Agbor Ele V. The State (2006)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

The appellant, Agbor Ele and 3 others namely, Sunday Irom Adam, Anthony Edim Inyang and Thompson Okira, were arraigned before the High Court of Cross River State sitting at Obubra, on a charge of murder of one Ekong Ebingha (M) an offence under Section 319(1) of the Criminal code, Cap 31, Laws of Cross River State of Nigeria.

At the trial seven witnesses testified for the prosecution. Sunday Irom Adam died in the course of the trial. At the close of the case for the prosecution Anthony Edim Inyang and Thompson Okira were discharged because there was no prima facie case made out against them. The trial continued against only the appellant. He entered into his defence and testified for himself but called no other witness. At the end of the trial, the trial Judge, Hon. Justice James U. Obasse in his judgment delivered on 30/7/96 found the appellant guilty of the offence of murder and convicted him accordingly. The appellant was sentenced to death.

Dissatisfied with the judgment of the trial court, the appellant appealed to this court on three grounds. The three grounds, shorn of their particulars are as follows:

“Ground1: The judgment of the learned trial Judge is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence before him.

Ground 2: The learned trial Judge misdirected himself in law by relying on the accused statement as confessional and convicting him on it.

Ground 3: The learned trial Judge erred in law when he found that the accused and his dead colleague were in agreement to kill.”

From the 3 grounds of appeal, the appellant distilled a lone issue for determination in his brief of argument dated on 14/6/04 and filed on 16/6/04.

The lone issue formulated is as follows:

“Whether the extra-judicial statements of the appellant can be said to be confession warranting his conviction based on the same without corroboration.”

The respondent in its brief of argument dated and filed on 15/4/05 adopted the brief of the appellant completely and conceded to the appeal.

The parties adopted and relied on their respective briefs before this court.

The appellant’s counsel, Mr. Joe Agi in his brief submitted that from the finding of the court there is no direct or circumstantial evidence against the appellant to warrant his conviction. He pointed out that the trial court relied heavily on Exhibits C and F, the extra-judicial statements of the appellant, which it considered as confessional in nature and based its conviction entirely on them. Counsel then submitted that there is nothing in Exhibits C and F to suggest that the appellant confessed to the murder of the deceased. He submitted also that the Exhibits C and F fall far short of confessional statements as they are not direct and positive. Relying on the case of Ihuebeka vs. The State (2000) 7 NWLR (Pt. 665) 404 at 428; R vs. Omokaro 7 WACA 146; Obosi vs. State (1965) NMLR 119 and Yesufu vs. State (1976) 6 SC 107, Mr. Agi submitted that in the absence of eye witness to corroborate the confessional statement, the conviction ought to be set aside.

He referred to Akinmoju vs. The State (2000) 6 NWLR (Pt. 662) 608 at 627 and submitted that where there are factors capable of two possible interpretation based on circumstantial evidence which are in favour of the accused then the guilt of the accused would not be proved beyond reasonable doubt. He then urged the court to hold that the appellant did not confess to the commission of the crime and allow the appeal.

The respondent’s counsel, Mr. Ikoi E. Ikona, Assistant Director of Civil Litigation, Ministry of Justice, Calabar, submitted that the learned trial Judge was clearly in error when he referred to the appellant’s extra-judicial statement to the police, Exhibits C and F, as confessional statements of the appellant while they were not confessional in any way. He also submitted that there is no cogent and credible evidence in the record of appeal linking the appellant with the murder of Ekong Ebingha to justify the appellant’s conviction by the trial court.

Ordinarily, the respondent having conceded to the appeal in so many words I should not bother to go into the record of appeal before concluding that there is merit in the appeal and allow it. However, it is very necessary and important that I carefully examine and consider the findings made by the trial Judge in the judgment delivered before concluding one way or the other. As the respondent has graciously adopted and relied on the appellant’s brief of argument and the lone issue formulated for determination, I have no option than to consider the appeal in the light of that issue.

In an offence of murder, the prosecution must prove beyond reasonable doubt all the elements of the offence namely:

(1) that a human being died;

(2) that the accused caused the death of the deceased by unlawful means; and

(3) that the act or omission of the accused that caused the death must have been intentional with knowledge that death or grievous bodily harm was its probable consequences.

See Igago vs. State (1999) 14 NWLR (Pt. 637) 1; Omini vs. State (1992) 12 NWLR (Pt. 630) 768 and Chiokore vs. State (2005) 5 NWLR (Pt.918) 424 at 446.

From the evidence of PWs 1, 3 and 7 it could be inferred that the prosecution has proved beyond reasonable doubt that the death of a human being has occurred. PW1 testified at page 49 of the record, that following the cry of PW3, he ran to the scene of the crime and saw the headless corpse of the deceased, Ekong Ebingha lying on the ground in his farm.

PW3, Mercy David Ebingha, the wife of the deceased, testified at page 49 – 51 that she ran to the scene of crime when she heard her husband’s cry.

She only met the headless corpse of the deceased on the farm. PW7, Dr. Edward Solomon Enya, a medical Doctor testified at pages 64 – 65 of the record that he performed a post mortem on a headless corpse of an adult male. After the examination he wrote a report which was tendered and admitted as Exh. H. The report indicated that the deceased died of severe hemorrhage. There is therefore no doubt whatsoever that one Ekong Ebingha is dead.

However, the proof of the other elements of the offence is another matter entirely and that is what is in contention in this appeal namely; who killed Ekong Ebingha on the 28/11/89. In a charge of murder the cause of death of the deceased must be established beyond reasonable doubt and it must also be established that it was the act of the accused person that caused the death of the deceased. The onus lies heavily on the prosecution to discharge this burden of proof.

In a criminal trial the offence charged can be proved either by direct evidence or by circumstantial evidence. In direct evidence, the existence of a thing or fact is proved either by its actual production, or by the testimony or admissible declaration by someone who has himself perceived it. By circumstantial evidence, which is sometimes called indirect or presumptive evidence, the existence of a fact or thing is logically inferred from other proved facts. See Ahmed VS. State (2001) 8 NSCQR 273 at 284 – 285.

Having carefully perused the record, I find that there is no eye witness to the murder or killing of the deceased. Not even PW3 who testified that she heard the cry of her husband and rushed to the scene, saw the killer or murderer of her husband. PW1 who responded to the cry of PW3 did not see anyone at the scene of crime. PW2 only testified that he heard that his deceased brother died. That is hearsay and inadmissible. PW4 is the brother of the appellant who took the police to his house in Port Harcourt where the appellant was arrested. The evidence of PWs 5 and 7 are unhelpful as to who killed the deceased. PW6 who arrested the appellant only recorded the statements of the appellant, to wit; Exhibits C and F.

There being no direct evidence resort must be had to circumstantial evidence. However, the circumstantial evidence sufficient to support a conviction in a criminal trial, especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer. See Morka vs. State (1998) 2 NWLR (Pt. 537) page 294; Ancha VS. State (1998) 2 NWLR (Pt. 537) page 246.

In Lori & Anor vs. The State (1980) 12 NSCC 269 at 272, Nnamani, JSC, said:

“But circumstantial evidence sufficient to support a conviction in a criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The fact must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.”

See Ahmed vs. State (supra) and Durwode vs. The State (2000) 4 NSCQR 33.

In this case on appeal, the learned trial Judge found that there is no direct evidence that the appellant killed the deceased and stated at page 83 of the record thus:

“By the evidence of the prosecution witnesses it can be safely concluded that there was no direct evidence to connect the accused person with the commission of the offence with which he is being charged. The circumstantial evidence as can be inferred from the testimonies of PWs 1, 3 and 5 is neither cogent or compelling enough to be pointing directly to the accused as a person or one of the persons who murdered the deceased.”

The learned trial Judge having found as above proceeded to consider and rely on the statements made by the appellant in Exhibits C and F on the ground that a person can be convicted for an offence by his own confession alone following Durrogo vs. The State (1992) 7 NWLR (Pt. 255) 525 where the Supreme Court held inter alia:

“The secret with which criminals perpetrate their crimes had tended to deprive the prosecution, in some cases, of eye witnesses.

Hence confessions alone even without corroboration can support a conviction so long as the court is satisfied of its truth.”

After reading through Exhibits C and F the learned trial Judge found that the statements are confessional. See page 84 lines 1 – 3 of the record where he said that:

“Apart from the accused person’s testimony in court on reading through the two statements of the accused that is Exhibits C and F respectively I agree with PW6 (the IPO) that these statements are confessional in nature.”

Whether or not a particular statement is a confession is an issue of fact. See Enweliku vs. State (1970) 1 All NLR 55. It behoves me therefore to examine Exhibits C and F critically in this judgment and I reproduce them below in extenso.

Exhibit c:

“On the 28/11/89 at about 3 pm that was the time that I and one Sunday Irom Adam (m) we went to farm to check our trapes (sic) in the bush. After checking the trapes, (sic) from there, we went to where I planted my tomatos. (sic) As I was there to watering my tomatos, (sic) Sunday Irom Adam left me and entered bush again, and he told me that, he is coming. After some time, Sunday Irom Adam came back from the bush and called me to follow him back to the bush. As person who we followed together to the farm, I followed him to the bush. As I follow him, I asked him where are we going? Also I told him that we have passed the boundary between Appiapum and Ofatura. He did not answered (sic) me, the next thing, he said to me that I should not worried. That he is the person who invited me to follow him to the bush. Sunday Irom Adam went and showned (sic) me the place where he kept a bag of yams.

From there, I asked him where did you get these yams? He answered me that, these yams, he harvested them from Adun man’s farm. There I asked him, is that why you called me to accompany you? Sunday Irom Adam reply (sic) me that “Yes” that he invited me to come and help him. Also I asked him again, who help you from where you harvest these yams? Sunday Irom Adam reply me that, he carried the a (sic) bag of yams by himself. Again, I asked him that, why did you not carried the yams direct to where I was, he reply me that, there’s another yams there. From there, I argue him that, I am not going back there again. Sunday Irom Adam tell me to follow him, that was the time he beg me to go back, that the place is not far again. I stood there for long and I told him that, if this business will lead me to trouble, I will not go again. Sunday Irom Adam reply (sic) me that, I should not be afraid of anything. We started to move, and reach at certain place, there we saw one man. Where the man was standing, it is where Sunday Irom Adam kept the stolen yams. Unknowing that, the man standing at the place was waiting for the person who kept the bag of yams. I, and Sunday Irom Adam we met the man, and the man asked us who are these people, when the man asked us, there I in person, reply him that, I am the person who set all these trapes (sic) in this Adun bush. After telling the man all these, I wanted to start moving, I heard behind me a called “James”. This call, was called by Adun man. As I turned back, I saw that, Sunday Irom Adam has matchet (sic) the Adun man on his neck and get hold on his neck together with the man’s dane gun. Upon the struggling, the man was struggling, I stood there for long and seeing Sunday Irom Adam with the man.

There I stood for long until the man finally die. As the man die, there I called Sunday, what did you do this? Sunday Irom Adam reply me that, I should not worried, that our Obam Society arranged that. The need human head to do something with it. Why is it that, if Obam society need such thing. Why is it that, you did not go and call the members of Obam society to follow you to do this kind thing? Sunday Irom Adam did not answered me anything, rather he beg me to help him to carry the man and hide that when it is night, he will go and invite all the Obam society to follow and carried the man to Obam base.

I disagree with Sunday Irom Adam that I will not carry this man, if he like let him kill me. I will not join to carry this man. The next action he did, he went and cut the man head and tied in the towel that the man carried together with the dane gun and went away with it. There I followed him, and reached where Sunday Irom Adam kept the bag of yams. That is where Sunday Irom Adam cannot be able to carried all what he has stolen, that is the bag of yams, human head and the dane gun.

There Sunday Irom Adam carried the dane gun iron to me to help him. I help him the dane gun iron, while Sunday Irom Adam carried a bag of yams and the human head along to home. On our way to home, I called him, and Sunday Irom Adam turned and look at me, he bring down, the things he carried both of sit down, and I asked him that Sunday Irom Adam you have kill me. Sunday Irom Adam reply me that I should not worried. I tell him that I am worried, that is human blood. I asked him to take back the dane gun, he refuse to take the dane gun from me. From there, Sunday Irom Adam remove his knife and gave me matchet cut on my left hand and he lick my blood and also I lick the blood. The meaning of licking the blood, mens (sic) that any thing come out like trouble, he will suffer the penaty (sic). There I told him that, let us go home. I carried the iron dane gun while he carried the bag of yams and human head we go home. When we get nearer (sic) to the village, we draped (sic) the items we carried, and Sunday Irom Adam intered (sic) in the nearby bush and hide the human head. I asked him, what of the dane gun? Sunday Irom Adam reply me that, I should go along with the iron dane gun to go and keep in my house. I took the dane gun home and kept it in my house. There I went to the village to check one of my relation (sic) by name Okey Ebeyom. When reaching I did not meet him. The following day, I repeat and I meet him and I told him that, what is happening in Appiapum, this is how it start.

Okey Ebeyom did not agree with me. There I ask him to follow me to my house I show him the iron dane gun. After showing him the gun, I handed over the gun to him as to meet the chiefs so that they should know what to do, because I am afraid.

From there he went with the iron dane gun.

On the 31st November 1989, the Chiefs invited Sunday Irom Adam to Chief Daniel Agbor Awassam’s palace. After Sunday Irom Adam came back from the Chief palace and asked me about the dane gun, I told him that I have handed over to one Okey Ebem. What Sunday Irom Adam reply me was that, I should remember that, that gun I handed over to Okey Ebem will lead me to trouble. I reply him that, whatever he want to do to me, let him do. From there was the last day we saw each others. I am not a member of Obam Society. God knows, I did not take my hand and matchet (sic) the Adun man, by the time Sunday Irom Adam got h old oft he man, Sunday Irom A dam has already matchet (sic) a serious cut on the man’s neck. So I was afraid tog et h old of Sunday Irom Adam. At the nearby bush, near the village, where Sunday Irom Adam branch to hide the human head, I knew where he branch, but I don’t know where Sunday Irom Adam hide the head, if police take me home, I will go and show where Sunday Irom Adam branch to hide human head. What make me to go away from Appiapum is because of the trouble. I left to my senior brother, Egbe Ele at Port Harcourt to go and tell him what happen at home with me. I did not run away, rather I go to Port Harcourt to inform my brother what happen at home. By the time and day, this trouble happened, I did not reported to the chiefs, because I am afraid. That was on the 28 – 11 – 89. It is true that, by day and time, Sunday Irom Adam kill the Adun man, I was presence not that, the told me. I was there. I was the person who cut the stick to use it to check the ant hill whether there’s animals (sic) inside. I did not use it and beat the man, if the police like to carried (sic) it to anywhere, let them do so. I did not use it and beat the man. By the time and day, Sunday Irom Adam killed the man, we were two of us, no other person was there. Anthony Edim Ijang was not among us when Sunday Irom Adam killed the man. Anthony Edim Ijang was at Onyen- Okpon. He knew nothing about this trouble. Also Thompson Okina was not among us, but Sunday Irom Adam only inform him as the chief of Obam Society, what he did in the bush. All those people arrested by the police, none of them were among us in the bush to killed (sic) the man. That is all I know.

Sgned: Agbor Ele.”

Exhibit F:

“After I and Sunday Irom Adam have returned from the bush that 28/11/89. I went to Okey Ebey on the 29/11/89 by 7 pm in the evening I could not get him in the house, that day I did not carry the dane gun. on 30/11/89 by 6 pm in the evening I went to Okey Ebey house alone and met him. I told him that if he can check very well, he will see that there is trouble in the village -Appiapum. I told Okey Ebey that what I saw, I could not say it to any other person apart from himself only. I told him to help me, then Okey Ebey asked me whether I am in need of money. I told him no. Then I told him that this trouble going on in the village I and Sunday Irom Adam went to the bush. Sunday Irom Adam kill one Adun man, seize his gun and handed it over to me, to go home with. As I as told him there things, Okey Ebey said he will not believe until he see the gun. Then I told him that the gun is in my house. Okey Ebey told me to go, that he will b e coming. That 30/11/89 Okey Ebey came to my house around seven O’clock in the evening (7 pm) I showed Okey Ebey this gun and told him that I am not happy about the act that Sunday Irom Adam did. I told him that what made me to give him this gun is that he is one of the people who used to settle case at chief palace and that he should go with the gun to chief palace and explain to the chief, about what I have said. I gave Okey Ebey this dane gun in the presence of my brother’s wife “Maria Egbe” who was present in the house that day. Then Okey Ebey went away with the dane gun. Why I gave Okey Ebey this dane gun is that he is my senior brother because Okey Ebey is brother to my mother.

I left Appiapum on 2/12/89 and traveled to Port Harcourt, so that I may inform to my brother Egbe Ele of about what has happened me at Appiapum.

If Okey Ebey is denying that I did not give him the gun on that 30/11/89, my neighbour Mr. Okpa was present in the house that day. After giving Okey Ebey the gun, he went outside and kept the gun on the grass, then Okey Ebey entered the house again and greeted my brother’s wife asking her about the health of the children. At that time I saw that Mr. Oguni Okpa used his touch (sic) light to inspect the place Okey Ebey kept the gun on the grass that evening. I was afraid to report to the police at Appiapum, alone that’s why I reported to Okey Ebey so that he would report to the chief After signing the paper in 1984 to maintain peace. I have been going to Okey Ebey house, my grand mother is living in his house uptil today. Even this year 1989 Okey Ebey had promised to introduce me sand Diggers Union sot hat I could follow the people to dig sand from the river at Appiapum. It is only this trouble that has come to disturb that arrangement.

Agbor Ele

27-12- 89

Signature of suspect. ”

After painstakingly perusing Exhibits C and F, I find it difficult to see how they can be considered by any court to be confessional statements. A confession is defined in Section 27(1) of the Evidence Act, 1990. It provides:

“A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

See Olalekan vs. The State 8 NSCQR 207 at 230 and Saidu vs. State (1982) 4 SC 41.

In Black’s Law Dictionary (with pronunciations) Sixth Edition, Confession is defined at page 296 as –

“1. A voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offences charged and disclosed the circumstances of the act or the share and participation which he had in it.

2. A statement made by a defendant disclosing his guilt of crime with which he is charged and excluding possibility of a reasonable inference to the contrary.
3. Voluntary statement made by one who is a defendant in criminal trial at time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting crime for which he is on trial; a statement which if true discloses his guilt of that crime.”

The above definition was considered in Chiokore vs. State (supra).

Again in Ihuebeka v s. The State (2000) 2 SCNQR 1 86, Kalgo, J SC, at pages 198 – 199 referred to Osborne’s Concise Law Dictionary, Sixth Edition page 87 where Confession is defined as –

“An admission of guilt made to another by a person charged with a crime………………………..”

From the above definition it is clear that a confession is an admission of guilt and a confessional statement is simply a statement of an accused person charged with a criminal offence which is a confession. See Ihuebeka vs. The State (supra).

Exhibits C and F did not contain any admission of guilt by the appellant. Rather, the appellant denied killing the deceased. He testified clearly that the deceased was killed by Sunday Irom Adam and he had nothing to do with it. The appellant consistently denied being the one who killed the deceased. The appellant in Exh. C stated thus:

“As I turned back, I saw that Sunday Irom Adam has matchet (sic) the Adim man on his neck and get held of his neck together with the man’s dane gun As the man die (sic) there I called Sunday, what did you do this? .

God knows I did not take my hand and matchet the Adim man by the time Sunday lrom Adam got hold of the man, Sunday Irom Adam has already matchet (sic) a serious cut on the man’s neck. So I was afraid to get hold of Sunday Irom Adam ”

It beats my imagination how the above statement could be taken or considered as an admission of guilt or stating or suggesting the inference that the appellant killed the deceased. A confessional statement is admissible as the basis for conviction if it is direct and positive and properly made in law. See Yesufu vs. State (1976) 6 SC 167. In Afolabi vs. COP (1961) 1 All NLR 654, the Supreme Court held that:

“A confession must be direct and positive to support the conviction of the accused person. It must be consistent with other facts which have been ascertained and proved before the trial Court.”

Exhibits C and F are not direct and positive and they are not confessional at all. Moreover, the trial Judge did not even apply the tests relating to a confessional statement. He relied on the case of Durrogo vs. State (supra) and simply concluded that he could convict the appellant on the basis of the statements made in Exhibits C and F without more ado. In Udo vs. State (1972) 8 – 9 SC 234, the Supreme Court stated the test of the confessional statement as follows:

“(a) Whether there is anything outside the confession to show that it is true;

(b) Whether it is corroborated;

(c) Whether the statements of fact made in the confession are true as far as they can be tested;

(d) Whether the accused is one who has the opportunity of committing the crime;

(e) Whether the confession is possible; and

(f) Whether the confession is consistent with other proved and ascertained facts.”

Apparently, the trial Judge did not advert his mind to the above. He did not consider whether Exhibits C and F contain admission of guilt or whether it stated or suggested the inference that the appellant killed the deceased. He did not consider whether the statements are direct and positive.

Although, the confession of an accused person alone is enough to convict him, it is always desirable to look for independent corroborative evidence however slight. See Kopa vs. State (1971) 1 All NLR 150; R vs. Kanu 14 WACA 30; Obosi vs. State (1965) NMLR 119 and Udediba vs. State.

However, in this case Exhibits C and F are not confessional statements.

The trial Judge rather than consider Exhibits C and F in the light of the above tests went on a frolic of his own to arrive at the conclusion that the appellant was a party to the unlawful killing of the deceased. At page 84 of the record the trial Judge after quoting from Exh. C said:

“The accused even during cross-examination told the court that he saw the Adim man was murdered but that he was afraid to raise any alarm in the bush because he was not protected. It is surprising that the accused failed to report of the incident as soon as he found himself out of the scene. It is my belief that it was not because he was afraid that he failed to report the incident either to the police or the Chief in the village. He had an occasion to disagree with his partner in the bush and yet nothing happened to him. In Exhibit C the accused had stated thus “I disagree with Sunday Irom Adam that I will not carry this man, if he likes let him kill me. I will not join to carry this man. If the accused by the above statement was not afraid to challenge his friend in the bush I see no justification of his being afraid to report at the earliest opportunity to either the police or the Chief of the village. My belief is that he refused to report because he was a party to the unlawful killing of the deceased.”

It is obvious that the learned trial Judge relied on mere conjecture and speculation in arriving at the conclusion that the appellant was a party to the unlawful killing of the deceased. There is no evidence whatsoever to support the finding of the trial Judge. The belief of the judge is not evidence.

He should have kept his belief to himself and concentrated on the evidence which was before him. A Judge should only rely on credible and admissible evidence and not to rely on his own belief. If at all he has to rely on his belief then such belief should be based on his deduction from cogent, compelling, credible and admissible evidence before the court. In Bozin vs. State (1985) 2 NWLR (Pt. 8) 465, the Supreme Court said thus:

“There is neither magic nor sanctity in the words and expression I believe or I am satisfied and they should not therefore be used as a sanctuary. Belief and satisfaction should represent the courts reaction towards facts and possibilities and probabilities based on those facts.”

I could not agree more with the above ratio which aptly and succinctly illustrate the point being made.

Moreover, there is no evidence in the record to contradict what the appellant said in Exhibits C and F. Most of the findings of the trial Judge were based on mere conjecture and speculation without any evidence in support. For instance at page 85, the trial Judge stated:

“Even though both the accused and his dead partner, Sunday Irom Adam might not have agreed initially in the house to kill the deceased, they must have agreed to do so as soon as they saw him in order to have free access to steal the deceased’s yams…………………………………………………….. It is my belief too that the accused and Sunday Irom Adam were the only people who killed the deceased…………………… It is my belief as well that but for the fact that his partner, Sunday Irom Adam mentioned the name of the accused to PW6 as being among those who murdered the deceased, the accused could have continued to hide the fact of that brutal killing………………I do not believe the accused that he did not take part in killing the deceased………………………”

[Underlining mine]

It is observable that all the findings and conclusions of the trial Judge in the above quotation were based on his belief without any supporting evidence in the record. Conjecture cannot be a substitute for credible and admissible evidence particularly in a serious case such as murder. The Court also relied on hearsay evidence. The fact that PW6 said the deceased Sunday Irom Adam told him that the appellant was among those who murdered the deceased is hearsay because it was said in the absence of the appellant. Moreover, from the statement of the appellant it was only Sunday Irom Adam and himself who were at the scene so the question of the appellant being among those who murdered the deceased is irreconcilable with the facts of the case.

It is well settled principle of law of evidence that in an account which a party gives of a transaction the whole must be taken together. An admission of a fact disadvantageous to the accused cannot be admitted without admitting his contemporaneous assertion of fact favourable to him. A court should believe the account given by an accused wholly or not. It is palpably wrong for a court, as was done in this case, to accept part of the statement of the appellant which is not favourable to him and reject the part favourable to the accused person. Where a confessional statement contains both inculpatory and exculpatory statements, it is the duty of the trial Judge, in finding the truth of the matter to consider the whole statement together. See Saidu vs. The State (1982) 4 SC 41 and Queen vs. Itule (1961) 1 All NLR 462.

The learned trial Judge also came to the conclusion that the appellant acted in concert with Sunday Irom Adam. It is unbelievable how his Lordship came to that conclusion at page 85 of the record. The relevant portion of the judgment is as follows:

“I do not believe the accused that he did not take part in killing the deceased. It did not matter that he was not the person who cut the deceased as stated by him in Exh. C thus “God know, I did not take my hand and matchet the Adun man, Sunday Irom Adam has already matchet a serious cut on the man’s neck”. Rather it is my belief that the accused and the Sunday Irom Adam who is now dead formed a common intention to kill the deceased the moment they found the deceased keeping vigil over his yams. And so it would not matter whether the unlawful killing was done by the accused or by his dead partner, Sunday Irom Adam as the accused wants this Court to believe. The accused acted in concert to kill the deceased, Ekong Ebingha.” [Underlining mine]

There is no witness who testified before the court that the appellant and the said Sunday Irom Adam acted in concert. There is no such evidence in either Exh. C or in Exh. F. There is no evidence, facts or circumstances from the record from which it can be inferred that there was a common intention. The provisions of Section 8 of the Criminal Code becomes relevant at this juncture and it provides as follows:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

To render two or more persons liable for murder by virtue of the provisions of Section 8 of the Criminal Code there must be evidence of the three elements that constitute the offence under the section:

“(a) There must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose, together;

(b) In furtherance of the execution of the unlawful purpose, a person was killed in circumstances amounting to murder; and

(c) That the death of that person was a probable consequence of the prosecution of the unlawful purpose.”

See Ogbali vs. State (1983) 1 SCNLR 161.

Although common intention may be inferred from circumstances disclosed in the evidence and need not be by express agreement, a presumption of a common intention should not be too readily applied. The proof of common intention is a condition precedent to conviction. See R vs. Ogu Ofor & Anor. 15 WACA 4.

In this instant case on appeal there is no scintilla of evidence of any common intention for the prosecution of an unlawful purpose between the appellant and Sunday Irom Adam and that the killing of the deceased was done in the prosecution of such unlawful purpose or that the killing was the probable consequence of the prosecution of such purpose. The appellant gave a detailed and vivid description of why he followed Sunday Irom Adam to the bush on the day material to the charge. The appellant stated in Exh. C that himself and Sunday Irom Adam went to farm to check their traps in the bush. Whatever Sunday Irom Adam did later in the bush was not as a result of their common intention. From the beginning there was no common intention to commit any offence. Neither theft nor murder was contemplated. Moreover, the appellant voiced out his resentment about what Sunday Irom Adam did and he refused to help him to conceal the body of the deceased. The appellant by his reaction expressly dissociated himself from the act of Sunday Irom Adam, therefore he cannot be guilty of common intention. See Queen vs. Onuegbe (1955) 2 FSC 10 and Akanni vs. Queen (1959) WNLR 153. The mere presence of the appellant at the scene of crime did not amount to forming a common intention to commit the crime which was committed by Sunday Irom Adam. See Enweonye & 2 Ors. vs. The Queen 14 WACA 1. Apart from the belief of the trial Judge which is mere conjecture there is no evidence of any common intention in the record.

Law should only be applied to facts of a case, it is not for the court to manufacture such facts or move from law backwards to facts on the pre of justice. It is such facts that comes first and then the application of law. See Transbridge Co. Ltd. vs. Survey International (1986) 4 NWLR (Pt. 37) 576 at 578. Also, in Ikenye & Anor. vs. Ofine & Ors. (1986) 1 QLRN 209, Supreme Court held thus:

“It was not the function of the trial Judge by his own exercise and ingenuity to supply the evidence or carry out the mathematics of arriving at an answer, which only evidence tested under cross-examination could supply.”

It flows from the above that rather than base his findings on the evidence before it, the trial Judge relied on his belief, conjecture and speculation. It is my considered view that there is no evidence whatsoever of any common intention. Therefore, Section 8 of the Criminal Code is inapplicable in this case on appeal.

Again, the learned trial Judge made a finding that the appellant did not report the matter to the police or the Chief of their village. He concluded thus:

“My belief is that he (the appellant) refused to report because he was a party to the unlawful killing of the deceased.”

At this juncture the judgment of the court below can be justifiably described as a catalogue of beliefs and disbeliefs without cogent, compelling credible and admissible evidence. It is rather unfortunate that the learned trial Judge in a murder trial could simply rely on his belief to convict the appellant. Proof in criminal trial is beyond reasonable doubt and not on the belief of the trial Judge. The burden of proof is on the prosecution and not on the trial Judge.

Furthermore, it appears that the trial Judge conveniently forgot that the appellant stated that he immediately reported the matter to one Okey Ebem who he said should report the matter to the Chief of the village. He explained in Exh. F, that he reported to Okey Ebem because he is one of the person who settle cases at the Chief’s palace. He also gave the said Okey Ebem the gun (handed over to him by Sunday Irom Adam) and asked him to take it to the chief and inform him about what happened. For undisclosed reasons the police apparently did not investigate the claim of the appellant and the prosecution did not consider it necessary to call the said Okey Ebem as a witness to testify. Not having investigated the claim of the appellant and there being no evidence to challenge or contradict it, the appellant’s claim ought to be accepted.

The appellant also stated that he went to Port Harcourt so that he may inform his brother, Egbe Ele (PW4) about what happened. It is important to note that it was this very same PW4 that reported the matter to the police.

He also took the police to his house in Port Harcourt where the appellant was eventually arrested. The evidence of PW4 is at pages 56 – 57 of the record. That being the case the finding of the Court that it was Sunday Irom Adam that informed the police about the involvement of the appellant in the commission of the crime, is not only hearsay but untrue. The finding of the trial Judge is thus erroneous, speculative and it has led to a serious miscarriage of justice. The conclusion I reach therefore is that there is no scintilla or iota of evidence linking the appellant with the killing of the deceased.

Before concluding this judgment, I feel obliged to point out a strange twist in the case of the prosecution before the court below. PW3, Mercy David, the wife of the deceased, testified that on that fateful day she heard her husband shout: “Mercy, Anthony has killed me”. That piece of evidence is in conflict with the evidence of the appellant that it was Sunday Irom Adam who killed the deceased. Inconsistencies or contradictions in the evidence of the prosecution are fatal if they are material and they are material if they are likely to create doubt in the mind of the court. See Gabriel vs. State (1989) 5 NWLR (Pt. 122) 457; Ejigbadero vs. State (1978) 9 – 10 SC 81 and Atanu vs. A-G, Bendel State (1988) 2 NWLR (Pt. 75) 201. The prosecution proffered no explanation for the apparent material contradiction.

The trial Judge did not advert to the contradiction and he did not resolve same in his judgment.

Any contradiction or inconsistency in the prosecution’s case as to who murdered the deceased person is very serious, very material and likely to create doubt in the mind of the court. Naturally, if there are two versions as to who killed the deceased it is unsafe to convict the person accused.

Where there is inconsistency in the prosecution’s case is such as to cast doubt on the guilt of the accused, the accused should be given the benefit of doubt and he should be discharged and acquitted. See Nwaeze vs. State (1996) 2 NWLR (Pt. 428) 1 at 11. From the foregoing the conclusion I reach is that there is substantial merit in this appeal and it ought to be allowed.

Accordingly, this appeal is hereby allowed. The conviction and sentence of the appellant by the judgment of the High Court of Cross River State sitting at Obubra in Charge No. HB/16C/91 delivered on 30th July, 1996 are hereby set aside. The appellant is hereby discharged and acquitted.

Appeal allowed.

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Other Citations: (2006)LCN/2151(CA)