Ekpo Obongha Mbang V. The State (2009)
LawGlobal-Hub Lead Judgment Report
THERESA NGOLIKA ORJI-ABADUA, J.C.A
The Appellant and one Joseph Ubi Igri were arraigned before the High Court of Cross River State, in the Ugep Judicial Division, Holden at Ugep on 13/6/02 for the murder of one Mary Obongha Inah contrary to section 319(1) of the Criminal Code Law of Cross River State.
During the trial, the prosecution called six witnesses while the Appellant did not call any but testified only for himself. At the end of the trial, the Appellant was found guilty as charged and sentenced to death by hanging by the neck until he be dead. The Appellant was gravely troubled and dissatisfied by the pronouncements of the trial Court that, as a result, he filed this appeal which was founded on three grounds.
In the Appellant’s Brief of Argument which was settled by Monday Udo Esq. But adopted before this Court by Mrs. Dorathy Ufot, two issues were distilled for determination of this Court. They are:-
“1. Whether in all the circumstances of this case, the prosecution had proved the charge of murder against the Appellant beyond reasonable doubt.
- Whether the confessional statements upon which the Appellant was convicted and sentenced were proved to have been made voluntarily”.
With regard to issue NO.1, it was firstly emphasized that there was no direct evidence of the commission of the offence of murder by the Appellant and his co-accused from any of the prosecution witnesses, so the evidence against them were basically circumstantial. Learned Counsel referred to the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 wherein they emphatically stated that they did not know who killed the victim, ‘Mary Obongha Inah’ and were not present when she was murdered. She further referred to the testimony of the Appellant at p. 45 lines 18-24 and the trial Judge’s findings at p. 69 lines 16-26 and submitted that despite all those, the trial Court proceeded to convict and sentence the Appellant to death by hanging relying solely on Exhibits F4 and F5, the alleged confessional statements of the Appellant.
Learned Counsel cited the cases of Friday Aiguoreghian and anor v. The State (2004) 3 NWLR Part 860 p. 367 at 422 – 423 paras F-B, Ubani v. The State (2003) 18 NWLR Part 851 p. 224 at 241 paras B-C, Uguru v. The (2002) 9 NWLR Part 771 p. 90 at 106 paras F-G, Tegwonor V. The State (2008) 1 NWLR Part 1069 p. 630, Sule Ahmed (alias Eza) V. The State (2001) 18 NWLR Part 746 p. 622 at 641-642, section 138 (1) of the Evidence Act, Cap. E. 14, Laws of the Federation, 2004 and Mufutan Bakare V. The State (1987) 1 NWLR Part 82 p. 579 para. H and stated that in a charge of murder, the onus is on the prosecution to prove beyond reasonable doubt, the death of the deceased, the act or omission of the accused which caused the death and that the act or omission of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence.
With regard to ingredients (i) and (ii), Learned Counsel submitted that, they were undoubtedly proven by the prosecution via the medical report tendered as Exhibit A, the evidence of P.W. 2, the victim’s step father and the autopsy performed on the victim’s corpse.
In relation to the third ingredient, Counsel submitted that the prosecution failed to establish a causal link between the death of the deceased and the act of the Appellant because none of the prosecution witnesses saw who, when and how ‘Mary Obongha Inah’ (deceased) was killed. She contended that since that piece of evidence was missing, it means, therefore, that the act of the Appellant did not cause the death of the deceased. She further referred to the cases of Onah V. The State (supra) 236 at 237, Friday Aiguoreghian v. The State (supra) 367 at 418 paras F-H, Oforlete V. The State (2000) 12 NWLR Part 681 p. 451 at 443, paras B-C and Uguru V. The State (supra) p. 90 at 111 paras C-E and submitted that where the prosecution fails to establish a causal link between the death of the deceased and the act of the accused person causing the death, the conviction and sentence of the accused person will be set aside on appeal. She then urged this Court to quash the conviction and death sentence of the Appellant and substitute it with a verdict of acquittal and discharge.
On the circumstantial evidence relied upon by the learned trial Judge i.e., Exhibits F 4 and F 5, the alleged confessional statements of the Appellant, Counsel cited the cases of Sule Ahmed (alias Eza) V. The State (supra) at 646 para. D-F, Obiakor & anor V. The State (2002) 10 NWLR Part 776 P.1612 at 629 paras A-C, paras E-F, Lari V. The State (1980) 8-11 SC p. 81 and Nweke V. The State (2001) 4 NWLR Part 704 588 at 603 paras D-E and submitted that circumstantial evidence sufficient enough to support a conviction in a criminal trial, especially murder, must be compelling and must lead to the irresistible conclusion that the accused and no one else is guilty of the crime. She stated that apart from P.W. 5 who gave similar facts evidence, and, the I.P.O, who testified as P.W. 6, the rest of the prosecution witnesses gave circumstantial evidence surrounding the deceased’s death.
They said they received their information’s concerning the deceased and the Appellant, from two cyclists, namely; Monday Inyang Ibor and John Eyong. According to her, the two cyclists who were vital witnesses were never called to testify by the prosecution. Counsel cited the case of Onah V. The State (1985) 3 NWLR Part 12 P. 236 and stated that failure by the prosecution to call those vital witnesses who would have helped the Court in one way or the other to resolve the issue before it was fatal to its case. She referred to the excerpt from the judgment of the learned trial Judge at pp. 74-75 of the record of appeal and submitted that the prosecution needed the evidence of the two cyclists to establish the fact that the deceased was actually in the company of the accused persons on the day she disappeared. She further contended that since there was no evidence linking the accused with the commission of the crime except the circumstantial evidence of the prosecution witnesses which ought to have been compelling, cogent complete and unequivocal, that the prosecution woefully failed to prove the charge of murder against the Appellant beyond reasonable doubt. She then urged, this Court to resolve issue No. 1 in favour of the Appellant.
On issue NO.2, Counsel submitted that the Appellant promptly brought to the knowledge of the Court that he made the alleged confessional statement under duress, meaning that they were made involuntarily. She further stated that the learned trial Judge failed to consider the other alleged confessional statements of the Appellant tendered as Exhibits F, F1-F3 before convicting and sentencing the Appellant to death for the offence of murder. Counsel made reference to the cases of Nsofor V. The State (2004) 18 NWLR Part 905 p. 292 at 308 at p. 308 para. H, Obidiozor V. The State (1994) NWLR Part 327 p. 380, Nwangbonui V. The State (1987) NSCC 1239 at 1249, Onyejekwe V. The State (1992) NWLR Part 230 (without the page) and the case of Akpan V. The State (1992) NWLR Part 248 p. 439 and stressed that the trial Court ought to have held a trial within trial to determine the voluntariness of the alleged confession. She also referred to Ojegele V. The State (1988) NSCC 276 at 279 per Oputa J.S.C and submitted that failure to conduct such a trial within trial was fatal to the admissibility of Exhibits F4 and F5. She then urged that Exhibits F4 and F5 and the other alleged confessional statements of the Appellant be disregarded and that the accused be discharged and acquitted.
She further referred to the cases of Yusuf V. The State (supra), Shade V. The State (2005) 1 NWLR Part 907 p. 218 at 240 paras H, A-C and Ekpo V. The State (1995) 9 NWLR Part 421 p. 540 and enumerated about six tests a confessional statement must pass before it could be relied upon by a Court to convict and sentence an accused person. She submitted that there is no evidence outside Exhibits F, F1 – F5 to show that the alleged confessional statements were true. She also referred to the evidence of the Appellant at p. 43 lines 4-15 which she claimed, contradicted the evidence of P.W. 6 and stressed that there was no evidence outside the confessional statement to show that it was true, and that the learned trial Judge erred in law when he held that the evidence of P.W. 6 was not contradicted or affected in any way under cross-examination.
Learned Counsel further cited the cases of Nwachukwu V. The State (2002) 2 NWLR Part 751 D. 366, Hassan V. The State (2001) 15 NWLR Part 735 p. 184, Oche V. The State (2007) 5 NWLR Part 1027 p. 231 paras E-G, Onafowokan V. The State (1987) 3 NWLR Part 61 D. 538 at 541 ratio 13 and Gbadamosi V. The State (1991) 6 NWLR Part 196 D. 182 and submitted that the alleged confessional statements were not corroborated, they were not consistent with other facts which had been ascertained and proved at the trial, they were fabricated, invented and manufactured by the police to ease the discharge of the legal burden placed on the prosecution to prove the case beyond reasonable doubt. She further stated that due to the Appellant’s claim that he was coerced into making Exhibits F4 and F5, the failure of the prosecution witnesses to give eye witness account as to how the Appellant murdered the deceased and the failure of the prosecution to call the two cyclists, namely Monday Inyang Ibor and John Enyong, to testify, the learned trial Judge ought to have been careful, sure and satisfied of the truth and veracity of the alleged confessional statements before relying solely on them to convict and sentence the Appellant to death by hanging.
Turning to the similar fact evidence introduced by P.W. 5 Counsel submitted that since the Appellant strongly denied responsibility for the death or disappearance of one ‘Grace Ibiang Usanga’ in 1999, and the fact that the Appellant was not reported to the police and was not tried before a competent Court of law for the same, then section 17 of the Evidence Act, Cap 14, Laws of the Federation 2004, will not apply to this case, and, that it was wrong for the trial Court to have relied on it to convict and sentence the Appellant. She then urged the Court to invoke the provisions of section 36(5) of the 1999 Constitution on the presumption of innocence and hold that the Common Law Doctrine of similar act evidence is also not applicable to the instant case. She urged the Court to discountenance Exhibits F4 and F5 and other confessional statements purportedly made by the Appellant, allow this appeal, set aside the judgment of the lower Court and discharge and acquit the Appellant.
The Respondent, in its Brief of Argument, formulated two issues that are similar and having the same connotation as the ones raised by the Appellant.
They are:
“1. Whether the prosecution had proved the guilt of the Appellant as required by law.
- Whether the learned trial Judge was right in relying and acting upon the confessional statement of the Appellant in convicting the Appellant.”
Learned Counsel for the Respondent, John U. Ogban Esq. a Senior State Counsel in the Ministry of Justice of Cross River State, in the Respondent’s Brief, restated the ingredients the prosecution must prove in a charge of murder and then cited the cases of Abogede V. State (1998) 1 LRCNCC 229 at 236 BC, Igabele 11 V. The State (2006) 25 NSCQR 321 at 333 and Igago v. The State (1999) 73 LRCN 3502 at 3535 in support. They must be present simultaneously and shall be proved, beyond reasonable doubt.
Learned Counsel conceded that there was no eye witness to the commission of the murder and that the evidence against the Appellant and his co-convict were both circumstantial and confessional. Counsel referred to Mustapha Mohammed V. The State (2007) 30 NSCQR 364 at 379-380, per Niki Tobi J.S.C and submitted that a conviction for murder can be based on the confessional statement of the accused person in the absence of an eye witness to the killing, if the confession is positive, direct and properly proved.
Learned Counsel stressed that what was disputed at the time the statements of the Appellant were being tendered was, that they were not made by the Appellant, but not that they were involuntarily made. He said that their voluntariness was never challenged. He then referred to Igago V. The State (1999) 73 LRCN 3502 at 3540 D and submitted that a trial within trial was not needed since the accused was only denying making the statements. Counsel further cited the cases of Nwangbonui V. The State (1994) 23/24 LRCN 163 at 178, EgboghonomeV. The State, (1993) 13 LRCN 761, Edamine V. The State (1996) 26 LRCN p. 455 at 462 G-H, the evidence of P.W.5, P.W.6, Ihuebuka V. The State (2000) 77 LRCN 1055 at 1083 DF and Dibie V. The State (2007) 29 NSCOR and submitted that the fact the Appellant retracted the statements did not render them inadmissible. By s. 27 (2) of the Evidence Act a voluntary confession by an accused person is evidence against him at his trial for the offence he confessed to. He further stressed that the learned trial Judge in the determination of the truth or otherwise of the confessional statements sought for other evidence of circumstances which made it probable that the confession was true particularly the evidence of P.W.6 which stated how the Appellant and his co-accused led the police to the scene of the crime and the similar fact evidence adduced by P.W.5.
On the absence of the cyclists who allegedly claimed to have seen the deceased last with the Appellant, Learned Counsel submitted that the prosecution was not obliged to call any or both of them and that the prosecution was under no duty to call every available witness. He further stated that if the evidence of a witness is necessary or essential to the defence of the accused, it is the duty of the accused to call the witness since he is entitled to call a witness not called by the prosecution. He then cited the cases of Buba V. The State (1994) LRCN 365 at 376, Edamine V. The State (1996) LRCN 455 at 461, F-H, Idok V. The State (2008) 34 NSCQR 827 at 825, Alake V. The State (1991) 7 NWLR Part 205 p. 567 at 594-595 H-B, and Ohunyon V. The State (1996) 2 DTLR Part 1, p. 59 at 64 to buttress the point.
With regard to the ingredients of the offence of murder, Learned Counsel submitted that there is no doubt that ingredients 1 and 2 were proved by the prosecution. As regards ingredient No.3, he stated that the confessional statements of the Appellant and his co-accused and other surrounding circumstances which the trial Court carefully considered, point irresistibly to the fact that it was the Appellant and his co-accused and no other persons that caused the death of the deceased. He referred to Alake V. The State (1991) 7 NWLR Part 205 p. 567 at 595. para D-E, section 138(3) of the Evidence Act and Dibie V. The State (2007) 29 NSCOR Part 2 1431 at 1462 and submitted that the prosecution clearly proved the guilt of the Appellant beyond reasonable doubt as required by law.
Turning to issue NO.2, Learned Counsel referred to the evidence of P.W.5, P.W.6, Exhibits F3, F4 and F5 and the cases of Basil Akpa V. The State (2008) 34 NSCQ 3 Part 2 1249 at 1278 and Egboghonome V. The State (supra) and submitted that an objection to admissibility of a confessional statement on ground of involuntariness is normally made at the time the statement is being tendered and shown to the accused. He stressed that the allegation of involuntariness made during the testimony of the Appellant was an after-thought and belated and could not have swayed the Court to disregard the said confessional statements. He submitted that the learned trial Judge was right in relying and acting upon the confessional statements, of the Appellant in convicting him. He urged the Court to dismiss the appeal and uphold the conviction and sentence of the Appellant.
In resolving the issues propositioned by the parties in their respective Briefs which I find similar in contents, it must be stressed that the offence of murder is one of the heinous and abominable crimes of our land, that when committed, and, the culprit is charged, tried and found guilty upon all the available evidence presented before the Court including his defence thereto, it attracts nothing but a death sentence to the accused. It is in consequence of this, that the law itself deeply entrenched the criteria the prosecution must meet before a conviction for murder could be secured.
So, in a charge of murder, as in the instant case, the essential ingredients the prosecution must prove in order to secure a conviction are:
(a) that the deceased died;
(b) that the death of the said deceased has resulted from the act of the accused;
(c) that the said act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
To sustain a conviction, all the above ingredients must be clearly proved.
In the instant case, it is not in doubt that the parties are ad idem as to the first ingredient, but, however, disagreed on whether it was the act of the Appellant that caused the death of the deceased (Mary Obongha Inah), and that the said act of the Appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The commission of a crime by a person must be proved beyond reasonable doubt. Therefore, the prosecution must prove beyond reasonable doubt that the death of the deceased resulted from the act of the accused, and that the act was intentional. The prosecution, also, must prove that the accused and no other person committed the offence.
Cause of death can be proved by direct or circumstantial evidence. It can also be inferred where the person injured or attacked died immediately. Although eye witness or other evidence is the ideal in establishing guilt, there are situations where circumstances can clearly and forcibly suggest that the accused and no one else must have committed the offence with which he is charged. It is usually relied upon where direct evidence is not available. Such circumstantial evidence must, if accepted, make a complete and unbroken chain as to constitute sufficient proof that the accused person committed the offence. It must be cogent and pointing irresistibly and unequivocally as well as compelling at the accused person as the only one who committed the offence. It is, also, the law that suspicion however strong cannot take the place of legal proof as it does not amount to proof.
Once there is any doubt, the slightest doubt, in the mind of the trial Court that some person other than the accused committed the offence, the Court must, as a matter of the Nigerian criminal justice system and the law, resolve the doubt in favour of the accused person. So, when the prosecution fails to prove beyond reasonable doubt that the act of the accused caused the death of the deceased, a verdict of discharge and acquittal must be entered.
It is glaring in the argument of Learned Counsel for the Appellant in respect of the Appellant’s issue NO.1, that the same is hinged basically on the failure of the prosecution to call the two cyclists namely; Monday Inyang Ibor and John Eyong who, reportedly, told P.W.2 or P.W.4, as the case may be, that they last saw the deceased in the company of the Appellant on the date she was reportedly missing.
First and foremost, it needs to be stated that in respect of the last seen doctrine, the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion it leaves no room for acquittal. See Igabele V. The State (2006) 6 NWLR Part 975 p. 100 where the decision in Peter Igho V. The State (1978) 3 SC87 and Udo V. The State (1981) 11-12 SC91 were referred to and applied.
I must, however, state that the evidence of last seen adduced by some of the prosecution witnesses would have been plausible and compelling had the person(s) who last saw the Appellant and his co-accused in the company of the deceased was/were called to testify in Court.
It is the contention of Learned Counsel for the Appellant in the Appellant’s Brief of Argument, that since the prosecution failed (1) to establish through direct evidence of its witnesses that the Appellant was the one who murdered the deceased and (2) to call the said Monday Inyang Ibor and John Eyong who could have given the evidence of last seen, the circumstantial evidence the learned trial Court relied upon in convicting and sentencing the Appellant to death was not sufficient, cogent and unequivocal.
Curiously enough, the learned trial Judge after evaluation of the circumstantial evidence before him, particularly the testimonies of P.W.2, P.W.3 and P.W.4 regarding the cyclists, Monday Inyang Ibor and John Eyong held at p. 75 paragraph 20-32 thus:
“where a statement is made to a witness by a person who is not himself called as a witness, such statement is hearsay if the object is to establish the truth of what the statement contains and is usually inadmissible. See Kor V. The State (2001) FWLR Part 76 p. 637 and 653 paragraph F-G.
Accordingly, the evidence of the prosecution witnesses relating to what the two cyclists Monday Inyang Ibor and John Eyong said about seeing the deceased and the accused standing beside the road and the fact that the accused persons tried to, hire them to convey them (accused persons and the deceased) to the Cross River Beach at Ekori, being hearsay is inadmissible”
The significance of the aforestated is that, never was there a time the learned trial Judge relied on the hearsay evidence of P.W.2 – P.W.4 bordering on the information allegedly received from the said two cyclists who were never called as witnesses by the prosecution. That piece of evidence was wholly rejected by the learned trial Judge. Therefore, the argument of the learned Counsel for the Appellant in this regard I must note, with due respect is bereft of foundation. The trial Court was, however, right in law to have rejected the same as it amounted to nothing but a hearsay evidence.
I may, however, in passing, state that although the persons who allegedly saw the deceased last with the accused were not called to confirm that assertion on oath, a microscopic examination of one of the Appellant’s confessional statements to the Police i.e., Exhibits F1 and F3 strongly confirmed that the Appellant’s co-accused actually approached one Monday Ibor Inyang to convey them to Ekori Beach in the late hours of the fateful day, i.e., 12/4/01. The said Exhibit F1 in inter-alia reads:
“What would have convinced me that, my friend Joseph Ubi Igri had an ideal or knowledge about this case concerning Mary Obongha Inah death was that, when both of us were in the cell, when I interviewed him, he admitted that he actually approached the cyclist man one Monday Ibo Inyang(m) to take him to Ekori Beach. He promised to pay the cyclist man for three people. This was late in the night but I don’t know the actual time.
While in the cell as the cyclist man confirmed before us that Joseph Ubi Igri actually approached him to take three of them to the beach at that late hour.”
Now, regarding the similar fact evidence proffered by P.W.5, the learned trial Judge after analyzing the same held that it was relevant in showing the particular way the 1st accused does eliminate young girls. Having stated the above, it seems clear therefore, from the prevailing circumstance that issue No.1 cannot effectually be resolved until issue NO.2 is determined since the two are interwoven.
The Appellant’s issue No. 2 is whether the confessional statements upon which he was convicted and sentenced were proved to have been made voluntarily?
It is the law that the guilt of an accused person can be proved by;
(a) the confessional statement of the accused person; or
(b) circumstantial evidence; or
(c) evidence of eye witness of the crime
Thus, the prosecution does not always need an eye witness account to convict an accused of murder, if the charge can otherwise be proved. See Emeka V. State (2001) 14 NWLR Part 734 p. 666 and Igabele V. The State (2006) 6 NWLR Part 975 p. 100.
It is also trite law that circumstantial evidence has no relevance where the killer of the deceased with his own mouth so confessed. See Abacha V. The State (2002) 11 NWLR Part 779 p. 437 per Onu J.S.C at 521. What this means is that whether the circumstantial evidence adduced before the lower Court met the required standard or not, once there is a confessional statement of the accused admitting the commission of the offence, the said circumstantial evidence will therefore be irrelevant and may not be countenanced.
As had been emphatically stated by the respective Counsel for the parties in their respective Brief of Argument, there is no eye witness to give account as to how life was snuffed out of the deceased, ‘Mary Obongha Inah’. Everything about the trial and conviction of the Appellant was anchored on his said confessional statements, partly corroborative evidence of P.W.6 and the evidence of P.W.5 on similar fact.
It is said that confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eyewitness because the evidence comes out from the “horse’s mouth” who is the accused person. There is no better evidence and there is no need for further proof since what is admitted needs no further proof. Therefore, where an accused person confesses to a crime, in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In other words, a free and voluntary confession of guilt, direct and positive, and if duly made and satisfactorily proved, is sufficient without any corroborative evidence so long as the Court is satisfied as to the truth of the confession. See Akpa V. The State (2008) 14 NWLR Part 1106 p. 72.
A confession is an admission made at any time by any person charged with a crime stating or suggesting the inference that he committed the crime. A voluntary confession is a relevant fact and is therefore admissible as against the person who makes it only and against nobody else.
The Court should however not act on the confession without first testing the truth thereof. The fact that an accused subsequently retracts his confession does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify. However, a conviction will not be quashed merely because it is based entirely upon the evidence of a confession by, the accused. See Nwachukwu V. State (2002) 12 NWLR Part 782 p. 543 at 572 per Iguh J.S.C where R V. Ajayi Omokaro (1941) 7 WACA 146 was referred to.
Now turning to the confessional statements of the Appellant in the instant appeal, the salient question is, whether the trial Count in convicting the Appellant, solely relied upon his said confessional statements in Exhibits F4 and F5? The learned trial Judge at p.80 of the record stated thus:
“While testifying in chief and under cross-examination, the accused persons denied every thing they had stated in their confessional statements. It was the same accused persons who did not challenge their confessional statements when they were read to them and the IPO was tendering them, a period at which a trial within trial would have been organized to determine the voluntariness or otherwise of the confessional statements.”
The learned trial Judge further held that the accused persons’ confessional statement in which they admitted killing ‘Mary Obongha Inah’ (deceased) cannot be excluded from the prosecution’s evidence in the process of determining their guilt notwithstanding their contradictory evidence in Court. It is clear on the record of this appeal at p.39, that when the State Counsel applied to tender the six statements made by the Appellant at the Police Station, the then Appellant’s Counsel, one L. Ekanem Esq., objected to their admissibility in the following manner.
“1st accused said he made only one statement on 13/4/01 which is not among the six statements now sought to be tendered. That the six statements now sought to be tendered were not made by the 1st accused and the six statements including the confessional ones are the products of the Investigating Police Officer or the prosecution. That the prosecution should be ordered to produce the 1st accused statement of 13/4/01”
By the above objection, the Appellant made a volte-face, and denied ever making those statements. He said through his Counsel that those statements were not his and that the only one he made on 13/4/01 was not produced before the Court.
It should be noted that denial of making a confessional statement is not synonymous with alleging that the statements were made under coercion or duress or serious threat to life, i.e., being made involuntarily. There is no place on the record of this appeal, it was shown that admissibility of the said confessional statements was challenged on the ground that they were made involuntarily. The Appellant did not object to the admissibility of those statements on the ground of involuntariness.
It is trite that a confession does not become inadmissible merely because the accused person denied having made it. See Shande V. The State (2005) 12 NWLR Part 939 p. 301 where the excerpt from the decision in Queen V. Itule (1961) 2 SCNQR 183, All NLR 462 at 484 per Brett Ag. C.J.F. was referred to.
It is interesting to note that during the testimony of the Appellant, in his evidence in Chief, he said he made a statement on 13/4/01 at Ekori Police Station. He also made two statements at Ekori and Ugep on 16/4/01 respectively. He said it was at the State C.I.D Calabar he was forced to sign a statement under a threat to his life. He did not remember the date on which he signed the said statement. By his testimony in Court, it was only in respect of one statement that the I.P.O at the State C.I.D Calabar threatened to shoot him if he did not sign it. Further, under cross-examination, the Appellant admitted making the statements at Ekori Police Station voluntarily. He admitted that the signatures on Exhibits F3 and F4 were his, so, also, the signatures on Exhibits F1 and F2 but disputed the dates on them. He stated that there were two signatures on Exhibit F5, one was his and the other that of somebody else.
It is well settled that the appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence, especially where the accused person is represented by Counsel and it is assumed he ought to know what to do at each stage of the proceeding. So, where an issue arises as to whether a confession was made voluntarily, trial within a trial must be conducted to determine the admissibility of the confession before it is ever admitted in evidence.”
When a confession is challenged on the ground that the accused never made it at all, that question is a matter to be decided at the conclusion of the case and the confession can properly be admitted when tendered by the prosecution. In such a case, a trial within a trial is not called for. A trial within trial is called for only where the objection to the admission is that the statement was not made voluntarily.
In the instant appeal, the Appellant did not raise any question as to the voluntariness of Exhibits F4 and F5 at the time they were being tendered. He, through, his Counsel, strongly denied making them at all. He did not mention any threat to his life by the I.P.O at the State C.I.D which coerced him to signing the statements. At the time he raised the issue of voluntariness of the statements during his testimony in chief, the stage at which a trial within trial could have been held had passed. The issue should have been raised at the time those statements were being admitted in evidence as Exhibits. The issue that arose at the time of admissibility of those statements was whether or not the statements tendered were made by the Appellant, and that issue became a matter for the trial Judge to decide at the end of the trial. In any case, it was only one statement the Appellant alleged, during his testimony that he was forced to sign and not two as Learned Counsel, with due respect, had argued in the Appellant’s Brief of Argument. Since the Appellant had the opportunity of challenging Exhibits F, F1-F5 at the time they were being tendered on the ground that they, particularly, Exhibits F4 and 5, were involuntarily made, and, failed to do so until the statements were admitted in evidence, it is my profound view that it is too late in the day to allege the involuntariness of Exhibits F4 and F5 or any of the said statements at the time of the Appellant’s evidence in chief. It was too late to hold a trial within trial because the same had already been admitted in evidence. See Nwachukwu V. State (2002) 2 NWLR Part 751 p. 366 and Nwachukwu V. State (2004) 17 NWLR Part 902 p. 262. In Akpa V. State (2008) 14 NWLR Part 1106 p. 72, it was held that a trial within trial should not have been conducted since the Appellant only denied making the statement and not that he was forced to make it under duress.
It is therefore my considered view, that the learned trial Judge was right in law not to have conducted a trial within trial to determine the voluntariness of the Appellant’s said confessional statements as the same was not suggested, let alone being made an issue at the time of their admissibility in the proceedings.
That being the case, it should, therefore, be noted that in the Appellant’s statements, i.e., Exhibits F and F1, the Appellant admitted that on 12/4/01, he stopped where the deceased was selling drug. He met with the deceased when he was about to go to the farm. He greeted her when she was coming out of her master’s chemist store. He further stated in Exhibit F1 that on enquiry, his co-accused when, they were in the cell, admitted approaching the cyclist man, one Monday Ibor Inyang to take him and two others to Ekori Beach. He also said that the cyclist man confirmed before him and his co-accused at the station that his co-accused approached him to convey them to the Beach at late hour. He said he introduced the deceased to his co-accused for friendship. It was after their separation he discovered that Solomon Ntongha was also friendly with the deceased.
In Exhibit F3, the Appellant stated as follows:
“We met Solomon Ntongha in his house and I told him that, the arrangement he made with Mary Obongha Inah to travel to his place Itighidi that I am against it. There I went to the church to look her I did not see her or her boyfriend Solomon Ntongha and I saw Joseph in the church, this was about 7.30 pm. I did not tell the father that I, Joseph and Solomon Ntongha met Mary in question and we collected four thousand naira (N4, 000.00) from her. He then replied me that I should not asked for Mary any longer that he has do away with Mary Obongha with his secret cult members. He told me that if I reveal the secret to anyone that he would kill me”.
Further in Exhibit F4 he stated inter alia thus:
“She told us that she took the money from her Aunty house. It was because of that money we collected from her that make me and friend Joseph Ubi Igri to kill her. After we collected the money from her we kept her in Joseph Ubi’s house till night time. In the night of 12/4/2001 breaking 13/4/2001 at about 1.30 am I and Joseph Ubi told her to escort us for toilet along Ekomati road where we took her to one uncompleted building build by one Pele who works at Lagos. The ground was sand filled, there we held her on the ground, she was weak, there I used the sword and stabbed on her throat. While Joseph Ubi used plank to hit her on her head until she finally die. We used the hoe brought by Joseph to cover her corpse. We were unable to remove the long sword on her neck and left her with sword. Nobody saw us because it was night. It is only two of us that killed Mary Obongha Inah. I did not disclose this fact to the father of the girl when he asked me about her daughter. That time she was not kill. Why I earlier said Solomon Ntuongha is her boyfriend and truly he was a boyfriend. I thought I would get a help from there”.
Then in Exhibit 5, the Appellant, amongst other things stated the following;
“What I can say about my girlfriend called Grace Ibiang Usang are:- as follows; Grace Ibiang has been my girlfriend from July 1999 also a church member in Roman Catholic Church Ekori. My girlfriend Grace took in the month of August 1999 with 4 months pregnancy. In early part of November 1999 she went for abortion in Dr. Daniel Hospital Ekori and carry out abortion which caused her severe bleeding. Thereafter I and Grace Ibiang took Motor cyclist from Ekori Bus stop to Ekori River. As we arrived Ekori beach after 7 pm there I instructed her that she should say the prayer point I gave to her and fall inside the water that she would appear at Calabar she wanted to go. After she said the prayer point I gave to her and she fell inside the water. As soon as she fell inside I went away. I trekked to my house at Ekori as I did not have money to pay cyclist and it was in the night. I can not remember the date but it was in November 1999. There was nobody around the river but I sighted some fishermen at far distance. What make me to deceive her to fall inside the river and she did not come out until I left was because she sick with pregnant. I did not tell anybody until when I am being brought to State CID, Office for case of murder of Mary Obongha Inah that make me to confessed.”
Then in order to test the truth of the said statements, the learned trial Judge beamed his search light on other corroborative evidence before the Court. This he found in the evidence of P.W.6, the investigating Police Officer.
The word “corroboration” means confirming or giving support to either a person, statement, or fact. The purpose of corroboration is not to give validity or credence to an evidence which is deficient, incredible or suspect. It is merely to confirm and support that which as evidence is sufficient, satisfactory and credible. Corroborative evidence must be an independent testimony which affects the accused by connecting or linking him with the crime he is charged with. It must not only implicate him in the commission of the offence or crime in material particular but also that he actually, committed the crime/offence. In considering whether some evidence is corroborative of another, the Court must take all the little items of the former together and consider if they all add up to corroboration. It is important to note that corroboration need not consist of direct evidence that the accused did commit the offence alleged nor must it amount to confirmation of the whole account given by the witness. The only important requirement is that the evidence corroborates the evidence in some respect material to the charge. See Nwankwoala V. The State (2005) 12 NWLR Part 940 p. 637.
At pp. 81-82 of the record, the learned trial Judge said thus:
“In the determination of the truth or otherwise of a confessional statement, it is necessary to seek other evidence of circumstances which makes it probable that the confession is true. Now let me consider other evidence of circumstances as placed before me which, to my mind, support the probability that the confessional statements of the two accused persons are true.
(1) The evidence of P.W. 6, Inspector Okon Isanghedihi of the State C.I.D. that after the accused persons had made their confessional statements in Calabar, the accused persons led the Police from Calabar to the scene of crime at Ekomati road in Epenti, Ekori where both of them reconfirmed their statements, has not been contradicted or affected in any way under cross-examination. If the accused persons did not make their confessional statements voluntarily or if there was no truth in the contents of the statements I don’t see how the accused persons would have been able to lead the Police from Calabar to the scene of crime at Ekori.”
Corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. Corroboration does not mean that the witness corroborating must use the exact or very like words unless the matter involves some arithmatics. See Dagayya V. State (2006) 7 NWLR Part 980 D. 637.
P.W.6, the investigating Police Officer, Inspector Okon Isanghedihi said in his evidence in chief at pp. 37 and 38 thus:
“In their statements of 22/5/2001, both of them confessed to the killing of Mary Obongha Inah. After the confession, I took them to my superior Police Officer who confirmed and countersigned. After making their confessional statements, the accused persons accompanied us to the scene of the crime. The accused took us to an uncompleted building owned by P.W. 1 where they said they buried Mary Obongha Inah after she had been killed.
Both of them confirmed all that was written in their statements. 1st accused took us to the Cross River Beach where Grace Ibiang was killed by him previously and showed us the particular spot where she was thrown into the river. The 1st accused also mentioned one Solomon Isokon as one who committed the killing of deceased along with them and that the Police had arrested him previously and later released him. We decided to rearrest Solomon Isokon, but when we confirmed the accused with Solomon Isokon, both accused persons changed their statements exonerating Solomon Isokon and we released him. After all these, we arraigned the two accused here in Court.”
In the cross-examination of P.W. 6, it was never disputed that it was the Appellant and his co-accused who took P.W. 6 to the uncompleted building where they said the deceased was buried.
The circumstance of this case was similar to the scenario that played out in Nwachukwu V. State (2004) 17 NWLR Part 902 p. 262 where P.W. 2, the Superior Police Officer, the direct boss of the I.P.O who investigated the crime, testified before the Court and gave evidence stating what the Accused persons told him and how the body of the victim was discovered at exactly the point they said it was buried. His said testimony was held to be corroborative of Exhibit A, the confessional statement of the accused. In the instant appeal, Exhibit F4 gave graphic details on how the Appellant and his co-accused snuffed life out of the deceased. He owned up committing the dastardly act of killing the deceased with the clear intention of doing the deceased grievous bodily harm, I, therefore, see no reason to doubt or dismiss the veracity of Exhibits F1, F2, F3, F4 and F5 when the evidence of P.W. 6 external to it, circumstantially corroborated the crucial fact that the accused committed the murder of Mary Obongha Inah, thus intending the consequences of his act.
There can be no doubt that the trial Court having believed the veracity of Exhibits F, F1-F5, the confessional statements of the Appellant which conclusively established the ingredients of the offence of murder against the Appellant rightly convicted and sentenced him accordingly.
Therefore, issues 1 and 2 are hereby resolved against the Appellant. In the final analysis, I find no merit whatsoever in this appeal, I accordingly dismiss it and affirm the conviction and sentence of the Court below.
Other Citations: (2009)LCN/3146(CA)
