Basil Akpan Vs The State (2008)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The case of the prosecution is that the deceased, Ikechukwu Njoku, visited the appellant at Jibia and never returned. He was murdered by the appellant. At the scene of crime, police recovered a human body without legs, arms and neck. In the inner room of the appellant’s shop, police found the floor of the room and a mattress soaked with blood. They also found blood stain by the hole of the pit latrine attached to the inner room. When the pit latrine was dug open they saw two human legs. Appellant was arrested for murdering Ikechukwu Njoku on or about 3rd of December, 1989.

The learned trial Judge found the appellant guilty of culpable homicide punishable with death and sentenced him to death. His appeal to the Court of Appeal was dismissed. He has come to this Court. Briefs were filed and duly exchanged. The appellant formulated a single issue for determination:

“Whether the guilt of the Appellant was proved and established beyond reasonable doubt having regard to the evidence adduced at the Trial Court affirmed by the Court of Appeal”

Respondent adopted the issue formulated by the appellant.

Learned counsel for the appellant, Mr. N. Ekanem, contended that in a criminal case the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt and failure to do so will lead to the matter being resolved in favour of the accused. He submitted that contradictions abound in the case of the prosecutiosn.

Learned Counsel pointed out that PW1 stated in evidence that the offence was committed in Jibia on 17th December, 1989 but exhibit 3 tendered by the witness stated that the offence was committed on the 3rd of December, 1989. Relying on the case of Ikemson v. State (1989) ICLRN 1 at 12, learned counsel urged the court to resolve the contradiction in favour of the appellant. He submitted that the case of Awopejo v. State (2000) 6 NWLR (pt. 659) 1 at 13, relied upon by the Court of Appeal is not appropriate as the difference in the timeframe was just a day.

Learned counsel raised three issues on Exhibit 3, the confessional statement of the appellant. First, is the failure on the part of the prosecution to arrest and charge other accused persons mentioned by the appellant as committing the offence within. The failure on the part of the police to investigate and if found true arrest the other accused persons raised some doubt as to the authenticity of Exhibit 3. He cited Anyanwu v. State (1986) 5 NWLR (Pt. 43) 612 at 624. Second, is the failure on the part of the prosecution to call the police officer in whose presence exhibit 3 was made, to give evidence in court. He cited Kasa v. State (1994) 5 NWLR (pt. 344) 269 at 285. Third, is that the appellant ought not to have been convicted solely on his confessional statement. He cited Onubogu v. State (1974) 9 SC 1. He however contended later that a court can convict on the confessional statement of an accused only but for purposes of conviction, the prosecution must prove its case.

Learned counsel also faulted the prosecution for not calling the health officials who exhumed the body parts to give evidence in court as well as the Doctor who conducted the postmortem. He contended that identification of the corpse of the deceased to the Medical Doctor who performed the postmortem examination is a vital factor in determining whether in fact, the Doctor actually performed the postmortem examination on the deceased. He cited Oladimiji v. State (1998) 1 NWLR (pt. 573) 156. He urged the court to allow the appeal.

Learned counsel for the respondent, Alhaji Abdullahi Faskari, while conceding to the submission of appellant that in all criminal cases the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt, and failure to do so will lead to the matter being resolved in favour of the accused, submitted that once the prosecution has adduced evidence which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of section 138(3),139, 141 and 143 of the Evidence Act. He cited Nasiru v. State (1999) 2 NWLR (Pt. 87) 102 and Bakare v. State (1987) 1 NWLR (Pt. 52) 578.

On the issue of contradictions in respect to the date of the commission of the offence learned counsel submitted that it is only contradictions in respect of a material fact or points in the evidence collected by the prosecution that an acquittal will result on the premise that it cannot be said that the case has been proved beyond reasonable doubt. He cited Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 and Ogoala v. State (1991) 12 NWLR (Pt. 175) 509.

Where a ground of appeal complains of contradictions in the ‘evidence of the prosecution witnesses, it is not enough to warrant a reversal of the judgment merely for the appellant to show the existence of the contradictions; he must show further that the trial court did not advert to and consider the effect of the contradictions. The contradictions must be shown to amount to substantial disparagement of the witness concerned, making it dangerous or likely to result in miscarriage of justice to rely on the evidence of the witness or witnesses, learned counsel submitted. He cited Ogbu v. State (2007) 5 NWLR (pt. 1028) 635.

Learned counsel submitted that the testimony of PW1 that the offence was committed on 17/12/89 was a discrepancy which did not materially affect the prosecution’s case. At the trial the appellant was not in anyway misled by the discrepancy. He cited Effiong v. State (1998) 8 NWLR (pt. 562) 362.

On the failure of the prosecution to charge those mentioned by the appellant in Exhibit 3, learned counsel submitted that the failure did not raise doubts as’ to the authenticity of the exhibit. He distinguished the case of Anyanwu v. State (supra) cited by learned counsel for the appellant. On the failure by the prosecution to call the police officers who were present when the confessional statement was made by the appellant, counsel contended that this was because of the inability of the prosecution to secure their attendance. He called the attention of the court to the fact that another police officer, though not mentioned by PW1, testified that he was. Also present when the confessional statement was recorded, and his evidence was never impeached under cross-examination. Although the burden is on the prosecution in criminal cases to prove its case beyond reasonable doubt, ‘counsel argued that it has absolute discretion which witnesses to call to prove its case. He cited Ali v. State (1988) 1 NWLR (pt. 68) 1.