Endurance Matthew V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
On January 24, 2007, the appellant (as accused person) was arraigned before the High Court of Delta State, Ughelli Judicial Division, for the offence of murder punishable under Section 319 (1) of the Criminal Code, Cap 48, Vol 11, 1976 Laws of Bendel State, applicable to Delta State.
Upon his not guilty plea, the case went to trial. The Prosecution’s case was woven around the testimonies of three witnesses. Exhibit A was the statement which the accused person (now, appellant) volunteered at the Police Station. The thrust of the case against the appellant was that, on January 26, 2006, at Ekrenhavwe Village, she threw her one-month old baby, Omonefe Oviefe, into a well where she drowned.
The accused person’s challenge to the voluntariness of exhibit ‘A’ prompted a trial-within-trial wherein the Judge, Ohwo, J (as he then was), finding in favour of its voluntariness, admitted it in evidence. Believing the testimony of PW1 and exhibit ‘A’, the learned trial Judge convicted the accused person and sentenced her to death by hanging. Her appeal to the Court of
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Appeal, Benin Division, being dismissed, she further appealed to this Court. She framed only one issue for the determination of her appeal. The said issue was couched thus:
Whether having regard to the totality of the evidence from the record, the lower Court was right in upholding the decision of the trial Court that the Prosecution proved the charge of murder against the appellant beyond reasonable doubt
The respondent framed the same issue more elegantly in these words:
Whether on the totality of the evidence adduced on record the lower Court was right in affirming the judgment of the trial Court which found the appellant guilty as charged
Against this background, this appeal would be determined in terms of the respondent’s phraseology.
ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S CONTENTION
At the hearing of this appeal on November 2, 2017, Ayo Asala, counsel for the appellant, adopted the brief of argument filed on August 8, 2013. He re-iterated the settled essential ingredients for the proof of the offence of murder. He cited Mbang v The State [2007] All FWLR (pt.372) 1863; Uwagboe v. State [2008] All
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FWLR (pt 419) 425. In his submission, where one of the ingredients is tainted with some doubt, the charge must fail, Yaki v State [2008] All FWLR (pt 440) 618.
He pointed out that only the second and third elements were hotly disputed. He claimed that neither of the three witnesses for the Prosecution gave a direct eye witness account of the appellant’s act being responsible for the death of the deceased person, that is, the act of throwing of the deceased person, the accused person’s child into the well. He referred to pages 78 to 79 of the record for the trial Court’s reliance on the evidence of PW1 in holding that the appellant was responsible for the death of the deceased person. He, equally, referred to page 142 of the record for the lower Court’s affirmation of the admissibility of the appellant’s oral confession.
He impugned the concurrent findings of the lower Courts on the admissibility of the said confession. He referred to the testimony of PW1, at page 50 of the record, to demonstrate that the said witness was not present when the deceased person was thrown into the well. He dismissed this witness’s testimony as hearsay,
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Sections 37 and 38 of the Evidence Act and Utteh v The State [1992] 2 NWLR (pt 223) 257. In his submission, since the said oral confession of the appellant to PW1 is inadmissible in law, it was of no moment that it was not contradicted in cross examination, Ikaria v The State [2013] All FWLR (pt 671) 1463.
He cited page 50 of the record to show that the appellant challenged the evidence of PW1 in cross examination. He maintained that there was no independent evidence which tended to confirm the evidence of PW1 that the appellant threw her child into the well. Even exhibit A, in his submission, did not support the evidence of PW1.
He submitted that, where an accused person was alleged to have made a confessional statement, whether oral or in writing, which was retracted, such statement ought to be corroborated before reliance could be placed on it, Ismail v The State [2008] All FWLR (pt 434) 1567. He pointed out that the evidence of PW1 and exhibit A was not corroborated. He maintained that exhibit A was inconsistent with the evidence of PW1, citing Edoho v State [2010] All FWLR (Pt 530) 1262.
He contended that the finding of
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the trial Court, page 80 of the record, and the lower Court’s affirmation thereof, pages 143-146 of the record, were misplaced in law. He pointed out that the lower Court should have concerned itself with the question whether there was anything outside exhbit A which confirmed the story that the appellant killed the child, the deceased person. According to him, the lower Court shouldn’t have affirmed the trial Court’s decision. In his submission, the fact that an accused person told lies in respect of a charge against him or her does not amount to an admission of guilt, Muka v State [1999] 1 ACLR 141.
He explained that the trial Court was so much influenced by its observation that the appellant lied that it referred to the appellant as a liar, pages 79 and 80 of the record. He maintained that the trial Court ought to have looked for corroborative evidence outside the testimonies of PW1, PW3 and exhibit A before concluding as it did on pages 82-83 of the record. He contended that the testimonies of PW1 and PW3, as they relate to the alleged confession of the appellant, required corroboration. He therefore, invited the Court to hold that it was
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wrong to use the same testimonies of PW1 and PW3 to corroborate the evidence tending to show that the appellant was the person who threw the deceased into the well. He noted that a corroborative evidence must be an independent evidence from the evidence to be corroborated, State v Mbele [1990] 4 NWLR (Pt 145) 484; [1999] 2 LRCNCC 17,34.
Against the above background, he argued that the lower Court, wrongly, upheld the trial Court’s reliance on the testimony of PW2, the Medical Doctor, as corroborative evidence. In his submission, PW2’s evidence was only relevant as to the cause of death and not as to who was responsible for the death of the deceased person. He urged the Court to hold that, the Prosecution failed to prove the essential ingredients of the offence charged.
RESPONDENT’S SUBMISSIONS
On his part, Peter Mrakpor, learned AG, Delta State, for the respondent, adopted the Amended respondent’s brief deemed properly filed on November 1, 2017. He drew attention to the finding of the trial Court at pages 22-23 of the record. He equally, invited the Court’s attention to pages 84 and 86 for the trial Court’s findings on the second
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and third ingredients of the offence which the Prosecution proved.
He explained that, in this appeal, the appellant is contesting the reasoning behind the learned trial Judge’s findings on the second and third ingredients of the offence of murder. In his submission, the challenge here deals with the power of the Court to evaluate evidence and ascribe probative value, being functions of the trial Court, Oguonzee v The State [1998] 5 NWLR (Pt 551) 521, 557; Oladipo v Moba LGA [2010] 5 NWLR (pt 1186) 117, 150-151.
On the lower Court’s findings on the oral and written confessional statement of the appellant, he drew attention to pages 77 -78 of the record. He pointed out that the lower Court, rightly, affirmed the trial Court’s findings that the appellant did not challenge the evidence of the oral confession which the PW1 gave. He re-iterated the settled position that the appropriate time to challenge the voluntary nature of a statement it is sought to be tendered. It is immaterial whether the confession is oral or written, Arogundade v State [2009] 169 LRCN 17; Akpa v The State [2010] 8 LRCNCC 71; Alarape v State [2001] 84 LRCN
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600.
Learned counsel averred that neither the appellant nor his counsel challenged the voluntary nature of the evidence of the oral confession which the PW1 gave. In effect, the fact of its retraction in the appellant’s defence would not prevent the Court from acting on it, Edamine v State [1996] 4 NWLR (sic) 375; Odeh v FRN [2008] All FWLR (pt 424) 1590, 1618. He drew attention to pages 142-143 of the record for the lower Court’s affirmation of the findings of the trial Court. He urged the Court to dismiss the challenge on the findings of the lower Court, Arogundade v State (supra).
On the written confessional statement, he submitted that exhibit A is confessional in nature, citing page 82 of the record for the trial Court’s response to the suggestion that the appellant’s friend threw the deceased in the well. He maintained that the inconsistency rule is inapplicable to the confessional statement of an accused person , Egboghonome v State [1993] 7 NWLR (pt 306) 383.
On the issue of corroboration of the appellant’s confession, he submitted that the trial Court was right when it found corroboration of the said confession in
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the evidence of PW1 and PW2. He maintained that a confessional statement, which is direct, positive and unequivocal as to the admission of the guilt of an accused person, is enough to ground his conviction notwithstanding the fact that he resiled from it. However, it is only desirable to ensure that other ascertained facts, consistent with the confessional statement, abound before convicting him, Musa v The State (2013) LPELR -19932 (SC); Alarape v State [2001] 5 NWLR (pt 705) 79; Hassan v State [2001] 15 NWLR (pt 735) 184; Edamine v State [1996] 3 NWLR (pt 438) 530, 536.
He further referred to the findings of the trial Court at pages 80-83 of the record. He pointed out that the PW1 and PW3 were independent witnesses and they corroborated the confessional statements of the appellant. In effect, the trial Court convicted the appellant based on his un-contradicted confessional statements and the corroborative evidence of PW1 and PW3.
He observed that this Court does not make a habit of interfering with concurrent findings so long as they are supported by legally-admissible evidence; they are not perverse and have not led to a
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miscarriage of justice, Peter Iliya Azabada v The State (2014) LPELR- 23017 (SC); Habibu Musa v The State (2013) LPELR -19932 (SC).
RESOLUTION OF THE ISSUE
As shown at the outset of this judgment, the appellant was arraigned before the High Court of Delta State, Ughelli Judicial Division, for the offence of murder punishable under Section 319 (1) of the Criminal Code, Cap 48, Vol 11, 1976 Laws of Bendel State, applicable to Delta State.
As this Court held in Tajudeen Iliyasu v. The State (2015) LPELR -24403-(SC) 25; B-G:
The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been, generously, outlined in case law, Maigari v State [2013] 6-7 MJSC (pt 11) 109, 125, citing Ochemaje v The State [2008] SCNJ 143; Daniels v The State [1991] 8 NWLR (Pt 212) 715; Obudu v State [1999] 6 NWLR (pt 1980) 433; Gira v State [1996] 4 NWLR (pt 428) 1, 125.
Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause
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her/him grievous bodily harm.
Both counsel for the appellant and the respondent are ad idem on the fact that the Prosecution proved the first ingredient. Thus, only the second and third ingredients are being disputed by the appellant. As shown above, the lower courts, concurrently, found in favour of the proof of these ingredients. Essentially, the judgment of the trial Court, affirmed by the lower Court, was woven around the oral confession, and exhibit A, which the appellant volunteered. Listen to the findings of the trial Court: findings, approvingly, affirmed by the lower Court:
Now the act of the accused [person] which caused the death of the deceased [person] was the throwing of the deceased [person] into a well which caused her to drown. Obviously, any person who throws a baby aged about one month as in the present case into a well of water must have intended to cause the death of the baby or cause it grievous harm and I hold that the issue of grievous harm will arise only if the baby is rescued almost immediately on being thrown into the water. I have no difficulty therefore in arriving at the conclusion that the act of the accused
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[person] in causing the death of the deceased [person] was done intentionally with knowledge that death or grievous bodily harm was its probable consequence. [page 84; italics supplied for emphasis]
Prior to this finding, the trial Court had explained that:
None of the witnesses for the Prosecution who testified before me gave direct eye-witness evidence on the act of the accused [person] causing death of the deceased which in this case (from the facts) is the throwing of the deceased [person] into the well. The PW1, (Friday Etinagbedia) who arrived the scene not long after the incident testified that when he arrived the scene at Ekerhavwe village, he saw the accused [person] and some other persons who held the accused. On the arrival of PW1 at the scene, they all proceeded to the well where the corpse of the baby (deceased) was in. The PW1 then testified thus in respect of the conduct of the accused [person] at the scene:
Accused admitted she was the one who threw, the baby into the well. The reason the accused [person] gave is (sic) my presence and to my hearing was that the father of the child rejected the child hence
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she threw the child into the well
The witness had earlier testified that at the scene the accused [person] was crying and pleading for forgiveness. Under cross examination, his evidence of the PW1 touching on the confession of the accused [person] at the scene was never challenged.
[pages 77 -78; italics supplied for emphasis]
The lower Court, in affirming the above findings, held as follows:
The circumstances of the said oral confessional statement of the appellant in the present appeal is quite unique. The PW1, in his evidence in chief stated that, on his arrival at the village, he met (sic) the appellant was held by some people. Again he was told of the appellant having thrown her baby into the well. He, the appellant, and the others present moved to the well, where he saw the baby right inside the well lifeless. The appellant was brought before the elders, who mandated him to lodge a formal report to the police. It was at this stage that the appellant started crying, she confessed having thrown her baby into the well but was asking for forgiveness. No question was put in cross-examination on this evidence in
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chief. [Italics supplied]. This Court has no reason to disturb the interpretation given by the trial Court that the appellant actually made the confession as postulated by PW1. If the appellant did not make such confession, she should have briefed her counsel at the earliest opportunity who would then have challenged such evidence. Her denial of the confession on (sic) defence is an afterthought.
This Court is in one with the trial Court that no other interpretation can be given to this oral confession other than the appellant made it. In the given circumstance, although the PW1 did not see with his eyes the act of the appellant throwing the baby into the well, the entire circumstances as narrated above makes (sic) what would appear to be inadmissible, to be admissible in Court. This Court has no reason to disturb the decision of the trial Court in placing reliance on this oral confessional statement of the appellant at its decision.
[Italics supplied by the lower Court]
Learned counsel for the appellant impugned the above affirmation of the trial Court’s findings as wrong in law. In his submission, the PW1 was not present when the deceased
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person was thrown into the well. Put differently, he took the view that the oral confession of the appellant was inadmissible.
With profound respect, this submission betrays counsel’s misconception of the potency of oral admissions or confessions. In the first place, as established inJua v the State (2010) LPELR-1637 (SC), just as a written confession, an oral confession of an accused person is admissible in evidence. Both species of evidence constitute the strongest evidence of guilt on the part of the accused person, Akpa v State [2008] 14 NWLR (pt 1106) 72. At page 95 of the Report, the Court maintained that:
Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused Person. What better evidence that He knows or knew what he did and he says or said it in Court. Is there need for any further proof I think not.
In effect, a voluntary confessional statement, whether oral or written, is an admission of guilt
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by an accused person. It is thus, a relevant fact, although, admissible against its maker only, Arogundade v The State [2009] 6 NWLR (pt. 1136) 165, 174-175; [2009] 1-2 SC (pt. 11) 24, 30-31. Thus, where it is proved, as in the instant case, an oral confession of the accused person would be sufficient to sustain his conviction, Arogundade v The State (supra); Adio and Anor v The State [1986] 2 NWLR (pt, 24) 581.
Such is its potency that such an admission, made at any time by a person charged with an offence (even if before it had been decided to formally charge him with committing a crime without administering a caution), suggesting that he committed the offence, is a relevant fact against him, Arogundade v The State (supra); Onungwa v The State [1976] 1 SC (Reprint) 74; [1976] NSCC (Vol, 10) 27; Akinmoju v. The State [2000] 4 SC (Pt.1) 64; [2000] 6 NWLR (pt. 662) 608.
A conviction could therefore, be secured against an accused person on the strength of such a confession to the crime for which he is charged, Arogundade v. The State (supra); Sule v. State [2009] 17 NWLR (pt. 1169)33; Jua v. State (supra); Omoju v. FRN [2008] 9 NWLR
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(pt. 1085) 38; Shalla v. State [2007] 18 NWLR (pt. 1066) 240.
At page 9 of the appellant’s brief, it was contended that “since the alleged oral confession of the appellant to PW1 is inadmissible in law, it is of no moment that that piece of evidence was not specifically contradicted under cross examination.” With respect, this cannot be true. In fact, just as in this case, in Arogundade v State (supra), such a submission was equally canvassed, This Court did not find any merit in the said submission. The Court took the view that the testimony of PW5, as to what the appellant in the case told him was positive and direct a direct evidence of what the appellant said or confessed to PW5 which was narrated to the Court in the presence of the appellant who failed to challenge it as to either the making of the statement attributable to him or the truth of its contents,Arogundade v State (supra) 24; C.G.
As in the Arogundade case (supra) 23 -24; G-A, the appellant’s counsel, in the instant case, failed to cross examine PW1 at all. The submission that it was of no moment that the said evidence was not challenged in cross-examination cannot
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therefore be sustainable. In Modupe v The State [1988] 9 SCNJ 1, 4-5, this Court explained that:
Normally a trial Court, that had the opportunity of seeing the witnesses, hearing them and watching their demeanour, enjoys the special privilege of believing or disbelieving their evidence. But belief or disbelief becomes an issue when and only when there are two conflicting versions of an essential fact. When there is only one version of an essential fact and that version is not patently and obviously improbable, a trial Court is not left with any option than to believe that which has not been controverted or contradicted in any way. To reject [a] positive assertion … without any contrary evidence at all – either in cross-examination or in rebuttal -seems to be much more than a trial Court is allowed to do. To base such a rejection on the subjective estimation of the trial Judge looks quite arbitrary, nay dangerous. It looks as though the trial Judge converted himself into a witness, gave evidence …, and then preferred his own evidence… to that of the appellant. Put as bluntly as this, one can then appreciate the danger involved in a trial judge
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preferring his own estimation, which is not evidence, and which was not based on any evidence, to a positive assertion which has not in the least been contradicted or controverted.
[Italics supplied for emphasis]
In the instant case, learned counsel for the appellant, just as was done in Arogundade v State (supra), contended that “PW1’s evidence on this point amounts to hearsay evidence which is inadmissible in law….” In dismissing this sort of argument in Arogundade v State (supra), this Court held that “the submission of the learned counsel for the appellant that the evidence of PW5 is hearsay is totally misconceived. PW5 gave direct evidence of what the appellant told him confessing to a serious offence before the trial Court in the presence of the appellant and his counsel who for reasons best known to them failed to challenge it. The confession is so graphic and vivid that its veracity is not in doubt,” Arogundade v State (supra) per Ogebe, JSC at page 13; A-C.
Citing Ismail v State (supra), the learned counsel for the appellant would appear to have entertained the hope that the appellant’s retraction of her confession would avail
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her. Regrettably, this submission is unsustainable. As this Court held in Iliyasu v State (supra):
retraction or denial of a confessional statement .does not affect its admissibility. This has long been settled in the very old cases of R. v. Sapele and Anor (1952) 2 FSC 74; R v ltule (1961) All NLR 462; the relatively old decisions of lkpasa v The State [1981] 9 SC 7; Akpan v State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nwangbomu v The State [1994] 2 NWLR (pt 327) 380; Bature v State [1994] 1 NWLR (pt 320) 267; Eragua and Ors v The AG, Bendel (1994) LPELR -(SC) 30; Idowu v State [1998] 11 NWLR (pt 574) 354; as well as the more recent decisions of Silas Sule v State (2009) LPELR-3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR-9350 (SC) 53; Oseni v The State (2012) LPELR -7833-(SC) 22-23.
At the risk of re-iteration, I reproduce the findings of the trial Court here – findings duly affirmed by the lower Court –
Now the act of the accused [person] which caused the death of the deceased [person] was the throwing of the deceased [person] into a well which caused her to drown. Obviously, any person who
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throws a baby aged about one month as in the present case into a well of water must have intended to cause the death of the baby or cause it grievous harm and I hold that the issue of grievous harm will arise only if the baby is rescued almost immediately on being thrown into the water. I have no difficulty therefore in arriving at the conclusion that the act of the accused [person] in causing the death of the deceased [person] was done intentionally with knowledge that death or grievous bodily harm was its probable consequence.
[page 84; italics supplied for emphasis]
Surely, in the Anglo-Nigerian accusatorial criminal justice system, an accused person is taken to intend the consequences of his voluntary act when he foresees that it would probably happen, whether he desires it or not, Hyam v. DPP [1974] 2 All ER 41. Hence, the requite intent for the offence of murder would be found where a person, who does the act which kills, knows that it is highly probable that he would cause death or grievous bodily harm, Segun Akinlolu v State (2015) LPELR -25986 – (SC) 19; A-D.
My Lords, against the above sordid background, as found by
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the trial Court – affirmed by the lower Court, I see no justification for disturbing the concurrent findings of the lower Courts in the absence of any proof of their perversity or proof that they have led to miscarriage of justice, Musa v The State (2013) LPELR -19932 (SC); Onwudiwe v FRN [2006] 10 NWLR (pt 988) 382.
In all, I find no merit in this appeal. Accordingly, I hereby enter an order dismissing it. I affirm the concurrent findings of the lower Court and uphold the conviction of, and sentence on the appellant. Appeal dismissed.
SC.321/2013
