence cannot be stretched beyond establishing the fact of death to suggesting who killed the deceased persons; doing so was overstepping the legal bounds of the validity of their testimonies as to relying on hearsay evidence which is worthless in law.
More so, said counsel as PW1 and PW2 did not disclose the person who told them what they told the Court and or that the person(s) are overseas and unreachable to obtain direct evidence.
He referred to the case of SULEIMAN OLAWALE AROGUNDADE VS. THE STATE (2009) LPELR-559 (SC) where the Supreme Court reechoed the law in SUBRAMANIAN VS. PUBLIC PROSECUTOR, (1956) 1 WLR 965 AT 969, wherein hearsay was described thus:
“Evidence of a statement made by a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.” Per Onnoghen, J. S. C. (Pp. 22-23 paras. G-D)
He submitted that in acknowledging the inherent tenuousness of PW1 and PW2 evidence, the learned trial judge stated “where the only witness to a crime is the Accused Person alone, whatever any other witness would testify to as the unlawful act is hearsay, not circumstantial” -(pg. 122 of the Record of Appeal) and went further to hold that it is evident that PW3’s evidence was not tested and therefore lacked credibility, that the court cannot attach any probative value to it since it did not pass through the fire power of cross examination-(page 120 of the Record of Appeal).
He submitted that it is an indispensable requirement of law for the Prosecution to establish and prove beyond reasonable doubt the causal link between the death and the act of the Appellant; it is trite that the burden of linking the cause of death of the deceased to the Appellant is not discharged by leading evidence to say that the Appellant confessed to committing the crime. It is necessary for the prosecution to prove beyond reasonable doubt what and who caused the death and not the fact of death only. He referred to the cases of PIUS ODOCK & ORS. VS. STATE (2007) 7 NWLR (PT. 1033) 369 and OFORLETE VS. STATE (2000) 12 NWLR (PT. 631) 415. In thelatter case, this Honourable Court stated that:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the Person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.” Per ABIRU, J. C. A. (Pp. 29-30, paras D.D).
Appellant’s Counsel submitted that in conclusion of the analysis of evidence of PW1 and PW2, the learned trial judge stated:
“The quality of the evidence of PW1 and PW2 are such that they are inadmissible to the extent of who possibly killed the two deceased persons who were lying differently at the football field at Ikot ObioAfaha on 30th August, 2012 at Ntak Ikot Akpan but to establish the truth ofthe fact that someone or some persons died or were killed at the said venue and on that date.” –(page 122 of the Record of Appeal).
He submitted that the mere fact that the Appellant is alleged to have killed the deceased persons does not without more, lead to the irresistible conclusion that he killed them. Allegations evolve in the realms of suspicion and can only be resolved against an accused by preponderance of cogent and compelling evidence adduced by the prosecution to show unequivocally that the accused committed the offence. He referred to the cases of ONAH VS. THE STATE (1985) 3 NWLR (PT. 12) 236 CHIME IJIOFFOR VS. THE STATE (2001) 4 SC (PT. 11) 1; (2001) 9 NWLR (PT. 718) 371 @ 385.
Learned Counsel for the Appellant concluded his submission on issue one by reiterating that it is settled in our jurisprudence that to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused. That it is incumbent on the prosecution to establish not only that the act of the accused could have caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused to the exclusion of other possibilities. After referring on the above to the cases of Princewill vs. State (1994) LPELR – 2926 (SC) per IGUN J. S. C. at page 22 and PIUS ODOCK & ORS. Vs. State (2007) 7 NWLR (pt. 1033) 369 he submitted that the prosecution in the instant case failed to prove the cumulative ingredient of the offence of murder and urged us to acquit the Appellant in view of the failure of the prosecution to prove that it was the Appellant who caused the death of the deceased.
Learned Counsel for the Respondent in response to Appellant’s issue one also demonstrated the ingredients of the offence of murder and the recognized ways of proving same through the cases of AFOSI VS. STATE (2013) 13 NWLR (PT. 1371) 329 at 351-352, AMOS VS. STATE (2019) 1 NWLR (PT. 1653) 209 and EMEKA VS. STATE (2001) NWLR (PT. 734) 667.
Learned Counsel for the Respondent conceded that the evidence of PW1 and PW2 were not those of eye witnesses but regarded their evidence as part of circumstantial evidence which he claimed was rightly relied upon by the learned trial judge to convict the Appellant in the absence of direct evidence.
He referred to the provisions of Section 167 of the Evidence Act 2011 and the cases of EMEKA VS. STATE (2001) NWLR (PT. 734) 667, IDIOK VS. STATE (2008) 13 NWLR (PT. 1104) 228-229, OLATUNBOSUN VS. THE STATE (2011) ALL FWLR (PT. 555) 304 at 312.
Learned Counsel for the Respondent also submitted that the evidence of PW3 are facts he personally saw or discovered in the course of his investigation and these are relevant to the case of the prosecution. That as such the evidence was not in any way expunged by the trial Court and therefore it is relevant and admissible because according to him relevancy is the key to admissibility. Respondent’s counsel referred to the case of IJIOFFOR VS STATE (2001) 9 NWLR (PT. 718) 390 and maintains that
“It has always been accepted that where direct evidence of eye witness is not available, the Court may infer from the surrounding facts to prove the guilt of an accused person.”
Respondent’s Counsel submitted that the reliance by the learned trial judge on the evidence of PW1 and PW2 does not occasion any miscarriage of justice. Rather, that the evidence of PW1 and PW2 corroborated Exhibits A and B.
He submitted that the prosecution has identified and linked the Appellant to the commission of the offence charged. That the prosecution has proved beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the Appellant through Exhibits A and B (the statement of Pw1 and PW2) which corroborate the statement of the Appellant ( Exhibit E).
He submitted through the case of DIBIE & 2 ORS. VS. THE STATE (2007) 3 SC (PT. 1) 176 at 198 that “Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt —”
He submitted that the prosecution led credible evidence on how the Appellant caused the death of the deceased persons on 30th August, 2012. He urged us to resolve issue one in favour of the Respondent.
I recall that the question in issue one in the appeal is whether the three essential ingredients of the offence of murder has been proved by the prosecution Respondent in this case. Learned Counsel for the Appellant reminded us that there was no single eye witness to the incident and that theevidence of PW1 and Pw2 was hearsay. Also that PW3 who tendered Exhibit E to the Appellant’s confessional statement was not available for cross-examination. The Respondent on the other hand regarded the evidence of PW1 and PW2 as circumstantial evidence which corroborate the Appellant’s statement Exhibit E and that the evidence of PW3, the IPO was direct evidence as the evidence of what he saw and discovered.
It is important at this stage to touch on the insistence of the Learned Counsel for the Respondent that the evidence of PW1 and PW2 though not direct is circumstantial evidence. There is a world of distinction between hearsay evidence and circumstantial evidence, the chief of all being that circumstantial evidence is admissible evidence but hearsay evidence is generally inadmissible evidence. Indeed, the Rule against Hearsay Evidence is a rule of exclusion of evidence. The learned trial judge in the instant case put the matter beyond doubt when he relied on the decision of the Supreme Court in the case of Ahi vs. State (1999) 7 NWLR (pt. 612) 641 at page 122 of the Record of Appeal to say that “Where the only witness to a crime isthe Accused person alone, whatever any other witness would testify to as to the unlawful act is hearsay and not circumstantial evidence.”
Now, the evidence of PW1 and Pw2 in essence was that they were told the Appellant killed the deceased persons. This category of inadmissible hearsay evidence as to what happened on the occasion cannot by any stretch of imagination be elevated to a specie of circumstantial evidence.
Similarly, the evidence of PW3 (the IPO) as to what he saw and discovered in the course of investigation would be direct evidence, but the PW3 like PW1 and PW2 was not an eye witness to the alleged killing of the deceased persons by the Appellant. For this reason, whatever he too was told on the killing of the deceased persons by the Appellant would also be hearsay evidence notwithstanding the fact that he was the Investigation Police Officer. The rule against hearsay evidence was succinctly re-stated by Onnoghen JSC speaking for the Supreme Court in the case of SULEIMAN OLAWALE AROGUNDADE VS. THE STATE (2009) LPELR – 559 (SC) where the Supreme Court reechoed the definition of hearsay evidence as stated by the Judicial Committee of the Privy Council in the case of SUBRAMANIAM VS. PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969 that
“Evidence of a statement made by a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of an assertion. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.”
In other words and as applicable to the facts of the instant case, the question of whether it was the Appellant or someone else who killed the deceased can only be answered either by the Appellant himself, an eye witness to the incident or a serial or series of admissible circumstantial evidence taken together to establish the truth of such assertion by the prosecution. The killing of the deceased by the Appellant cannot be established by the hearsay evidence of PW1, PW2 and PW3.
The learned trial Judge himself seemed to appreciate this fact when he held at page 122 of the Record of Appeal that:
“The quality of the evidence of PW1 and PW2 are such that they are inadmissible to the extent of who possibly killed the two deceased persons who were lying differently at the football fields at Ikot Afaha on 30th August, 2012 at Ntak Ikot Akpan but to establish the truth of the fact that someone or some persons died or were killed at the said venue and on that date. That is the exception of the general principle of hearsay. See Arogundade vs. State (2009) 6 NWLR (pt. 1136) 166, Osho vs. State (2012) 8 NWLR (pt. 1302) 243 CA, Kala vs. Potiskum (1998)1 NWLR (pt. 540) 1 SC.
PW1 and PW2 rushed to the scene of crime and variously confirmed that the deceased were actually slain, slaughtered and killed and saw that they were lying in the pools of their own blood having been dismembered by their assailant. Now let me ask with vehemence, who killed the identified deceased person – Aniekere Samuel Udo, Udo the – PW1 saw on the said fateful day. And 2 who killed Udoette Mafiong that PW2- his family chairman saw also on that day?
It is common sense to say that since the sad event happened in a football field during a football match; so many people saw the event but since the prosecution did not field any of such persons to testify directly what they saw this Court cannot mould witnesses for the prosecution and cannot also fabricate evidence for prosecution. Courts do not make out cases for parties. It is the parties before Court of law that make out their various cases by themselves. The only thing before this Court now to consider and possibly evaluate is the testimony of the Accused person who happens to be the only man standing in this case.”
In this instant case, it is easy to agree with the Learned Counsel to the Appellant relying on the cases of PIUS ODOCK & ORS. VS. STATE (2007) 7 NWLR (PT. 1033) 369 and OFORLETE VS. STATE (2000) 12 NWLR (PT. 631) 415 that in a charge of murder,
“—Where there is no certainty as to the cause of death, the enquiry should not proceed further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are actual questions to be answered by a consideration of the evidence.”
Finally, in the case of Princewill vs. State(1994) LPELR – 2926 (Sc) IGUH J.S.C. spoke for the Supreme Court at page 22 thus:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
“…It is trite law that to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that the death of the deceased was caused directly or indirectly by the act of the accused. It is incumbent on the prosecution to establish not only that the act of the accused could have caused the death of the deceased but that in actual fact the deceased died as a result of the act of the accused to the exclusion of all other possibilities. See State vs. Christopher Omoni (1996) 2 ALL NLR 317; Valentine Adie vs. State (1980) 1-2 Sc, 116 at 122-123, R. V. Johnson Nwokocha (1949) 12 W. A. C. A. 453 at 455 and R. vs. Izobo Owe (1961) 1 ALL NLR 680.”
In the instant case, I agree with the Learned Counsel for the Appellant that the prosecution Respondent did not prove the ingredients of the offence of murder against the Appellant beyond every reasonable doubt to sustain the conviction and sentence to death by hanging.
On issue two, Learned Counsel adopted his arguments on issue one and submitted further that it is settled law that a Court cannot act on the evidence of a witness that cannot be reproduced for cross-examination after he had been examined in chief.
He submitted that Exhibit ‘E’ is non existence in law and ought not to have formed part of the records of the trial Court not to talk of probative value being attached to it as the main trunk to convicting the Appellant.
He referred to the cases of SHOFOLAHAN VS. STATE (2013) LPELR 20995 CA, AL-MUSTAPHA VS. STATE (2013) LPELR – 20995 (CA) and submitted that the learned trial judge cannot discountenance the inconclusive evidence of PW3 in part to the extent of evidence in chief only while countenancing Exhibits PW3 tendered in support of the discountenanced inconclusive evidence as both the evidence in chief and Exhibits tendered are like the Siamese twins of the old, practically inseparable. He referred to the cases of ISIAKA VS. THE STATE (2011) ALL FWLR (PT. 583) 1966 and submitted that the learned trial judge gravely undermined the sacred soul of our jurisprudence in criminal trials with regards to cross-examination which is the bedrock of fair hearing when he relied solely on Exhibit ‘E’ without more to convict the Appellant.
Appellant’s Counsel submitted that the most relevant question was not whether the tendering and admissibility of Exhibits ‘E’ was ever contested by defence but whether the Court could safely rely on Exhibit ’E’ to convict the Appellant in the light of the fact that evidence of PW3 was inconclusive and lacked credibility.
Appellant’s counsel submitted that assuming though not conceding that Exhibit ‘E’ subsisted and did not collapse despite the fact that its credibility was not proven. It is an inescapable Legal requirement that Exhibit ‘E’ having been retracted should be corroborated by independent evidence outside the said exhibit before the Court can safely convict the Appellant based on it.
He referred on this to the cases of OKOH VS. STATE (2014) 8 NWLR (PT. 140) 502 at 531, KOLA FAMOROTI VS. FRN (2015) LPELR – 40885 (CA), IFARAMOYE VS. STATE (2017) LPELR – 42031 (Sc).
He concluded on issue two that the Court below erred in law when it predicated the conviction of the Appellant on Exhibit ‘E’ when in fact Exhibit ‘E’ being an off shoot of an inconclusive evidence of PW3 was worthless, inadmissible, and unreliable and ought to have been expunged from the records to the trial Court.
Learned Counsel for the Respondent submitted that the Appellant did not object to the tendering of his confessional statement Exhibit ‘E’ and this adds value to the efficacy and reliability on the said Exhibit ‘E’ by the trial Court.
He submitted that once there is evidence of the administration of words of caution on a suspect in the language he understands and he voluntarily makes his statement which is recorded, and he signed the statement, a learned trial Judge is at liberty to act on it, and predicate a conviction on it even if the statement has been retracted.
He referred to the cases of DIBIE VS. STATE (2004) 14 NWLR (PT. 893) 257, UBIERHO VS. THE STATE (2005) NWLR (PT. 919) 644 SC. ISAH vs. State (2007) 12 NWLR (pt. 1049) 582 at 611.
Respondent‘s Counsel submitted that Exhibit ‘E’ of the Appellant was direct, positive and unequivocal. He referred to the case of SOFOLA VS. STATE (2005) 22 NSCAK 254 at 293 to say that
“Once a confessional statement is admitted, the prosecution need not proof the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused …”
He submitted that the evidence of PW3 and other evidence before the Court corroborated the confessional statement of the Appellant to the commission of the offence.
Respondent’s Counsel added that, the duty of the Court is to scrutinize the evidence on record to find out whether there is evidence on which the trial court could have acted.
Also, that once the Court is satisfied with cogency, high quality and credibility of the evidence of a witness and accepts it, a conviction based on such evidence should not be interfered with unless such evidence by law required corroboration.
He referred to the cases of OKIEMUTE VS. THE STATE (2016) VOL. 260 LRCN page 12 at 42 OGUONZEE VS. THE STATE (1998) 58 NWLR (pt. 551) 521 at 543.
He urged us to hold that the learned trial judge was right to have relied solely on Exhibit ‘E’ tendered through PW3 without objection to convict the Appellant.
There is a major premise and a minor premise to the submissions of the learned counsel for the Appellant on issue two. The major premise is that Exhibit ‘E’ was not validly admitted, deserved to be expunged from the record and ought not to be relied on because it was tendered by PW3 who was not available for cross-examination until foreclosed in the proceeding. The minor premise in the argument of the Appellant was to assume that even if Exhibit ‘E’ was validly admitted which he did not concede, there was no corroborative evidence to sustain its being relied upon for conviction being a retracted confessional statement.
The Respondent on the other hand did not see anything seriously wrong in the inconclusiveness of the evidence of PW3 as affecting the admissibility of Exhibit ‘E’ which according to him it was admitted without objection in the first place. And that it is not a requirement of law that a retracted confessional statement must be corroborated in evidence for a conviction for murder to stand.
It seems to me that the learned counsel for the Appellant raised a crucial and fundamental point on the effect of the inconclusiveness of the evidence of PW3 and its accordant consequences in law. In a similar situation, the Lagos Division of the Court of Appeal per PEMU JCA in the case of AL-MUSTAPHA VS. STATE (2013) LPELR – 20995 (CA) reasoned as follows:
“PW4 went through trial within trial from 11th October, 2009 which lasted for 13 months. He never re-surfaced for cross-examination at the main trial. Indeed, the Respondent failed to produce PW4 for cross-examination. What is the effect of this in law? It is that this rendered (as argued by the Appellant) his evidence and the statements tendered by him for that matter…, inconclusive, inchoate and ineffective.
More so, failure to avail himself for purposes of cross-examination; deprived the Appellant of his constitutional right to fair hearing, as PW4 would have been subjected to cross-examination by the Appellant. This rendered PW4’s evidence and the attendant exhibits tendered by him of no relevance to the Court and same must be discountenanced. The necessary implication is that there was no evidence before Court of PW4. The exhibit which he tendered Exhibits A3, A4 and A5 and indeed every other exhibits which he tendered are therefore of no moment.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Similarly, it was held by the Court in the case of ISIAKA VS. THE STATE (2011) ALL FWLR (pt. 583) 1966 that:
“The platform on which the lower Court placed his reasoning for the conviction is weak and unjustifiable. A Court or Tribunal should never act on the evidence of a witness whom the other party wants to cross-examine, but cannot be reproduced or located for cross-examination after he must have been examined in chief. The most honourable thing for the lower Court would have been that the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the Court or the lower Court should not have attached any weight to it because the essence of cross-examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross-examination should know that all his evidence goes to naught.”
The reason for the above as stated by OBASEKI JSC in the case of ARIORI & ORS. VS. ELEMO &ORS. (1983) LPELR – 552 (Sc) at page 44 is that trials must be conducted according to all the legal rules formulated to ensure that justice is done to the parties to the case.
Indeed,
“The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined to also allow the cross-examining party the opportunity of stating its representing its case through the witness of its opponents. In ensuring that an accused person’s right to fair hearing is manifestly protected, such accused person must be given the opportunity to examine either in person or by his legal practitioner the witnesses called by the Prosecution. The entire trial process revolves around this art of cross-examination.”
See SHOFOLAHAN VS. STATE (2013) LPELR 20998 CA.
In the instant case, I agree with the learned counsel for the Appellant that the relevant question was not whether the tendering and admissibility of Exhibit ‘E’ was ever contested by defence but whether the Court could safely rely on Exhibit ‘E’ to convict the Appellant in the light of the fact that evidence of PW3 was inconclusive and therefore lacks credibility.
The learned trial Judge was not right in relying solely on Exhibit ‘E’ in convicting the Appellant when Exhibit ‘E’ was tendered by PW3 whose testimony was inconclusive.
Issue two is also resolved in favour of the Appellant. Having resolved the two issues in this in favour of the Appellant, the appeal is meritorious and it is allowed.
The conviction and sentence of the Appellant on Friday 28th June, 2019 for the offence of murder by Hon, Justice NFN Ntong in charge NO. HT/17C/2014 is hereby set aside.
The Appellant is discharged and acquitted of the charge of murder in Charge NO. HT/17C/2014.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the draft judgment just delivered by my learned brother. MOJEED ADEKUNLE OWOADE, JCA.
I am in complete agreement with the reason and conclusion of the appeal.
I also agree that the appeal is meritorious and is allowed.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in advance the lead judgment of my learned brother Mojeed A. Owoade, JCA, I am in agreement with the reason and conclusion reached that the appeal is meritorious. All the sailent issues canvassed were adequately addressed in the lead judgment. I have nothing useful to add.
Appearances:
G. A. Umoh Esq. For Appellant(s)
EkaetteUwemedimoh Essien Esq. For Respondent(s)
