OCHONG v. STATE
(2020)LCN/15314(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Monday, June 08, 2020
CA/EK/88C/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
MICHEAL OCHONG APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT EVERY MINOR CONTRADICTION IN EVIDENCE OF A WITNESS MATTERS
In IFEDAYO VS. STATE (2018) LPELR – 44374 (SC) AUGIE JSC STATED the position of the law on the issue of contradictions in the evidence of witness that testify in Court that:
“It is not every mirror contradiction in evidence that matters. For a Trial Court to believe a witness for the said reason, the contradiction in the evidence must be on material point.” See: KALU VS. STATE (2988) 4 NWLR (PT. 90) 503 (SC). Also in OCHEMAJE VS. STATE (2008) 15 NWLR (PT. 1109) 57 where this Court per TOBI JSC elegantly explained that – “Although witnesses see and watch the same event, they may narrate it from different angles in their individual peculiar focus, perspective or slant. This does not mean … that the event that they are narrating did not take place, it only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight, and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions which are not material or substantial will go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event but gave different reasons in respect of the peripheral surrounding the event”. PER ELECHI, J.C.A.
ELEMENTS TO ESTABLISH THE OFFENCE OF MURDER
To prove a charge of murder against an accused person, the prosecution must prove the following:
(i) That the deceased died
(ii) That it was the unlawaful act omission of the accused person which caused the death of the deceased and
(iii) That the act or omission of the accused person which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See: UWAGBOE VS. STATE (2007) ALL FWLR (PT. 350) 1323, GIRA VS. STATE (1996) 2 NWLR (PT. 428) 1. PER ELECHI, J.C.A.
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE LOWER COURT
It is worthy to note that the policy of this Court as an Appellant Court is that it will generally not interfere with the findings of fact made by the trial Court which had the singular opportunity of seeing and hearing the witnesses testify, unless the findings are perverse or unreasonable.
The Appellant is enjoined on the findings of fact to establish exceptional circumstances for the Appellate Court to interfere. See ISMAIL VS. STATE (2012) 47 NSQR 89 RELYING INTER ALIA ON OGBA VS. THE STATE (1992) 2 NWLR (PT. 222) 164, IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) 1, AMUSA VS. THE STATE (2003) 3 NWLR (PT. 811) 505. The rebuttabe presumption is that the Trial Judge is well seised of the facts. PER ELECHI, J.C.A.
THE PRESUMPTION THAT A PERSON INTENDS THE NATURAL CONSEQUENCES OF HIS ACT
It is also the presumption of the law that a person intends the natural consequences of his act. In GAIBA VS. STATE (2004) 4(SC) (PT. 11) 157 AT 163, it was held thus:
“In the definition of culpable homicide with death under Section 221 (b) of the Penal Code, it has been made clear that whether death was probable or only a likely consequence of an act or any bodily injury, is a question of fact. If from the intentional act or injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death. If the probability of death is very great, as for example in this case, the accused struck the deceased with a stick with such a force on the head that the deceased collapsed and died on the spot, the offence under Section 221(b) of the Penal Code has been established…”PER ELECHI, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CHARGES
It is trite that in a criminal charge, the onus is always on the prosecution to prove his case beyond reasonable doubt. The prosecution must establish and prove by positive, credible and satisfactory evidence, the guilt of the accused person beyond reasonable doubt because an accused is presumed innocent until pronounced otherwise by a Court of law. See Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
The burden is on the prosecution to prove its case beyond reasonable doubt and the burden does not shift.
In proving the prosecution case beyond reasonable doubt, all and every ingredient which constitutes the offence must be established and proved. Any failure to prove one element of the offence would amount to failure of the prosecution to prove its case beyond reasonable doubt and the entire trial will be vitiated and the accused shall be entitled to be discharge and acquitted. See Section 138(1) of the Evidence Act 2011, OGUNDIYA VS STATE (1991) 3 NWLR (PT. 181) 519. AKINFE VS. STATE (1988) 3 NWLR (PT. 85) 729. IGABELE VS. STATE (2006) 6 NWLR (PT. 975) 100. ADELEYE VS. STATE (2015) 3 NWLR (PT. 1446) 229. PER ELECHI, J.C.A.
PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ekiti State High Court, Ikere-Ekiti Judicial Division, delivered on the 14th day of June, 2016 by His Lordship Hon. Justice A.A. Adeleye convicting and sentencing the Appellant to death by hanging for the Murder of Pius Winte.
The Brief fact of this case was that the appellant herein, was arraigned before the Trial Court and charged with the murder of one Pius Winte on the 16th day of August, 2003 contrary to Section 316 and punishable under Section 319 (1) of the Nigeria, 1978 of the Criminal Code Law Cap 30 Vol. 11 Laws of Ondo State of Nigeria 1978, as applicable to Ekiti State.
STATEMENT OF OFFENCE
Murder contrary to Section 316 and punishable under Section 319(1) of the Criminal Code Law Cap 30 Vol. 11 Laws of Ondo State of Nigeria 1978, as applicable in Ekiti State.
PARTICULARS OF OFFENCE
Michael Ochong on or about 16th of August, 2003 at Oloro Camp Ikere-Ekiti in the Ikere Judicial Division murdered one Pius Winte (M). The charge was dated 11th day of February, 2009 and was filed on 23rd day of June, 2009.
ISSUES FOR DETERMINATION
From the Notice of Appeal filed by the Appellant, the Appellant has distilled four (4) issues for determination by this Court. The Respondent also agrees that these four issues are the issues in controversy as between the parties.
ISSUE NO. 1
WHETHER OR NOT THERE ARE MATERIAL CONTRADICTIONS AND INCONSISTENCIES IN THE CASE OF PROSECUTION TO AVAIL THE APPELLANT A VERDICT OF DISCHARGE AND ACQUITTAL.
ISSUE NO. 2
WHETHER EXHIBITS M08, M09 AND M011 QUALIFY AS CONFESSIONAL STATEMENTS.
ISSUE NO. 3
WHETHER THERE EXIST COMPLETE CONDITIONS TO JUSTIFY THAT THE APPELLANT KILLED THE DECEASED DELIBERATELY AND INTENTIONALLY.
ISSUE NO.4
WHETHER THE PROSECUTION PROVED THE CASE OF MURDER AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.
ARGUMENT IN SUPPORT OF ISSUE 1
WHETHER OR NOT THERE ARE MATERIAL CONTRADICTIONS AND INCONSISTENCIES IN THE CASE OF THE PROSECUTION TO AVAIL THE APPELLANT VERDICT OF DISCHARGE AND ACQUITTAL
The Appellant has argued strenuously that there are contradictions and inconsistencies in the evidence of Respondent at the Court below, the Law is trite that where these occur, they vitiate the case of the prosecution. See ALAO VS. STATE (2015) 9 NWLR (PT. 1464) 238.
The inconsistencies are fatal to the case of the prosecution and in the instance case, he referred to the evidence of PW2 and PW3 – Pages 53-54 of the records.
All these contradictions it is submitted are material and vital to the case of the prosecution. The PW2 gave evidence that the Appellant only came to their house once and later changed it to twice. He denied giving statement to the police and denied his father being a herbalist while his mother PW3 countered him saying that the deceased had been treating the wife of the Appellant for long. She said she went to report at the station while PW4 said it was late Olowuro who came to report the incident and that he and his other detectives only met PW3 and his son at home in their camp. PW1 pointly said his evidence is based on hearsay. PW3 even stated that when the Appellant came, he came with a gun and went away and later came back with a knife, his wife and son. And under cross-examination she said he came with a cutlass.
The reasonable inference from these disjointed pieces of evidence is that of doubt as to whether it was the Appellant who actually killed the deceased, the various purported confessional statements notwithstanding. The evidence of PW1, PW2, PW3, and PW4 is at best a paradigm of inconsistencies and contradictions.
See FRN VS. SANI (2014) 16 NWLR (PT. 1433) 293 at 334, UMANI VS. STATE (1988) 1 NWLR (PT. 70) 274, OLADEJO VS. STATE (1987) 3 NWLR (PT. 61) 364.
In the proof evidence filed by the prosecution, Matthew Olowuro was listed as 3rd prosecution witness at page 1 of the record of appeal that he met the Appellant and the deceased quarrelling with each other. This means neither the wife of the deceased nor his children was present as he stated “I quickly ran to call other farmer in the farm to come and help me persuade the suspect not to shoot the deceased. However before we arrived, we heard a gunshot and by the time we got the scene, we met the deceased lying in his pool of blood on the ground.” The import of this statement is that neither Matthew Olowuro nor any other person was there when shooting took place, whether it was an act of provocation, accidental, self defence or by another person hidden from the scene. There was no evidence that the dane gun carried by the Appellant at the time of quarrel was loaded or not, yet PW2 and PW3 gave evidence that they were present as eye witnesses as per Exhibit MO12.
In view of the contradictions of the prosecution witnesses, the Court is urged to resolve this issue in favour of the Appellant.
ISSUE TWO
WHETHER EXHIBITS MO8, MO9 AND MO11 QUALIFY AS A CONFESSIONAL STATEMENT. GROUND 2
Exhibit 8 was the purported statement made by the Appellant at “Igbara” on 17/8/2003. The Igbara was not specific whether Igbara-Oke or Igbara-Odo.
Exhibit 11 was the purported statement made by the Appellant at the Ijare post.
All the three purported statements were written in English Language by an illiterate who could neither read nor write, yet the interpreter was not called to testify throughout trial. The purported statements were obtained in Ijare and Igbara respectively. Yet no Police Officer was called from either station to testify during the trial. The two IPOs are vital to the case of the prosecution. No mention was made by the prosecution of the where about of the IPO at Ijare and Igbara and no reason was adduced by the prosecution for failure to call them to give evidence. All the three statements are written in English language and the Appellant is an illiterate who cannot read or write English. The Appellant denied ever making a statement at Igbara-Oke.
To drum home the point that the Appellant is an illiterate who could not read nor write throughout the trial, the Court below always engage the services of Omoleye O. Esq, Research Assistant to the Court to act as interpreter.
Accordingly, it is submitted that it is fundamental principle of law that the Court is bound to consider the defence raised by an accused person in defending the allegations against him irrespective of whether they are shallow or stupid, particularly and moreso in the instant case which is tainted and shrouded with doubts. Doubts emanating from non-calling of material witnesses, material contradictions showing that PW2 and PW3 were nowhere near the locus criminis at the time the incident happened going by Exhibit MO12, sundry gaps in the prosecution case etc as they reflect in the case on appeal. See OSUAGWU VS. THE STATE (2016) 16 NWLR (PT. 1537) 31.
It is submitted that the voluntariness of the confessional statements have been impeached by the caution of the Appellant and thus render the Exhibits MO1, MO8, MO9 and MO11 inadmissible and he urged the Court to so hold in favour of the Appellant.
ISSUE THREE AND FOUR
Issues Three and Four shall be argued together. The issue are:
ISSUE THREE
WHETHER THERE EXIST COMPLETE CONDITIONS TO JUSTIFY THAT THE APPELLANT KILLED THE DECEASED DELIBERATELY AND INTENTIONALLY. GROUND 3.
ISSUE FOUR
WHETHER THE PROSECUTION PROVED THE CASE OF MURDER AGAINST THE APPELLANT BEYOND REASONABLE DOUBT.
It is trite that in a criminal charge, the onus is always on the prosecution to prove his case beyond reasonable doubt.
It is trite law that the golden rule that runs through the conduit pipe of the criminal Justice system, and which also remains immutable is that the prosecution must establish and prove by positive, credible and satisfactory evidence, the guilt of the accused person beyond reasonable doubt, because an accused is presumed innocent until pronounced otherwise by a Court of law by virtue of the provision of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended).
Learned Appellant’s counsel contended that in proving the prosecution case beyond reasonable doubt, all and every ingredient which constitutes the offence must be established and proved. Any failure to prove one element of the offence would amount to failure of the prosecution to prove its case beyond reasonable doubt and the entire trial will be vitiated and the accused shall be entitled to be discharged and acquitted. See Section 138 (1) of Evidence Act 2011.
The onus is on the prosecution, it does not shift. And where the prosecution fails to establish all the essential ingredients of the offence charged beyond reasonable doubt, its case will collapse like a pack of cards. See OGUNDIYAN VS. STATE (1991) 3 NWLR (PT. 181) 519, AKINFE VS. STATE (1988) 3 NWLR (PT. 85) 729, IGABELE VS. STATE (2006) 6 NWLR (PT. 975) 100, ADELEYE VS STATE (2015) 3 NWLR (PT. 1446) 229.
In the instance case, the Defendant is charged with the offence of murder.
To establish a case of murder, the prosecution has to prove beyond reasonable doubt the following elements/ingredients:
a) That the deceased is dead.
b) That the death was not natural.
c) That the act of the accused person caused the death of the deceased and
d) That the deceased died as a result of injury caused by the accused person. See ADELEYE VS. STATE (Supra) @ 251 PARAS G-H. (Underlining is ours).
It is contended by learned counsel that in every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be establish and proved beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. If the cause of death has not been proved, the voyage of discovery by the culpit will be futile. See IHEANYIGHICHI APUGO VS. STATE (2016) 15 NWLR (PT. 1002) 227.
In establishing the cause of death of a deceased, the prosecution has the burden of not only to prove that the death occurred from the act of the Accused Person and it was the act that caused the death of the deceased and that it did. There must be clear direct result of the act of the accused person to the exclusion of all reasonable probable cause. See AKPAN VS. STATE (1992) 6 NWLR (PT. 248) 439, ILIYASU VS. STATE (2014) 15 NWLR (PT. 1430) 245.
Learned counsel contended that it is not in doubt that the deceased is dead but with a question mark. The deceased was purportedly killed/murdered on 16/8/2003 but a receipt attached to Exhibit MO14 shows that the deceased Pius Winte was alive as at 19/8/2003 going by the receipt attached to Exhibit MO14. The Court is not only bound by its records, it cannot also vary the content of a written document by oral evidence. The receipt shows that Pius Winte paid a bill at the hospital on 19/8/2003.
Besides, there was no proper identification of the corpse of the deceased as Pius Winte by either the wife or the son of the deceased. The person who identified the corpse to the Doctor was neither called nor available to testify and give evidence before the Court. There was no death certificate and no evidence of his death before the Court. There was no death certificate and no evidence from his family, friends and relation. And in Exhibit MO12, he stated he met the Appellant and the deceased quarrelling and ran to call other farmers to broker peace between them and before he came back he heard a gunshot and the deceased was dead. The import of this is that there was no eye witness. He equally admitted in his statement (MO12) that he did not know the name of the person whose corpse he purportedly identified to the doctor. In his statement to the police, he said
“suddenly I heard a noise of two Ibo men, I did not know their names”.
The statement of Matthew Olowuro contradicts the evidence of PW2 and PW3 substantially making it impossible to link the death with the intentional act of the Appellant and thus cannot ground conviction in law.
Moreso that the evidence of PW1 and PW4 are mere hearsay evidence which holds no water in criminal trial. See Section 37 of the Evidence Act 2011.
It was said that the Appellant came with a dane gun. PW3 gave evidence that when the Appellant came the first time, he came with the gun and went back and that when he came the second time, he came with a knife, his wife and son. She later said he came with a cutlass. Yet neither the Appellant wife nor his son was interrogated by the police to ascertain that the Appellant came with a gun and shot in their presence.
Also submitted is that the purported gun held by the Appellant was never established as loaded nor was it established whether it was the Appellants firearm that was used in the shooting. No pellet or bullet was extracted for Ballistician investigation. See KWALE VS. STATE (2017) 9 NWLR (PT. 1571) 399.
In the light of the above, the Court is urged to hold that the intentional act of the defendant linking him with the murder of the accused has not been proved. The accused is not expected to prove his innocence but for the prosecution to establish his case beyond reasonable doubt. He urged the Court to resolve issues 3 and 4 in favour of the Appellant. He urged also –
(1) to allow the appeal
(2) Set aside the conviction order of the Trial Court handed down on the Appellant on the 14/6/2016.
(3) To discharge and acquit the Appellant accordingly.
The Respondents adopted the four issues as distilled by the Appellant thus:
ISSUES FOR DETERMINATION
i. Whether there are not material contradictions and inconsistencies in the case of the prosecution to avail the Appellant at verdict of discharge and acquittal. Ground 1
ii. Whether Exhibits MO8, MO9 and MO11 qualify as confessional statements. Ground 2
iii. Whether there exists complete conditions to justify that the Appellant killed the deceased deliberately and intentionally. Ground 3
iv. Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt. Ground 4
ARGUMENT OF ISSUE
ISSUE ONE
WHETHER THERE ARE NO MATERIAL CONTRADICTIONS AND INCONSISTENCIES IN THE CASE OF THE PROSECUTION TO AVAIL THE APPELLANT AT VERDICT OF DISCHARGE AND ACQUITTAL. GROUND 1
It is submitted that only material contradictions and inconsistencies in the evidence of the prosecution can vitiate the prosecution’s case which is not the case here. See DIBIE & ORS VS. STATE (2007) LPELR-941 (SC). The bone of contention according to learned counsel is that the deceased died of gun shot fired by the Appellant as shown by the records. See the evidence of PW2 – Pius Sunday page 39 of the records.
It is crystal clear as day light from the evidence of PW2 above that there was no contradiction in their evidence since all bores down to who and what killed the deceased. The summary of the evidence of the duo who were part of eye witnesses is that the deceased was killed by the Appellant.
He contended that assuming without conceding that there were contradictions in the evidence of the prosecution witnesses, the overleaf evidence coming from the horse’s mouth has thrown such into abeyance and thus fizzled out like a thin smoke dispersed by a whirl wind.
It is submitted that the touted contradictions do not affect any of the ingredients of the alleged offence. It is when it is so, that contradictions will be considered fundamental or fatal to the prosecution’s case. It is not every trifling inconsistency in the evidence of the prosecution witnesses that goes to the root of its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubt in the mind of the Trial Court that an accused is entitled to benefit therefrom. See IGBI VS. STATE (2000) 3 NWLR (PT. 648) 169, KHALED VS. STATE (1997) 8 NWLR (PT. 156) 237.
The Court is therefore urged to resolve issue one in favour of the Respondent.
ARGUMENT ON ISSUE 2
Whether Exhibits MO8, MO9 and MO11 qualify as Confessional Statements.
It is submitted, that there are three ways of proving commission of a crime namely:
(i) By confessional statement(s);
(ii) By circumstantial evidence; and
(iii) By eyewitnesses evidence otherwise referred to as direct evidence.
See NWOKU VS. STATE (2017) LPELR-42925 (CA), STATE VS GWANGWAN (2015) LPELR – 24837 (SC), EMEKA VS STATE (2001) 7 NSCQR 582, TAIYE VS STATE (2018) LPELR – 44466 (SC), TAJUDEEN FABIYI VS STATE (2015) LPELR – 24834 (SC).
It is submitted that exhibits MO8, MO9 and MO11 are statements volunteered to the police being extra judicial statements. They are admissible and qualify as confessional statements having passed the acceptability test.
It is trite that a confessional statement is a statement by an accused person charged with an offence stating that he committed the offence. A confession cannot be used against an accused, unless the Court is satisfied that it is voluntary. Where a confessional statement is made voluntary by the accused person such a accused usually enter a guilty plea and a conviction based entirely upon evidence of confession of the accused person would not be upturned on appeal.
See OGUDU VS. STATE (2011) LPELR – 860 (SC), R V. SYKES (1913) CAR P. 113.
Also that the Exhibits MO1, MO8, MO9 and MO11 are admissible and relies on the viva voce evidence of the Appellant at the Trial Court, the Appellant he contended did volunteer all the confessional statement voluntarily which passed the following tests as to the weight to attach by considering the following.
(i) Is there anything outside the confession to show that it is true or real?
(ii) Is it corroborated?
(iii) Are the relevant statements made in it of facts, true as far as they can be tested?
(iv) Did the Prisoner have the opportunity of committing the offence?
(v) Is his confession possible?
(vi) Is it consistent with other facts which have been ascertained and have been proved?
Therefore, it is submitted that if the confessional statements pass the above test satisfactorily then a conviction founded on it would be upheld. See KANU VS KING (1952) 5514 WACA 30, DAWA VS. STATE (1980) 8 – 11 SC 236.
It is contended that the Appellant confession is possible via his own evidence at the lower Court and same is corroborated by the evidence of all the eye witnesses. It is not in doubt that the confessional statements are true facts devoid of any threat. Also it is evident that the Appellant had opportunity of committing the heinous crime being his second attempt to terminate the life of the deceased.
All through, there are avalanche of evidence linking and pinning the appellant to the crime, as revealed by the evidence of the eye witnesses and corroborated by the evidence of the Appellant himself.
There is no gainsaying the fact that the Appellant is responsible for the death of Pius Winte.
The Court is urged to resolve issue two(2) against the Appellant.
ARGUMENT ON ISSUES 3 AND 4.
ISSUE 3
Whether there exists complete conditions to justify that the Appellant killed the deceased deliberately and intentionally.
ISSUE 4
Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt.
It is trite that the burden is on prosecution to prove its case beyond reasonable doubt, and the burden does not shift.
The Appellant therein was charged with the offence of Murder contrary to Section 316 and Punishable under Section 319 of the Criminal Code Laws of Ondo State as applicable to Ekiti State.
It is settled law and therefore trite that for the prosecution to succeed in proof of the offence of Murder, there must be proof beyond reasonable doubt of the following:
(a) That the deceased died;
(b) That it was an unlawful act or omission of the accused person which caused the death of the deceased; and
(c) That the act or omission of the accused person which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequences.
See: UWAGBOE VS. STATE (2007) ALL FWLR (PT. 350) 1323 at 1338; GIRA VS STATE (1996) 4 NWLR (PT. 443) 375; NWAEZE VS STATE (1996) 2 NWLR (PT. 428) 1.
While it is not in contention that these elements must co-exist at the same time for the prosecution to be said to have proved his case beyond reasonable doubt, but in this case there are facts/piece of evidence of record to sustain these three elements before the Court. The evidence of PW1, PW2, PW3, PW4 and PW5 as well as the extra judicial statements of the Appellant buttress the three elements outlined above and clearly showed that the actions of the Appellant was pre-meditated before it was eventually hatched and therefore, he committed the offence. IGABELE VS. STATE (2004) 15 NWLR (PT. 896) 314 at 332 – 333.
It is further submitted that in the instant case, the respondent through the evidence of PW2 and PW3 gave vivid and graphic account of what transpired on that fateful day. This was corroborated by the evidence of PW1 and PW4 and strengthened by the statement of one Late Mathew Olowuro, also on the part of PW5 who happened to be the Doctor who conducted the post-mortem.
The Appellant made confessional statements Exhibits MO1, MO8, MO9 and MO11 to the effect that he was the one who shot the deceased. In law, fact admitted needs no futher proof. See UNIC LTD VS. UCIC LTD (1999) 3 NWLR (PT. 593) 17.
It is in evidence that the Appellant admitted that he shot the deceased and coupled with the testimony of PW1, PW2, PW3, PW4 and PW5 it is submitted that the three elements of the charge of murder to wit: that the deceased died, that it was the unlawful act or omission of the accused person which caused the death of the deceased and that the act or omission of the accused person which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence have been proved by the Respondent herein beyond reasonable doubt.
Thus, where a person is attacked with a lethal weapon (such as gun in the instant case) and he died on the spot, it is reasonable to infer that the injury inflicted on him caused the death.
See PRINCEWILL V. STATE (1994) 7-8 S.C (PT. 11) 226 at 240.
In the instant case, it is on record that one Pius Winte was shot and died in the process. It is also on record that it was the Appellant who shot and killed the deceased without lawful justification and/or provocation and with the intention of killing him.
In paragraph 6.10 of the Appellant Brief, he posits that the deceased (Pius Winte) was alive as at 19/8/2008 as attached by MO15 and not MO14 as ascribed by the Appellant.
It is contended that this is a post-mortem receipt and the best standard practice is that such receipts are being issued in the name of the deceased person for proper identification of the corpse kept at the mortuary. It is also on reord that the Appellant gave evidence to the effect he was led by the police to the same vein, on Mathew Olowuro’s statement as an eye witness who reported the matter prior to his demise affirmed the death of Pius Winte. This was further corroborated by the evidence of PW1, PW2, PW3, PW4 and PW5.
According to the learned Respondent’s counsel that as far as the Appellant Brief is concerned, it is self-contradictory. It is not contestable that the deceased (Pius Winte) is dead neither was it in contention as to the cause of his death as admitted by the Appellant in his extra-judicial statements vis-a-vis his oral evidence before the Court. The unanswered question is what is the relevancy of the medical certificate and identification of the corpse. The evidence of the deceased wife and son has put rest to this diversionary paragraph coupled with the testimonies of the Investigation Police Officers particularly PW1 who supervised the identification of the corpse.
It is logic to conclude that the shooting of fun by the Appellant at the deceased is the probable cause of death in tandem with what transpired at the scene.
In response to paragraph 6.14 of the Appellant brief which opined that the prosecution never established that the Appellant’s gun was loaded. Learned Appellant counsel relied on the extra judicial statements of the Appellant in debunking the above and that the act of the Appellant was intentional and premeditated.
In conclusion, it is contended that the Trial Court evaluated the whole evidence and considered all the defences available to the Appellant and submitted that the Trial Court was right in disbelieving the testimony of the Appellant and accepting that of the prosecution in proof of the crime against the Appellant.
The Court is urged to resolve issue 3 & 4 respectively against the Appellant. Also to dismiss the appeal and uphold the judgment of the Trial Court convicting the Appellant and sentencing him to death by hanging.
RESOLUTION OF ISSUES
The issues in controversy as agreed by both parties are:
(1) Whether or not there are material contradictions and inconsistencies in the case of the prosecution to avail the Appellant a verdict of discharge and acquittal.
(2) Whether Exhibits M08, MO9 and MO11 qualify as confessional statements.
(3) Whether there exist complete conditions to justify that the Appellant killed the deceased deliberately and intentionally
(4) Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt.
In arguing issue one, learned Appellant’s counsel submitted that there are contradictions and inconsistencies in the evidence of the prosecution. That where such occurs, it vitiates the case of the prosecution. See ALAO VS. STATE (2015) 9 NWLR (PT. 1464) 238.
In IFEDAYO VS. STATE (2018) LPELR – 44374 (SC) AUGIE JSC STATED the position of the law on the issue of contradictions in the evidence of witness that testify in Court that:
“It is not every mirror contradiction in evidence that matters. For a Trial Court to believe a witness for the said reason, the contradiction in the evidence must be on material point.” See: KALU VS. STATE (2988) 4 NWLR (PT. 90) 503 (SC). Also in OCHEMAJE VS. STATE (2008) 15 NWLR (PT. 1109) 57 where this Court per TOBI JSC elegantly explained that – “Although witnesses see and watch the same event, they may narrate it from different angles in their individual peculiar focus, perspective or slant. This does not mean … that the event that they are narrating did not take place, it only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight, and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions which are not material or substantial will go to no issue. The main interest of the Court is that the witnesses are in union or unison as to the happening of the event but gave different reasons in respect of the peripheral surrounding the event”.
The evidence of the prosecution alleged to be contradictory and inconsistent are as stated below:
“PW2 gave evidence that the Appellant only came to their house once and later charged it to twice. He denied giving statement to the police and denied his father being a herbalist while his mother PW3 countered him saying that the deceased had been treating the wife of the Appellant for long. She said she went to report at the station while PW4 said it was late Olowuro who came to report the incident and that he and his other detectives only met PW3 and his son at home in their camp. PW1 pointly said his evidence is based on hear-say. PW3 even stated that when the Appellant came he came with a gun and went away and later came back with a knife, his wife and son. Under cross-examination she said he came with a cutlass”.
From the above, it is submitted by Respondent’s counsel that the touted contradictions do not affect any of the ingredients of the alleged offence of murder. It is so because, it is only contradictions that are material or fundamental that will be fatal to the case of the prosecution. Also that it is not every trifling inconsistency in the evidence of the prosecution witnesses that goes to the root of its case. However, it is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubt that an accused is entitled to benefit therefrom. See: IGBI VS. STATE (Supra), KHALED VS. THE STATE (1997) 8 NWLR (PT. 156) 237.
To prove a charge of murder against an accused person, the prosecution must prove the following:
(i) That the deceased died
(ii) That it was the unlawaful act omission of the accused person which caused the death of the deceased and
(iii) That the act or omission of the accused person which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See: UWAGBOE VS. STATE (2007) ALL FWLR (PT. 350) 1323, GIRA VS. STATE (1996) 2 NWLR (PT. 428) 1.
From the alleged contradiction and inconsistencies as herein before stated, I do not agree with the Appellant that they vitiate the evidence of the prosecution and therefore fatal to the case of the prosecution. Also they do not affect the ingredients of the offence of murder as stated above. The evidence of PW2 and PW3 as it appears to me does not show any fundamental contradiction that can lead the Court to vitiate same. One can put their evidence together to the effect that the appellant killed the deceased by firing the gun shot. All the prosecution witnesses are ad idem on this issue. If any Contradiction exist in the prosecution’s case, it is minor. Whatever contradictions, if any, does not mean that the event that they are narrating did not take place. It only means that most of the time that the event took place but what led to the event was given different interpretations arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why it is said that contradictions which are not material or substantial will go to no issue. See Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57.
Accordingly, I do not agree that the contradictions in the evidence of the prosecutions which I consider as minor can be fatal to the prosecution case to the extent that it vitiated same.
This issue is hereby resolved in favour of the Respondent.
ISSUE 2
Whether Exhibits M08, M09 and M011 qualify as confessional Statements.
It is the position of the law that a confessional statement which is direct and positive is good enough to sustain a conviction even without corroboration. See Akinmoju v. The State (2000) FWLR (PT 11) 1893, Alhassan v. The State (2001) NSQLR 120. It is not in doubt that one Pius Winte a human being is dead. From the contents of Exhibits M08, M09 and M011 the confessional statements of the Appellant, it is obvious that the death of the deceased was not natural, but was caused by the wilful act of the appellant to wit shooting with a gun.
In the instant case, the trial Court conducted a trial within trial in determining whether the Exhibits were voluntarily made and was satisfied that indeed that the Appellant made the statement out of his free will.
Once a confessional statement is admitted following a trial within trial proceedings, it becomes difficult for the Court on appeal to intervene and question the decision of the trial Court on its admissibility, solely because the evaluation of evidence by the trial Court was based on the credibility of the witness that testified. See Lasisi v. State (2013) 9 NWLR (Pt. 1358) 74 at 96-97, Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509, Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57 amongst so many others.
I do not therefore agree with the submission of the Appellant’s Counsel that the voluntariness of the confessional statements of the Appellant have been impeached and thus rendered Exhibits M01, M08, M09, and M011 inadmissible. They are all admissible having passed the following tests at the trial court thus:
(a) Is there anything outside the confession to show that it is true or real?
(a) Is it true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts, true as far as they can be tested.
(d) Did the prisoner have the opportunity of committing the offence?
(e) Is the confession possible?
(f) Is it consistent with other facts which have been ascertained and have been proved.
Having passed the above test, it is apparent that a conviction founded upon it would be upheld in the court. Even the evidence of the witnesses corroborate the statements made in Exhibits M01, M08, MO9 and MO11. See IGBI VS STATE (2000) 3 NWLR (PT. 648) 169.
It is worthy to note that the policy of this Court as an Appellant Court is that it will generally not interfere with the findings of fact made by the trial Court which had the singular opportunity of seeing and hearing the witnesses testify, unless the findings are perverse or unreasonable.
The Appellant is enjoined on the findings of fact to establish exceptional circumstances for the Appellate Court to interfere. See ISMAIL VS. STATE (2012) 47 NSQR 89 RELYING INTER ALIA ON OGBA VS. THE STATE (1992) 2 NWLR (PT. 222) 164, IGAGO VS. THE STATE (1999) 14 NWLR (PT. 637) 1, AMUSA VS. THE STATE (2003) 3 NWLR (PT. 811) 505. The rebuttabe presumption is that the Trial Judge is well seised of the facts.
Exhibits M08, M09 and M011 are confessional statements made by the Appellant. They are the material pieces of evidence which the Trial Court relied upon to convict the Appellant. During the proceedings at the Trial Court, they were subjected to Trial within trial before they were admitted in evidence. That interlocutory decision of the trial court has not been appealed against.
Therefore, the voluntariness of the making Exhibits M01, M08, M09 and MO11 is no longer an issue. The law is settled that where there is no appeal against any specific findings of fact, those findings of fact remain forever unassailable. See OLANIYAN VS. UNIVERSITY OF LAGOS (1985) 2 NWLR 599, BROWN VS. ADEBANJO (1986) 1 NWLR 583.
Confessions or admissions made voluntarily by an accused person in a criminal charge are the best piece of evidence against that accused person. The rational for this is that no person in normal circumstance bears false testimony against himself. See DIBIE VS STATE (2007) 9 NWLR (PT. 1038) 30 AT 51, NWACHUKWU VS. STATE (2007) 17 NWLR (PT. 1062) 55 AT 66, AKINMOJU VS. STATE (2000) 4 SC (PT. 1) 54 AT 64. Even an accused person can on his confession alone, be convicted for the offence charge. See MOHAMMED VS. STATE (2007) 11 NWLR (PT. 1045) 303 AT 320.
ISSUE 2
Is hereby resolved in favour of the Respondents.
ISSUES 3 & 4
ISSUE 3
“Whether there exist complete conditions to justify that the Appellant killed the deceased deliberately and intentionally”.
ISSUE 4
“Whether the prosecution proved the case of murder against the Appellant beyond reasonable doubt”.
It is trite that in a criminal charge, the onus is always on the prosecution to prove his case beyond reasonable doubt. The prosecution must establish and prove by positive, credible and satisfactory evidence, the guilt of the accused person beyond reasonable doubt because an accused is presumed innocent until pronounced otherwise by a Court of law. See Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended).
The burden is on the prosecution to prove its case beyond reasonable doubt and the burden does not shift.
In proving the prosecution case beyond reasonable doubt, all and every ingredient which constitutes the offence must be established and proved. Any failure to prove one element of the offence would amount to failure of the prosecution to prove its case beyond reasonable doubt and the entire trial will be vitiated and the accused shall be entitled to be discharge and acquitted. See Section 138(1) of the Evidence Act 2011, OGUNDIYA VS STATE (1991) 3 NWLR (PT. 181) 519. AKINFE VS. STATE (1988) 3 NWLR (PT. 85) 729. IGABELE VS. STATE (2006) 6 NWLR (PT. 975) 100. ADELEYE VS. STATE (2015) 3 NWLR (PT. 1446) 229.
In the instant case, the Appellant was charged with murder and the prosecution has to prove:
(i) That the deceased is dead
(ii) That the death was not natural
(iii) That the act of the accused person caused the death of the deceased
(iv) That the deceased died as a result of the injury caused by the accused person. See ADELEYE VS. STATE (Supra) which said injury was intentional with knowledge that death or grievous bodily harm was its probable consequence. See UWAGBOE VS STATE (2007) ALL FWLR (PT. 350) 1323, GIRA VS STATE (1996) 4 NWLR (PT. 443) 375, NWAEZE VS. STATE (1996) 2 NWLR (PT. 428)1.
The above elements must co-exist for the prosecution to have proved their case beyond reasonable doubt.
To prove the commission of a crime, the prosecution can resort to any or all of the following:
(i) By confessional statement(s)
(ii) By circumstantial evidence and
(iii) By eye witnesses evidence otherwise referred to as direct evidence. See NWOKU VS STATE (2017) LPELR – 42925 (CA) STATE VS. GWANGWAN (2015) LPELR -24837 (SC) EMEKA VS STATE (2001) 7 NSCQR 582, TAIYE VS. STATE (2018) LPELR – 44466(SC), TAJUDEEN FABIYI VS. STATE (2015) LPELR – 24834(SC).
From the evidence, the Appellant made Exhibits M08, M09 and Exhibit M011 which the lower Court adjudged same and admitted in evidence to the effect that the Appellant shot the deceased. PW2 and PW3 gave a vivid account of what transpired on the fateful day and corroborated by the evidence of PW1, PW4 and even PW5. The admission of the Appellant in the aforementioned Exhibits is that he was the one who shot the deceased to death.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>What again remains to be proved. In Law, whatever facts that are admitted need no further proof. See UNIC LTD V UCIC LTD (1993) 3 NWLR (PT. 593) 17.
I have before now stated that once a confessional statement is admitted following a trial within a trial proceeding, it becomes difficult for the Court of Appeal to intervene and question the decision of the trial Court on its admissibility solely because the evaluation of evidence by the trial Court was based on the credibility of the witnesses that testified. See LASISI VS THE STATE (2013) 9 NWLR (PT. 1358), OGOALA VS. STATE (Supra) and ESANGBEDO VS. STATE (Supra). The argument of parties in this respect is resolved in favour of the Respondents. What is more, is that the position of the law is that once the probability of death is high from the act of the accused person, the irrefutable presumption is that he intended to cause death or injury sufficient to terminate the life of the victim. It is also the presumption of the law that a person intends the natural consquencies of his act. In GAIBA VS. STATE (2004) 4(SC) (PT. 11) 157 AT 163, it was held thus:
“In the definition of culpable homicide with death under Section 221 (b) of the Penal Code, it has been made clear that whether death was probable or only a likely consequence of an act or any bodily injury, is a question of fact. If from the intentional act or injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death. If the probability of death is very great, as for example in this case, the accused struck the deceased with a stick with such a force on the head that the deceased collapsed and died on the spot, the offence under Section 221(b) of the Penal Code has been established…”
In this fact that the Appellant aimed and shot the deceased with a gun shows that he had the intention of killing the deceased, the law therefore presumes that a man intends the natural and probable consequences of his act. The result of shooting a person with a gun is either to cause the death of the victim or to cause grievous bodily harm.
The Appellant counsel had contended amongst others that:
(a) There was no eye witness account of the incident.
(b) That the purported gun hold by the Appellant was never established as loaded nor was it established whether it was the Appellant’s fire arm that was used in the shooting nor was pellet or bullet extracted for ballistic investigation. See KWALE VS STATE (2017) 9 NWLR (PT. 1571) 399.
Even through, there is no eye witness account as submitted by Appellant but still, the guilt of the accused can be established by:
(i) Eye witness account
(ii) Circumstantial evidence and by confessional statement Each of the above can be relied solely to sustain an accused person’s conviction. The accused made a confessional statement (Exhibits M01, MO8, MO9 and MO11) that he shot and killed the decease. Where a person is attacked with a lethal weapon such as a gun in the instant case and the person died on the spot, it is reasonable to infer that the injury (gun shot) inflicted on him caused the death.
The authority of KWALE VS STATE (2017) 9 NWLR (PT. 1571) 399 though germane where applicable appears to have no relevance to this case at hand. No evidence was ever established that a pellet or bullet was extracted from the deceased not to talk of sending same for ballistic investigation. Going into whether the said gun was loaded or not is tantamount to pursuing the shadow after the deed has been done. It is therefore unnecessary to go into that voyage of discovery.
Therefore I hold the opinion that the said authority is not in all fours with the peculiar circumstance of the instant case.
I therefore resolve this case in favour of the Respondent.
The Appeal lacks merit and it is hereby dismissed. The Judgment of the lower Court is hereby affirmed.
Appeal Dismissed.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance, the lead judgment just delivered by my learned brother PAUL OBI ELECHI, JCA. I agree with his reasoning and conclusions. I also dismiss the appeal.
Appearances:
Obafemi Adewale Esq. with Ezekiel, Agunbiade Adeyemi Adewumi, Stephen Ademuagun, Rashidat Ajise O.R. Ishiekwene, J.S. Obonna, H.A. Okogbue, B.E. Ajayi For Appellant(s)
Julius Ajibare Esq. (DPP) with Ibironke Odetola (PLO), Oluwaseun Oluwasanmi (SLO) and Kunle Adeyemo SLO For Respondent(s)
