MAIN JUDGMENT

CORDELIA IFEOMA JOMBO-OFO J.C.A. (Delivering the Leading Judgment):

This appeal is against the judgment of Hon. Justice P. I. Odunwo of the Ondo State High Court sitting at Ikare, Akokjo Judicial Division delivered 4th June, 2008 and convicting the accused person hereinafter referred to as the appellant for murder. At the trial court the appellant was charged with the murder of one Ehe Samuel Simeon on or about the 21st day of September, 2001 at Igboji Camp. Irun in the Ikare-Akoko Judicial Division contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap 30 Vol. 11, Laws of Ondo State, 1978.

STATEMENT OF FACTS

In the course of the trial, seven witnesses testified for the prosecution and tendered Exhibits A, B, C, D and ID1-5 respectively while the appellant alone testified in his own defence and without tendering any exhibit.

The case for the prosecution was that on 21st September, 2001, the appellant went to the camp of one James Simeon and swore to him that he was going to do something that day. James Simeon wanted to know what but the appellant never disclosed it to him. The appellant was later seen sharpening his cutlass before he headed for the deceased's camp where he inflicted multiple injuries on the deceased and which resulted in her instant death. The cry of the child of the deceased that the appellant had killed his mother attracted one of their neighbours. The deceased' brother went to ask the appellant why he killed his sister and the appellant threatened to kill him too.

On the part of the accused/appellant his case at the trial court was that he went to the bathroom to take his bath when suddenly James Simon (brother to the deceased) came and inflicted several matchet injuries on him. He fainted and only regained consciousness in hospital with his hands in chain.

At the close of hearing the learned trial Judge ordered for the filing and exchange of written addresses by counsel on both sides. On the 4th of June, 2008 and in a considered judgment the learned trial Judge found the appellant guilty of murder as charged and accordingly sentenced him to death by hanging.

Not satisfied with the conviction of the trial court, the appellant has appealed to this court vide a notice of appeal amended pursuant to the leave of court granted 31st May, 2012.

At the hearing of the appeal on 13th November, 2013, the appellant's brief of argument dated and filed 10th July, 2013 and settled by TUNDE ADEOYE, ESQ. was adopted as their argument in this appeal. They urged the court to allow the appeal and set aside the conviction and sentence pronounced on the appellant by the trial court. The respondent's brief of argument settled by MRS. G. A. OLOWOPOROKU, (Deputy Director of Public Prosecutions) Ministry of Justice, Akure, which brief is dated 16th October, 2012, filed 18th October, 2012 but deemed properly filed 29th November, 2012 was adopted as the respondent's argument in this appeal. They urged on us to dismiss the appeal and uphold the appellant's conviction and sentence to death.

The appellant distilled 4 (four) issues for the determination of the appeal and the issues read:

i.      Whether the trial court was not in error by admitting and relying on hearsay evidence in convicting the appellant despite the court's finding that none of the witnesses called by the prosecution is an eye witness.

ii.     Whether the trial court was not in error in convicting the appellant of murder despite the failure of the prosecution to discharge the mandatory burden of proof beyond reasonable doubt and failure to call the only eye witness at the scene of crime.

iii.    Whether the trial Judge did not misdirect himself and came to wrong conclusion on the facts given in evidence by the prosecution witnesses against the appellant.

iv.   Whether failure of the trial court to properly evaluate the evidence before it did not occasion a miscarriage of justice.

On the part of the respondent, learned counsel on its behalf formulated 3 (three) issues for the determination of the appeal and the issues read:
 

a.     Whether the learned trial Judge convicted the appellant on the grounds of suspicion and hearsay rather than compelling circumstantial evidence. (Grounds 1 and 4 of the Grounds of Appeal).
 

b.     Whether the prosecution did not prove the ingredients of murder beyond reasonable doubt against the appellant to warrant his conviction. (Ground 2 of the Grounds of Appeal).
 

c.     Whether the learned trial Judge misdirected himself either as to law or facts in arriving at a verdict of guilt against the appellant. (Ground 3 of the Grounds of Appeal).

I have looked at the issues distilled by both sides and I am of the view that in spite of their similarities that those raised by the counsel for the appellant would do justice to this appeal. I am therefore adopting the issues as raised by the appellant for the determination of the appeal.

ISSUE ONE

In arguing this issue the appellant while relying on the case of Monday Nwaeze vs. The State (1996) NWLR (Pt. 428) 1 at 3 ratio 1, submitted that there was never any controversy as to whether one Ehe Samuel Simeon died, however the bone of contention between the prosecution and the defence was who killed the deceased. He referred to the holding of the trial Judge at page 66, lines 23-27 of the record.

The learned counsel went on to state that the evidence relied upon by the trial Judge are not legally admissible evidence arguing that they are hearsay and cannot sustain the charge of murder preferred against the appellant. He said that from the evidence of PW1, PW2, PW3, PW4 and PW5 the vital part thereof was a repetition of what they all said the little child of the deceased said to them and which in law is known as hearsay. See JOHN ONUOHA vs. THE STATE (1995) 3 NWLR 385 ratio 5. He went on that it was erroneous of the trial Judge to take what the little child said to be a dying declaration. Sections 22(1)(a) and 33(1) of the Evidence Act, 1990 referred wherein it is provided that statement written or verbal or relevant fact made by a person who is dead are themselves relevant in certain cases. Counsel contended that before this section is applicable in criminal trials it must be given by a person who was present or who heard the dying declaration and it must be strictly proved so as to remove any lingering uncertainties of what the deceased actually said. He relied on IKONO vs. STATE (1973) ANLR 510 at 525.

Further in his contention the learned counsel for the appellant said that it was totally wrong for the trial court to either directly or indirectly regard what the little child said to be a dying declaration that can be repeated at the trial of the appellant and use same as basis for conviction for murder. Counsel also referred to Sections 6, 7 and 8 of the Evidence Act, 1990 which make provision for evidence which may be given of facts in issue, relevancy of facts forming part of same transactions and facts which are the occasion, cause or effect of facts in issue. Relying on the authority of SARKAR, Law of Evidence, 16th Ed. Report 2009 Vol. 1 pg. 203 (an authority the counsel failed to make available to the court), counsel submitted that when these sections are taken together, it would appear that there are many incidents, which though not strictly constituting a fact in issue, may yet be regarded as forming a part of it, in the sense that they closely accompany and explain that fact. Counsel opined that in testifying to the matter in issue, the witnesses must state them not in their barest possible form, but with a reasonable fitness of detail and circumstances. These constituents of accompanying incidents are said to be admissible and forming part of the RES GESTAE (Dying Declaration). He argued that the evidence of PW1, PW2, PW3 and PW5 cannot [constitute] accompanying incidents and will not fall in the category propounded by the learned author Sarkar as facts that are connected to the facts in issue.

On the proposition that the prosecution need not call all the available witnesses as cases are not won based on the number of witnesses called, the learned counsel referred again to MONDAY NWAEZE v. STATE (supra) where it was held that all the prosecution need do is to call enough material witnesses to prove its case and in doing so it has discretion in the matter. In this vein the learned counsel argued that failure of the prosecution to call the only alleged child witness of the crime who thereby qualifies to be regarded as a bystander is fatal to the prosecution's case. He said that as a competent witness the evidence of the little child would have been admissible without much ado and in the absence of corroboration. The wrongful admission of the hearsay evidence and reliance upon it by the learned trial Judge occasioned a miscarriage of justice on the part of the accused/appellant for which the learned appellant's counsel urged on us to reverse the judgment of the trial court.

The learned counsel for the appellant in furtherance of their case referred once more to the learned author SARKAR in his Law of Evidence (supra) where he defined by-standers to mean, "the persons who are present at the time of the incident e.g. beating and not the persons who gather on the spot after it." The learned author, according to the learned counsel said “The remarks made by persons other than the eye-witnesses are only hearsay." Premised on this the learned counsel opined that the PW1 is at best an ear-witness and that the only probative value his evidence would have had on the prosecution's case would be to corroborate the evidence of the child of the deceased if she had been brought in as a witness. This not being the case, the evidence of the PW1 has no probative value and ought to be regarded as positively harmful to the appellant having emanated from hearsay evidence which is legally not admissible.

It is in view of the above that the learned counsel for the appellant urged on us to resolve issue one in favour of the appellant.

Regarding the issue of hearsay as canvassed by the learned counsel for the appellant, the learned counsel for the respondent is contending that suspicion and hearsay were not the bases for the trial court's finding. He submits that the prosecution witnesses gave oral evidence which were so cogent as to leave no reasonable tribunal in doubt that it was the appellant and no other person that murdered the deceased.

Submits that the PW1's evidence of the deceased's child's shout that the appellant had killed his mother was not primarily intended to establish the fact that the appellant killed the deceased; rather it was intended as a corroborative piece of evidence to other pieces of evidence which were cogent and irresistible enough to establish the guilt of the appellant.

In further submission counsel said that it was outrageous and preposterous for any reasonable tribunal or person to dismiss the PW2's evidence as a mere suspicion more so as the appellant had boasted unrepentantly that he would also kill the deceased's brother i.e. the PW2.

Counsel also contended that the deceased's little child (Taiye) was not the only material witness in this case and the fact that she was not called as a witness could not be prejudicial to the prosecution's case as the prosecution had called other material witnesses to prove its case. He placed reliance on Okonofua & Anor. v. The State (1981) 6-7 SC. 1; and Ali & Anor. v. The State (1988) All NLR 1, 28 B-F.

Counsel argued that where a material witness could not be called either because the witness died or became seriously ill, the prosecution could have recourse to other material witnesses to prove its case, as was done in the instant case. Learned counsel submitted that the evidence of the PW5 (the appellant's master) is another compelling and irresistible circumstantial evidence. He opined that the inference to be drawn therefrom is that none other than the appellant was responsible for the deceased's cold blooded murder. See Sokwo vs. Kpongbo (2008) NWLR (Pt. 1086) 346 SC pgs. 16-17, paras. F-A., and Obiekwe vs. Obi (2005) 10 NWLR (Pt. 932) 21, paras. A-B.

Again and having recourse to the authority of Arogundare vs. The State (2009) 2 SCM. 40 the learned counsel stated that the confession of the accused person made to another and given in evidence by that other before the court in the presence of the accused person and unchallenged by him, as in the instant case is admissible in evidence against the accused-such evidence is not hearsay. He submitted that the appellant confessed to his master (PW5) that he killed someone and he was leading his master to the scene of crime when the deceased brother (PW2) met him still armed with the weapon of murder (a sharp cutlass). That it remained unarguable that no other death was recorded within the locality at the time than the one involving the deceased. Counsel submitted that the only eye witness (PW5) gave evidence of how the appellant sustained matchete cut. Counsel opined that the evidence of the PW5 corroborated the evidence of the PW2 to the effect that he took the matchet from the appellant and in retaliation gave him cuts with it.

On the part of the PW6, the learned counsel submitted that his evidence corroborated that of the PW2 who saw the dead body of his sister through the window given that he had to force the door of the deceased's room open since the door was locked.

In final submission on this issue, the learned counsel for the respondent opined that if the evidence regarding the statement credited to the deceased's child who could not be called as a witness is excluded, there are a thousand and one other pieces of circumstantial evidence compelling enough to warrant the conviction of the appellant by the trial court and he urged us to so hold. He placed reliance on Ahmed vs. State (2002) FWLR (Pt. 90) 1358 SC at 1376 paras. F-G; Omotola & Ors. v. The State (2009) 3 SCM. 127; Akpan vs. The State (1994) 9 NWLR (P. 368) 15 paras. E-F; and Ayanwale vs. Atanda (1998) 1 NWLR (Pt.68) 22, and it was upon this note that he urged on us to resolve issue one against the appellant.

RESOLUTION OF ISSUE 1(ONE)

Whether the trial court was not in error by admitting and relying on hearsay evidence in convicting the appellant despite the court's finding that none of the witnesses called by the prosecution is an eye witness.

It is trite that in a charge of murder the prosecution has the burden of proving that:
 

a)      The deceased had died.

b)      The death of the deceased was caused by the accused; and

c)       The act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grevious bodily harm was its probable consequence.

It is common ground that the deceased Ehe Samuel Simeon (female) died as a result of which the first ingredient needs no further proof.

Now, from the evidence acted upon by the trial Judge it appears that none of the witnesses gave a direct account of what or who caused her death hence the contention of the learned counsel for the appellant that the trial court acted on hearsay evidence. However, the respondent while admitting that though the only eye witness of the incident was not called to give evidence, he contended that there was circumstantial evidence enough to sustain the charge.

The trial Judge in his finding and as contained on page 66, lines 23-27 of the record held inter alia:

"..... The only person who would have been an eye witness was the little child of the deceased but he was not called to testify even as a minor. I am therefore in agreement with the defence counsel that none of the witnesses saw the killing. The testimonies of PW1, PW2, PW3 and PW5 above however showed that no other person except the accused person was responsible for the death of the deceased."

From the foregoing and having ruled out eye witness account, the trial Judge still went on to convict on the testimonies of the prosecution witnesses. It is trite that the conviction of an accused person can be sustained based primarily on the direct evidence of person or persons who saw or witnessed the act or omission that gave rise to the crime.

Nevertheless, where there are pieces of compelling and cogent evidence which point unequivocally to the guilt of no other than the accused the court can convict the said accused. This is to say that there can be a conviction based on circumstantial evidence. See Adekunle vs. State (2006) 14 NWLR (Pt. 1000) 717. Albeit, no court is enjoined to convict on hearsay and or suspicion. Thus, suspicion no matter how strong cannot ground a conviction. See Abieke vs. The State (1975) 9-11 S.C. (REPRINT) 60; and Abacha vs. State (2002) 11 NWLR (779) 437.

Pursuant to Section 1 of the Evidence Act, Cap E14, 2011, evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are relevant.

The point in issue in the instant appeal is as to who or what caused the death of the deceased. The relevant portion of the PW1's evidence in this regard reads that he heard the voice of the little child of the deceased, shouting that the accused person had killed her mother to wit the deceased. Thereafter the PW1 became unconscious. See page 15, lines 3-5. To the extent that it is intended by this piece of PW1's evidence to convey what he heard the deceased's little child say to be the cause of the mother's death, it is undoubtedly relevant and therefore admissible as it were. Whilst what Taiye (the little child) said regarding who brought about the mother's death is relevant in the circumstance, it would amount to hearsay and accordingly inadmissible if it was intended by it to establish the cause of death.

Be that as it may, it is pertinent to bring to the fore the fact that evidence of a fact which does not appear to be too remote to be material and which is not excluded in accordance with any Nigerian legislation as in the instant case cannot be disqualified by the provisos to the Evidence Act. Recourse is had to Torti vs. Ukpabi (supra); and Abubakar vs. Chuks (supra) where it was further held that:

"In considering admissibility of evidence, oral or documentary, the test remains "relevance". If it is relevant it's admissible and the court is not concerned with how the evidence is obtained." (Emphasis mine).
 

See also ACB. V. Gwagwalada (1994) 5 NWLR (Pt. 342) 25 at 27; as well as the decision of this court in Lagos State Urban Renewal Authority vs. Chief Ganiyu Ariori Balogun Okolo & Anor. (2010) LPELR-4421 (CA).

Consequent upon the foregoing authorities I am inclined to hold and I so hold that the evidence of PW1 is additionally relevant as regards the cause of death of the deceased when linked with other pieces of material and cogent evidence. Piecing all of them together like a jig-saw they could reveal the cause of death. To this end I do not hold PW1's evidence to be hearsay for his evidence is tailored towards what he heard the deceased's child say in relation to the cause of her mother's death.

Regarding the PW2, (the brother of the deceased) he gave evidence inter alia that aside from the accused telling him earlier that day that "he wanted to do something", he the PW2 also saw the accused/appellant sharpening his cutlass. After sharpening the cutlass the accused person headed to the PW1's camp. A while after Taiye came to inform him (the PW2) that the accused person had killed the deceased with his cutlass. This piece of evidence when x-rayed against the backdrop of Section 6 of the Evidence Act, 2011 goes on to throw light on the motive, preparation and subsequent conduct of the appellant geared towards actualizing his premeditated criminal intent. The said Section 6 Provides:
 

1)      Any fact is relevant which shows or constitutes motive or preparation for any fact in issue or relevant fact.

2)      The conduct, whether previous or subsequent to any proceeding
 

a)      of any party to any proceeding, or an agent to such party, in reference to such suit or proceeding or in reference to any fact in issue in it or a fact relevant to it; and

b)      of any person an offence against whom is the subject of any proceeding, is relevant in such proceedings if such conduct influences or is influenced by any fact in issue or relevant fact.

PW2's evidence further disclosed that armed with a stick he the PW2 left for the house of the deceased where he met the door shut. He observed blood flowing out from below the door and because he could not force open the said door, he went to the window and forced it open. He used the stick to touch the deceased and then he found that the deceased had died. See page 17 of the record of appeal.

It seems to me and I so hold that the PW2's evidence cannot be wished away or swept under the carpet as it were as being irrelevant in that there is in evidence the fact that the deceased died of injuries occasioned by deep matchet cuts. Also the conduct of the appellant prior to the leakage of the death of the deceased leaves no one in doubt that he has some measure if not total link with the death. See the evidence of the pathologist (PW7) at page 28, lines 11-15 of the record where he testified inter alia:

"My findings include a very deep matchet wound at the back of the neck close to the skull. The weapon went deep to cut the second neck bone...... There was massive bleeding and the entire blood virtually drawn out... "

Again, this piece of evidence as given by the PW2 may or may not on its own sustain the cause of death but when linked with other pieces of evidence they will together satisfy the guilt or otherwise of the appellant.

PW3 identified the deceased as his sister and he identified the corpse to the doctor (PW7) who performed the autopsy. He also identified the appellant as bearing the name Jingolo. See page 20, lines 8-16.

PW4 is a police Sergeant attached to the State CID, Akure. He obtained statements from the appellant and they were admitted in evidence as Exhibits A and B respectively.

The PW5 testified to being in the same camp with the appellant. In the morning of the incident the appellant informed him that he was going to the farm and appellant took his cutlass and left. Later that day the appellant ran back to the said PW5 and asked him to take the cutlass and kill him in that he had killed somebody. They were at the request of the PW5 heading to the scene of crime when they met the deceased's brother i.e. the PW2. The PW2 also known as Good boy asked the appellant why he left his house and went to the deceased house to go and kill her. PW2 said he was not going to accept the death of his sister. Consequently PW2 tried to forcefully dispossess the appellant of the cutlass. It was in the process that he gave the appellant matchet cut. Albeit, the appellant in his own evidence as it appears at page 30, lines 22-26 testified to the incident that happened between him and the brother of the deceased (James Simeon) on the day the said deceased was murdered. He said that the deceased's brother attacked and inflicted matchet cuts on him while he was in the bathroom having his bath. This piece of evidence by the appellant corroborates the evidence of the PW2 to the effect that they both had an issue on that day be it along the road or in the appellant's bathroom.

The PW6 as the Investigating Police Officer (IPO) herein in his evidence said that at the scene of crime he observed that the door to the deceased's room was locked from the outside with a padlock consequent upon which he went to the window which was already broken open. When he looked through the window, he saw the deceased who was identified to him as Simon Ehe in her own pool of blood. PW6 said he later broke open the door to remove the body from the room. He discovered that there were several matchet cuts on her neck and head. Thereafter the remains were removed to the Specialist Hospital, Ikare for autopsy.

Aside from confirming the obvious which is that the deceased died, the evidence of the PW6 has also corroborated the evidence of the PW2 who earlier saw the remains of his sister through the window being that the door to her room was locked.

I need not in the mean time delve into the evidence of PW7 who was the Medical Doctor who performed the autopsy and issued report.

As earlier noted Taiye (the deceased’s little child) who appears to me to be the only eye witness of how the mother met her death was not called as a witness for reasons best known to the prosecution. Nevertheless, there is really no legal obligation on the prosecution to field an army of witnesses in order to prove its case. The prosecution is the master of its case and is at liberty to field as many or as little number of witnesses as it deems necessary. It has the option to shed its burden by leading cogent and compelling circumstantial evidence in order to secure the conviction of the appellant. See Okonofua & Anor. vs. The State (1981) 6-7 SC 1; and Ali & Anor. vs. The State (1988) All NLR 1, 28 paras. B-F.

I have in line with the foregoing principles of law considered the evidence of most especially the PW1, PW2, PW3 and PW5 as shown above. My humble view is that the totality of their evidence is so intertwined, so linked up and corroborative of each other that they seem to be pointing at the fact that the deceased met her death in the hands of the appellant when the said appellant gave her matchet cuts.

In Sowemimo vs. The State (2004) All FWLR (pt. 208) 951, 969, the Supreme Court made the following pronouncement:

"Where it is alleged that death has resulted from the act of a person, a [causal] link between the death and the act must be established and proved beyond reasonable doubt."

The deceased's child who obviously witnessed the dastardly act of the appellant ran and narrated the horror to her maternal uncle the PW2. As a result he left immediately to the scene and saw actually that his sister was lying dead in her own pool of blood. PW1 who is shown to be the deceased's neighbor [heard] the little child's shout that the appellant has killed her mother. I wonder what more need be said to establish or link the deceased's death to the appellant.

The pieces of evidence as led by these witnesses are not hearsay neither are they based on suspicion. On the contrary they constitute facts which are relevant and material to the point herein in issue. With such cogent and compelling evidence as led before the trial court, the learned trial Judge was not in error when he admitted and relied on them in convicting the appellant. Accordingly issue 1 (one) is hereby resolved in favour of the respondent and against the appellant.

ISSUE TWO

In view of the similarities in both issues one and two, I think that the only aspect of issue two which calls for determination is as it relates to the prosecution's discharge of the mandatory requirement of proof beyond reasonable doubt.

The learned counsel for the appellant in arguing this aspect started by bringing out part of the evidence the trial court relied upon in reaching the conclusion that the appellant actually murdered the deceased in this case. Counsel submits that in essence the trial court relied on the circumstantial evidence of PW1, PW2, PW3 and PW5 in coming to the conclusion that the appellant murdered the deceased. He argued that when the evidence relied upon by the trial Judge is weighed against 'specific provisions of the Evidence Act and case law, the trial Judge would have held that the prosecution did not discharge the burden of proof placed on it.

Further in his submission the learned counsel re-echoed that having regard to the ingredients in proof of a murder charge, if there is inconsistency in the prosecution's case such as to cast doubt on the guilt of the accused person, the accused is entitled to the benefit of the doubt and should be discharged and acquitted. He went on that if the circumstantial evidence upon which the trial court convicted the appellant is weighed alongside the decision of the Supreme Court in the case of Mustapha Mohammed & Anor. vs. The State (2007) All FWLR (Pt. 383) 46 ratio 6 one can safely conclude that the conviction ought not to be. He urged that the totality of the evidence adduced by the PW1, PW2, PW3 and PW5 are contradictory, inconsistent and did not establish the nexus between the death of the deceased and the accused person. Bele v. The State (2004) 34 WRN 22 referred.

Again learned counsel for the appellant contended that the prosecution had the opportunity during trial when the issue of who actually the accused person is came up. That in one breath the charge sheet read DANIEL ITODO and the evidence adduced said the little child of the deceased maintained JINGOLO and that the prosecution ought to have amended the charge to include JINGOLO to the name of the accused person. That in this way the trial court would have been afforded the opportunity of pinning the death of the deceased with reasonable exactitude on the accused since the only eye witness was not called as a witness. He said that it was not for the accused person to clear this ambiguity and confusion as to who is or is not JINGOLO.

On the finding of the learned trial Judge as contained at page 68, lines 1-4, the learned counsel submitted that none of Exhibits A, B and C was admitted as a confessional statement; yet the same court at page 69, lines 16-20 of the record went on to hold thus:

"From the totality of the analysis made above, I hold that from the evidence of the prosecution witnesses and the statements of the accused person in Exhibits A, B and C, the accused person was the person who matcheted the deceased to death on 21/9/2001 at Gboji camp, Irun-Akoko. I also hold that the second ingredient of murder was proved by the prosecution beyond reasonable doubt."

Submits that there is nothing in the evidence of the prosecution witnesses which lacks probative value and so cannot sustain the allegation of murder.

Counsel referred to page 25, lines 4-5 of the record where the PW5 in his evidence-in-chief testified thus:

"After that the accused person ran back to me. He told me to take his cutlass and kill him in that he had killed a person. I told him that if it is true he killed a person he should follow me to the place he killed the person."

Counsel contended that who was killed was never mentioned. He also queried if this can be confessional statement that the trial court should act upon. In answer to his question, counsel referred to Julius Abirifon & Anor. v. The State (2009) All FWLR (Pt. 471) ratios 1, 6 and 7 where it was held that:
 

"A confessional statement must be subjected to scrutiny with truthfulness tested against other available evidence in order to determine whether:
 

a.       There is anything outside the confession to show that it is true.
 

b.       It is corroborated.

c.       The statement made in it is true as far as they can be tested.
 

d.       The prisoner had the opportunity of committing the crime.
 

e.       The confession is possible.

f.       It is consistent with other facts which have been ascertained and which have been proved;

and in addition ratio 6 particularly on extra-judicial confession the court further held

"A court may convict an accused person on his extra-judicial confession which has been proved to have been voluntarily made and is positive and unambiguous." (Emphasis supplied).

Learned counsel further submitted that all the conditions specified above do not apply to the alleged extra-judicial confession made by the appellant and that it is not positive and ought not be acted upon. Counsel relied on such other cases like:
 

Tegwonor vs. State (2008) 1 NWLR (Pt. 1069) 630 C.A. or (2008) All FWLR (Pt. 424) 1484, 1511-1512., Omogodo vs. The State (1981) 5 S.C. 5, Imhanria vs. Nigerian Army (2007) 14 NWLR (Pt. 1053) 76 CA., Adebayo vs. The State (2004) All FWLR (pt. 385) 498, 502 ratio 7; and Udosen vs. The State (2007) All FWLR (pt. 356) 669, 699. Consequently counsel urged on us to resolve issue 2 in favour of the appellant.

Learned counsel on the third ingredient of murder submitted that the prosecution led evidence to show that the accused person dealt matchete cuts on the deceased and that it led to the death of the deceased, yet the cutlass was not tendered in evidence more so as the prosecution witnesses particularly the PW7 left no one in doubt as to the fact that the weapon used by the accused person was a sharp one.

In reaction to issue two, the learned counsel for the respondent began by laying out the ingredients of the offence of murder and which ingredients have earlier been set out in this judgment. He relied on Madu vs. The State (2007) All FWLR (pt. 371) 1631, 1642 paras. D-F; and Okeke vs. The State (1999) 2 NWLR (pt. 590) 246, 273.

Relying on Oforlete vs. The State (2000) 12 NWLR (pt. 681) 11-12 paras. F-B; and Olabode vs. The State (2008) WRN (vol. 2) 167 counsel urged on us to hold that the appellant's act caused the death of the deceased in this case. Counsel for the respondent recalled the presumption of fact that a man intends the natural and probable consequence of his actions. He argued that a man who with his cutlass proceeded to inflict several cuts/injuries on a fellow human being, not targeting the arms and legs but the torso, head and the neck region of the victim like in the instant case intends either to cause the death of the victim or to cause him grievous hurt. Ibikunle vs. The State (2007) 2 NWLR (Pt. 756) 109 at 187; as well as Section 167 of the Evidence Act, 2011.

He noted that even the instrument used (a sharpened cutlass) shows that he intended to cause death. See Uwagboe vs. The State (2008) 12 NWLR (Pt.1102) 621 SC. Learned counsel for the respondent urged on us to resolve issue two against the appellant as the prosecution had proved the ingredients of murder against the appellant beyond reasonable doubt by means of cogent, irresistible, unmistaken and compelling circumstantial evidence.

RESOLUTION OF ISSUE 2 (TWO)

It is elementary knowledge that in criminal trials that the burden on the prosecution is to prove the charge beyond reasonable doubt. Failure on the part of the prosecution to discharge this burden will result in a discharge and acquittal of the accused. See Chukwu vs. The State (supra); and Alonge vs. I. G. P. (1959) 4 FSC 203, 700 paras. A-D per Ogbuagu JSC:

"... it is long settled that it is the duty of the prosecution to prove its case by evidence of such a quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. Thus, where the prosecution fails to prove an essential element in a criminal charge, an appellant convicted in such a trial, is entitled to have his appeal allowed and the conviction quashed. In other words, the burden in criminal case is throughout on the prosecution to prove its case beyond reasonable doubt. This is why, having regard to the ingredients in proof of a murder charge, if there is inconsistency in the prosecution's case such as to cast doubt on the guilt of the accused person, the accused is entitled to be given the benefit of doubt and he should be discharged and acquitted."

It has already been established in this judgment that the pieces of evidence put together by the PW1, PW2, PW3 and PW5 in this appeal though not eye witness account, are all so linked up, so cogent and compelling that they leave no reasonable tribunal in doubt that the appellant committed the act that brought about the death of the deceased. Their evidence is devoid of suspicion and confusion as is being argued by the appellant.

The issue of identification of either the person who caused the death of the deceased or even the deceased herself never arose and cannot be in issue. That the appellant was referred to as DANIEL ITODO, which are his names as they appeared in the charge sheet and as JINGOLO in the reported utterances of the deceased's child did not create any doubt as to who is being referred to. The prosecution witnesses each knew the appellant in one way or the other before the day of the incident. PW3 on his own part even identified and referred to him before the trial court as JINGOLO. This piece of evidence was not controverted or debunked by cross-examination. It is therefore not in issue that the appellant goes by both DANIEL ITODO and JINGOLO. Both names obviously are borne by him.

Again there was no dispute with regards to the identification of the deceased person and the cause of her death. Exhibit D, which is the autopsy report and the evidence of PW7 (the pathologist) contain the fact of matchet cuts which in turn are consistent with the evidence of particularly the PW1, PW2, PW3 and PW5. In fact the said PW7 in clear terms as to the cause of the deceased's death testified thus:

"My findings include a very deep matchet wound at the back of the neck close to the skull. The weapon went deep to cut the second neck bone. The two arteries and bones supplying the neck bones on both sides were cut. There was massive bleeding and the entire blood virtually drawn out. The shock resulting there from led to death. I concluded that the cause of death is homicidal decapitation...."

Whether any or none of Exhibits A, B and C was a confessional statement of the appellant makes little or no difference to the proof of the guilt of the appellant. This is as a result of the nexus between the compelling and cogent circumstantial evidence adduced before the trial court by each of the seven witnesses who testified on behalf of the prosecution and which evidence touch unequivocally on the guilt of the appellant.

The result of all I have said thus far is that the prosecution, notwithstanding the absence of eye witness account was able to discharge the mandatory burden of proof beyond reasonable doubt. Issue two is therefore resolved in favour of the respondent and against the appellant.

This quickly leads me to issues 3 (three) and 4 (four) which I consider to be inter-related and which have been covered to a considerable extent under issue two.

I only need to reiterate that it is trite as can be found in a long line of cases that a misdirection occurs when the issues of facts in the case for the parties or the law applicable to the issue raised are not fairly appraised or considered or are misconceived or the applicable law is incorrectly applied by the trial court as a result of which there would be a miscarriage of justice if the decision reached is allowed to stand. See Jimoh Garuba vs. Isiaka Yahaya (2007) All FWLR (Pt. 357) 862 ratio 2; Prince Adebayo Sosanya vs. Engr. Adebayo Idowu Onadeko (2005) All FWLR (Pt. 225) 1000; and Oluyori Bottline Industry Ltd. vs. Union Bank of Nigeria Plc. & Anor. (2010) All FWLR (pt. 510) 786 at 793 ratio 2.

As noted earlier whether Exhibits A, B and C being the various statements made by the appellant are confessional or otherwise is immaterial. This is because it does not remove from the prosecution's case which standing on its own points unwaveringly to the guilt of the appellant. I hold the firm view that the learned trial Judge was correct when he found that the pieces of evidence as led by of the prosecution witnesses are neither hearsay nor are they based on suspicion.

Hence, the issue as to whether the trial Judge did not misdirect himself and came to a wrong conclusion on the facts given in evidence by the prosecution witnesses against the appellant is accordingly answered in the negative. The trial Judge did not in any way misdirect himself neither did he come to a wrong conclusion when he relied on the evidence of the prosecution witnesses as it were. Indeed his decision would have occasioned a substantial miscarriage of justice if it had been otherwise. Issue 3 (three) is accordingly resolved in favour of the respondent and against the appellant.

In the same vein I find and hold that the learned trial Judge properly evaluated the evidence before him and arrived at substantial justice in this case. Resulting from this is the court's resolution of issue 4 (four) also in favour of the respondent and against the appellant.

On the whole this appeal lacks merit and is accordingly dismissed. Consequently, the judgment of the Ondo State High Court, sitting at Ikare, Akoko delivered 4th June, 2008 in charge nos. HIK/1C/2003 wherein the appellant was convicted and sentenced to death by hanging is hereby affirmed.

SOTONYE DENTON WEST, J.C.A.:

I have had the privilege of reading in advance the lead judgment just delivered by my learned brother Cordelia Ifeoma Jombo-Ofo JCA. I agree with all the reasonings set out by him in the judgment. He has demonstrated his scholarship once again.

Nonetheless, I feel constrained by the sanctity of life and the global outcry against death sentence to reduce the sentence to life imprisonment. I am quite aware that the law does not give me any discretion in capital offence cases, but we are living a dynamic society and it only accords with reason that we move with the tide of time. The clamour for abolition of death sentence due to its inherent disadvantages is gaining much popularity. The recent decision of our apex court in a corruption case involving Chief Olabode George and others gave credence to this outcry for abolition of death sentence. See: Suit Nos. SC/180/2012 (per John Afolabi Fabiyi, JSC) and SC/217/2012 (per Kumai Bayang Akaahs, JSC). In that case, Chief George and his co-accused were convicted and sentenced to prison for corruption by Lagos State High Court. They were found innocent of the offence by the Supreme Court after they have completed serving their prison terms. Had same being sentence of death and they were hanged, apologies and regrets would not have brought them back to life. Human life would have been wasted unjustifiably. It is always better to err on the side of caution.

On the above note, I commute the sentence of death to life imprisonment. I abide by all other reasoning and conclusion reached in the lead judgment by my learned brother, Corderlia Ifeoma Jombo-Ofo, JCA.

MOJEED ADEKUNLE OWOADE, J.C.A.:

I read in draft the judgment delivered by my learned brother Cordelia Ifeoma Jombo - Ofo JCA. I agree with the reasoning and conclusion that the appeal lacks merit and ought to be dismissed. I also affirm the conviction and sentence of the appellant.

In addition, in ADEKOYA V. THE STATE (2012) 9 NWLR (part 1306) 539, it was held that it is not every discrepancy or contradiction or any form of inconsistency that will affect the substance of a criminal charge which has been proved with credible evidence. The contradiction or inconsistency which will upturn a decision must be of such magnitude that will go to the root of the evidence of a witness and must be fatal to the case of the party relying on it.

The submission of the appellant counsel that the name of the appellant has created discrepancy or confusion and urged the court to so hold, this submission cannot stand, because the appellant is well known as Daniel Itodo and/or Jingolo especially by PW5 who is the appellant master and PW2 who referred to him in open court as Jingolo. Assuming there is ambiguity in the name of the appellant, which there is not, does it amount to upturn the decision of the court, certainly not.

Furthermore, the decision of the court below was founded on circumstantial evidence, court that is solely relying on circumstantial evidence as basis of its decision must be cautious for the evidence though must be conclusive, but it must be narrowly examined. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there are no other co - existing circumstances which would weaken or destroy the inference.
The Supreme Court also held in Archibong v. State (2006) 14 NWLR (pt.1000) 349 that

"a conviction of murder may be secured upon circumstantial evidence, that is, the evidence which unequivocally points to one direction only that the accused person was the one who killed the deceased. It must be evidence that is cogent, complete, unequivocal, compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer".

The testimony of PW2 that appellant threatened to kill him, the evidence of PW5 who was the master or the appellant that the appellant came with cutlass and told him that he killed a human being and the medical report as to the cause of death of the deceased as well as the fact that no other death in that village or area was shown through evidence other than that of the deceased, when taken as whole formed clear circumstances that irresistibly, unequivocally lead to no other conclusion than the accused/appellant as the murderer.