Bamidele Simeon V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The appellant herein was charged before the High Court of Ondo State, sitting at Akure with a one count charge of murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Cap.30 Vol. II Laws of Ondo State, 1978. He was alleged to have murdered one Godwin Ocheidu at Oda Barracks, Akure on or about the 26th day of April 2009 by attacking him with an axe. He pleaded not guilty to the charge.

The facts of the case, as stated by PW1, Assistant Superintendent of Police Obetan are as follows: The appellant, a Police officer who was on posting in Abuja, came to Akure where his family resides late in the evening on Sunday, 26h April 2009. Upon entering his bedroom, he found one Godwin apparently engaged in sexual intercourse with his wife. He tried to catch him but he escaped. He reported the matter to the provost of the barracks who advised him to make a formal complaint at the Police station. He accordingly reported the matter at the Oda Divisional Police Station. He was told to return the next morning, 27th April, as it was

1

rather late. About thirty minutes later, the appellant’s wife made a report at the station that she had been attacked by the appellant and some other people. The appellant was invited back and he repeated his accusation that he found her having intercourse with the said Godwin in their matrimonial home. His wife denied this. The appellant returned to the Police station the following day and made a statement regarding what had transpired the previous day. Sometime after the appellant left the Police station, PW1 received a message that the corpse of a man was found lying beside the road. Accompanied by other Police officers, he went to the scene. They discovered that it was Godwin’s corpse. The corpse was deposited at the mortuary. A search for the appellant was initially unsuccessful. It was later found that he had returned to Abuja and resumed duty. He was arrested and taken back to Akure. The case was transferred to the State Criminal Investigation Department (C.I.D.).

Apart from PW1, two other witnesses testified for the prosecution. They tendered several exhibits marked Exhibits A, B, C, D, E, E1 and F – F3 respectively. Exhibit

2

C is a confessional statement. The appellant testified in his own defence and did not call any other witness. At the conclusion of the trial, and after considering the written addresses of learned counsel, the trial Court, in a considered judgment delivered on 27/6/2012, found the appellant guilty of the lesser offence of manslaughter, having found that the defence of provocation availed him. He was convicted and sentenced to 6 years imprisonment. He was dissatisfied with the judgment and appealed to the Court of Appeal, Akure Division, which dismissed the appeal on 14/11/2014. He is still aggrieved and has further appealed to this Court vide his Notice of Appeal filed on 4/12/2014 containing four grounds of appeal.

At the hearing of the appeal on 1st February, 2018, ADEKUNLE OJO ESQ., leading EMEKA DIRIBE ESQ. adopted and relied on the appellant’s brief filed on 16/2/15 in urging the Court to allow the appeal, ADEKOLA OLAWOYE ESQ., Hon. Attorney General of Ondo State, leading STELLA ADEGOKE ESQ., Deputy Director Public Prosecution and A. A. OLADUNMIYE ESQ., Principal Legal Officer, adopted the respondent’s brief, which was deemed filed on 1/2/18 in urging the Court

3

to dismiss the appeal.

Two issues were formulated for the determination of this appeal by learned counsel for the appellant as follows:

1. Whether or not the decision of the Lower Court upholding the conviction of the appellant for manslaughter is, in view of the evidence on the record, perverse, unsupportable and thereby occasion (sic) a miscarriage of justice
2. Whether or not Exhibit C, which was the basis for upholding the conviction of the appellant for the death of Godwin Ochiedu met the laid down legal test of reliability

Learned counsel for the respondent formulated a single issue thus:

“Whether, given the nature and quality of evidence adduced by the prosecution and the totality of the evidence placed before it, the Honourable Court of Appeal was right in law when the Court upheld the judgment and conviction of D. I. Kolawole, J. in charge No.CA/AK/21C/2011 delivered on the 27th day of June, 2012.”

I have examined the issues formulated by both parties. I am of the view that they are unnecessarily prolix. The sole issue for determination in this appeal is whether the Lower Court was right in affirming the appellant’s

4

conviction for manslaughter. I shall treat the two issues formulated by the appellant under this single issue.

Learned counsel for the appellant reiterated the well established principle that the prosecution has the burden of proving the commission of any offence against an accused person beyond reasonable doubt and that where it fails to prove any of the elements of an alleged offence, the accused person is entitled to an acquittal. He referred to Section 138 (1) & (2) of the Evidence Act, 1990 (now Section 135 (1) & (2) of the Evidence Act 2011), Section 36 (5) of the 1999 Constitution and the case of: Onuchukwu Vs The State (1998) 4 SCNJ 36 @ 49. He submitted that the evidence on record did not conclusively point to the appellant as the mastermind of the death of Godwin Ocheidu. He submitted that the evidence led by the three prosecution witnesses and Exhibits A, B and C in particular, are deficient, inconsistent and legally incapable of supporting the appellant’s conviction for manslaughter.

He submitted that in order to secure a conviction for the offence of manslaughter, the following essential ingredients must be established beyond

5

reasonable doubt:

1. That the deceased died;
2. That the death was caused by the accused; and
3. That the act or omission of the accused, which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

He cited the following cases in support: Ogba Vs The State (1992) 2 NWLR (Pt.222) 614; Nwaeze vs. The State (1996) 2 NWLR (Pt.428) 1; Gira v. The State (1996) 4 NWLR (Pt.443) 375. He submitted that while it is conceded that one Godwin Ocheidu is dead, it cannot be said unequivocally that the appellant was responsible for his demise.

He submitted that Exhibit B, the autopsy report prepared and tendered by PW2 (the medical doctor) amounted to hearsay and was therefore inadmissible because he admitted that the probable cause of death stated therein was arrived at through what he was told. He referred to Section 38 of the Evidence Act and cited the case of: Lasun vs. Awoyemi (2009) 16 NWLR (Pt.1168) 513. He contended that from the evidence before the Court, the prosecution did not know the time the deceased died or who killed him. He submitted that the prosecution failed to

6

prove that no one else, other than the appellant, could have committed the offence and that they failed to call the appellant’s wife, who was allegedly caught in flagrante delicto to testify.

He submitted that the evidence of PW1 is of no evidential value, as he testified that he did not investigate the case but only received the appellant’s complaint. He argued that even though Godwin’s corpse was brought to the station on 27th April 2009, the same day that the appellant made his complaint, no steps were taken to arrest him or link him to the death until after he had left Akure on the 29th of April. He asserted that there was no basis for the Court below to have believed PW1’s testimony. He contended further that the cause of death stated in Exhibit B i.e. a stab wound on the left side of the chest, and the cause allegedly admitted in Exhibit C i.e. that the appellant “shooked” him in the back with an axe, are not the same. He submitted that the two exhibits contradict each other as to the cause of death. He contended that the contradiction is material. He referred to: WAPC Vs. Adeyeri (2003) 12 NWLR (Pt.835) 517. He submitted further that PW2 admitted

7

under cross examination that anyone who jumped into the bush where the deceased died could have been killed by dangerous animals and “other things”. He submitted further that the testimony of PW3, who is not an expert on the cause of death, to the effect that the body of the deceased had a wound in the chest and on his back close to the shoulder, could not be substituted for the evidence of PW2, the medical doctor. Based on the evidence before the trial Court, learned counsel made the following postulations:

a. The person attacked by the appellant is not the same Person as Godwin Ocheidu.

b. If Exhibit A is believed, the person attacked in Exhibit A was Seidu and there is no proof that Seidu is the same as Ocheidu.

c. Exhibits B and C differ in material facts.

d. Exhibit C did not agree with the cause of death of Ocheidu.

e. The prosecution did not link the death of the deceased to the appellant.

f. There is no clear evidence from the record before the Lower Court that the death of the deceased was a direct and not merely remote result of the act of the appellant.

On proof beyond reasonable doubt that it was the act

8

of the appellant that caused the death of the deceased, he cited the case of: Oforlete v. The State (2000) 7 SC (Pt.1) 80. He submitted further that the appellant’s wife was a material witness in this case and that the failure of the prosecution to call her to testify was not only fatal but also resulted in a miscarriage of justice. He referred to: Usufu Vs The State (2008) ALL FWLR (Pt.405) 1731 @ 1752; Rex Vs Thompson Udo Essien 4 WACA 112, Ogudu v. The State (2012) ALL FWLR (Pt.629) @ 1131. He contended that the appellants wife was the only person who could positively state the identity of the person she was found with. He argued that the evidence of PW3 to the effect that he found blood stains in the deceased’s room but not in the appellant’s room, which was the alleged scene of crime, suggests that the deceased could have died from a different cause. Relying on Section 230 of the Evidence Act, he submitted that while the prosecution is not obliged to call all available witnesses, it is imperative to call all vital witnesses.

Learned counsel contended that the prosecution failed to prove the mens rea and actus reus of the appellant and that

9

the Lower Court failed to evaluate the evidence but simply relied on the confessional statement, Exhibit C. He submitted that Exhibit C does not show that the appellant intended to kill the deceased.

On the reliability of Exhibit C, learned counsel submitted that it was doubtful that the appellant, a police man of many years standing and who is literate, would have his statement written for him by another policeman. He reiterated the fact that the appellant’s wife and other witnesses said to be available when the incident happened, were not called to testify. He also noted the fact that there were no blood stains at the scene of crime i.e. in the appellant’s apartment. He repeated his earlier submissions regarding alleged contradictions between Exhibits B and C. He submitted that where a confessional statement is retracted, the Court must evaluate it in light of other evidence on record before according it probative value. He referred to: Nsofor Vs The State (2004) 11 – 12 SC 43; (2004) 18 NWLR (Pt.905) 292 @ 314 – 315 E – B. He submitted that Exhibit C did not meet the test laid down in a plethora of cases, including: Gabriel Vs The State (2010) 6 NWLR

10

(Pt.1) 1190) 280; Yusuf Vs The State (1976) 6 SC 167; Kanu Vs King 14 WACA 30, and therefore cannot ground a conviction. He set out the six questions a Judge must ask himself when faced with a confessional statement and contended that none of them could be answered in the affirmative in this case. He urged this Court to not to accord any probative value to Exhibit C.

In response to the above submissions, learned counsel for the respondent submitted that the evidence adduced by the prosecution is sufficient to establish the three elements of the offence of murder. He submitted that like any other offence, murder can be proved by direct or circumstantial evidence. He referred to Idiok Vs The State (2008) 6 MJSC 36 @ 57 E. He submitted that the appellant’s contention that Exhibit B, the autopsy report, is hearsay is misconceived. He argued that it was obvious that PW2, who performed the autopsy, could not have been present when the deceased died. He noted that after stating that the body of the deceased was identified to him by the Police, he proceeded to state the result of the autopsy which he personally performed. In response to the contention that PW1’s

11

evidence could not be relied upon because he was not one of those who investigated the case, learned counsel submitted that the two Lower Courts did not rely solely on his evidence. He submitted that PW1’s evidence was considered alongside all the other evidence in the case, including the oral evidence of PW2 and PW3, the medical report, photographs of the deceased and the appellant’s confessional statement before concluding that the prosecution’s case had been established beyond reasonable doubt.

On the further contention that PW1’s evidence was not credible because no effort was made to trace the appellant until after he had returned to his duty post in Abuja, even though the corpse of the deceased was discovered on 27/4/2009, the same day the appellant made his official report to the Police, learned counsel referred to the evidence of PW3 regarding the efforts made to find him as soon as the report of the discovery of the corpse of the deceased was made, and how they were eventually notified after two weeks that he had resumed work in Abuja. He submitted that the evidence of PW1 was unchallenged and it was open to the Court to act on it. He referred to

12

Asafa Foods Factory Vs Alraine (Nig.) Ltd. (2002) 12 NWLR (Pt.781) 353; (2002) LPELR-570 (SC) 1 @ 28-29 F-G.

In response to the submission of learned counsel for the appellant that the cause of death as stated in Exhibit B is different from what the appellant confessed to in Exhibit C, he submitted that in Exhibit C, the appellant stated that he struck the deceased several times with an axe. He noted that the appellant stated that he did not know how many times he struck the deceased. He submitted that the Court is entitled to draw necessary inferences in the course of evaluating the evidence before it. He cited the case of: Nnadozie Vs Mbagwu (2008) ALL FWLR (Pt.405) 1613 @ 1632. He submitted that PW2 did not state that there were no other wounds on the deceased but that from the autopsy he performed, the one that led to his death was the one on his chest. He noted that PW2 also testified as to other factors he observed such as damage to the lung and heart tissues and bleeding into the chest cavity. He submitted that a contradiction will only invoke reasonable doubt where one piece of evidence is inconsistent with another. He submitted that

13

it is not a contradiction where there are only minor discrepancies between them. He referred to: Ayo Gabriel Vs The State (1989) 5 NWLR (Pt.122) 457 @ 468 469. He argued that in any event, assuming, without conceding, that the two documents were contradictory, the alleged contradiction is not material, as what is important is that the evidence shows that the appellant inflicted deadly and fatal blows on the deceased, which led to his death. He submitted that it is immaterial whether the axe blows were to his back or chest. Relying on the case of: Dibie Vs The State (2007) 9 NWLR (Pt.1038) 30; (2007) LPELR-941 (SC) 1 @ 30 C – G. he submitted further that for a contradiction to be material or have any effect, it must go to the root of the charge and must be one that touches on an important element of the offence that the prosecution is required to establish.

He submitted that where, as in the instant case, there is strong, cogent and compelling circumstantial evidence against the appellant, pointing to the irresistible conclusion that the appellant committed the offence, a trial Court would not hesitate in drawing such inference. He referred to:

14

Nasiru v. The State (1999) 2 NWLR (Pt.589) 87; (1999) LPELR-1945 (SC) 1 @ 31 D F; Lori & Anor v. The State (1980) 8 11 SC 49 @ 86.

On the issue of vital witnesses, he submitted that in discharging the burden of proving its case beyond reasonable doubt, the prosecution is not required to call a host of witnesses but only those necessary to prove its case. He referred to: Nkebisi v. The State (2010) 5 NWLR (Pt.1188) 471; Inusa vs. The State (1982) 4 SC 49 @ 68 69. He submitted that the failure to call the appellants wife as a witness did not leave any vacuum in the prosecutions case.

Learned counsel considered the ingredients of the offence of murder vis a vis the evidence before the Court serially and submitted that every element of the offence was established beyond reasonable doubt. He submitted further that the trial Court was right to have relied on the appellant’s

15

confessional statement, having meticulously subjected it to the test laid down in numerous cases, including Dibie Vs The State (supra), to determine its probative value and that the Lower Court rightly affirmed the decision.

With regard to the submission that the actus reus and mens rea of the offence were not proved, he submitted that where the evidence led by the prosecution is cogent and unequivocal, the presumption of innocence in favour of the accused person would be rendered useless and the prosecution would have discharged its burden of proof. He referred to Dibie Vs The State (supra).

He submitted that the contention that Exhibit C is unreliable because it was recorded on the appellant’s behalf inspite of the fact that he is literate and a Police Officer, is misconceived. He submitted that once it is shown that Exhibit C meets the requirements of Sections 27, 28 and 29 of the Evidence Act, it is admissible in evidence and the Court can safely act on it, even though it is desirable for the Court to consider other facts outside it before basing a conviction on it. He cited the case of: Lasisi Vs The State (2013) LPELR-20183 (SC) 1 @ 28 A – C.

16

He urged the Court to resolve this issue against the appellant and dismiss the appeal.

In discharging the burden of establishing its case against an accused person beyond reasonable doubt, as it is enjoined to do pursuant to Section 135 (1) of the Evidence Act, 2011, the prosecution may rely on:

a. Direct evidence of eye witnesses;

b. Circumstantial evidence; and/or

c. The confessional statement of the accused person.

See: Igabele v. The State (2006) 6 NWLR (Pt.975) 100 @ 120 121 H A; Abirifon v. The State (2013) LPELR 20807 (SC); Adio v. The State (1986) 5 (SC) 194 @ 219 220; Itu v. The State (2016) LPELR 26063 (SC) @ 26 B C.

In order to secure a conviction, the prosecution must prove every element of the offence charged. However, it has long been settled that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. In Bakare Vs The State (1987) 1 NWLR (Pt.52) 579, His Lordship, Oputa, JSC opined that absolute certainty is impossible in any human adventure including the administration of criminal justice. This Court has held that it is sufficient if the

17

evidence adduced by the prosecution does not admit of fanciful possibilities but admits of a high degree of cogency, consistent with an equally high degree of probability. In Afolalu Vs The State (2010) 16 NWLR (Pt.1220) 584 @ 609 – 610 G – A, His Lordship. Mahmud Mohammed, JSC (as he then was) stated thus:

“…proof beyond reasonable doubt is not…proof beyond all possible or imaginary doubt… It is proof to moral certainty, such proof as satisfies the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial Judge.

See also: R. Vs. Lawrence (1932) 11 NLR 6 @ 7; Oseni v. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F G; Ikpo v. The State (2016) LPELR-40114 (SC) @ 16 A E.

Where, as in this case, the prosecution relies on circumstantial evidence, the facts relied upon must be

18

incompatible with the innocence of the accused and must be incapable of any other explanation upon any other reasonable hypothesis than that of his guilt. The evidence must be so compelling that from the entire circumstances of the case, none other than the accused person must have committed the offence. See: Obosi Vs The State (1965) NMLR 119; Orji v. The State (2008) 10 NWLR (Pt.1094) 31 @ 61; Chukwu v. The State (2013) 4 NWLR (Pt.1343) 1; Iliyasu v. The State (2015) LPELR-24403 (SC) @ 39 40 B A.

The appellant was charged with murder contrary to Section 316 of the Criminal Code and punishable under Section 319 (1) thereof. The ingredients of the offence, which must be proved beyond reasonable doubt are as follows:

a. That the deceased died;

b. That the death of the deceased resulted from the act of the appellant; and

c. That the act or omission which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

See: Abogede v. The State (1996) 5 NWLR (Pt.448) 270; Maiyaki v. The State (2008) 15 NWLR (Pt.1109) 173; Gira v. The State (1996) 4 NWLR

19

(Pt.443) 375; Olalekan v. The State (2001) 12 SC (Pt.1) 38.

Section 318 of the Criminal Code provides as follows:

318. Where a person unlawfully kills another in circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by grave and sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Thus, that where the elements of the offence of murder are established but the evidence shows that the act of the accused that resulted in the death of the deceased was done in circumstances of extreme provocation and before passion had time to cool, the appellant may be convicted of the lesser charge of manslaughter. It must be established that the wrongful act or insult was of such a nature as when done to an ordinary person is likely (a) to deprive him of the power of self-control and (b) to induce him to assault the person by whom the act or insult is done or offered. See: Njokwu Vs The State (2013) 9 NWLR (Pt.1360) 417; Queen Vs Afonja 15 WACA 26 @ 27; Obaji v. The State (1965) 1 ANLR 282; Famakinwa v. The State (2016)

20

LPELR-40104 (SC) @ 16 17 D A.

Considering the ingredients of the offence of murder serially, the fact that the deceased, Godwin Ocheidu is dead, is not in dispute. Thus, the first ingredient is established. The second ingredient is whether it was the act of the accused that caused the death of the deceased. It was the prosecution’s case that the appellant attacked the deceased with an axe, and this caused his death. Learned counsel for the appellant has argued that the autopsy report, Exhibit B, tendered by PW2 ought not to have been relied upon in determining the cause of death because it is a product of information supplied to PW2 and therefore hearsay.

At this stage it is also relevant to note that in addition to Exhibit B, the prosecution relied on Exhibit C, the appellant’s confessional statement. At the time the prosecution sought to tender it, learned counsel for the appellant raised an objection to its admissibility but not on grounds of involuntariness. It was also not alleged that he did not make the statement. The objection was overruled, A portion of Exhibit C, referred to by the learned trial Judge at page 51 of

21

the record, reads as follows:

“I have know one Godwin Ocheidu. He is a police officer who live in the next room to mine at Oda police Barrack. On 26/4/2009, I returned from Abuja at about 2230 hrs and when I open my house door I met a man having sex with my wife. I grab the two of them but they started to struggle. I then pick up an axe from the back of my door to shook him at the back. I do not know how many times I shooked him with the axe. He ran out of my house and then jumped through the window of his inner room to his own room. It was then I know that its Godwin Ocheidu. I then shouted for help that I caught Godwin having sex with my wife. He then ran out and ran into the bush that near the Barrack.

The law is that confessional statement, which is voluntarily made, positive and unequivocal stating or suggesting the inference that the accused person committed the crime for which he is charged, is capable, without more, of grounding a conviction. See: Nwaebonyi Vs The State (1994) 5 NWLR (Pt.343) 138; Odeh Vs The State (2008) 13 NWLR (Pt.1103) 1; Mohammed Vs The State (2007) Vol.37 WRN 1: Ikpo Vs The State (supra). It has however been the

22

practice of the Courts, over the years, to consider other facts established by evidence outside the confessional statement to determine whether the confession is probable. This is sometimes referred to as the rule in R Vs Sykes (1913) 8 C.A.R. 233. The factors to be considered, as laid down in that case are:

1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it true as far as they can be tested
4. Was the accused person one who had the opportunity of committing the crime
5. Is the confession possible
6. Is it consistent with other facts which have been ascertained and proved

See also: Egboghonome Vs The State (1993) 7 NWLR (Pt.306) 383; Ojegele Vs The State (1988) 1 NWLR (Pt.71) 414; Akpa Vs The State (2007) 2 NWLR (1019) 500.

In compliance with this practice, the learned trial Judge considered other evidence led by the prosecution, including Exhibit C. At pages 53 – 54 of the record, the learned trial Judge held as follows:

“The duty on the prosecution does not end by proving that the accused used an axe to hit the deceased.

23

The prosecution must go on to show that it was the aftermath of the injury caused by the axe that led to the death of Godwin Ocheidu. Was this proved The lifeless body of Godwin Ocheidu was discovered in a shrub as shown in Exhibit F and F1 in the morning hours of 27th April 2009. He was attacked not earlier than 10pm of the 26th April 2009. The medical report shows that death was due to a stab wound on the left side of the chest which resulted to damage to the lung and heart tissues and there was massive bleeding into the thoracic cavity. Everything dovetails to the attack on Godwin Ocheidu by the accused using an axe as the source of the stab wound which is the cause of the death of Godwin Ocheidu. I therefore believe that the prosecution has proved that Godwin Ocheidu died through the act of the accused which was the hitting of the deceased with an axe both at the back and chest region of his body.”

The Court below agreed with this finding.

I have considered the evidence of PW2 at page 13 of the record. His testimony was as regards the autopsy he personally conducted on the deceased, his observations and conclusions. Under cross examination, the

24

only issue put to him was whether he was present when the deceased died. His response was as follows:

“I was not present when the deceased died so the probable date of death I stated in Exhibit B was arrived at through what I was told. I carried out the autopsy at about 12.30 pm on 27/4/2009.”

Hearsay evidence is defined in Section 37 of the Evidence Act, 2011 as follows:

“37. Hearsay means a statement –

(a) oral or written made otherwise than by a witness in a proceeding; or

(b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”

Section 38 provides:

“38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”

In Utteh vs The State (1992) LPELR-6239 (SC) @ 21 A – B; (1992) 2 NWLR (Pt.223) 257 @ 273 F it was held that:

“A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. It

25

presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognised exceptions.”

See also: Arogundade Vs The State (2009) LPELR-559 (SC) @ 23 B – D; Kasa Vs The State (1994) 5 NWLR (Pt.344) 269.

The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction See: ljioffor Vs The State (2001) LPELR-1465(SC) @ 19 B-F.

In the instant case, PW2 testified as to the autopsy conducted by him and he tendered the report (Exhibit B) prepared by him. He gave his opinion as to the cause of the appellant’s death based on his findings. He was not cross examined on his specific findings. The time the deceased died was not in dispute. The cause of death was not suggested to him as alleged by learned counsel for the appellant. What was

26

in issue was what caused his death and whether it was the act of the appellant. In his confessional statement, the appellant admitted hitting (or “shooking”) the deceased several times with an axe. Even though he specifically mentioned hitting him on his back in Exhibit C, the fact that he admitted that he could not say how many times he hit the deceased, shows that there was no reason to disbelieve the evidence of PW2 that the injury found on the deceased’s chest caused his death. In other words, of the multiple strikes of the axe inflicted on the deceased, the one on his chest was the most severe. PW2’s evidence was borne out of what he did and what he observed. It was not hearsay and the learned trial Judge was right to have relied on it.

I also do not agree with learned counsel that Exhibits B and C contradict each other. A contradiction in evidence occurs when two pieces of evidence are inconsistent with each other. In Exhibit C, the appellant admitted that he struck the deceased with an axe and that he could not say how many times he did so. In Exhibit B, it is stated that a stab wound was found on the left side of the deceased’s chest, with a

27

penetrating puncture of the lung and heart tissues and massive bleeding into the chest cavity, consistent with a stab or from falling on a sharp object. Exhibit B also states that there were multiple stab wounds on his back. The Court below therefore rightly affirmed the finding of the trial Court that it was the act of the appellant that caused the death of the deceased.

With regard to the third ingredient, the trial Court held at page 54 of the record:

“Did the prosecution prove that the act of the accused of hitting the deceased with an axe was intentional with his knowledge that grievous death or bodily harm was the probable consequence William Shakespeare in his play, Macbeth and speaking through Duncan in Act 1 scene IV said ‘There’s no art to find the minds construction in the face.’ The intention of the accused can only be gauged through what he did or what he said. Exhibit C is therefore helpful. The accused said that when he saw a man having sex with his wife he picked up an axe at the back of his door and he used the axe to shook the man at the back. He later said he did not know how many time he shook

28

the man with the axe. The medical report shows that the stab wound found on the body of the deceased; who had been proved to be the man having sex with the wife of the accused, was penetrating to the extent that the lung tissues as well as the heart tissues were affected by the stab wound. There is no doubt that the accused intentionally used the axe to strike the deceased. It cannot be seriously contended that if the accused did not intend to kill the deceased, he at least intended to cause him grievous bodily harm. In view of this, I hold that the prosecution has again established the third ingredient of the offence of murder.

I am of the view that having regard to the convincing evidence before the Court, the lower Court rightly affirmed this finding.

It was contended by learned counsel for the appellant that the appellant’s wife was a vital witness and that failure to call her as a witness was fatal to the prosecution’s case. As stated earlier, once a confessional statement is voluntarily made, cogent, unequivocal and admits the essential elements of the offence, the Court is entitled to rely on it. In my considered view, the confessional

29

statement alone was sufficient to secure a conviction in this case. Notwithstanding this fact, the learned trial Judge subjected it to the necessary test before relying on it.

It is also settled that the prosecution is not required to call a host of witnesses to prove its case beyond reasonable doubt. The evidence of a single witness, if believed, is sufficient to ground a conviction. The prosecution has a discretion in the matter, See; Nkebisi Vs The State (2010 5 NWLR (Pt.1188) 471. What is important is not the number but the quality of the evidence of the witness(es) called. Once the prosecution is able to produce credible and convincing evidence of the commission of the offence by the accused person beyond reasonable doubt, the onus is discharged.

See: Olayinka v. The State (2007) 9 NWLR (Pt.1040) 561; (2007) LPELR 2580 (SC) @ 11 E F, Afolalu vs. The State (supra); Odunlami v. The Nigeria Army (2013) 12 NWLR (Pt.1367) 20; Ayeni v. The State (2016) LPELR 40105 (SC) @ 27 A D.

Learned counsel for the appellant argued that the evidence of PW1 ought not to have been relied upon, as he did not investigate the case. I

30

am unable to agree with this submission. As rightly pointed out by learned counsel for the respondent it was the information given by PW1 to whom the appellant first made a report on the night of 26/4/2009 that kick-started the investigation. He testified at pages 10 – 11 of the record as follows:

“The accused came to the station in company of others and lodged a complaint that he caught one Godwin, a Police officer making love to his wife in his own apartment in the same barrack. They both shared. The accused told me that he wanted to catch Godwin but he escaped. He raised an alarm to inform others what has happened. I told him that he should exercise patience and that I would get the policeman involved the next day. He left the station and about thirty minutes later his wife came and said that the accused and some other people attacked her for no just cause at her home. I called the accused to come back to the station which he did. I asked the accused to repeat what he told me about his wife and Godwin and the accused restated the allegation that he caught his wife and Godwin making love in his house. The wife denied the allegation. I told the wife

31

to stay behind the counter for the sake of her safety but she ran away. The accused came back the following morning as I instructed him to do. He made a statement to me of what happened. Shortly after the accused left, we received a message from the control room that a corpse was lying by the side of the road. I went to see the corpse in company of some policemen. We discovered it was the corpse of Godwin, the policeman the accused, accused of sleeping with his wife. The corpse was moved to the mortuary. I traced the accused but I could not see him that day. About two weeks later, I received a phone call from the office of the accused at Abuja that he had resumed. The I.P.O. was sent to get him and he was arrested and the case was turn in to the state C.I.D. In view of its nature.”

The evidence of this witness was credible and unshaken under cross examination. The learned trial Judge was right to have relied on it and the finding was rightly upheld by the Court below. I am in full agreement with the Lower Court that all the ingredients of the offence of murder were established by the prosecution beyond reasonable doubt.

In a charge for murder, the

32

Court has a duty to carefully consider all defences available to an accused person, whether he raises such defence himself or not. See: Uwaekweghinya Vs The State (2005) 9 NWLR (Pt.930) 227; Edoho Vs The State (2010) 14 NWLR (Pt.1214) 651; Olayinka Vs The State (supra). The learned trial Judge examined the evidence before him and held that having regard to the circumstances of the case, provocation offered by the fact of the appellant returning from his posting in Abuja to find someone apparently having sexual intercourse with his wife in his matrimonial bed, caused him to lose self control. The learned trial Judge found that there was no evidence before the Court to suggest that he had time to cool off from the time the provocation was offered to the time the attack on the deceased took place. He also found that the appellant’s reaction of immediately taking an axe from behind the door and attacking the deceased could not be said to be disproportionate to the extreme provocation offered having regard to the position of the appellant, a police constable with little formal education. On this basis, the charge was reduced to manslaughter and the appellant

33

was accordingly convicted and sentenced to 6 years imprisonment.

The appellant has failed to show that the finding of the learned trial Judge, affirmed by the Lower Court, was perverse. I am not persuaded to interfere. The sole issue for determination in this appeal is accordingly resolved against the appellant. I hold that there is no merit in this appeal. It is hereby dismissed. The judgment of the Court of Appeal delivered on 14/11/2014 affirming the appellant’s conviction and sentence for manslaughter by the trial Court, is affirmed.

Appeal Dismissed.

---

SC.874/2014