Akpan Ben Akpan V The State (2012)

LAWGLOBAL HUB Lead Judgment Report

A.G.KARIBI-WHYTE, JSC.

On the 11th May, 2000, the Court of Appeal, Calabar Division dismissed the appeal of the Appellant against his conviction on the 24th June, 1999 for murder by the Akwa-Ibom High Court sitting at Eket. Appellant dissatisfied has further appealed to this Court. Appellant with Regina Ukpong were arraigned before Udofia, J. sitting at the Eket High Court for the offences of murder contrary to section 316(1), and punishable under section 319(1) of the Criminal Code, and as accessory after the facts of murder under section 322 of the Criminal Code respectively. Both accused persons pleaded not guilty to the indictment. After trial, in which the prosecution called seven witnesses, the accused persons, gave evidence on their own behalf and called no witnesses. The learned trial Judge held that the charge against the 2nd accused having not been proved acquitted the 2nd accused. The 1st accused was convicted and sentenced to death. The facts in support of the charge are that Appellant was on the night of the 1st October, 1987 at a Disco dance at Udokop Mansion Guest House Abat in Onna Local Government Area.

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Also at the dance were the deceased, PW2, PW3, PW4. The deceased invited and was accompanied by PW3 to the dance. While PW2 was dancing with PW4, appellant requested to dance with PW4. PW2 obliged and left the dance hall. When Appellant approached PW3, for a dance, she referred him to the deceased for permission. The deceased did not give PW3 permission and asked appellant to look for someone else. This resulted in a quarrel between the Appellant and the deceased. Appellant threatened and vowed that he would kill the deceased that night, and that he should not be called ‘one one’ any more if he did not do so. PW3, then advised the deceased that they should go home to avoid trouble. The Deceased agreed. The deceased in front of PW3, PW2 and PW 4 started going out of the Dance Hall in that order. According to the evidence of PW3, as they were going; they saw Appellant run past them, and caught up with the deceased. They also saw him running away from the deceased. When they arrived at the scene they found the deceased on the ground in a pool of blood, dead. In his own defence, Appellant admitted attending the Disco dance on the 1st October 1987, and that he met PW2, PW3 PW4 and the deceased. He admitted also dancing with PW3. It was after he danced with PW3 a second time that the deceased confronted him as to why Appellant should dance with PW3 a second time.According to Appellant, he left PW3 and went outside to ease himself, whilst outside he saw the deceased, PW2 and others unknown to him come out of the dance hall. He said that the deceased slapped him and a fight ensued between them. During the fight the deceased brought out a dagger threatening to use it on Appellant. In the attempt by Appellant to disarm the deceased, both or them fell down resulting in the deceased being wounded by the dagger. Appellant made two extra judicial statements to the police. Exhibit A- A1 dated 4/10/87 and Exhibit B-B1 dated 14/10/87. In Exhibit A-A1, Appellant did not admit stabbing the deceased. In Exhibit B – B1, he admitted stabbing the deceased. The second accused in her own defence stated that on 4/10/87 appellant who she had never seen before ran into her house and bolted the door from behind as he was being pursued by a group of persons. The persons pursuing appellant later returned with a Policeman who forced the door of the 2nd accused where appellant was hiding open and arrested the appellant. As I stated earlier, the second appellant was acquitted and discharged on the charge of being an accessory after the fact of the murder of the deceased. Appellant was convicted and sentenced to death for murder on the first count. Appellants appeal against his conviction for murder and sentence to death to the Court of Appeal was dismissed by the Court of Appeal. He has further appealed to this Court on three grounds of appeal alleging errors of law in excluding the statements of the accused, accepting motive of the accused as admissible evidence and fixing the guilt of the appellant on the circumstantial evidence of PW2, PW3 and PW 4. Learned Counsel for the Appellant has formulated only two issues as arising form the grounds of appeal. These issues have been adopted also by learned counsel for the Respondent.

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The two issues are as follows:- (1) Whether the learned Justices of the Court below were right in treating Exhibit B, B1 as a confessional statement and using the same to affirm the conviction of the Appellant. (Ground 1) (2) Whether the learned Justices of the court below were right in holding that the circumstantial evidence of PW2, PW3 and PW4 was direct and compelling as to unequivocally and irresistibly fix the appellant with a motive to kill the deceased.’ (Grounds 2 and 3) I shall now consider the submissions of learned counsel on the issues for determination. Issue 1 which relates to the first ground of appeal challenges the treatment of Exhibit B – B1 as a confessional statement and relying on it to affirm the conviction of the appellant. Learned Counsel submitted that in Exhibit A-A1 a previous extra judicial statement made on the 4th October 1987 appellant admitted there was a fight between some one else and the deceased in which Appellant joined; In this statement Appellant stated that Kobina held the deceased who held a knife from behind. During the struggle for the knife, the knife stabbed the deceased near his belly, and he fell down on the ground. He stated that he fought with deceased alone and it was he who stabbed the deceased; but that he did not do so voluntarily. Similarly in Exhibit B made on the 14th October, 1987, Appellant admitted fighting with the deceased alone and that no other person was involved. He admitted stabbing the deceased with knife which he had thrown away. Leaned Counsel referred to Archbolds Pleading, Evidence and Practice in Criminal Cases 35th Edition para. 1104 as to when extra judicial confession is made. He cited section 27(1) Evidence Act Cap. 112 LFN, 1990 as to the definition of ‘Confession.’ It was the submission of learned counsel that a confession to support a conviction must not only be direct and positive, a trial court has to be satisfied of the truth of the admission made by an accused person before basing a conviction on it,- Afolabi v. C.O.P. (1961) All NLR (Pt.4) 654; Dr. Koiki v. The State (1976) 4 SC. 107 were cited and relied upon. It was submitted citing Jimoh Yusufu v. The state (1976) 6 SC. 167; Nwaebonyi v. The State (1994) 5 NWLR (Pt.343) 138; Akinmoju v. State (2000) 6 NWLR (Pt.662)608 at 630; lhuebeka v. The State (2000) 7 NWLR (Pt. 665) 404;(2000)4 S.C.(Pt.1)203 that a confessional statement, if it is positive and direct and satisfactorily proved, is sufficient to sustain a conviction without any corroborative evidence. The trial Judge having found that there were inconsistencies between the two statements of the Appellant to the Police, and his testimony in court, held that these discrepancies in his description of the incident rendered his evidence unreliable.

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He therefore as against the evidence of PW2, PW3 and PW 4 as to the incident preferred their evidence. Learned counsel to the Appellant submitted that this approach indicated that the learned trial Judge did not regard the evidence of the Appellant in Exhibit B – B1 as a confessional statement. It was submitted that the learned trial Judge did not believe the truth of the said confession because it was not direct and positive. He regarded the statement as some admission to the Police and from his evidence in court and not a positive confession to the commission of the crime. Learned Counsel for the Appellant accordingly submitted that there was no confession on admission of murder in Exhibit B1 within the meaning of section 27(1) of the Evidence Act. He argued that it is only where there is a direct and positive confession that the trial court has a duty to test the truth of such confession by examining it in the light of the other credible evidence before the court see Akinmoju v. The State (2000)4 S.C.(Pt.1)1;(2000) 6 NWLR (Pt.662) 608 at P. 630. Learned Counsel criticised the judgment of the Court below on this issue for holding that the finding of the learned trial Judge was predicated on the inconsistency rule of the admission of the evidence of witnesses. He referred to the decision in Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383 where this Court held that inconsistency did not apply to retracted extra-judicial confession of an accused person. Learned Counsel distinguished Egboghonome v. The State from the instant case. In Egboghonome v. The State there was a direct positive confession to the murder of the deceased. In the instance case the statement Exhibit B1 is equivocal, neither positive nor direct, and not a confessional statement strictu sensu because it at once denies and admits that Appellant stabbed the deceased. Again the confessional statement was not attested to by a Senior Police Officer. In the Egboghonome v. The State the learned trial Judge was satisfied with and acted on the confession. In the instant case the learned trial Judge was not so satisfied with Exhibit B-B1 and correctly disregarded it, the court below, it was submitted was wrong to rely Exhibit B 1 in affirming the conviction of the appellant when the learned trial Judge neither believed nor relied on it. In answer to the submissions of learned counsel to the Appellant, learned counsel to the Respondent submitted that it is common ground that the deceased was stabbed to death. The issue is who stabbed him to death and whether Exhibit B-B1 could properly be regarded as a confession to the issue. It was submitted that the court below referred to Exhibit B-B 1 where Appellant admitted he alone fought with the deceased and that he stabbed the deceased. Learned Counsel submitted that the Court below properly considered the evidence of the Appellant in Exhibit B-B1 having regard to the decision in Egboghonome v. The State (supra) which overruled the application of the inconsistency rule in the cases of the defence. Counsel relied on Bature v. The State (1994) 1 SCNJ 19 at p. 21 that an extra judicial confession which is positive and direct and has been proved to have been made voluntarily it will suffice to ground a finding of guilt. The fact that the maker had resiled from or retracted altogether from the statement at the trial, will not render the statement inadmissible. Learned Counsel urged on us to answer the first issue positively and to dismiss the appeal on this ground.

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The second issue relates to the conviction of the accused based on circumstantial evidence of PW2, PW3 and PW 4. This was the finding of the learned trial Judge and affirmed by the court below. Relying on the evidence of PW2, PW3 and PW 4. the Court of Appeal concluded that Appellant was not only at or within the vicinity of the scene of crime, but that he also had the motive to commit murder, which could be inferred from his declaration to kill the deceased when the latter did not allow him dance with PW3. Learned Counsel for the Appellant has criticised the finding that the evidence of PW2, PW3 and PW4 relied upon for the conviction of the Appellant are not circumstantially cogent and compelling as to come to the conclusion that no other rational hypothesis can explain how the deceased came to his death. It was submitted that there are other compelling inferences which can be drawn from the disputed facts in this case which displace the only inference drawn by the Court below. In disputing the inference drawn from the evidence of PW2, PW3 and PW 4, Learned Counsel to the appellant submitted that Appellant was not the only person at the scene of crime at all times material to the murder of the deceased. PW2 testified that there were many people there. He raised so many queries such as who were these people and what were they doing there? Why did not any of them make statement to the police or testify in court as to what happened at the scene? Why did PW2, PW3, PW4, not raise alarm if it is Appellant who stabbed the deceased? Or why did they not pursue Appellant when he ran passed them? PW2, PW3 and PW 4 are either related to each other or to the deceased to make them interested persons whose evidence required corroboration. It was submitted that neither the court below nor the trial court adverted to this fact and to the need to warn themselves that the evidence of PW2, PW3 and PW 4 who are not eye witnesses was to be treated with caution. Learned Counsel to the Appellant submitted that there was no evidence of motive on the part of the Appellant to murder the deceased as alluded to by the court below. Appellant and the deceased met for the first time on the 1st October, 1987 and at the Dance Hall.There was no previous quarrel between them. In his reply to the submissions of Learned Counsel to the Appellant, Learned Counsel to the Respondent submitted that it was not necessary to call more witnesses for the prosecution than was called, since in law, a single witness if believed is sufficient to establish the guilt of the accused – See Okonofua v. The State (1981) Vol.12 NSCC 233. The unchallenged evidence of the prosecution witnesses which was believed by the trial court was sufficient for the conviction of the Appellant; and affirmed by the court below. It is not correct that Appellant was not pursued at the scene of crime on the night of its commission on the 1st October, 1987. The evidence of the 2nd accused Regina Ukpong at the trial gave evidence how Appellant was pursued to her house and how those pursuing subsequently came with a Policeman and arrested the Appellant. I agree entirely with the submission of Counsel to the Respondent. On the submission that PW2, PW3 and PW 4 were interested persons whose evidence required corroboration and warning, it was argued that relationship by blood per se is not sufficient to disqualify the evidence of a witness – See Oguonzee v. The State (1998) 5 NWLR (Pt.551) 521. This is a correct proposition of law, and the learned trial Judge was right in the evaluation of the evidence.

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Learned Counsel for the Respondent submitted that the circumstantial evidence relied upon by the court below to affirm the conviction and sentence against the appellant possessed the ‘legal qualities.’ These are unchallenged facts believed by the learned trial Judge and affinned by the court below. (i) The earlier threat by Appellant to the life of the deceased. (ii) The running up to the deceased by Appellant to the notice of PW3 and PW 4. (iii) The holding up of the deceased by PW3 and Appellant to the notice of PW3 and PW 4. (iv) The subsequent shouting of ‘one one’ (referring to the Appellant) has killed somebody. (v) The deceased seen lying in the pool of his blood. These are concurrent findings in the two courts below.Appellant has not sought and obtained leave of the court to appeal against these concurrent findings of facts. No arguments can therefore be addressed in respect of these issues. Furthermore these were not issues in the court below and they are not findings of that court. Learned Counsel for the Respondent concluded that the evidence of the prosecution witnesses established that 1. The deceased died from a stab wound from a dagger 2. That the unchallenged evidence of PW2, PW3 and PW 4 affixed the Appellant with the commission of the crime. Appellant admitted stabbing the deceased to death with a dagger in Exhibit B1. 3. Appellant had threatened to kill the deceased that night and he sworn to do so. This suggests motive as required by section 16 of the Evidence Act Cap. 112 Laws of the Federation 1990. In law intent can be proved by the declaration of the accused – See Bakare v. The State (1986) 1 NSCC 261 at 275. It was submitted that appellant did not challenge the evidence of the prosecution witnesses. The presentation of the accused side of the story in his defence cannot in law be said to be a challenge to the facts alleged by the prosecution – see Patrick Oforlete v. The State (2000) 12 NWLR (pt. 681) 412, (2000) FWLR (Pt. 12)2081 at 2084. The appeal should be dismissed. Learned Counsel for the Respondent submitted that the issues of defences raised in Appellants brief of argument were neither canvassed in the Courts below nor are they related to any of the issues for determination formulated on from the grounds of appeal in the Appellants brief of argument. The Court was urged to discountenance the submissions.

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It was submitted that the defences of selfdefence and provocation raised, are not open to the Appellant because on the finding of fact by the learned trial Judge and affirmed by the court below, it was Appellant that had the dagger, and stabbed the deceased to death when the deceased was not proportionally armed. Finally, it was submitted that the proven circumstances as enumerated positively, irresistibly and conclusively affix the Appellant as required by section 137 of the Evidence Act Cap.112 Laws of the Federation, 1990. The above summarises the submissions of learned Counsel in their briefs of argument in this appeal. I shall now consider the contentions of Learned Counsel in the light of the issues formulated from the grounds of appeal. The issues formulated must be based on the grounds of appeal filed. Accordingly any argument which is not founded on the grounds of Appeal, from which the issues for determination have been formulated is not a matter arising from the grounds of appeal. The Court is only obliged to consider challenges to the judgment based on the alleged errors of law or misdirection of facts. In the absence of such complaints the court is not entitled to consider issues not subject matter of dispute. Learned Counsel to the Respondent is therefore correct in the submission that the issues of the defences raised which are not contained in the formulation of the two issues for determination before us which are the determination of the propriety of Exhibit B-B1. Bias a confessional statement, and relying on circumstantial evidence for the conviction of the Appellant. Consideration of any defences were not raised as issues, I therefore will not consider the Issue. I now turn to the issues properly formulated from the grounds of appeal. It is necessary to observe that the essential facts of the case of the prosecution against the Appellant, remain undisputed in several respects. These essential aspects are the circumstances and the facts leading to the death of the deceased by stabbing with a dagger on the night of the 1st October, 1987. Concisely stated, shorn of embellishment and subjective interpretation of learned Counsel to the Appellant of the circumstances leading to the death of the deceased, the facts stated simply are as follows – Appellant, the deceased, PW2, PW3 and PW 4, met at a dance hall at Udokon Mansion Guest House at Abat in Eket. The deceased was accompanied to the Disco dance by PW2, PW3 and PW4. There were disagreement when appellant asked PW3 for a dance, after PW3 referred appellant to seek permission from the deceased who brought her to the dance. The deceased did not grant the permission and a quarrel arose between them. Appellant issued threats of fatal consequences to the deceased. PW3 counselled that the deceased, PW2, PW3 and PW4, should leave the dance hall and return home in the light of the development. This they agreed to do. The deceased in front and ahead of them, PW3 and PW2 trailing a few yards behind started their journey out of the dance hall. They were outside when appellant ran passed them, caught up with the deceased in front, and immediately ran passed them again. PW3, PW2,

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observed the deceased slump in his own pool of blood and was dead. Those around raised alarm that ‘one- one’ the nick name for which appellant was known has killed some one. Immediately, appellant was pursued to the house of Regina Ukpong, the second accused where he took refuge and locked himself. It was after the intervention of a Police Officer invited to the house, and who forced opened the door, was appellant arrested. The only departure from the above scenario were the two different accounts in the statement of appellant to the Police on the 4th and 14th October, 1987, Exhibits A-A1, B – B1 respectively In the statement of the 4th October 1987, appellant introduced the story of a fight between himself and the deceased in which they were joined by another. The dagger was that of the deceased on which the deceased fell when appellant and the deceased were struggling for its possession. On the statement of the 14th, i.e. Exhibit B -B1 he admitted he alone fought with the deceased. The dagger he used in stabbing the deceased was his own. He stabbed the deceased and he had thrown away the dagger. The common factor in the two accounts was that the deceased died from an encounter with the Appellant. It is on this evidence of the prosecution witnesses and the appellant that the learned trial Judge was to determine from the evidence before him whether the appellant was responsible for the death of the deceased. After analysis of the evidence before him, the learned trial Judge disbelieved the evidence of the appellant that there was a fight between him and the deceased. He held that the death of deceased was the result of an unprovoked attack or assault by the appellant following the anger or threat by the appellant in the dancing hall. The learned trial Judge rejected the evidence of the Appellant at the trial on grounds of unreliability. He stated the reasons as follows:- ‘In parts of his statements to the police he denied stab bing the deceased. Still in one of these statements he agreed that he fought alone with the deceased and stabbed him and threw away the knife. In his evidence in court he said that it was when the deceased fell down that the knife wounded him (see P. 39).

SC.178/2000