YEKINNI v. STATE
(2020)LCN/15819(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Wednesday, June 03, 2020
CA/IB/383/2017
Before Our Lordships:
Helen Moronkeji Ogunwumiju Justice of the Court of Appeal
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
JIMOH YEKINNI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
INSTANCE WHERE A MEDICAL REPORT CAN BE TENDERED AND ADMITTED IN EVIDENCE THROUGH THE INVESTIGATING POLICE OFFICER WITHOUT THE MEDICAL DOCTOR BEEN PRESENT
The Supreme Court held in similar circumstances in the fairly recent case of Adesina v. The People of Lagos State (2019) 8 NWLR (pt.1673) 125 at 136 to 137 that a medical report can be tendered and admitted in evidence through the investigating police officer and relied upon without calling the medical doctor who prepared it following the cases of Ehot v. State (1993) 4 NWLR (pt.290) 644 and Fatai v. State (2013) 10 NWLR (pt.1361) 1.
It was also held by the Supreme Court in the case of The State v. Ajie (2000) 7 S.C.N.J. 1 that a medical report prepared by a doctor in the public service is admissible in respect of facts stated therein and can be received in evidence through another person like the investigating police officer of the case where the author is out of the country. JOSEPH SHAGBAOR IKYEGH, J.C.A.
INSTANCE WHERE A DOCUMENT OF A PUBLIC OFFICER WILL BE TENDERED AND ADMITTED IN EVIDENCE THROUGH THE INVESTIGATING POLICE OFFICER IN THE PUBLIC OFFICER
Section 50, formerly Section 34(3), of the Evidence Act, to the effect that the absence of a public servant required to give evidence in a judicial proceeding is sufficiently accounted for by the production in evidence of a gazette, or a telegram or letter purporting to emanate from his head of department sufficiently explaining his absence to the satisfaction of the Court would be said to be satisfied and complied where a witness testified on the explanation of the absence of the public officer vide Olude v. State (2018) 10 NWLR (pt.1627) 292 at 313 – 314 and Famuyiwa v. The State (2018) 5 NWLR (pt.1613) 515 at 532 – 533 where the Supreme Court held that in the evidence of a witness, especially the evidence of the Investigating Police Officer (I.P.O.), explaining the absence of the public officer in Court for the report made by him to be tendered in evidence satisfied Section 50 of the Evidence Act following the case of Ikpo v. State (1995) 9 NWLR (pt.421) 540. JOSEPH SHAGBAOR IKYEGH, J.C.A.
POSITION OF LAW THE SIGNATURE ON A STATEMENT.
I say so, because there is a difference between the allegation that the signature on a statement was obtained by force or trick and denial of signature on a statement or its correctness/accuracy, as in the former case a trial-within-trial would be conducted while in the latter case the trial Court will determine in its judgment whether the defendant made the statement and/or whether the statement was accurately/correctly recorded vide Saidu v. State (1982) N.S.C.C. (vol.13) 70, State v. Salawu (2011) 18 NWLR (pt.1279) 883 at 905. JOSEPH SHAGBAOR IKYEGH, J.C.A.
POSTION OF LAW ON PROOF OF ILLITERACY OF A WITNESS IN COURT
I agree with their Lordships that a person who has attended school from the primary level up to the third year of secondary school must be able to understand the English language to a certain degree even though he may not be proficient in speaking or writing the language.”
See also the case of Ogheneovu v. F.R.N. (2019) 13 NWLR (pt.1689) 235 at 255, 269 – 270 where a primary school leaver was considered literate to understand and communicate in basic English language. JOSEPH SHAGBAOR IKYEGH, J.C.A.
POSSITION OF LAW ON AN EXTRA – JUDICIAL STATEMENT
At any rate, it has been held by the Supreme Court in the fairly recent case of Umar v. F.R.N. (2019) 3 NWLR (pt.1660) 549 at 562 – 563 following the case of Udo v. Queen (1964) 3 N.S.C.C. 14 at 15 – 16 and 23 that an extra-judicial statement should, if possible, be recorded in the language in which it is made. However, a failure to follow the procedure will not ipso facto render the statement inadmissible. JOSEPH SHAGBAOR IKYEGH, J.C.A.
WHETHER COURT CAN STILL CONVICT ON A RETRACTED CONFESSIONAL STATEMENT IF CONVINCED OF THE TRUTH OF THE CONFESSION
The factors which the Court must take into account to attach weight to a retracted confessional statement were restated by the Supreme Court in the case of Osetola v. State (2012) 17 NWLR (pt.1329) 251 at 278 thus –
“… On the weight to be attached to confessional statements, which have been retracted, the Court is expected to test its truthfulness and veracity by examining the said statements in the light of other credible available evidence. This is done by looking into whether: –
(a) There is anything outside it to show that it is true;
(b) It is corroborated;
(c) The facts stated in it are true as far as can be tested;
(d) The accused person had the opportunity of committing the offence;
(e) The accused person’s confession is possible;
(f) The confession is consistent with the other facts ascertained and proved at trial.” JOSEPH SHAGBAOR IKYEGH, J.C.A.
POSITION OF LAW ON EVIDENCE NOT CHALLENGED AT CROSS – EXAMINATION
Evidence not cross-examined upon such as the evidence of PW1, a credible eye-witness, must be believed as unchallenged evidence videOkosi and Anor. v. The State (1989) 1 NWLR (pt.100) 642 at 657 where the Supreme Court held inter alia that in all criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination of the witness in the witness-box as it is the only way to attack any evidence lawfully admitted at the trial, for it would be too late at the close of the case to negate what was left unchallenged by the defence. See also Oforlete v. The State (2000) 12 NWLR (pt.681) 415, Tabansi v. Tabansi (2003) 8 NWLR (pt.823) 583, Olasehinde v. The State (2019) 1 NWLR (pt.1654) 555 at 560 following Simon v. State (2017) 8 NWLR (pt.1566) 119. JOSEPH SHAGBAOR IKYEGH, J.C.A.
EVIDENCE OF AN EYE WITNESS IN PROVING A MURDER CASE
Evidence of eye-witnesses or direct evidence as it is sometimes called is one of the independent methods of establishing a case of murder which does not require corroboration and can be based on the credible evidence of a single eye-witness vide Ude v. The State (2016) 14 NWLR (pt.1531) 122 at 158 following Emeka v. State (2001) 14 NWLR (pt.734) 666 and Igabele v. State (2006) 6 NWLR (pt.975) 100. JOSEPH SHAGBAOR IKYEGH, J.C.A.
WHEN THE APPELLATE COURT WILL NOT INTERFARE WITH THE JUDGMENT OF THE LOWER COURT
The said primary findings of fact upon which the conviction of the appellant were based enjoy rebuttable presumption of correctness unless otherwise shown which was not shown in this case, therefore I am reluctant to interfere with the said findings of fact which are hereby affirmed videAdisa v. State (2019) 3 NWLR (pt.1660) 488 at 500, 503 – 504 following Adelumola v. State (1988) 1 NWLR (pt.73) 683, Sugh v. State (1988) 2 NWLR (pt.77) 475, Anyegwu v. Omuche (2009) 3 NWLR (pt.1129) 659, Nwokorobia v. Nwogu (2009) 10 NWLR (pt.1150) 553, Sanni v. The State (1993) 4 NWLR (pt.285) 99, Nwankwoala v. State (2005) 12 NWLR (pt.940) 637. See also Mamuda v. State (2019) 5 NWLR (pt.1664) 128 at 141, Adebanjo v. State (2019) 13 NWLR (pt.1688) 121. JOSEPH SHAGBAOR IKYEGH, J.C.A.
POSITION OF LAW ON THE INTENTON TO CAUSE DATH GRIEVOUS BODILY HARM
The intention to cause death or grievous bodily harm can be inferred from the nature of the weapon used and the part of the body of the deceased that the injury was inflicted to cause his death or to know that death would be the probable consequence vide the case of Chukwunyere v. State (2018) 9 NWLR (pt.1624) 247 at 272 following Akinlolu v. State (2016) 2 NWLR (pt.1497) 503, Nwokearu v. State (2013) 16 NWLR (pt.1380) 207, Afolabi v. State (2016) 11 NWLR (pt.1524) 497. See also Richard v. State (2018) 18 NWLR (pt.1651) and Isah v. State (2018) 8 NWLR (pt.1621) 346 at 351, Owhoruke v. C.O.P. (2015) NWLR (pt.1488) 557. JOSEPH SHAGBAOR IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a judgment of the High Court of Justice of Ogun State sitting in Abeokuta (the Court below) convicting and sentencing the appellant to death for the murder of one Mr. Segun Adeyiga contrary to Section 316(2) and punishable under Section 319 of the Criminal Code, Laws of Ogun State, 2006.
Briefly stated, the evidence for the respondent at the Court below was that while at an event or football viewing centre operated by one Mr. Okon, the PW3, at Olorungoso Junction, Mowe, Ogun State, the deceased had a quarrel with the appellant. It was a heated argument. It led to a serious fisticuff. The appellant bit the deceased twice on the chest with his teeth. The deceased retaliated by biting the appellant on his ear. Some people on the scene including one Mr. Muyiwa and a Mr. Rotimi Adeyiga, the PW1, separated the appellant and the deceased from the fight. The deceased and the PW1 then started on their way from scene. Unbeknown to them the appellant ran from behind after them.
The deceased, perceiving that someone was running after them, turned back to see the person. It was at that stage that the appellant suddenly stabbed the deceased on the chest with a knife he had picked from an orange seller by the road side. The deceased slumped to the ground from the knife attack. The PW1 witnessed the stabbing of the deceased on the chest with a knife by the appellant. The incident occurred around 7p.m. on 06.03.13. The PW1 testified that it was not yet dark. The appellant fled from the scene after he stabbed the deceased.
The PW1 picked the deceased from where he had slumped to the ground from the stab wound. He conveyed the deceased on a motorcycle to Oyin Hospital. On arrival at the hospital, the deceased was pronounced dead. The hospital staff therefore declined to accept the corpse of the deceased. They told the PW1 to go with it. The PW1 took the corpse of the deceased home. The attack and stabbing of the deceased by the appellant leading to the deceased’s death all happened on the same 06.03.13. The PW1 reported the incident to the police on the night of the same date. The appellant was in hiding for some time. He would be apprehended some weeks after the incident.
The next day, 07.03.13, the PW5, one of the police investigators, conveyed the corpse of the deceased to Ogun State University Teaching Hospital (OSUTH) for autopsy. The PW2, one Mr. Oladimeji Titus, a clergy-man and the in-law of the deceased identified the corpse of the deceased to the medical doctor for post-mortem examination on 11.03.13. The post-mortem examination was performed by a Dr. Odunfa. He issued a medical report on 26.03.13. He was reportedly abroad at the time the medical report was tendered and admitted in evidence without objection by the defence through the PW5, as Exhibit D.
The confessional statement of the appellant to the police at Mowe Divisional police station was attested to by the PW4, a superior police officer, and admitted in evidence, after a trial within trial, as Exhibit E. Exhibits F and F1, another confessional statement, was recorded by a Yoruba man, an investigating police officer attached to the State Criminal Investigation Department (SCID) Eleweran, Abeokuta. The evidence of PW6 drew the curtain (so to speak) on the case presented by the respondent against the appellant at the Court below.
The case of the appellant through his own evidence as sole witness for the defence was that he used to live at Mowe before 06.03.13. He denied murdering the deceased. According to the appellant, he was returning from work as a driver on 06.03.13. He got to Mowe bus stop. A friend of his told him to meet him at a place called Garden Chicken for a discussion. He got there. His friend changed his mind that there was no room for them to discuss there. They ended up at a viewing centre owned by his friend’s friend. He saw someone who looked familiar sitting outside the viewing centre. He approached the man.
The man then asked the appellant whether he was one Owode, a commercial motorcyclist, that had disappeared with his N1,000. The appellant denied the allegation. He then left the place and went home. The next morning the appellant travelled with his boss for about two weeks. His brother later called him on phone while he was still away that some policemen from Mowe police station came to the house and arrested him for an incident that happened on 06.03.13. When he heard it, he left his job and returned to Mowe. His brother had been released before he got home. His brother told him both of them would go to the police station the next day. But he decided to go to work the next day, 21.03.13.
That it was on his way back late in a dark night during down pour that he was picked by the police to Mowe Police Station. The police informed him that the accusation against him was that he had murdered the deceased. He denied the accusation. He also denied fighting anyone at the viewing centre when one woman who was there accused him that he had fought his son. The policeman then started to beat him while one of them wrote a statement and forced him to sign it after beating and injuring him on the leg.
The police at Mowe Divisional Police Station took him back to the cell. From there he was taken to the SCID Eleweran, Abeokuta where the police investigator copied the statement recorded by the police at Mowe Police Station and asked him to sign it. He requested that the statement be read to him first. His request was turned down. He, however, signed the statement. The police at the SCID Abeokuta then detained him in a cell. The appellant ended his evidence by denial that he fought and stabbed one Seun Adeyiga on the chest to death.
The Court below accepted the version of the respondent and rejected the appellant’s case and held in its judgment that the respondent had proved the charge of murder of the deceased by the appellant beyond reasonable doubt. The Court below convicted the appellant of murder as charged and sentenced him to death by hanging.
Not unnaturally, the appellant felt dissatisfied with the judgment of the Court below and filed an original notice of appeal with one ground of appeal thus –
“that the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.”
The original notice of appeal with the solitary ground of appeal was filed on 14.08.17. An application to amend the notice of appeal by the addition of some grounds of appeal was granted by the Court on 19.11.18. The amended notice of appeal was filed on 21.11.18.
The appellant caused his brief of argument to be filed on 21.11.18. It was regularised by an order of the Court made on 19.11.18. The appellant argued in the brief that the failure to call the medical doctor who was said to have issued the autopsy report, Exhibit D, without explanation for his absence, rendered the admissibility of the autopsy report, Exhibit D, through the PW5, who was not its maker, wrong and denied the appellant the opportunity to cross-examine the pathologist/maker of Exhibit D on its contents and violated the appellant’s constitutional right to fair hearing stipulated by Section 36(6)(D) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (1999 Constitution) read with Section 83(1) of the Evidence Act, 2011 (Evidence Act) and the cases of Enwerem v. Abubakar and Anor. (2016) LPELR – 40369 (CA), Adewale and Anor. v. Olamilekan and Ors. (2015) – LPELR – 25972 (CA), Buhari v. Obasanjo (2005) 3 NWLR (pt.941) 1 at 317, Shofolahan v. State (2013) 17 NWLR (pt.1383) 281 at 320 – 321, Al Mustapha v. State (2013) 17 NWLR (pt.1383) 350 at 423 – 424.
It was also argued that Exhibit D being documentary hearsay is inadmissible in evidence and should be expunged as wrongly admitted evidence vide the cases of Okonji v. Njokanma (1999) LPELR 2477 (SC), Abubakar v. Chuks (2007) MJSC 190 at 217, Owonyin v. Omotosho (1961) All NLR 304.
The appellant argued in the brief that he had informed the PW5 and the PW6 that he was not proficient in English language, yet the PW5 recorded his statement in English language; while the PW6 recorded his statement in Yoruba language, the native language of the appellant and PW6, and translated it in English language, when PW5 and PW6 did not disclose their qualification as experts in the two languages which denied the appellant fair hearing as the correctness of the English translation had not been established by the respondent; on account of which the appellant argued that the statements, Exhibits E, F and F1, should not have been accorded probative value by the Court below and ought to be discountenanced for having little or no evidential value vide Section 36(5) and (6)(B) of the 1999 Constitution and the cases of Oruwari v. Osler (2012) LPELR – 19764 (SC), Adegbuyi and Anor. v. Mustapha and Ors. (2010) LPELR – 3600 (CA), Bako and Ors. v. Abubakar (2014) LPELR – 23975 (CA), Onyia v. State (2008) 7 – 12 SC 120 at 135, Idowu v. State (2011) LPELR – 3597 (CA) and Section 67 of the Evidence Act.
The appellant relied on Section 36(5) of the 1999 Constitution to contend that every person charged with a criminal offence shall be presumed innocent until proved guilty thus placing the burden of proof on the respondent to establish the commission of the offence charged beyond reasonable doubt; and that in respect of murder under Section 316 and punishable under Section 319(1) of the Criminal Code the prosecution must establish that the deceased is dead, that the act or omission of the accused which caused the death of the deceased was unlawful and intentional and with knowledge that death or grievous bodily harm was its probable consequence vide Ogba v. The State (1992) 2 NWLR (pt.222) 164, Ndike v. The State (1994) LPELR – 1971 (SC).
The appellant argued thenceforward that all the six (6) witnesses called by the respondent did not establish the guilty mind or mens rea of the appellant to ground conviction for murder in that even though it was conceded that the death of the deceased was stated in Exhibit D, the PW3, the alleged eye-witness to the fight, confirmed not to have seen a knife with the appellant but that he only heard people shouting during the fight that the appellant had knifed the deceased.
The appellant also argued that the PW1’s testimony that the appellant stabbed the deceased was consistent with the appellant defending himself after the deceased attacked him the second time after being separated by people which was buttressed by the failure of the respondent to establish on the evidence the specified weapon that allegedly caused the wound on the deceased’s chest, as the weapon was not recovered at the scene and was never tendered in evidence thus leading to speculation by the Court below that the wound on the deceased’s chest was consistent with knife injury which should not be allowed to stand as Courts have been enjoined not to engage in speculation vide Lawal and Ors. v. The State (2011) LPELR – 4186 (CA), Mbam v. The State (2016) LPELR – 40966 (CA).
The appellant further argued that since the confessional statements, Exhibits E, F and F1, were not shown to have been interpreted from Yoruba language, spoken by the appellant, into English language, by experts whose qualifications should have been disclosed in evidence before the Court below to authenticate their proficiency as recorders of the confessional statements, the alleged confession was improbable (confessed to stabbing deceased with a knife not seen, found or presented before the Court), therefore the alleged confession must be viewed with suspicion and no value ought to have been ascribed to it by the Court below; more so, there is absolutely nothing outside the alleged confession to authenticate its truthfulness vide Nwocha v. State (2012) 9 NWLR (pt.1306) 571, Osetola and Anor. v. State (2012) LPELR – 9348, Akpan v. State (2001) 11 SCM 66.
The appellant added to his submissions that the confession of using a knife on deceased by the appellant in Exhibits E, F – F1 has been shown to be incredulous and not sustainable by any other evidence adduced at the Court below rendering the conviction of the appellant for murder with a weapon not before the Court below perverse and occasioned gross miscarriage of justice to the appellant, therefore the appeal should be allowed and the appellant be discharged and acquitted vide Gbadamosi v. State (1991) 6 NWLR (pt.196) 83.
The respondent filed its own brief of argument on 08.04.19. The respondent opened arguments in the brief with the proposition that it is trite that the prosecution in a criminal trial is required to prove its case against the accused beyond reasonable doubt vide the case of Abirifon v. State (2013) 9 SCM 1 at 5.
The respondent went on to submit that in the case of murder, the prosecution is obliged to prove beyond reasonable doubt that the deceased died from the intentional act of the accused vide Edoho v. The State (2010) 6 SCM 52 at 56, which ingredients of the offence, the respondent submitted, were established by the evidence of PW1, PW2 and PW3 contained in pages 30 – 36 of the record of appeal (the record); and, also, corroborated by the evidence of the PW5 who saw the corpse of the deceased in the house of the deceased after it was rejected in the hospital and thereafter deposited it at OSUTH mortuary vide pages 38 – 39 of the record showing the respondent proved beyond reasonable doubt the connection between the act of the appellant of stabbing the deceased who was hale and hearty and causing his death from the stab wound on the same day as intention to kill can be inferred from the instrument (knife) used by the appellant vide the cases of Udosen v. The State (2007) 2 SCM 128 at 130, Nwokearu v. State (2013) 9 SCM 124 at 129, Quinn v. Lethem (1901) AC 491 at 533.
The respondent submitted that the nature of the weapon used with its height and size as well as the part of the body “brutalized by the lethal weapon” and the proximity of the victim to the lethal weapon used by the accused are essential in murder which were borne out on the evidence of PW1, PW3 and PW5 vide Iden v. State (1994) 8 NWLR (pt.365) 719 at 721, Michael v. State (2008) 10 SCM 83 at 85.
The respondent submitted that non-production of the murder weapon (knife) used by the appellant is not a sine qua non to a conviction and as such is not fatal to the case of the prosecution vide Hamza v. The State (2016) LPELR – 41557 (CA), Olayinka v. The State (2007) 9 NWLR (pt.1040) 561.
The respondent further submitted that the evidence of PW1 and PW3, eye-witnesses, were direct and that conviction can be based on the evidence of a sole eye-witness without corroboration if the witness is believed as in this case vide Nkebisi and Anor. v. The State (2010) 3 SCM 170 at 174.
The respondent referred to Section 28 of the Evidence Act where a confession is defined as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime which may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings vide Section 29(1) of the Evidence Act, to submit that an accused can be convicted on his confessional statement alone where the confession is direct, positive and its voluntariness, if challenged, is settled by a trial-within-trial as was the case with Exhibits E, F and F1 vide pages 40 – 58 of the record, but not where the accused denied making the statement vide Akpa v. The State (2008) 8 SCM 68 at 74, Ogudo v. The State (2011) 11 – 12 SCM 209 at 212, Lasisi v. The State (2013) 6 SCM 97 at 113, Jimoh v. The State (2014) 11 SCM 216; consequently, the respondent submitted that the Court below having found in the trial-within-trial that the confessional statements, Exhibits E, F – F1, were made voluntarily, it was right to have considered them in convicting the appellant.
The respondent submitted that the PW5 and PW6 testified as investigating police officers who recorded the voluntary statements of the appellant in English language and in Yoruba language, respectively, with the English translation of the Yoruba version by PW6, a Yoruba man, vide pages 39 – 40 and 49 – 50 of the record, respectively, and that the appellant signed the three statements, Exhibits E, F and F1, as the maker, while the PW5 signed as the recorder of Exhibit E and the PW6, a Yoruba man, signed as the recorder/interpreter and translator of Exhibits F and F1; and that the appellant who dropped out of school in JSS3 spoke mixture of pidgin English and proper English to the PW5.
It was further submitted that the PW5 and the PW6 followed the practice of taking the appellant to their superior, DSP Idris Haruna, and ASP Femi Ekemode, respectively, who attested to the statements in the presence of the appellant and thus ensured fairness and justice to the appellant vide Okashetu v. The State (2016) LPELR – 40611 (SC), Egboghonome v. State (1993) 7 NWLR (pt. 306) 385, Nwigbo and Ors. v. The Queen (1959) N.S.C.C. 81.
The respondent therefore argued that the Court below was right to rely on the truth of the confession by attaching weight to the confessional statements, Exhibits E, F and F1, to convict the appellant on the said confessional statements, Exhibits E, F and F1 vide Osetola and Anor. v. The State (2012) 12 SCM (pt.2) 347 and 365 – 366, Nwachukwu v. The State (2007) 12 SCM (pt.2) 447 at 454.
The respondent submitted that having regard to the fact that the Court below considered the confessional statements, Exhibits E, F and F1 to be positive, direct and unequivocal and, also, found that the confessional statements were corroborated by the evidence of PW1 and PW3 and attached weight to the confessional statements after satisfying itself that there was nothing outside the confession to show that it is untrue and that the confession was corroborated by the evidence of PW1 and PW3 as well as the fact that the relevant statement made in the confessional statements are true as far as the appellant had the opportunity of committing the murder coupled with the fact that the confession was possible and consistent with other facts which have been ascertained and proved, the Court below was right to convict the appellant based on the retracted confessional statements, Exhibits E, F and F1 vide Osetola and Anor. v. The State (2012) 12 SCM (pt.2) 347 at 365 – 366, Nwachukwu v. The State (2007) 12 SCM (pt.2) 447 at 454 and 455, Oseni v. State (2012) 4 SCM 150 at 153 and 166, Ismail v. State (2011) 10 SCM 35 at 39, Dagayya v. State (2006) 2 SCM 33 at 67.
The respondent submitted that it was not under obligation to call a host of witnesses in the case but was obliged to call only a vital witness or vital witnesses as the credible evidence of a single witness without corroboration was enough to secure the conviction of the appellant vide Afolalu v. State (2011) SCM 1 at 7 and 12.
The respondent also submitted that the PW5 testified uncontradicted in page 39 of the record that the maker of the autopsy report, Exhibit D, was out of the country at the time the report was tendered in evidence through the PW5 who stated how the corpse of the deceased was taken to the OSUTH mortuary where coroner forms B and C were issued to the doctor in charge who later issued the autopsy report to him on 26.03.13, showing PW5 had personal knowledge of the document and laid proper foundation for the admissibility of the document vide Sections 39 and 83(1)(a)(ii) of the Evidence Act and the case of Isitor v. Fakarode (2008) 1 NWLR (pt.1069) 602; upon which the respondent concluded by urging that the appeal should be dismissed and the conviction and sentence of the appellant affirmed.
The appellant filed his reply brief on 05.03.20 in which he reiterated that the PW5 not being the maker of Exhibit D, nor had conducted post-mortem examination on the corpse of the deceased could not be cross-examined on it, therefore without calling the maker of Exhibit D to testify in the case, the appellant was denied the opportunity to cross-examine on the truthfulness of the contents of Exhibit D to ascertain whether death of the deceased was caused by stab wound with a knife.
The appellant’s reply brief pointed out that Sections 55(1) and (2) of the Evidence Act, not Section 39 thereof, should have been the appropriate statutory provision to tender a certificate signed by the Government Officer on production of it which may be taken as sufficient evidence of the facts stated therein which, by using the phrase ‘may’, is permissive, thus giving the Court the discretion to invoke Section 55 of the Evidence Act after considering all the circumstances of the case whether the document or certificate of the public officer not present be tendered through the witness that produced it in Court and amount to sufficient evidence of facts stated therein before admitting it in evidence.
The appellant therefore contended that Exhibit D was erroneously admitted in evidence; more so, the PW5 while giving evidence on the service of forms B and C, the coroner’s form, on Dr. Odunfa stated in page 38 line 14 – 16 of the record that Dr. Odunfa was out of the country only to omit to mention that Dr. Odunfa was out of the country at the time he collected the medical report before it was applied to be tendered in evidence without sufficient foundation laid under Section 83(1) of the Evidence Act vide page 39 of the record citing in support the cases of Oladapo v. State (2013) LPELR – 22092, Edoho v. State (2010) LPELR – 1015 (SC), Edewor v. Uwegba and Ors. (1987) LPELR – 1009 (SC), Mokelu v. Federal Commissioner for Works and Housing (1976) LPELR – 1904 (SC).
The appellant also submitted in the reply brief that the only condition precedent to activate Section 55(1) and (2) of the Evidence Act was to comply with Section 50 of the Evidence Act by producing a document or letter from the head of department of Dr. Odunfa sufficiently explaining his absence to the satisfaction of the Court, consequently the appellant argued that Exhibit D was tendered in error and should be expunged vide Brossette Manuacturing (Nig.) Ltd. v. M/S Ola Ilemobola Ltd. and Ors. (2007) LPELR – 809 (SC).
The appellant submitted in the reply brief that the knife itself, type of knife and the height and size of the knife, (the alleged murder weapon) were not given in evidence as to prove intention to kill the deceased showing the finding that the appellant intended to kill the deceased was not borne out on the evidence and amounted to speculation; consequently, therefore the appellant urged that he should be discharged and acquitted, or in the alternative, a verdict of manslaughter should be entered for him.
The respondent’s learned counsel observed in oral argument at the hearing of the appeal on 29.04.20 that the reply brief offends Order 19 of the Court of Appeal Rules 2016 (the Rules of the Court) as it is re-argument of the appellant’s brief and should be disregarded.
I am of the view that the reply brief responded substantially to new issues from the appellant’s brief and does not violate Order 19 Rule 5(1) of the Rules of the Court as it reacted principally to new points arising from the respondent’s brief.
The original notice of appeal is contained in pages 107 – 108 of the record. It contains one ground of appeal in page 107 thereof thus –
“That the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.” (My emphasis).
A notice of appeal in a criminal case should have the general or omnibus ground read thus –
“That the decision of the Court is unreasonable and cannot be supported having regard to the evidence.”
The phrase “weight” which is in the only ground of appeal in the original notice of appeal in page 107 of the record is unknown to criminal law.
I think it is only in civil cases decided on the balance of probabilities that the omnibus or general ground of appeal bears the phrase “weight of evidence” not in a criminal appeal vide Adio v. State (1986) 2 NWLR (pt.24) 568, Aladesuru v. Queen (1955) 3 W.L.R. 515 where it was held inter-alia that in order to succeed in a criminal appeal an appellant must show that the verdict is unreasonable and cannot be supported having regard to the evidence. That it is not a sufficient ground of appeal in a criminal appeal to allege that the verdict is against the weight of evidence. Being a defective original sole ground of appeal the additional grounds of appeal could not have breathed life into the defective original ground of appeal as one cannot place something on nothing and expect it to stand vide Enitan and Ors. v. The State (1986) 3 NWLR (pt.30) 604.
However, considering that the appeal is on a capital offence, the placing of the additional grounds of appeal on the defective original ground of appeal can be overlooked and the appeal heard on the merit on the defective original ground of appeal and the additional grounds of appeal filed by order of the Court granted on 19.11.18, in the interest of substantial justice; moreso, the respondent did not challenge the procedural defect showing the respondent is not prejudiced by the procedural defect vide Ndike v. State (1994) 8 NWLR (pt.360) 43 and Salisu v. F.R.N. (2018) 3 NWLR (pt.1605) 161 at 180 where it was emphasized by the Supreme Court that Courts, in handling criminal matters, should aim pro-actively at the desire to always do substantial justice.
The medical report, Exhibit D, was tendered and admitted in evidence through one of the investigating police officers of the case, the PW5, who had taken the corpse of the deceased to the OSUTH mortuary where he issued coroner forms, Exhibits B and C, to the pathologist, Dr. Odunfa, who later did the post-mortem examination on the corpse of the deceased and issued the post-mortem examination report on the corpse of the deceased which was collected by PW5 and tendered in evidence through the PW5 in the absence of Dr. Odunka who was reportedly abroad at the time of the trial.
The Supreme Court held in similar circumstances in the fairly recent case of Adesina v. The People of Lagos State (2019) 8 NWLR (pt.1673) 125 at 136 to 137 that a medical report can be tendered and admitted in evidence through the investigating police officer and relied upon without calling the medical doctor who prepared it following the cases of Ehot v. State (1993) 4 NWLR (pt.290) 644 and Fatai v. State (2013) 10 NWLR (pt.1361) 1.
It was also held by the Supreme Court in the case of The State v. Ajie (2000) 7 S.C.N.J. 1 that a medical report prepared by a doctor in the public service is admissible in respect of facts stated therein and can be received in evidence through another person like the investigating police officer of the case where the author is out of the country.
The absence of the medical doctor, Dr. Odunfa, at the trial was also sufficiently explained by the evidence of PW5 in his testimony contained in pages 38 – 39 of the record, to the effect that Dr. Odunfa who performed the autopsy on the corpse of the deceased was at the material time out of the country and could not be in attendance to give evidence in the case before the medical report was tendered through PW5 and admitted in evidence as Exhibit D on 13.01.18.
Section 50, formerly Section 34(3), of the Evidence Act, to the effect that the absence of a public servant required to give evidence in a judicial proceeding is sufficiently accounted for by the production in evidence of a gazette, or a telegram or letter purporting to emanate from his head of department sufficiently explaining his absence to the satisfaction of the Court would be said to be satisfied and complied where a witness testified on the explanation of the absence of the public officer vide Olude v. State (2018) 10 NWLR (pt.1627) 292 at 313 – 314 and Famuyiwa v. The State (2018) 5 NWLR (pt.1613) 515 at 532 – 533 where the Supreme Court held that in the evidence of a witness, especially the evidence of the Investigating Police Officer (I.P.O.), explaining the absence of the public officer in Court for the report made by him to be tendered in evidence satisfied Section 50 of the Evidence Act following the case of Ikpo v. State (1995) 9 NWLR (pt.421) 540.
Allegation of denial of fair hearing can only lie where the party requiring the facility for his defence requested for the facility by making an application for the facility to be made available to it for his defence as required by Section 55(3) of the Evidence Act and the application was turned down by the Court, but no such application was made at the Court below vide Nweke v. State (2017) 15 NWLR (pt.1587) 120. The appellant’s contention on denial of fair hearing is, accordingly, untenable and is hereby rejected.
The voluntariness of the appellant’s confessional statements to the police, Exhibits E, F and F1, was determined at the-trial-within-trial at the Court below in favour of the respondent that the confessional statements were voluntarily made by the appellant vide pages 40 – 47 of the record for the confessional statement in Exhibit E recorded by the PW5 at Mowe Police Station and pages 50 – 58 of the record for the confessional statement, Exhibits F and F1 recorded in Yoruba and translated into English by the PW6, a Yoruba man, as one of the investigating police officers.
It is puzzling that at the time the confessional statements were sought to be tendered in evidence by the respondent at the Court below, the appellant’s objection was limited to the voluntariness of the statements, not whether the statements were inaccurately recorded or that he did not make the statements at all.
In respect of the statement recorded by the PW5 at Mowe Police Station, page 40 of the record has it that the learned counsel for the appellant stated that the appellant had just told him that he signed the statement after he was tortured and that the I.P.O. promised to allow him to go if he told him the truth which all went to the alleged involuntariness of confessional statement. While the confessional statement, Exhibits F and F1, recorded at the SCID Eleweran, Abeokuta was resisted on the ground that the appellant signed both copies of the statement (the English and Yoruba version) after he was beaten and tortured and that he did not sign the English version.
The defence of the appellant as contained in pages 65 – 68 of the record with respect to the confessional statement at Mowe Police Station was that he was beaten before he signed it vide pages 66 – 67 of the record, while with respect of the statement recorded at the SCID Eleweran, Abeokuta the appellant stated that the police at the SCID Abeokuta looked at his statement which was recorded at Mowe Police Station and copied it and asked him to sign to which he objected that until it was read to him before he would sign it but the statement was not read to him even though he eventually signed it.
The final written address of the appellant as defendant at the Court below which is contained in pages 77 – 79 of the record did not raise any issue on the correctness and accuracy of the confessional statements, Exhibits E, F and F1.
I think this line of defence is an afterthought as it was not put to the Court below to decide it in its judgment whether the statements were made at all by the appellant and whether the statements were inaccurate and not a correct account of what the appellant thought had transpired.
I say so, because there is a difference between the allegation that the signature on a statement was obtained by force or trick and denial of signature on a statement or its correctness/accuracy, as in the former case a trial-within-trial would be conducted while in the latter case the trial Court will determine in its judgment whether the defendant made the statement and/or whether the statement was accurately/correctly recorded vide Saidu v. State (1982) N.S.C.C. (vol.13) 70, State v. Salawu (2011) 18 NWLR (pt.1279) 883 at 905.
The Court below was accordingly right to hold in its judgment in page 101 of the record that the appellant double-spoke and misled it on the line of his defence on the confessional statements by shifting his ground of defence to the accuracy or correctness of his statements after the objection he had to the voluntariness of the confessional statements collapsed, which was the only objection to the statements to the police that led to the trial-within-trial that was resolved against the appellant.
The appellant’s main contention on the confessional statements on appeal was that the accuracy and correctness of the statements were in doubt. The appellant alleged in his defence that the confessional statement, Exhibit F, was copied from the confessional statement, Exhibit E. Both statements are contained in pages 9 and 10 – 11 of the record, respectively. For ease of appreciation, Exhibit F contained in page 9 of the record states –
“I am a native of Abeokuta from Isale Igbatun Area. My father’s name is Sunday Yekini ‘m’. I attended Stadium Junior Grammer School, Agege between 2003 to 2006. I manage to stop at JSS 3 due to financial problem, but immediately after my JSS 3 class I proceeded to learnt trading in motor spare part at popular Jankara – Ijare – Ijokoro motor spare part market, presently I am into commercial motor driving, on 6th of March, 2013 at about 7:00p.m. 19:00hrs. I in company of my friends called Muyiwa ‘m’ father’s name unknown popularly called Mayor. We both went to Daniel’s shop. This Daniel’s game shop is situated at Olorunsongo Ogunrun road Mowe. I only went there to have a chat with Muyiwa A.K.A. Mayor, but on my arrival. I met one Seun Adeyinga ‘m’ called me and asked me if I knows him. I reply him that I don’t know him. Few minutes later, the late Seun Adeyiga ‘m’ called me again and asked if I’m the popular man being called Owode a commercial motorist, and I replies him that I am not Owode and I am not a commercial motorist. I quickly light my face properly that I am not the person was looking for, but instead late Seun Adeyiga held my shirt. His younger brother Robins Adeyiga ask his late elder brother Seun Adeyiga to let me go my way, but Seun Adeyiga refused to listen and fight started between me and Seun Adeyiga, we bite each other all over our body. He bite my left ear while I too bite him after much efforts to separate us by my friends and passer-by. I noticed that Seun Adeyiga has tore my shirt and I decided to go naked, and I notice one knife being used for orange by one woman selling fruits very close to scene. I picked the knife in self defence but unfortunately the knife enter into the chest of Seun Adeyiga, he fell down but I took my heels immediately to save my dear life. Before I later resurface weeks later I don’t know late Seun Adeyiga before. I am not in any secret cult but didn’t maybe Seun Adeyiga belong to any cult member. I learnt that the Seun Adeyiga is not a trouble maker.”
While Exhibit E contained in pages 10 – 11 of the record reads –
“That I am a native of Isale Igbaenyi Town Abeokuta in Obafemi Owode Local Govt. of Ogun State. I attended Abija Primary School Agege Lagos State. I stopped my secondary school JSS3. I am single. On the 6th of March, 2013 at about 9:30p.m I was going to Opic area of Mowe, on my getting to OG Junction, my friend by name Mayo ‘m’ meet me and asked me to follow him to Daniel’s shop where people play P.S. Game at Olorumsogo along Ogunrun road that he want to gist me something and we both went to the place. While Mayo and I was discussing, I sent one Sile to buy me white handkerchief with the sum of N200 and Sile bought the handkerchief and brought to me with change of N150, suddenly this boy whom I stabbed to death was sitting down with his brother drinking alumo bitter drink, (the boy) this boy that died now called Seun Adeyiga ‘m’, whom I don’t know in person since of my life except his younger brother … told him who am I by name he told me to live the place then I told him why he is insulting me. His younger brother started abusing me then Seun Adeyiga in person told his younger as not to mind me that he can handle me as we started exchanging word the next thing we started fighting both of them bitted me up and hit me on the ground. While on the process Seun Adeyiga bit me on the shoulder and also bite me on my ear which caused me injury. People separated us and asked me to go and treat myself. As I was about going to treat myself, Seun rushed me held me again and started fighting me … I ran to a woman that was selling orange along the road snatched her knife and I stabbed Seun on his chest and….hand and I also bit him on his chest. On that day I ran to Isheri area but I never knew he has died on that very day it was the second day when I called somebody on phone he told me that the boy has died. And I ran to Osogbo since that time until today first of march 2013. When I came down to Lambe area of Ogun State as I was driving my brother car police arrested me.”
It does not require a magnifying glass to see that Exhibits E and F are not word for word. The appellant’s allegation that Exhibit F was copied from Exhibit E is therefore unfounded.
The appellant’s submission was that he is not literate in English language to have understood what the PW5 recorded in Exhibit E. It is clear from Exhibits E and F (supra) that the appellant maintained therein that he was a JSS 3 drop-out from Stadium Junior Grammar School, Agege. The literacy of the appellant bears it out on his signature (not mark) which he signed on his notice of appeal contained in page 107 of the record. The appellant also signed, not made a mark, on the amended notice of appeal filed on 21.11.18. The confessional statement of the appellant, Exhibit E, contained in pages 10 – 11 of the record, was also signed by the appellant with his signature, not mark.
So, the appellant cannot pretend to lack basic knowledge of the English language and pose as an illiterate without evidence to support it than the evidence of his literacy as a JSS 3 drop-out from secondary school vide The Supreme Court case of Dairo v. The State (2018) 7 NWLR (pt.1619) 399 at 416 per the lead judgment prepared by His Lordship, Kekere-Ekun, J.S.C., where His Lordship held that–
“I do not agree with the contention of learned counsel for the appellant that the view expressed by the Lower Court to the effect that a person who had been educated up to JSS 3 level in Nigeria must be able to speak at least modest English is speculative. As observed by the Court, the lingua franca in Nigeria is English language. I agree with their Lordships that a person who has attended school from the primary level up to the third year of secondary school must be able to understand the English language to a certain degree even though he may not be proficient in speaking or writing the language.”
See also the case of Ogheneovu v. F.R.N. (2019) 13 NWLR (pt.1689) 235 at 255, 269 – 270 where a primary school leaver was considered literate to understand and communicate in basic English language.
The appellant who stated that he went to school up to JSS 3 level cannot therefore be heard to complain that he could not understand the English language. I find it hard to appreciate that a JSS 3 drop-out would not have some basic understanding of English language. The confessional statement of the appellant to the police, Exhibit E, (supra), was even written or recorded in simple and understandable English, so the appellant’s said complaint on the issue is of no moment. The PW6, a Yoruba man, and one of the investigating police officers, was the recorder of Exhibit F, which he interpreted to the appellant from Yoruba to English and translated it in like manner. The respondent therefore fulfilled the requirement of calling the interpreter/recorder of Exhibit F who gave evidence in the case.
At any rate, it has been held by the Supreme Court in the fairly recent case of Umar v. F.R.N. (2019) 3 NWLR (pt.1660) 549 at 562 – 563 following the case of Udo v. Queen (1964) 3 N.S.C.C. 14 at 15 – 16 and 23 that an extra-judicial statement should, if possible, be recorded in the language in which it is made. However, a failure to follow the procedure will not ipso facto render the statement inadmissible.
The PW6 was not discredited under cross-examination on the accuracy and/or correctness of the recording of the statement, Exhibit F, in English language and its translation by him to Yoruba language, his native language and also the native language of the appellant. Nor did the appellant challenge the proficiency and/or understanding of Yoruba language by the PW6 while the PW6 was cross-examined in pages 63 – 64 of the record.
In short, the PW6 was not cross-examined on his capability and/or proficiency in Yoruba language. The superior officer, ASP Ekemode Olufemi, a Yoruba man, who endorsed the confessional statement, Exhibit F, also testified in the case. His understanding of and/or proficiency in Yoruba language was not questioned by the appellant in the course of his testimony in pages 52 – 53 of the record showing the translation was accurate vide Akpan v. State (1992) 2 N.S.C.C. 354 at 362 lines 46 – 53.
The trial-within-trial ended with the Court below holding in its ruling on the trial-within-trial in pages 57 – 58 of the record that the appellant made the confessional statement in Exhibit F.
The appellant retracted his confessional statements, Exhibits E, F and F1. A retracted confessional statement is still admissible. The Court would, however, consider the weight to be attached to the retracted confessional statement. The Court can still convict on a retracted confessional statement if convinced of the truth of the confession. The factors which the Court must take into account to attach weight to a retracted confessional statement were restated by the Supreme Court in the case of Osetola v. State (2012) 17 NWLR (pt.1329) 251 at 278 thus –
“… On the weight to be attached to confessional statements, which have been retracted, the Court is expected to test its truthfulness and veracity by examining the said statements in the light of other credible available evidence. This is done by looking into whether:-
(a) There is anything outside it to show that it is true;
(b) It is corroborated;
(c) The facts stated in it are true as far as can be tested;
(d) The accused person had the opportunity of committing the offence;
(e) The accused person’s confession is possible;
(f) The confession is consistent with the other facts ascertained and proved at trial.”
The Court below observed and applied the above test and found in its judgment in pages 102 – 103 of the record that the confessional statements Exhibits E, F and F1 passed the above test and was satisfied as to the truth of the confessions in Exhibits E and F – F1 which was corroborated by the credible evidence of PW1, PW2, PW3 and PW5.
The Court below was, accordingly, right to rely on the direct, positive, cogent and unequivocal confessional statements, Exhibit E contained in pages 10 – 11 of the record and Exhibit F contained in page 9 of the record wherein the appellant admitted stabbing the deceased on the chest with a knife. The Court below then relied on the credible evidence of the PW1, PW2, PW3 and PW5 as corroborative of the confessional statements to convict the appellant for the murder of the deceased as charged vide Oseni v. State (2012) 5 NWLR (pt.1293) 351, State v. Salawu (2012) 22 W.R.N. 1 at 25, F.R.N. v. Iweka (2013) 3 NWLR (pt.1341) 285, R v. Nwigboke (1959) SCNLR 248, Egboghonome v. State (1993) 7 NWLR (pt.306) 383, Nweze v. State (2018) 6 NWLR (pt.1615) 197, Shurumo v. State (2010) 19 NWLR (pt.1226) 73, Isong v. The State (2016) 14 NWLR (pt.1531) 96, Odua v. F.R.N. (2002) 5 NWLR (pt.761) 615.
The PW1 testified as an eye-witness with respect to the beginning of the initial fight between the appellant and the deceased which was separated by well-meaning persons at the scene of the initial fight. The PW1 continued with his testimony that he left with the deceased from the scene of the fight. He went on to testify that on their way from the scene of the initial fight and unknown to them, the appellant was running after them. The PW1 continued with his testimony that the deceased was the first to turn round and spot the appellant. It was part of his testimony that, suddenly and unexpectedly, the appellant picked a knife from an orange seller by the side and stabbed the unarmed deceased with it on the chest region.
The PW1 further testified that the deceased collapsed to the ground instantly from the knife stab. It was his evidence that he took the deceased from the ground and conveyed him to Oyin Hospital, a private hospital, where the deceased was pronounced dead on account of which the hospital staff rejected the corpse and told him to take it away. He conveyed the corpse to the house of the deceased. These unbroken events which occurred within less than a day were witnessed by the PW1. The said pieces of evidence were unchallenged under cross-examination.
In respect of the use of the weapon, the knife, the PW1 stated on oath in pages 30 – 31 of the record that –
“The deceased and I then started to leave the place. As we were on our way, the accused ran to a woman who was selling oranges nereby and picked up a knife. He ran after us and as the deceased turned to see who was approaching, the accused stabbed him on the chest. I saw him stab the deceased. As the deceased fell, the accused ran away…”
The cross-examination of the PW1 by the defence which is contained in pages 31 – 32 of the record was silent on the above pieces of evidence. Evidence not cross-examined upon such as the evidence of PW1, a credible eye-witness, must be believed as unchallenged evidence videOkosi and Anor. v. The State (1989) 1 NWLR (pt.100) 642 at 657 where the Supreme Court held inter alia that in all criminal trials, the defence must challenge all the evidence it wishes to dispute by cross-examination of the witness in the witness-box as it is the only way to attack any evidence lawfully admitted at the trial, for it would be too late at the close of the case to negate what was left unchallenged by the defence. See also Oforlete v. The State (2000) 12 NWLR (pt.681) 415, Tabansi v. Tabansi (2003) 8 NWLR (pt.823) 583, Olasehinde v. The State (2019) 1 NWLR (pt.1654) 555 at 560 following Simon v. State (2017) 8 NWLR (pt.1566) 119.
The veracity and credibility of the PW1 on the knowledge of the facts to which he testified, his disinterestedness, his integrity and the uncontradicted evidence given by him in respect of the case with its surrounding circumstances were not thrown in doubt vide Onuoha v. State (1989) 2 NWLR (pt.101) 23 at 34; accordingly, the Court below was right to believe and accept the evidence of the PW1 in question.
PW1 and PW3 having testified as eye-witnesses to what they saw could testify as to what each of them had seen from their respective personal observation. They were not expected to say specifically as one, the exact murderous act unless their evidence had been tutored or doctored. Their evidence on the material issue of the stabbing of the unarmed deceased by the appellant harmonized. Evidence of eye-witnesses or direct evidence as it is sometimes called is one of the independent methods of establishing a case of murder which does not require corroboration and can be based on the credible evidence of a single eye-witness vide Ude v. The State (2016) 14 NWLR (pt.1531) 122 at 158 following Emeka v. State (2001) 14 NWLR (pt.734) 666 and Igabele v. State (2006) 6 NWLR (pt.975) 100.
The Court below was in the privileged position of assessing the credibility of the witnesses at the trial by hearing and watching their demeanour in the witness-box before it believed and accepted the evidence of the PW1 in preference to the evidence adduced by the defence before it.
Since the Court below did not draw any wrong inference from the evidence and its findings have not been shown to be perverse and are also supported by the credible evidence of the PW1 who saw it all from the beginning to the end how the appellant stabbed the hale and hearty unarmed deceased on the chest, a vulnerable part of his body, with a knife, a lethal weapon, who died of the stab wound on the same day in the presence of the PW1.
The said primary findings of fact upon which the conviction of the appellant were based enjoy rebuttable presumption of correctness unless otherwise shown which was not shown in this case, therefore I am reluctant to interfere with the said findings of fact which are hereby affirmed videAdisa v. State (2019) 3 NWLR (pt.1660) 488 at 500, 503 – 504 following Adelumola v. State (1988) 1 NWLR (pt.73) 683, Sugh v. State (1988) 2 NWLR (pt.77) 475, Anyegwu v. Omuche (2009) 3 NWLR (pt.1129) 659, Nwokorobia v. Nwogu (2009) 10 NWLR (pt.1150) 553, Sanni v. The State (1993) 4 NWLR (pt.285) 99, Nwankwoala v. State (2005) 12 NWLR (pt.940) 637. See also Mamuda v. State (2019) 5 NWLR (pt.1664) 128 at 141, Adebanjo v. State (2019) 13 NWLR (pt.1688) 121.
The credible evidence of the PW1 which was believed and accepted by the Court below sufficed to ground the conviction of the appellant for the offence of murder which does not require corroboration vide The State v. Aibangbee and Anor. (1988) 3 NWLR (pt.84) 548, Igbo v. State (1975) 1 All N.L.R. 70 at 75, Eke v. State (2011) 3 NWLR (pt.1657) 525 at 539, Alonge v. I.G.P. 4 F.S.C. 203 and the cases (supra) cited by the respondent on the issue.
The PW1 gave uncontradicted and unchallenged evidence that he saw the knife the appellant picked from an orange seller which the appellant used in stabbing the deceased on the chest, a vulnerable part of the body, from which the deceased died in his presence in less than 12 hours of the attack and/or on the same date. There is therefore no doubt that the murder weapon was a knife. The PW5, one of the police investigators of the case, testified in page 40 of the record that they made effort by going to the scene to recover the knife but the knife was nowhere to be found when they got to the scene of crime to recover it.
The appellant admitted the existence and use of the knife by him in stabbing the deceased on the chest in his statement to the police, Exhibits E and F. There was no doubt on the existence of the knife and its use by the appellant in stabbing the deceased on the chest. It was thus not necessary to tender the knife in evidence.
I think it is only where the weapon used in committing an offence is recovered and/or doubt is created on it on the evidence before the Court that it becomes necessary to insist that its non-tendering in evidence should be fatal to the case of the prosecution which was not the case here vide Dajo v. State (2019) 2 NWLR (pt.1056) 281 at 299 (paragraph H). The non-tendering of the knife in evidence in the case was on that premise not fatal to the case of the respondent vide the cases (supra) cited by the appellant and the cases of Chukwunyere v. State (2018) 9 NWLR (pt.1624) 249 at 271, Garba v. State (2000) 6 NWLR (pt.661) 378, Adisa v. State (supra) at 502, Jato v. State (2019) 8 NWLR (pt.1674) 317 at 327 – 328, Attah v. State (2009) 15 NWLR (pt.1164) 284, State v. Fadezi (2018) 18 NWLR (pt.1650) 1 at 17 and 19, Victor v. State (2014) All FWLR (pt.719) 1092, Ayinde v. State (2019) 12 NWLR (pt.1687) 410 at 423.
Admittedly, a knife is a lethal weapon. The PW1 testified that he saw the appellant stab the then hale and hearty deceased on the chest with a knife on the fateful day. The appellant admitted in his confessional statements, Exhibits E and F, that he stabbed the deceased on the chest with a knife. POSITION OF LAW ON THE INTENTON TO CAUSE DATH GRIEVOUS BODILY HARM. The intention to cause death or grievous bodily harm can be inferred from the nature of the weapon used and the part of the body of the deceased that the injury was inflicted to cause his death or to know that death would be the probable consequence vide the case of Chukwunyere v. State (2018) 9 NWLR (pt.1624) 247 at 272 following Akinlolu v. State (2016) 2 NWLR (pt.1497) 503, Nwokearu v. State (2013) 16 NWLR (pt.1380) 207, Afolabi v. State (2016) 11 NWLR (pt.1524) 497. See also Richard v. State (2018) 18 NWLR (pt.1651) and Isah v. State (2018) 8 NWLR (pt.1621) 346 at 351, Owhoruke v. C.O.P. (2015) NWLR (pt.1488) 557.
In this case, the weapon used was a knife, a lethal weapon, which can cause death just like an axe and the chest region where the appellant stabbed the deceased with the knife being a vulnerable part of the body where the heart resides, the Court below was right to infer the intention of the appellant to kill or to cause grievous bodily harm to the deceased when the appellant stabbed the deceased on the chest with a knife on the fateful day.
Since the death of the deceased from the knife wound inflicted on him by the appellant in the chest region, a vulnerable part of the body, was obvious and borne out on the trustworthy evidence of PW1 who saw it all from the beginning to the end of the fatal episode, medical evidence was unnecessary to establish death and the cause of death of the deceased vide Onwumere v. State (1991) 4 NWLR (pt.186) 428 at 440 – 442, Uyo v. A.-G., Bendel State (supra), Akpan v. State (1992) 2 N.S.C.C. 354, Kato Dan Adamu v. Kano N.A. (1956) 1 F.S.C. 25, Bakori v. The State (1965) N.M.L.R. 163, Bwashi v. The State (1972) 6 SC 93, Lori v. The State (1980) 8 – 11 SC 81, Dajo v. State (supra).
The credible eye-witness account of the PW1 from the beginning to the end on how the appellant ran from behind to stab the hale and hearty deceased with a knife on the chest which resulted in the death of the deceased from the knife wound on the same day in the presence of the PW1 showed unbroken chain of the sad events triggered and authored by the appellant and witnessed by the PW1 which were rightly held by the Court below to constitute the established facts that the deceased died; that his death was not a natural death; that the appellant was responsible for the death of the deceased by stabbing him on the chest with a knife, a lethal weapon, from which harm the deceased died on the same day of the mortal attack by the appellant with a knife. See Eric Uyo v. A.-G., Bendel State (1986) 1 NWLR (pt.17) 418, Bakuri v. State (1968) N.M.L.R. 163.
It is clear from the credible evidence of the PW1 that the appellant trailed the deceased and killed him while the deceased was unarmed and was no longer engaged in a fight with the appellant, therefore by picking a knife somewhere to attack the unarmed deceased after the fight had ceased was not the reaction of a reasonable man. It would have been otherwise if the knife had been used in the course of the fight or on the spur of the moment. Viewed from the standpoint that the statements to the police of the appellant in Exhibit E and Exhibit F, in particular, mentioned fight between the deceased and the appellant; it is however instructive to note that the appellant’s evidence in his defence contained in pages 65 – 68 of the record, did not mention any fight or encounter with the deceased on the fateful day which is a marked departure from his previous statements, Exhibits E and F. It was held by the Supreme Court in the case of Dogo v. State (2013) 10 NWLR (pt.1361) 160 at 178 that –“Appellant, though the accused person testified at his trial and was therefore a witness. His extra-judicial statement to the Police is that he shot the deceased in defence of lives and property because he thought he was an armed robber. This was his statement when the facts were fresh in his mind.
On the witness stand, he set up a defence of accident. By the doctrine of inconsistency, his evidence at the trial should be regarded as unreliable and his previous statement does not constitute evidence upon which the Court can act. The two mutually exclusive versions of the incident leading to the shooting of the deceased cancel each other, leaving the appellant with no defence to the charge of murder laid against him.”
It follows from the above that there was no defence available to the appellant.
Be that as it may, I will, in the alternative, consider Exhibits E and F, the confessional statements of the appellant. For it is trite that any possible defence on the record whether from the statement of the defendant to the police which forms part of the case for the prosecution vide Egboghonome v. The State (1993) 7 NWLR (pt.306) 383, or evidence from any of the witnesses including the evidence of the defendant in his defence should be considered and, if not considered by the trial Court, an appellate Court can equally consider it in a criminal trial vide Abdulmumini v. F.R.N. (2018) 13 NWLR (pt.1635) 16, Muh’d (Alias Idua) v. State (2018) 5 NWLR (pt.1613) 405 at 422 following Annabi v. State (2008) 13 NWLR (pt.1103) 179, Namsoh v. State (1993) 5 NWLR (pt.292) 129, Maiyaki v. State (2008) 15 NWLR (pt.1109) 173.
Granted Exhibit F, the appellant’s confessional statement to the police at SCID Abeokuta, had it that the appellant went by the side and fetched a knife from an orange seller to stab the unarmed deceased on the chest, it cannot be said the mode of retaliation bore reasonable relationship to the provocation, if any, or that the retaliation was proportionate to the provocation, if any, because for the appellant to have used a knife, a lethal weapon, on the chest of the unarmed deceased even in a fight where it is shown, as in this case, that the assailant fetched the knife from another place cannot be retaliation that is proportionate to the provocation offered, if any vide Muh’d (Alias Idua) v. The State (2018) 5 NWLR (pt.1613) 405 at 419 and 423, Eze v. State (2018) 16 NWLR (pt.1644) 1 at 21 following Sadiku v. State (1972) 2 SC 169, Maiyaki v. State (2008) 15 NWLR (pt.1109) 173.
Of course, for the defence of self-defence to avail a defendant in a murder case, the evidence must disclose that the defendant reasonably believed that there was no other way of saving himself from death or grievous bodily harm other than by using such force as he did. For a defendant to avail himself of the defence of self-defence, therefore, there must be evidence that he took reasonable steps to disengage from the fight or make some physical withdrawal which were not the circumstances in this case, so the defence of self-defence could not have been available to the appellant vide Muh’d (Alias Idua) v. The State (supra) at 419 following Uwaekweghinya v. The State (2005) 9 NWLR (pt.930) 227 at 250.
Having perused the record, I do not find any possible defence open to the appellant to exculpate and/or excuse him from the offence of murder upon which the Court below found him guilty and convicted him as charged.
The Court below was accordingly right to hold in its painstaking judgment that the appellant murdered the deceased as charged. In the result, I find no merit in the appeal and hereby dismiss it and affirm the conviction and sentence of death imposed on the appellant by the Court below (Majekodunmi, J.).
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read hitherto the erudite Judgment of my learned brother JOSEPH SHAGBAOR IKYEGH JCA, and I agree with His Lordship’s reasoning and conclusion that the appeal lacks merit and should be dismissed. There is ample evidence on record, that the Appellant after time for anger to cool had pursued the deceased, taken a knife that was handy and stabbed the deceased on the chest which resulted in the death of the deceased. I have read the record, and I, like the learned trial judge believe the evidence of P.W.1 who was the eyewitness to the crime, the Appellant caused grievous bodily harm by stabbing the deceased which resulted in the death of the deceased.
I cannot find fault with the findings of the learned trial judge in this regard and the judgment must be affirmed. Appeal Dismissed.
EBIOWEI TOBI, J.C.A.: I have had the opportunity of reading in draft the leading judgment of my Learned brother, Joseph Shagbaor Ikyegh, JCA, and I agree with his resolution on all the issues presented in this appeal. I, only wish to add that as an appellate Court, this Court will seldom overturn the finding and decision of the lower Court which had the opportunity of evaluating the evidence and observing the demeanor of the witnesses; except where it is shown that the finding and decision is perverse and has occasioned a miscarriage of justice. The Apex Court in Edilcon (Nig) Ltd vs. UBA Plc (2017) LPELR-42342 (SC) had this much to say:
“It has long been established that an Appellate Court, generally speaking, should not interfere with findings of fact of trial Courts. The reason is simple. The latter Courts, that is, trial Courts, had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally observe all their habits and mannerisms. These include their demeanour and idiosyncrasies. As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence; competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. That is why the law takes the view that a failure in this regard would warrant the interference of the appellate Court, Adeye and Ors v. Adesanya and Ors (2001) 6 NWLR (Pt.708) 1; Olatunde v. Abidogun 18 NWLR (Pt. 746) 712; Adeleke v. Iyanda (2001) 12 NWLR (Pt. 729) 1; Udo v. CRSNC (2001) 14 NWLR (Pt.732) 116; Enilolobo v. Adegbesan (2001) 2 NWLR (Pt.698) 611. This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, the Appellate Court is in as good a position as the trial Court to come to a decision, Ebba v. Ogodo (1984) 1 SCNLR 372; (1984) 4 SC 84, 98-100; Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299, 314; Fatoyinbo v. Williams (1956) SCNLR 274; (1955) 1 FSC 87; Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251, 263. This explains the prescription that an Appellate Court will also interfere with findings of fact where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious, Atolagbe v. Shorun (1985) LPELR -592 (SC) 31; C-D. Such a perverse finding is a finding of facts which is, merely, speculative and is not based on any evidence before the Court. it is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge, Iwuoha and Anor v. NIPOST and Anor (2003) LPELR – 1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. (1985)3 NWLR (pt. 13) 407.”
One more case on this trite principle of law will not do anyone any harm.
In Adebesin vs. State (2014) LPELR-22694 (SC), this trite principle was stated thus:
“…Above is a paraphrase of the finding of the trial Court by the Court below. It is a finding of fact on expression of belief in the version of the incident given by the respondent anti a rejection of the account of the same incident by the appellant. The trial Court enjoys an opportunity denied an appellate Court except when it takes evidence on appeal, of seeing, hearing and watching a witness testify in Court. The trial Court has the opportunity of watching he body language of a witness and when it decides to believe or disbelieve the witness, the Appellate Court cannot disturb the conclusion unless it is shown to be perverse. See Okolo v. Uzoka (1978) 4 SC 77; Adomba v. Odiese (1990) 3 WBRN 31 at 42.”
See also Okeke & Ors. vs. Agbodike & Ors (1999) LPELR-2434 (SC); Ebeinwe vs. State (2011) LPELR-985 (SC); Oyewole vs. Akande & Anor (2009) LPELR-2879 (SC).
This Court, being an Appellate Court will only rise to the call of evaluating the evidence before the Lower Court where it finds that the Lower Court had not exploited the opportunity of analyzing first hand and evaluating the evidence before it. I have gone through the record of appeal and the evidence presented at the Lower Court and I agree with my learned brother that there is no reason whatsoever to overturn the decision of the Lower Court; as its findings and decision is not perverse, nor has it occasioned any miscarriage of justice on the Appellant.
In the light of this and for the fuller reason contained in the leading judgment delivered by my learned brother, Joseph Shaghaor Ikyegh, JCA, I find that this appeal is unmeritorious. I, too uphold the judgment of the Lower Court.
Appearances:
Mr. K. Ishola, with him, Mr. E. Adeosun and D. Enubajo Esq. For Appellant(s)
F. E. Bolarinwa-Adebowale Esq. (Chief State Counsel, Ministry of Justice, Ogun State) For Respondent(s)
