UWUA UDO V THE STATE (2016)

UWUA UDO V THE STATE

(2016) LCN/4446(SC)

In the Supreme Court of Nigeria

Friday, February 26, 2016


Case Number: SC.511/2014

 

JUSTICES:

SULEIMAN GALADIMA     JUSTICE SUPREME COURT

MARY UKAEGO PETER-ODILI

CLARA BAJA OGUNBIYI    JUSTICE SUPREME COURT

KUDIRAT MOTONMORI OLATOKUNBO. KEKERE-EKUN     JUSTICE SUPREME COURT

AMIRU SANUSI    JUSTICE SUPREME COURT

 

APPELLANTS

UWUA UDO

RESPONDENTS

THE STATE

RATIO
EFFECT OF A VOLUTARY CONFESSIONAL STATEMENT
The law is settled that the free and voluntary confessional statement of an accused alone is sufficient to sustain a conviction, provided the court is satisfied that it was made in a free atmosphere and is direct, unequivocal and positively proved. See: The State Vs Jimoh Salawu (2011) 18 NWLR (Pt.1279) 883 da 920 – 921 G – A: LPELR-9351 (SCI; Akmmoiu Vs The State (2000) 4 SCNJ 179; Kanu Vs The State (1952) 14 WACA 30: Ekpenyong Vs State (1991) 6 NWLR (200) 683.
MEANING OF A CONFESSIONAL STATEMENT
. “A confession is an admission made at any time by a person charged with a crime, PAGE| 12 stating or suggesting the inference that he committed that crime.”
FULL JUDGEMENT

(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC) This is an appeal against the judgment of the Court of Appeal, Makurdi division, delivered on 2nd May, 2014, affirming the judgment of the High Court of Benue State, holden at Makurdi delivered on 6/12/2006, which convicted the appellant of the offence of culpable homicide and sentenced him to death. On 17/5/2006, the appellant was arraigned before the trial court on a two-count charge of criminal conspiracy and culpabie homicide punishable with death contrary to sections 96 and 221 of the Penal Code. He pleaded not guilty to both counts. The prosecution’s case was that on 28/7/2004, at Asase Village, North Bank, Makurdi, one Abu (still at large) lured the deceased, Msughter Iortyom, 3 years old, from his parent’s house, where he was playing with other children into an uncompleted building where the appellant was waiting with a knife. It was further alleged that the said Abu held the deceased down while the appellant slashed his throat with the knife and killed him. The corpse was left in the uncompleted building, where it was discovered by PW2, who then Jed PW1, the father of the deceased, who had been searching for the deceased, to the site. According to the prosecution, the appellant made a confessional statement, upon his arrest, wherein he confessed to his part in the crime and stated that the said Abu promised him a fee of N60, 000.00 if he assisted in killing the deceased. The respondent called three witnesses and tendered exhibits, including Exhibits 4 & 5, the appellant’s confessional statements. The appellant testified in his own defence and did not call any other witness. At the close of the trial, and after considering the written addresses of learned counsel, the trial court found the appellant guilty of the offences charged, convicted him and sentenced him to death. His appeal to the lower court was unsuccessful, hence the instant appeal to this court. At the hearing of the appeal on 3rd December 2015, WILSON DIRIWARI ESQ., leading YINKA ADENIRAN ESQ., adopted and relied on the appellant’s brief of argument filed on 4/9/2014 and urged the court to allow the appeal, set aside the judgment of the lower court and discharge and acquit the appellant. MRS. J.N, ADAGBA, Assistant Director Legal Drafting, Ministry of Justice, Benue State, adopted and relied on the respondent’s brief, which was deemed properly fiied on 18/2/2015 and urged the court to dismiss the appeal and affirm the judgment of the lower court. From the 4 grounds of appeal contained in the notice of appeal filed on 13/3/2014, the appellant framed 3 issues for determination. They are: 1.    Whether it is the original or Certified True Copy of Exhibit 5 (that is, the Appellant’s alleged confessional statement to the Police), being a public document that is admissible in evidence under the Evidence Act, 2011. 2.    Whether the defence of alibi raised by the Appellant, but was not properly considered by the Courts below, would avail the Appellant, 3.    Whether if this Honourable Court agrees with our contention under Issue one above, to the effect that it is only a Certified True Copy of Exhibit 5 and not the original that is admissible in law, the Respondent herein has proved the guilt of the Appellant beyond reasonable doubt, with cogent, credible and compelling evidence as required under Nigerian criminal jurisprudence to secure the conviction and sentence of the Appellant. The respondent, on its part, formulated two issues for determination as follows: 1. Whether Exhibit 5 is a public document requiring certification to be admissible. 2. Whether having regard to the weight of evidence, the Court of Appeal rightly held the Respondent proved its case against the appellant and that the defence of alibi does not avail the appellant. As the issues formulated by both parties are substantially the same, I shall determine the appeal on the issues formulated by the appellant. I however re-couch Issue 3 to read: Whether the respondent proved the guilt of the appellant beyond reasonable doubt. Issue 1 In support of this issue, it is the contention of learned counsel for the appellant that Exhibit 5, being a document emanating from the custody of the Nigeria Police Force, qualifies as a public document within the meaning of the Evidence Act, 2011 and therefore only a certified true copy thereof is admissible in evidence. For the definition of ‘public officer’ he referred to Section 18 (1) of the Interpretation Act and for the definition of public service of the Federation’ he relied on Section 318 (1) (h) of the 1999 Constitution (as amended). He also referred to Sections 102 (a) (iii) and 105 of the Evidence Act, 2011 and submitted that upon a community reading of the provisions referred to, only a certified true copy of Exhibit 5 is admissible in evidence. He relied on the case of: Tabik Invest Ltd. Vs GTB Pic, (20111 17 NWLR fPt,1276) 240 (5) 261 – 262 G – A. He submitted that even though no objection was taken to the admissibility of Exhibit 5 at the time it was tendered, the court has inherent power to reject and expunge inadmissible evidence wrongly or inadvertently admitted. He referred to: Phillips Vs E.O.C. & Ind. Co. Ltd, (2013) 1 NWLR (Pt.1336) 618 @ 644 – 645 G – B: Abolade Agboola Alade Vs Salawu Jagun Olukade f!976) 1 SC 83: Onichie Vs Odogwu (2006) 6 NWLR (Pt.975) 65 (5) 85 H & 86 C. He disagreed with the finding of the court below at pages 127 -128 of the record to the effect that it is not necessary to tender a certified true copy of a document where the original is available. Referring to Sections 85, 86, 87 (1), 88, 89 (1) (e) & (f), 90 (1) (c), 102 (a) (iii), 103, 104 (I), (2) & (3) and 105 of the Evidence Act, 2011, he reiterated his submission that the only kind of public document admissible in law is a certified true copy and no other kind. He referred to the case of: Araka Vs Egbue (2003) 17 NWLR (Pt.8481 1 (5) 18. He conceded that documents may be proved either by primary or secondary evidence and that the primary evidence is the document itself while the secondary evidence is the certified true copy of the original where the document in question is a public document within the meaning of the Evidence Act. He submitted that Sections 88, 89 (1) (e) & (f), 90 (1) (c) and 104 of the Evidence Act constitute exceptions to the general rule that a document may be proved by the production of the document itself. He contended that even where the original of a public document is available, it is only secondary evidence of the document duly certified that is admissible in evidence. In support of this submission, he relied on the cases of Ajao Vs Ambrose Family & Ors. (1969) 1 NMLR 24 @ 30; Anatogu Vs Iweka II (1995) 8 NWLR (Pt.415) 547 @ 571 – 572; Yero Vs UBN Ltd, (2000) 5 NWLR (Pt.657) 470 @ 478 – 479; Lawson Vs Afani Const. Co, Ltd. (2002) 2 NWLR (Pt.752) 585 @ 598 & 613 – 615, He noted that Sections 96, 97 (1) (e) & (f), 2 (c) and 109, 110 and 111 of the Evidence Act, Cap. 112 LFN 1990 construed and interpreted by this Court and the Court of Appeal in the cases cited are in pari materia with the provisions of Sections 88, 89 (1) (e) & (f), 90 (1) (c) and 104 of the Evidence Act, 2011, He urged the court to resolve this issue in the appellant’s favour. In reaction to the above submissions, learned counsel for the respondent submitted that Exhibit 5 is not one of the public documents under the purview of Section 104 of the Evidence Act, 201L He noted that Exhibit 5 was tendered from the Bar without objection by learned counsel for the appellant. He argued further that Exhibit 5 constitutes primary evidence under Section 86 (1) of the Evidence Act. He submitted that being the appellant’s original statement and not a photocopy, there was no need for it to be certified. He submitted with respect to Section 104 of the Evidence Act, that it only comes into play when a person makes a demand for the use of a public document. He submitted that in that circumstance, such public document must be certified as a true copy of the original, which is not the case here. He submitted that the authorities cited by learned counsel for the appellant are not apposite. He distinguished the case of Tabik Invest. Ltd. Vs GTB Plc, (supra) on the ground that the decision was to the effect that where primary evidence of a public document is not available, the only acceptable secondary evidence is a certified true copy of the document. He asserted that Exhibit 5 is primary evidence, tendered in its original form and therefore rightly admitted in evidence by the trial court. He contended that Sections 85, 87 and 88 of the Evidence Act, 2011 all support the respondent’s position. He urged the court to resolve this issue in the respondent’s favour. For ease of reference, I deem it appropriate to set out the provisions of Sections 85, 86, 87 (1), 88, 89 (1) (e) & (f), 90 (1) (c), 102 (a) (iii), 103, 104 (1), (2) &.{3) and 105 of the Evidence Act, 2011 below: “85. The contents of documents may be proved either by primary or secondary evidence 86 (1)  Primary evidence means the document itself produced for the inspection of the Court” 87 (1)   Secondary evidence includes – (a) certified copies given under the provisions thereafter contained in this Act; (c) copies made from or compared with the original. 88. Documents must be proved by primary evidence except in the cases mentioned in this Act. 89 (1)   Secondary evidence may be given of the existence, condition or contents of a document when: (e)    the original is a public document within the meaning of Section 102 of the Act. (f)    the original is a document of which a certified copy is permitted by this Act, or by any other law in force in Nigeria, 90 (1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows; (c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence, is admissible, 103. All documents other than public documents are private documents. 104 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be. (2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section. 105 Copies of documents certified in accordance with Section, 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies”. 102 The following documents are public documents:-documents forming the acts or records of the acts of public officers, legislative, judicial and executive, whether in Nigeria or elsewhere,” By the combined effect of Sections 85, 86 (1) and 87 (1) of the Evidence Act 2011, there are two ways by which the contents of documents may be proved: either by primary or secondary evidence. Primary evidence is the document itself produced for the inspection of the court, while secondary evidence includes certified copies of the original duly certified in accordance with the relevant provisions of the Evidence Act. By Section 88 of the Act, documents shall be proved by primary evidence, except m cases stipulated in Section 89 of the Act, where secondary evidence may be given. Section 87 (a) and (c) provides that secondary evidence includes certified copies of the original and copies made from or compared with the original. Some of the circumstances in which secondary evidence relating to the existence, condition or content of a document may be given include: (i) where the original has been destroyed or lost and every effort has been made to search for it; (ii) where the original is a public document within the meaning of Section 102 of the Act; and (iii) where the original is a document of which a certified copy is permitted by the Act or any other law in force in Nigeria. See: Section 89 (c), (e) and (f) of the Evidence Act. There is no doubt that Exhibit 5, which forms part of the official acts of the Police, is a public document within the meaning of Section 102 (a) (iii) of the Evidence Act. The law has always been that the best evidence of the contents of a document is the document itself produced for the inspection of the court. See: Fagbenro Vs. Arobadi (2006) 7 NWLR (Pt. 978) 172 It is also the law that the only admissible secondary evidence of a public document is a certified true copy thereof. In Araka Vs Egbue (2003) 17 NWLR (Pt. 848) 1 @ 18 D – E, Tobi, JSC while  interpreting Section 97 (2) (c) of the Evidence Act Cap.112 LFN 1990 (now Section 90 (1) (C) of the Evidence Act, 2011), held thus: “It is clear from the provision of Section 97 (2) (c) that the only `acceptable secondary evidence of public document is a certified true copy of the document. The subsection has put the position precisely, concisely and beyond speculation or conjecture by the words ‘but no other kind of secondary evidence is admissible.” Per Edozie, JSC @ 26 C – G (supra): “Guided as I am by the principles enunciated in the above cases [on the golden rule of interpretation of statutes] it is my view that section 97 (2) (c) of the Evidence Act (supra) does not admit of any ambiguity. The language is clear, explicit and categorical, that the only admissible evidence to prove the existence, condition and contents of a public document is a certified true copy of the original and no other type of secondary evidence is admissible.” (Emphasis mine) See also: Iteogu Vs LPDC (2009) 11-12 (Pt.l) SCM 47; Kubor Vs Dickson (2012) LPELR-9S17 (SC) @ 51 D – G; Omisore Vs Aregbesola (2015) 15 NWLR (Pt,1482) 205 @ 294 H. I have given careful consideration to the authority of Tabik Investment Ltd. & Anor. Vs Guaranty Trust Bank Plc. (supra), the judgment of this court in a civil suit, relied upon by learned counsel for the appellant. It is important to bear in mind that the decision of a court must always be considered in the light of its own peculiar facts or circumstances. No case is identical to another, though they may be similar. Thus each case is only an authority for what it decides, and nothing more. See: Skye Bank Plc. & Anor. Vs Chief Moses Boianle Akinpeiu (2010) 9 NWLR (Ptll98) 179; Okafor Vs Nnaife (1987) 4 NWLR (Pt64)129. The Issue that arose in that case was the admissibility of documents purportedly certified but not certified in full compliance with the provisions of Section 111 (1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria (LFN) 1990. The documents tendered before the trial court from the custody of the Police were purported to be certified true copies of the originals. However no legal fees were paid for the certification. The contention of the plaintiffs/appellants was that since the witness who tendered the documents was a Police officer, he need not pay for the certification of the documents. This court held that in the certification of documents, ail the conditions contained in Section 111 of the Evidence Act are mandatory and must be complied with, to with, that is: i. the necessary fees must be paid for certification; ii.    there must be an endorsement or certificate indicating that it is a true copy of the document in question; iii.    the endorsement or certificate must be dated and signed by the officer responsible for the certification with his name and official title. The court further held that the lower court rightly held that failure to pay the legal fees amounted to non-compliance with the provisions of the Evidence Act. It concluded however that the lower court was wrong to have expunged the documents and ought to have ordered the plaintiffs to pay the necessary fees. I am of the considered view that the facts of the case as stated above are distinguishable from the facts of this case. In the instant case, the appellant’s statement, Exhibit 5 was produced pursuant to a notice to produce issued to the respondent and tendered from the Bar with the consent of counsel. This is evident from the proceedings of 18/10/2006 reproduced below: “18/10/2006 Accused present. J.N. Adagba, SC, for the State. S.S. Abba for the accused. Adagba: We have an application. We were served notice to produce the statement made by the accused at ‘C’ Division. We obliged. We made copies available to the defence. We want to tender it from the Bar. This is the statement. Abba: We do not oppose. Court: – The statement of the accused dated 30/7/2004, mutually agreed to be tendered from the Bar, is hereby admitted in evidence as Exhibits 5.” Exhibit 5 is the statement made to the Police on 30/7/2004 by the appellant in its original form, i.e. primary evidence thereof within the meaning of Section 86 (1) of the Evidence Act. Sections 104 and 105 of the Evidence Act are not applicable in the present circumstances, since what was produced and tendered from the Bar is the original statement and not a copy thereof. The appellant, through his counsel had the opportunity of objecting to the admissibility of the document at the time it was tendered. He failed to avail himself of the opportunity. Indeed as stated above, the statement was produced at his request. The case of Ajao Vs Ambrose Family & Ors. (1969) 1 NMLR 24 @ 30 is clearly distinguishable from the facts of the instant case, as what was in issue In that case was the certification of a photostat copy of a document, In all the references in that case, highlighted at pages 16 – 17 of the appellant’s brief, this court clearly made the point that the document marked Exhibit 2 was not a certified true copy but a photostat copy and it was therefore inadmissible as secondary evidence of a public document which it purported to be. In the instant case, the original statement of the appellant, tendered from the Bar and admitted in evidence without objection was properly admitted in evidence. This issue is accordingly resolved against the appellant. Issue 2 In respect of this Issue, it is the contention of learned counsel for the appellant that the trial court and the court below erred in rejecting the appellant’s defence of alibi raised during the course of his defence on the ground that he ought to have raised the defence at the Police station at the time he was making his statement. He contended that the appellant could not have raised the defence at that stage on account of prevailing circumstances, to wit: that he was “coerced, compelled and tortured” into confessing to the crime. He referred to the appellant’s testimony at pages 46 and 48 of the record wherein he stated that on the day of the incident he was at TSE Bagu. He argued that the circumstances under which the appellant’s statements were procured makes his situation peculiar and the defence worthy of consideration by the court. He submitted further that each case must be decided on its own peculiar facts. He cited the case of: Magit Vs UniAgric Makurdi (2005) 19 NWLR (Pt.959) 211 @ 247 G. Relying on the case of: HDP Vs INEC (2009) 8 NWLR (PM143) 297 ® 319 D – H, he submitted that the current trend is for courts to Jean in favour of doing substantial justice and avoid undue reliance on technicalities. He submitted further citing Olaiya Vs The State (2010) 3 NWLR (Pt.1181) 423 @ 436. that once the defence of alibi raised the prosecution has a duty to investigate and rebut the evidence. He argued further that the court has a duty to consider every defence raised by an accused person at trial, no matter how worthless, improbable, weak or stupid it might be. See: Ogunye Vs The State (1999) 5 NWLR (Pt.604) 548 (3) 570 – 571 G – A. In response to the above submissions, learned counsel for the respondent submitted that contrary to the appellant’s contention, notwithstanding the fact that the defence of alibi as raised at the trial for the first time; both the trial court and the court below considered the defence and found that it did not avail him. He submitted that an accused person wishing to rely on the defence of alibi must do so at the earliest opportunity by giving the details and particulars of his whereabouts to the Police promptly upon his arrest in order to avail the Police the opportunity to investigate, verify or confirm the truth or otherwise of the alibi. He referred to: Ndidi Vs The State (2007) 13 NWLR (Pt 1052) 633 to the effect that raising a defence of ailbi at the trial is of no help to an accused person. He observed that the defence was not raised in either of the appellant’s two statements to the Police. He also argued that having not objected to the admissibility of Exhibit 5 when it was tendered, the appellant cannot challenge it at this stage. He noted that the defence of alibi was raised in 2006, two years after the appellant made his statements to the Police and submitted that the trial court and the court below rightly rejected it. He submitted further that none of the prosecution witnesses was confronted with the issue of alibi under cross-examination. He referred to the case of: Agbanifo Vs Aiwere (1998) 2 SCNJ 149, wherein it was held that it is improper for the appellant or his counsel to hide the issue of alibi from the Police investigator and prosecution witnesses, fail to cross-examine the witnesses, and then attempt to testify in respect thereof after the prosecution has closed its case. He also cited: Okosi Vs The State (1989) 2 SCC (Pt. l) 126 @ 132 in support of his contention that the appropriate stage to challenge any evidence led by the prosecution is during cross-examination. Having failed to take advantage of cross-examination, learned counsel argued that the defence raised in the course of the appellant’s defence at the trial is improper and the learned trial Judge was right to dismiss it in the absence of any special circumstance shown. The position of the law is that the legal burden of proving its case against an accused person beyond reasonable doubt rests squarely on the prosecution and never shifts. However the burden of Introducing evidence on an issue, known as the evidential burden, may be placed by law on either the prosecution or the defence depending on the facts and circumstances of the case. See: Esangbedo Vs The State (1989) NWLR (Pt.113) 57 @ 69 – 70 H – A.: Woolminqton Vs D.P.P. (1935) A.C. 462. Where the evidential burden placed on a party in respect of a particular issue is not discharged, the issue would be resolved against the party without much ado. See: Esangbedo Vs The State (supra) at page 70 B – C. It was explained in Esangbedo’s case (supra) at page 70 E – F that where, for example, a defence of alibi is raised, the ultimate or legal burden remains on the prosecution to establish the guilt of the accused person beyond reasonable doubt. However the evidential burden of eliciting or bringing evidence in respect of his defence of alibis on the accused. By raising the defence of alibi, the accused person is not seeking to prove his innocence but to raise a doubt as to what might otherwise have been a fool proof case by the prosecution. See: Egbarika Vs The State (2014) 4 NWLR (Pt.1398) 558 (9) 584 A – E. On the meaning of alibi, this court, per Obaseki, JSC in: Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92 (5) 109 C – G, held thus: ‘What is the meaning of alibi? It is a defence where an accused person aiieges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must he given. This is normally done at the first opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police. .,. Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt Adedeji Vs The State (1971) 1 ALL NLR p. 75. Failure by the police to investigate and chock the reliability of [the] alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement as was done in the case of Onafowokan Vs The State (1987) 7 SC; (1987) 3 NWLR (Part 61) page 538, … The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi: Bozin Vs The State (supra). Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. The ipse dixit of the accused, i.e. that he was not present is not enough. To raise the defence he must give particulars of his whereabouts at that particular time.” (Emphasis mine) From the excerpt of the above decision, it is dear that the initial evidential burden of setting up enough facts upon which the defence of alibi can rest, is on the accused person. He must raise the defence at the earliest opportunity to afford the prosecution an opportunity to investigate and rebut the evidence in order to discharge its burden of proving the guilt of the accused beyond reasonable doubt. See: Aqu Vs The State (1985) 9 SC 179: Ayan Vs The State (2013) 15 NWLR (Pt.1376) 34: Ndidi Vs The State (2007) 13 NWLR (Pt.1052) 633. I think it goes without saying that an alibi raised after the prosecution has closed its case and during the appellant’s defence could hardly be described as being “promptly and properly put up.” The sum total of his defence of alibi is as follows: At page 46 lines 10 & 11 of the record: “When Msutegher was allegedly killed, I was at Tse Bagu.” And at page 48 lines 2 & 3; “When Police arrested me at Tse Bagu one elderiy man, who gave me land to farm was present. His name is Chia Bagu.” Even if it had been raised at the earliest opportunity, the defence is vague and bereft of detailed particulars that would enable the Police investigate. I entirely agree with the court below, which affirmed the finding of the trial court on this Issue, that the defence of alibi was unreliable and raised too late in the day to be of any benefit to the appellant. The court gave full consideration to the issue before dismissing it. It was the further contention of learned counsel for the appellant that the defence could not have been raised at the Police station due to “prevailing circumstances” having regard to the evidence of the appellant at the trial that he was “coerced, compelled and tortured” into confessing to the crime. With due respect to learned counsel, the contention does not hold water. This is because the Appellant’s statement, Exhibit 5, was admitted in evidence without objection. He was duly represented by counsel. It was never contended that the statement was made involuntarily and there was no application for a trial within trial to be conducted to test its voluntariness. Again the issue being raised after the prosecution had closed its case is belated. It is an afterthought and cannot avail him. I accordingly resolve this issue against the appellant. ISSUE 3 In support of this issue, learned counsel for the appellant referred to the evidence of PWT (the father of the deceased child) and PW2 (the neighbour who discovered the corpse of the deceased) and submitted that neither of them was an eyewitness to the crime. He noted that while PW1 claimed to have been present at the Police station when the appellant allegedly confessed to committing the crime, PW2’s testimony was that his attention was drawn to the corpse of the deceased in an uncompleted building by his friend, and he thereupon alerted PW1, whom he knew had been searching for his son. He submitted that the testimony of PW3, one of the investigating police officers, was merely to the effect that the appellant confessed to him at the Police station that he killed the deceased. Relying on Section 131 (1) of the Evidence Act, 2011 and the case of Ani Vs The State (2009) 16 NWLR (Pt.1168) 443 @ 457 — 458 F — B. he submitted that the burden of proving the guilt of an accused person lies on the prosecution throughout the proceedings and that the standard of proof is beyond reasonable doubt. On the ingredients to be established to secure a conviction for murder, he cited the case of:  Maiyaki Vs The State (2008) 15 NWLR (Pt.1109) 173 ® 192 – 193 G — B wherein it was held that the prosecution must prove: 1. That the deceased had died; 2. That the death of the deceased has resulted from the act of the appellant; and 3. That the act or omission of the accused, which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its probable consequence. That the three ingredients must co-exist and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved. Learned counsel contended that the respondent did not lead any evidence to establish that the death of the deceased resulted from the act of the appellant. He also submitted that the appellant was not linked with the crime. He submitted that the appellant’s conviction was against the weight of evidence as the respondent failed to lead cogent evidence to establish his guilt. He urged the court to set aside the conviction and sentence. In reaction to the submissions of learned counsel for the appellant, learned counsel for the respondent submitted that the court below rightly held that the respondent had proved its case beyond reasonable doubt and properly dismissed the defence of alibi. He submitted that the appellant’s confessional statement, Exhibit 5, is positive and direct and is sufficient to convict him for the commission of the offence charged. He noted that Exhibit 5 contains a detailed narrative of how the appellant and one Abu (now at large) conspired together to slaughter the deceased 3-year-old child. He noted that there was no objection to the tendering of Exhibit 5. He submitted that a free and voluntary confession, which is direct and positive and properly proved, is sufficient to sustain a conviction. See: Arogundare Vs The State (2009) Vol. 169 LRCN 23. Citing the case of: Akinmogu Vs The State (2000) 6 NWLR (Pt.662) 608, he submitted that it is settled law that an admission made at any time by a person charged with an offence, even before it has been decided to formally charge him with committing a crime, without administering a caution, suggesting that he committed the offence is a relevant fact against him. He referred to the evidence of PW1 at page 31 lines 10 -13 and at page 33 line 4, wherein he testified that the appellant confessed to the crime in his presence. He maintained that the appellant was linked with the death of the deceased and referred to Exhibit 3, the medical report, which was unchallenged, which stated the cause of death to be “cardiac respiratory failure from laceration of the trachea and carotid arteries and jugular veins. “He submitted that this finding corroborates the Reliant, confession in Exhibit 5 that he slaughtered the deceased by slicing his neck with a knife. He noted the testimony of PW1 and PW2 also corroborated the content of Exhibit 5, as they testified that they found the deceased with his throat cut. Learned counsel submitted that the duty of the prosecution is to prove its case beyond reasonable doubt and not beyond the shadow of a doubt. He referred to: Chukwuma Vs F.R.N. (2011) 198 LRCN 73 & 77: Kim Vs The State (1991) 2 NWLR (Pt.175) 622 ® 625; Alkalezivs Vs The State (1993) NWLR (Pt. 273) 1; Dibie Vs The State 9 (2007) 3 SC (Pt.1) 176. He submitted that the respondent in this case proved all the essential elements of the offence of culpable homicide punishable with death under Section 221 of the Penal Code. He urged the court to resolve this issue against the appellant and dismiss the appeal. The standard of proof required of the prosecution in a criminal case is a heavy one. The prosecution must prove its case beyond reasonable doubt. See: Section 135 (1) of the Evidence Act, 2011. The burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few limited circumstances, such as where an accused person raises a defence of insanity. See The State Vs. Emine (1992) 7 NWLR (Pt. 256) 658; Ogundiyan Vs. The State (1991) 3 NWLR (Pt. 181) 519; (1991) 4 SCNJ 44; Alonge Vs. IGP (1959) 4 FSC 203; (1959) SCNLR 516. There is no obligation on an accused person to prove his innocence. In order to discharge the onus on it, the prosecution must establish all the ingredients of the offence charged. See: Yongo Vs. C.O.P. (1992) 8 NWLR (Pt. 257) 36.; (1992) 4 SCNJ 113; Alor Vs. The State (1997) 4 NWLR (Pt. 501) 511. The ingredients of the offence of culpable homicide punishable with death under Section 221 of the Penal Code are: 1. That the deceased died. 2. That his death was caused by the accused. 3. That the act of the accused which caused the death was intentional having the knowledge that death or grievous bodily harm was the probable consequence of the act. Stephen Haruna Vs A.G. Federation (2012) LPELR – SC72/2010 01 26 – 27 F – C; Ubani Vs. The State (2003) 18 NWLR (Pt.851) 25; Igabele Vs. The State (2006) 6 NWLR (Pt.975) 100. There is no dispute regarding proof of the first ingredient of the offence. PW1, the father of the deceased testified that he had been looking for his young son, who had gone missing early in the morning of 28/7/2004 from a nearby compound where he was playing with friends. He was informed by one of his neighbours, PW2, that his corpse had been found in an uncompleted building. He went there and identified the deceased whose throat had been cut. He also testified that he accompanied the body to the Federal Medical Centre. He identified the deceased to the medical doctor who performed the post-mortem examination and produced a report, which was admitted in evidence as Exhibit 3, stating the cause of death to be “cardiac respiratory failure from laceration of the trachea and carotid arteries and jugular veins.” To establish the second and third ingredients, the respondent relied on the evidence of PW1, PW2, PW3 and Exhibits 3 and 5, the post-mortem report and the appellant’s confessional statement respectively. One of his confessional statements, Exhibit 4, was expunged from the record by the court below, having been wrongly admitted without the conduct of a trial within trial when objection was taken to its admissibility on grounds of involuntariness. The law is settled that the free and voluntary confessional statement of an accused alone is sufficient to sustain a conviction, provided the court is satisfied that it was made in a free atmosphere and is direct, unequivocal and positively proved. See: The State Vs Jimoh Salawu (2011) 18 NWLR (Pt.1279) 883 da 920 – 921 G – A: LPELR-9351 (SCI; Akmmoiu Vs The State (2000) 4 SCNJ 179; Kanu Vs The State (1952) 14 WACA 30: Ekpenyong Vs State (1991) 6 NWLR (200) 683. Section 28 of the Evidence Act 2011 (as amended) (formerly Section 27 of the Evidence Act 2004) provides: 28. “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” In the instant case, as observed earlier, the appellant did not raise any objection to the admissibiiity of Exhibit 5, The court therefore had no obligation to conduct a trial within trial to ascertain whether or not it was voluntarily made. The court was entitled to admit it in evidence and consider its probative value along with all the other evidence in the case. See: Egboghoname Vs The State (1993) 7 NWLR fPt.306) 383; Nwanoboma Vs The State (1994) 2 NWLR (Pt.327) 380; Nwachukwu Vs The State (supra). Exhibit 5, which is at pages 16 -18 of the record, was recorded by PW3. It reads in part: “…I used to go to Asase village in the North Bank to visit one of my brothers name Ugondu. So due to the visit I normally do to my brother Ugondu I came to know the parents of the deceased Msutegher .. and even sometimes I used to eat food from their house. So, it was on 28/7/2004 at about 0800 hours when the deceased child i.e. Msughter was playing with two other children whom I don’t know their names, by then I was with one Abu, an Igaia boy who is leaving (sic) with me in the same room in Uge v Village in N/Bank but now Abu run to Abuja. … So, as I was telling you, when we went to that compound in the morning at about 0800 hours, while the father of the deceased child was taking his bath, Abu went and called the child named Msughter about 3 years old while he was playing with two other children of his age mate. Myself, I hide myself in one uncompleted building with my knife, waiting for Abu to come. So as soon as Abu came with the child he (Abu) put the child down, Abu now pray in Igala language, later Abu removed something from his pocket and robbed (sic) on the neck of the child exactly where he wanted me to slaughter. After doing that, he handed over the knife to me and I finally slaughter the child Msughter. Though at the time we were doing all these the child did not cry or raised (sic) any alarm.” The above statement contains a chilling and cold-blooded account of how the appellant and his accomplice, the said Abu, who is now at large, lured an innocent, unsuspecting little boy away from playing with his friends to a gruesome and untimely death. It is clear, direct and positive as to the involvement of the appellant in the commission of the offence. The post-mortem report, Exhibit 3, issued by one Dr. E.E. Okwori of the Federa Medical Centre is consistent with the narrative in Exhibit S of how the deceased was killed. The doctor found that the deceased’s neck was slashed and the cause of death was due to cardiac respiratory failure from laceration of the trachea and carotid arteries and jugular veins PW1, under cross-examination at page 32 of the record, stated that while searching for his son, he met the children his son was playing with in the nearby compound and asked for his whereabouts. It is consistent with the statement in Exhibit 5 that the deceased was playing with his friends in a nearby compound. He also testified that the appellant confessed to the crime in his presence at the Police station. He maintained this assertion under cross-examination. PW2 was the person who discovered the body of the deceased and alerted PW1. His evidence was not discredited in any way under cross-examination. After a review of the evidence, the court below held at pages 136 – 138 of the record: ‘In the instant matter, it is patent on the record of appeal that the deceased victim, a human being, died. PWl, the father of the deceased identified the corpse of the deceased to the medical doctor who carried out a post-mortem on the deceased. Exhibit 5, the confession of the appellant contains the details of the methodical acts of and the manner in which the appellant savagely terminated the life of the deceased, by slashing his throat with a knife. He stated how one Abu, his companion, tvho had since the Incident been at large, lured the deceased child away from his playmates Into an uncompleted building where he was kilted. While Exhibit 3, the medical report contains the findings of the Doctor who carried out the post-mortem on the deceased, viz: Slaughtered boy. Laceration of the trachea, carotoid (sic) arteries and jugular veins. And the cause  of death   vsas  certified  to  be cardio respiratory failure  from  laceration   of the trachea and carotid arteries and jugular veins, Hence, Exhibit 3 is consistent with the manner in which the appellant confessed in Exhibit 5 to have killed the deceased, that is, slashing the neck of the deceased with a knife. The death of the deceased was the direct consequence of the act of the appellant. There is no doubt from Exhibit 5 that the killing of the deceased was premeditated by the appellant and his “run away” crony. He laid in ambush in an uncompleted building from prying eyes, while his crony lured the deceased from his playmates into the ready hand of the appellant, who Is the hatchet man of the evil team. It is very clear that this act of the appellant that Is, the slashing of the neck of the deceased was Intended to cause the death of or grievous harm or fatal injury to the deceased. Consequent upon the above elucidation, I agree with the learned trial Judge that, on the facts of this matter, the respondent, as prosecution at the trial Court, succeeded in proving beyond reasonable doubt that the appellant, by slashing the neck of the deceased with a knife, in collaboration with his crony who has been at large since the Incident, intended to kill the deceased or to cause him grievous harm. Therefore, the acts of the appellant fall within the ambits of the offence of conspiracy to commit and culpable homicide with which he was charged.” The above finding is in full accord with the evidence on record. It is unassailable. There is no reason for this court to disturb it. The appellant must certainly pay the price for his dastardly act. This issue is accordingly resolved against the appellant In conclusion therefore, I find that the appeal is totally lacking in merit. It is hereby dismissed. The judgment of the lower court, which affirmed the conviction and sentence of death passed on the appellant, is hereby affirmed. SULEIMAN GALADIMA, JSC:  I have had the privilege of reading in draft the judgment just delivered by my learned brother KEKERE-EKUN, JSC. I agree with the reasoning contained therein leading to the conclusion dismissing of this appeal. I too dismiss the appeal. The judgment of the Court of Appeal which affirmed the conviction and sentence of death passed on the Appellant herein is hereby affirmed. CLARA BATA OGUNBIYI, JSC:  I read in draft the lead judgment of my learned brother  Kekere-Ekun, JSC and I agree that the appeal is lacking in merit and should be dismissed, I seek to add also that my brother has considered all the issues raised in the appeal comprehensively and I adopt the judgment as mine. I wish to say briefly that the facts of this case are very unfortunate and disturbing. The caliber of the appellant with his callous behavior is not a man fit to live in a decent society. This I say especially where the appellant claimed he was hired by one Abu to murder the victim (a boy of three) for a fee. In one of the two statements made to the police, the appellant confessed that he was hired for a fee of N60, 000.00k (Sixty thousand Naira). The two statements made by the appellant at Exhibits 4 & 5 were confessional and the law is well settled on the admissibility and effect of such documents which are sufficient to convict the appellant thereon. Consequently, the defence of alibi raised by the accused during his testimony was too fate in the day and only an afterthought. At pages 44 – 45 of the record, the confessional statement Exhibit 5 was tendered through the bar without any objection from the appellant’s counsel. As rightly submitted by the respondent’s counsel, the document which was the appellant’s own statement and recorded on his own volition is primary evidence in nature under section 86(1) of the Evidence Act 2011, The same needs no certification as it is not classified as secondary evidence, contrary to the contention held by the appellant’s counsel. Section 104 of the Evidence Act does not therefore apply to Exhibit 5. It is the appellant’s original statement in its original form that was tendered. On the question of proving the appellant’s guilt, it is obvious that the defence of alibi raised at the stage of his defence, was belated and did not avail him. This is especially in the face of his confessional statement Exhibit 5 which, alone, was sufficient to have convicted the appellant thereon. The confession was positive and direct that he (appellant) committed the said offences. It was also detailed and flowed in fluent narrative as to how he conspired with one Abu and slaughtered the deceased, an innocent child of 3 years old boy, with a knife in an uncompleted building. In addition and to corroborate Exhibit 5 is also Exhibit 3, the medical report, which was not challenged or controverted by the defence. The cause of death according to the report was as a result of: “Cardiac respiratory failure from laceration of the trachea and carotid arteries and jagular veins.” My brother Kekere-Ekun, JSC has said it ail in his lead judgment, there is sureiy no mercy for the appellant, whose guilt has been proved by the prosecution beyond all reasonable doubts. In the same vein as my brother, therefore the concurrent findings of the two lower courts are unassailable as there is no reason to disturb same. The appeal is lacking in merit and I also dismiss same and affirm the conviction and sentence of death passed on the appellant. AMIRU SANUSI, JSC:  At the High Court of Justice Benue Stale, Makurdi Division (the trial court) the appellant herein, was arraigned and charged with the offences of culpable homicide punishable with death contrary to Section 221 of the Penal Code and the offence of criminal conspiracy under Section 97 of the same Penal code. When the two charges were read and explained to him he pleaded not guilty, hence his trial commenced in earnest. During the trial, the prosecution now respondent in poof of their ease, called three witnesses and tendered some exhibits which included the confessional statements of the accused person, (now appellant) which were marked as exhibits 4 &5. The appellant in presenting his defence testified in his own defence but did not call any witness. Briefly put, the facts of the case are that on 28th July 2004 at Asase, village in the North Bank which is in the outskirt of Makurdi one Abu was alleged to have lured the deceased a young boy of about 3 years old called Msugherr Yortyon from his parents house, where he was playing with other children and led him to on uncompleted building where the appellant was waiting with a knife based on his conspiracy with the said Abu the Appellant. He floored the deceased down while I he Appellant slashed the boy’s (deceased’s) throat with the knife, and killed him. Both Abu and the appellant left the scene leasing their victim’s corpse in I he uncompleted building. The corpse was later discovered by PW2 who led PW1 the father of the deceased to the place where the corpse was dumped when he heard about the search for the deceased was being mounted. On discovery of the deceased person’s corpse, investigation was intensified leading to the arrest of the appellant who was later tried for the two offences mentioned above. Somewhere in his confessional statement Exhibit 5f the accused now appellant confessed that the said Abu promised to pay him a fee of N60. 000.00k if he assisted in killing the deceased. At the end of the trial, the trial High Court found the appellant guilty of the two offences charged, convicted and sentenced him to death. Aggrieved by the Judgment of the trial court, the appellant appealed to the Court of Appeal (herein after referred to as the Lower or Court below”) which said lower court affirmed the decision of the trial court which convicted the appellant and sentenced him to death. Still dissatisfied with the Judgment of the Court below, the appellant further appealed to this court. He filed a notice of appeal dated 13/3/2014 containing four grounds of appeal. Out of the four grounds of appeal, three issues for determination were proposed by the appellant in his brief of argument filed on 4/9/14 settled by one Wilson Diriwari Hsq. The issues arc reproduced hereunder (1) Whether it is the original or certified true copy of Exhibit 5 (that is the Appellant alleged confessional statement to the Police being a public document that is admissible in evidence under the Evidence Act 2011 (2)    Whether the defence of alibi raised by the appellant but was not properly considered by the courts below, would avail the Appellant. (3)    Whether if this Honourable court agrees with our contention tinder issue one above, to the effect, that it is only a Certified True Copy of Exhibit 5 and not the original that is admissible in law, the respondent herein has proved the guilt of the appellant beyond reasonable doubt with cogent, credible and compelling evidence as required under Nigerian Criminal jurisprudence to secure the convictions and sentence of the appellant. On its part, the respondent formulated two issues for determination of this appeal as contained in its brief argument which was tiled on 5/2/15 but deemed filed on 18/2/2015 and settled by J N Adegbaan Asst. Director Legal Drafting with Ministry of Justice Makurdi Benue State. The two issues raised there in read thus:- (a) Whether exhibit 5 is a public document requiring certification he admissible. (b) Whether having regard to the weight of evidence, the Court of Appeal rightly held that the Respondent proved its case against the appellant and that the defence of alibi does not avail the appellant. My noble lord Kekere-Ekun JSC, has thoroughly treated the above issues raised by the learned counsel to the parties which are moreorless the same but merely differed in the manner they were couched. The reasons and conclusion she arrived at in finally dismissing this appeal, are agreeable to me and 1 hereby adopt them as mine. That notwithstanding, I would like to add few comments on some of the live issues canvassed by the parties learned counsel especially with regard to the proof of the ease by the respondent herein. It is the contentions of the appellant’s counsel that me Lower court wrongly rejected the appellant’s defence of alibi which he raised while presenting his defence. The learned appellants counsel argued that the appellant could not have raised such defence promptly at the police station or when he was making statement to the police because he was coerced forced compelled and tortured. Learned appellant’s counsel further submitted that the court is always duty bound to consider the defence posed by an accused on matter how stipid it nught be. See Ogunye vs The State (1999) 5 NWLR (pt 604) 548 at 570.571 al paragraphs G lo A. In his reply, the learned respondent’s counsel submitted that the defence of alibi was raised by the accused/appellant in court was raised belatedly hence the two lower courts were correct in rejecting it. He argued that alibi defence could only be considered if raised by the accused at the earliest opportunity by giving details and particulars of the place he was. at the time of the commission of the offence. In the circumstance, I tend to agree with the submission of the learned counsel for the respondent dial, until and unless an accused person raised defence of alibi at the earliest time, the police in vesication would have no time to investigate and verily the assertion of the accused on where he was at the time of the commission of the crime. It is not the law. that the police should embark on a wild goose chase for the whereabout of any accused person at the time the crime was committed. No, that is not the duty or function of the police. It is pertinent lo note that the defence of alibi proffered by the appellant was introduced for the first time in his oral evidence when on page 46 of the Record of appeal he stated as follows:- “I do not know anything above the death of’ Msusliter I fortyam on the 28/7/2004 when nisuteghes was allegedly called I was at TSE Bagu ‘ For a defence of alibi to be valid and upheld by the court, the accused must give specific particulars of where he was at the material lime lo enable the police move straight to that place to carry out its investigation as required by Jaw. See Raji vs The Slate (1984) 10 se (reprint) 128; Adio vs The State (1986)6 sc (reprint) IS3. Ochemeje vs the Stale (2008) 6-7 SC (pt. 11) and NW atuneocha vs the State (2011) 2-3 (pt 1) 111 and Shehu Vs The State (2010)2-3 SC 168. In any case, this court in it is settled principle of law staled that it is not every failure of the police investigation an alibi defence raised by an accused person that is fatal to the case of the prosecution. See Ochemaje vs State (supra) Eke vs The State (201 1)1-2 SC (pt 11 )214. I am inclined to agree with the concurrent findings of the two courts below, that the defence of alibi posed by the appellant was belated in that is mere afterthought. It should even be noted that such defence was not even raised at the time when the accused-appellant made his statements to the police which were tendered in evidence without objection from the defence. Moreso. for the scanty defence raised by the accused as quoted from the excerpt on page 45 of the record, such defence is vague or nebulous besides being scanty from which there was no time for the police lo verify or ascertain the truth of same. This issue therefore resolved against the appellant. The third issue for determination has to do with whether the prosecution had proved the allegation made against the accused’ appellant beyond reasonable doubt. It is settled law that an offence of culpable homicide punishable with death under Section 221 of the Penal Code can only be established if cogent, credible and reliable evidence is led to prove the following ingredients of the offence. These ingredients include:- (a) The death of the deceased was caused, (b) That the death of the deceased has resulted from   (c) That it was the act or omission of the accused which caused the death of the deceased was intention with full knowledge that death or grievous bodily herein was its probable cause consequence. In the instant case, the prosecution, now respondent, had led credible evidence to prove that the victim’s daughter a small child of about 3yrs was killed by knife cut on his throat as confirmed by the medical report Exhibit 3. This is evident from the confessional statements of the accused Exhibit 5 which was tendered and admitted in evidence without any objection from the defence and which said statements were free and voluntarily made and was even duly corroborated by the testimonies of PWI the victim’s father, PW2 who led PWI to the uncompleted building where the boy’s corpse was dumped. On the 2nd and third ingredients of the offence raised supra, evidence abound from the confessional statements of the accused Exhibit 5 in which the appellant implicated or identified himself with the commission of the offence The confessional statement, namely exhibit 5 was made voluntarily by the appellant and were duly admitted without any objection from the defence. The trial court therefore had right of admitted them in evidence and acted or relied on them in convicting the accused person/appellant, as charged. It is therefore my considered view, that the prosecution, now respondent, had proved its case against the accused/appellant beyond reasonable doubt as required of them by Section 135 of the Evidence Act 2004. Similarly, the lower court was also correct in affirming the Judgment of the trial court which convicted the accused/appellant as charged, This court stated in numerous of its decisions that, it is always hesitant in interfering or disturbing concurrent findings of two lower courts, excerpt in a situation where such findings arc pen erse or where miscarriage of Justice was occasioned. There is no evidence of such perversion or miscarriage of Justice from the acts and surrounding circumstances of this case, to warrant any interference with such findings by tins court. Hence 1 also affirm the decision of the court below In the result, for these few comments 1 make here, and for the fuller and more detailed reasons and conclusion arrived at in the lead judgment of my learned brother Kudirat Motonmori Olatokunbo Kekere-Kkun JSC, I also adjudge this appeal unmeritorious and. 1 accordingly dismiss it. 1 affirm the Judgment of the Court of Appeal which had affirmed the decision of the trial court in convicting and sentencing the accused appellant to death. Appeal is herein accordingly dismissed.

 

COUNSELS

WILSON DIRIWARI ESQ. with YINKA ADENIRAN ESQ. for the Appellant. MRS. J.N. ADAGBA, Assistant Director, Legal Drafting, Ministry of Justice, Benue State, for the Respondent.
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