Enebeli V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

ADAMU JAURO, J.S.C.

This appeal is against the decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Appellant’s appeal was dismissed and the judgment of the Delta State High Court sitting in Sapele delivered by E.N. Emudainohwo J. (Mrs.) on the 16th July, 2012 was affirmed.

BRIEF STATEMENT OF FACTS

The Appellant was charged on a one count charge of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.

​In a bid to discharge the evidential burden imposed on it by law, the Respondent as prosecution at trial called three witnesses who testified as PW1 – PW3 and tendered seven exhibits marked Exhibits P1 – P7. The Appellant testified in his defence and called one other witness without tendering any exhibit. PW1 is the step father of the deceased; PW2 is the investigating police officer (IPO), while PW3 is the medical practitioner who conducted autopsy on the deceased. Exhibit P1 is the statement of the deceased, Exhibit P2 – P4 are negatives and photographs of the

1

deceased, Exhibit P5 is the statement of the Appellant, Exhibit P6 is the attestation form of a superior police officer on the Appellant’s statement, Exhibit 7 is the medical report showing the cause of death.

The brief facts culminating into the instant appeal are that the Appellant and the deceased, one Alero Eniyan were lovers, but the deceased’s parents did not approve of their relationship. The parents of the deceased moved her from Koko where they reside to Ologbo with a view to ending the relationship. The Appellant traced her to Ologbo which caused the parents of the deceased to move her to Ondo town of Ondo State where she found a suitor. The deceased however returned to her parent’s place at Koko because of her sister’s birthday and her suitor came to visit her parents to inform them that he wanted to marry her.

​The case of the Respondent as prosecution was that the Appellant could not stand the deceased getting married to another man and therefore purchased four litres of acid which he poured on her.

That the deceased later died as a result of injuries sustained from the acid poured on her by the Appellant.

2

The Appellant on the other hand denied committing the offence and claimed that he loved the deceased. At the conclusion of trial and after the addresses of counsel, the learned trial Judge found the Appellant guilty and sentenced him to death by hanging (see pages 91 – 115 of the record of appeal). The Appellant unsuccessfully appealed to the Court below with the Court below affirming his conviction and sentence by the trial Court. (See pages 176 – 198 of the record of appeal).

In a bid to exhaust the constitutionally guaranteed right of appeal, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal which has been amended. The amended notice of appeal was filed on 22nd January, 2018 and same was deemed properly filed by an order of this Court made on 17th October, 2019.

The appeal was heard on 11th March, 2021 when counsel adopted their respective briefs and made oral submissions in respect of their diverse postures in the appeal. Adopting the Appellant’s brief of argument which was deemed properly filed and served by an order of this Court made on 17th October, 2019, the Appellant’s counsel, OLUKUNLE EDUN ESQ. formulated three issues

3

for the determination of the appeal to wit:

i. “Whether Exhibit “P5” (the purported confessional statement) is admissible in evidence when evidence showed that it was not made by the Appellant or same was coerced from him? Distilled from Grounds 2, 4, 5 and 6 of the Amended Notice of Appeal.

ii. Whether the Respondent was able to prove the charge of murder against the Appellant beyond reasonable doubt? Distilled from Grounds 1, 7, 8, 9 and 10 of the Amended Notice of Appeal.

iii. Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be interpreted as a dying declaration? Distilled from Grounds 3 and 11 of the Amended Notice of Appeal.”

Arguing issue one, counsel urged this Court to disregard Exhibit P5 as a confessional statement because it does not qualify as such under the law. He referred the Court to Section 28 of the Evidence Act, 2011 and the case of NWAKOYE V. STATE (2016) ALL FWLR (PT. 850) 1211. It was submitted that the Appellant was charged with the murder of the deceased on 6/5/2009, while PW1 and PW2 led evidence that the said

4

deceased died on 22/7/2009. That Exhibit P5 only purportedly captured events that happened on 5/5/2009. He therefore submitted that the Appellant could not have on 5/5/2009, confessed to committing an offence that happened on the next day or subsequently.

​Relying on Sections 29 (2) (a) and (b) and 29 (5) of the Evidence Act as well as the cases of ONOBU V. IGP (1961) NNLR 25; STATE V. OLASHEHU (2011) LPELR – 11 (SC); STATE V. RABIU (2013) VOL. 220 LRCN (PT. 2) 120; ULUEBEKA V. STATE (2000) FWLR (PT. 11) 1827, learned counsel submitted that the Exhibit P5 was not voluntarily made due to the fact that PW2 testified that the statement was “obtained”. Exhibit P5 was also challenged on the ground that it does not contain an illiterate jurat in accordance with the provisions of Section 3 of the Illiterate Protection Law, Laws of Delta State, 2006. Counsel submitted that while PW2 testified that the Exhibit P5 was read over to the Appellant before he thumb printed and signed same, an examination of the said exhibit would reveal that there is nothing to show that it was the Appellant whom the said Exhibit was read to. He further submitted that there is nothing

5

to show that Exhibit P5 was read to anybody in English Language, that there is nothing to show that the person to whom it was read understood it before signing.

​It was further submitted that Exhibit P6, the purported attestation to Exhibit P5 shows that Exhibit P5 was not made voluntarily or was not made at all as it was only written at the bottom of Exhibit P6 that “… I confirm/deny that it was a free and voluntary statement.” That the name of the Appellant was not written in the blank space, neither was Exhibit P6 interpreted to him. Learned counsel further submitted that the attesting officer was not called to testify and the contents of Exhibits P5 and P6 contradicted the evidence of PW2 that the Appellant signed the documents as his signature was not on the documents.

On issue 2, counsel cited the case of OCHIBA V. THE STATE (2012) VOL. 204 LRCN and submitted that all elements of the offence of murder must be proved beyond reasonable doubt before the prosecution can succeed in such a charge. He submitted that the Respondent threw confusion into its case when it could not prove the date the deceased died, especially as the

6

Appellant was never arrested or interrogated with respect to a murder charge. That the evidence led by the Respondent’s witnesses did not support the charge that the deceased died on 6/5/2009, as stated in the information. Relying on the case of IBRAHIM V. THE STATE (2015) ALL FWLR (PT. 779) 1149, he submitted that all elements of the charge as contained in the information must be categorically proved. That no attempt was made by the Respondent to explain the material contradictions between the charge and evidence led, neither was the charge amended.

​Learned counsel also contended that there was no direct, credible or positive evidence fixing the Appellant to the scene of crime on 6/5/2009. It was submitted that the deceased could not have been able to identify the Appellant at 3:20 am when she was asleep as the alleged incident happened within minutes. That there was no picture of the door that was allegedly broken, there was no evidence that anyone heard the voice of the Appellant and there was no evidence of the lighting condition in the deceased’s room. Learned counsel submitted that there was no way the deceased could have been coordinated enough to

7

identify the Appellant in that condition. Reliance was placed on the cases of SALE V. THE STATE (2016) ALL FWLR (PT. 822) 1635; OSUAGWU V. STATE (2017) ALL FWLR (PT. 872) 1504.

​Counsel submitted that Exhibit P7, the medical report is a worthless piece of paper as it contradicted the date stated on the charge that the deceased died. That the statement of PW3, the medical expert that on 22/7/2011 (about two years after the death of the deceased), the deceased had bandage in her head, chest and both thighs and other evidence purportedly indicating that the body was still fresh are all false. It was also submitted that PW3 admitted under cross-examination that the deceased died two years before the post mortem was conducted on her. That no evidence was given as to how the body of the deceased was preserved, neither was there any evidence excluding any intervening cause of death considering the fact that the deceased was said to have lived for two months after the incident occurred. It was equally submitted that there was no explanation by PW3 as to how the Appellant was able to live for two months after the acid was allegedly poured on her. The case of

8

SHANDE V. STATE (2005) ALL FWLR (PT. 279) 1359 was relied on.

​It was the further submission of learned counsel that there is doubt that PW3 examined the deceased because Exhibit P7 does not contain the name of PW3 or any other medical doctor and the Court cannot presume whose name is on the document. He also submitted that Exhibit P7 was wrongly admitted and urged this Court to reject same because according to him, the exhibit ought not to have been tendered through PW3 as it could only be used to confront the witness.

On issue three, counsel submitted that the lower Court erred in holding that the deceased’s statement “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” was a dying declaration without considering the special circumstance of the case. It was further submitted that the trial Court had no power to pick and choose which version of the prosecution’s evidence to accept. The cases of UDOSEN V. STATE (2007) 4 NWLR (PT. 1023) 125; COP V. AMUTA (2017) VOL. 263 LRCN 23 were cited in support. Learned counsel submitted that Exhibit P1 supersedes the evidence of PW1 as the deceased who made the Exhibit was

9

the only eyewitness to the alleged crime. He submitted that the lower Court was wrong to have held that both the statement of the deceased in Exhibit P1 and the evidence of PW1 were declarations made by the deceased as to the cause of her death. That the statement in Exhibit P1 is the only dying declaration as it was made directly by the deceased who was the victim of the alleged offence and the lower Court was wrong to have ignored it in considering the entirety of the res gestae. Section 40 of the Evidence Act was referred to.

Counsel urged this Court to reject the evidence of PW1 as unreliable because he was asleep when the incident occurred and he could not have heard the statement purportedly made by the deceased. On the whole, he urged this Court to allow the appeal, discharge and acquit the Appellant for the offence of murder.

​C.O. AGBAGWU ESQ., DEPUTY DIRECTOR, DEPARTMENT OF APPEAL, MINISTRY OF JUSTICE, DELTA STATE settled the Respondent’s brief filed on 16th October, 2019. The said brief was deemed properly filed and served by an order of this Court made on 17th October, 2019. For the determination of the appeal, the Respondent’s counsel also

10

formulated three issues to wit:

i. “Whether the Respondent was able to prove the charge of murder against the Appellant beyond reasonable doubt?

ii. Whether the statement of the deceased to PW1 that “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body” can be rightly interpreted as a dying declaration?

iii. Whether Exhibit “P5″ (the Appellant’s confessional statement) is admissible in evidence?”

On issue one distilled by the Respondent, learned counsel submitted that in order to succeed in a charge of murder, the prosecution must adduce credible evidence linking the accused person with the crime and all ingredients of the offence must be proved beyond reasonable doubt. Section 135 of the Evidence Act as well as the cases of DIBIE V. THE STATE (2004) 14 NWLR (PT. 893) 257; ADEKUNLE V. THE STATE (2006) 14 NWLR (PT. 1000) 717 were cited in support. It was submitted that the evidence of PW1, PW3 as well as the holding of the learned trial Judge show that the deceased is dead.

​Counsel submitted that from the evidence of PW1 that he heard the deceased shouting that the Appellant poured acid on her body and how

11

her condition deteriorated and led to her death before the Appellant’s parents proposed a financial settlement; to the evidence of PW3 about the condition of the deceased and his conclusion that she died from corrosive chemical burns; to Exhibit P1 wherein the deceased stated that the Appellant poured acid on her and Exhibit P5 wherein the Appellant confessed to pouring acid on the deceased, there is enough evidence linking the Appellant with the murder of the deceased. That the only rational conclusion was that it was the Appellant who caused the death of the deceased by pouring acid on her.

On the third ingredient of the offence of murder, learned counsel submitted that the act of the Appellant in pouring four litres of acid on the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. Reliance was placed on the case of AMAYO V. STATE (2001) 18 NWLR (PT. 745) 251. It was submitted that the Appellant in Exhibit 5 narrated how he purchased four litres of acid and how he collected a bicycle from one Roman Emujeben which he rode to the residence of the deceased’s parents where he poured the acid

12

on her. That the law presumes a man to intend the natural consequences of his action and the Appellant clearly intended to do grievous harm to the deceased, hence he locked the bedroom of her parents to prevent help from getting to her quickly enough.

Arguing issue two, counsel submitted that by virtue of Section 40 (1) of the Evidence Act, for a statement to qualify as a dying declaration, the person making it must believe himself to be in danger of approaching death and the belief is subjective, not objective. Reference was made to the case ofKING V. THE STATE (2016) LPELR (40046) 1. He submitted that the nature and gravity of the injury inflicted and the part of the body affected ought to be considered in determining whether what the deceased said was a dying declaration. That the statement of the deceased to PW1 ought to be considered because considering the pain caused by the corrosive effect of the acid on her body, the declaration was a true reflection of what was happening to her and was therefore a part of the res gestae. The cases of R. V. WOODCOCK (1789) 1 LEACH 500; ANEKWE V. STATE (1976) LPELR (486) 1 were relied upon.

13

Arguing issue three, learned counsel submitted that the trial Court conducted a trial-within-trial before admitting Exhibit P5 after Appellant’s counsel raised an objection to the admissibility of Exhibits P5 and P6 on the ground that they were signed under duress. He submitted that there is no evidence stronger than a confessional statement and that the Appellant in Exhibit P5 gave a graphic account of how the plot to bathe the deceased with acid was hatched, the motive behind the act and how the plan was executed. The case of OSENI V. THE STATE (2012) 5 NWLR (PT. 293) 351 was referred to.

On the contention of Appellant’s counsel that Exhibit P5 ought to contain an illiterate jurat, it was submitted that a statement made to a police officer by an accused person in the course of investigation does not fall within the protection envisaged by the Illiterate Protection Law as such does not involve the civil rights and/or obligations of either the accused person or Police officer. Reference was made to the case of JOHN V. THE STATE (2017) 16 NWLR (PT. 1591) 304. On the attestation form (Exhibit P6), he submitted that Appellant’s counsel having argued that a person who

14

thumb printed is presumed to be an illiterate cannot turn around to complain that Exhibit P6 was not signed by the Appellant. That it is obvious from the exhibit that the Appellant thumb printed and stated that he was cautioned, that he understood the caution, that after the caution, he made a statement which was reduced into writing, that the statement was read over to him before he thumb printed and that the statement was voluntarily made.

On the contention of Appellant’s counsel that the prosecution failed to prove the date of death contained in the charge, counsel submitted that 6/5/2009 as the date of death contained in the charge was the day on which the acid was poured on the deceased instead of 22/7/2009 on which she died was an error which ought not to be regarded as material because the Appellant was not misled by the error. Sections 166 and 167 of the Criminal Procedure Act as well as the case of EGUNJOBI V. FRN (2018) 7 NWLR (PT. 1621) 233 were relied upon. In his final analysis, counsel urged this Court to dismiss the appeal and to affirm the decision of the Court below.

RESOLUTION

Having read through the grounds of appeal as

15

encapsulated in the Amended Notice of appeal and the issues distilled by parties for the determination of the instant appeal, I find the issues distilled by both counsel identical. However for the resolution I consider the below stated issue as apt:

“Whether from the totality of the evidence on the record and the circumstances of this case, the lower Court was right in upholding the conviction of the Appellant by the trial Court for the offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.”

The law has crystalized in our criminal jurisprudence that an accused person is presumed innocent until he or she is proved guilty. The prosecution is saddled with the burden of proving the guilt of the accused person and the standard of such proof in criminal cases or trial is proof beyond reasonable doubt. See JOSEPH ORUNGU & ORS VS THE STATE (1970) LPELR- 2780 (SC). See Section 135 of the Evidence Act 2011 (as amended) and also Section 138 of the same Evidence Act which makes provision for the standard of proof.

​The Appellant herein was charged with the

16

offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable in Delta State.

The law has been long established in a legion of judicial authorities that before an Accused person can be convicted for the offence of murder, the prosecution is duty bound to prove the following ingredients beyond reasonable doubt:

a) That the deceased died;

b) That it was the unlawful act or omission of the Appellant which caused the death of the deceased; and

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

See the case of OKEREKE V. THE STATE (2016) LPELR – 40012 (SC).

The law is also trite that the three methods of evidential proof as held by the Supreme Court Per, Ogunbiyi, J.S.C in the case of OKASHETU V STATE (2016) LPELR-40611 (SC) are to wit:

a. Direct evidence of witnesses;

b. Circumstantial evidence; and

c. By reliance on a confessional statement of an accused person voluntarily made.

17

To start with, having perused the Appellant’s grounds of appeal as encapsulated in the amended notice of appeal and also the submissions and arguments of the Appellant’s counsel, it is safe to conclude that the Appellant in the instant appeal has not challenged the fact that the said Alero Eniyan died. The unchallenged finding of the Court below at page 193 of the record of appeal is that:

“From the disceptation (sic) in this matter there is no contention with regard to the first ingredient. It is agreed on all sides that the deceased, Alero Eniyan is dead.”

What is to be considered in the instant appeal is whether it was the act of the Appellant that caused the death of the deceased and whether the act causing the death of deceased was intentional. The Respondent as prosecution called 3 witnesses and tendered 7 exhibits. Exhibit P5 is the Appellant’s confessional statement at pages 25 – 26 of the record of appeal wherein he stated that:

“I know one Alero Eniyan, is my girlfriend. I have been into relationship with Alero Eniyan since year 2005 September. Some time ago Alero mother warned me from her daughter that I should stay away from her daughter that she

18

don’t want me to continue a relationship with her daughter any longer. Yesterday being 5/5/09 at about 4:30 pm I was in Ughara with my new girlfriend called Magdalene. It was there in Ughara I bought 4 liter of acid on my way coming back, getting to Koko junction there is no motor to carry me to Koko. There in Koko junction I have to decide and went to one Roman Emujeben who is living in Koko junction there. And deceived him that I am a student of Uni-port. And there is no means for me to get to Koko. It was there the man gave me his bicycle, then immediately as I got to Koko, I moved straight to No. 23 Housing Estate Korobe road Koko where my girlfriend is living, then when I got to the house I padlock her parent bedroom, then I broke the window of my girlfriend while she was sleeping I poured the four liter of acid on her body. Why I poured the acid on her body was that she was abusing me and secondly I heard that she is planning to marry another person.”

​When the confessional statement was sought to be tendered by the Respondent at trial, the Appellant objected to its admissibility on the ground that the said statement was not made voluntarily. In

19

adherence to the procedure known to our criminal jurisprudence, the learned trial judge conducted a trial within a trial wherein the voluntariness or otherwise of the said confessional statement was determined. After the close of the micro trial, the learned trial judge found the confessional statement of the Appellant voluntary and proceeded to admit the said statement together with the attestation form as Exhibits P5 and P6 respectively.

It is trite law that a confessional statement made by an accused person, which is properly admitted in evidence is, in law, the best pointer to the truth of the role played by such accused person in the commission of the offence. See OSENI V STATE (2012) 5 NWLR (PT 1293) 351; FRN V IWEKA (2013) 3 NWLR (PT 1341) 285. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court. See ADEKOYA V. STATE (2012) LPELR – 7815 (SC).

PW1, one Eniyan Ede, the victim’s stepfather, testified at pages 54 – 58 of the record of appeal. In his testimony under examination-in-chief, PW1 testified as follows:

20

“I know Alero Eniyan. I will describe her as my daughter because I brought her up. Alero Eniyan is dead. I know the accused person in the dock. I knew the accused person because he had a love affair with my daughter Alero. I had known the accused many years ago before his affair with Alero.

At about 2.30 a.m. on the 6th day of May, 2009, I was sleeping in my room with my wife when I heard Alero shout “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body.” When we heard the shout, we wanted to come out from our room only to discover that the room had been locked from outside, thereby locking us in. I was shaking with frightened anger as I could not come out. I then remembered that I had a hammer in my room. I used the hammer to force the door open, for my wife and I to come out. When we came out, we could barely breath, because the air was saturated with the smell of the acid. We rushed Alero straight to Koko Hospital. We noticed as soon as we came out that the deceased skin, from her face, to her breast and all over her body had started selling (sic) because of the acid poured on her. I also discovered that the kitchen door has open and the

21

mosquito net was torn. When we got to the general hospital Koko, the deceased was given first aid and we were referred to Sapele General Hospital. At Sapele General Hospital, we were further referred to University of Benin Teaching Hospital Benin (U.B.T.H)…

While at Aigbedia’s hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the hospital to carry my pregnant wife who had been nursing her, by charging (sic) her.”

Having perused PW1’s testimony on the record, it is evident that his testimony under examination-in-chief was not discredited under cross-examination. The evidence of PW2, the IPO and his findings in the course of investigation was also succinct on the fact that the Appellant poured acid on the deceased which led to her death.

​To add credence to the Appellant’s confession, one Francis Nkaoli Nwachokor, the pathologist who conducted the autopsy, testified as PW3. In his testimony at page 79 of the record of appeal, he stated as follows:

22

“I carried out an autopsy relating to the matter I was called upon to testify in connection with one Alero Eniyan on the 22nd of June, 2011. I was invited based on a Coroner’s order by a police corporal Imeh Effiong (PW2) from Koko police station to examine the body of Alero Eniyan.

At about 3:15 pm on the 22nd June, 2011, I arrived at the Okparavero Memorial Hospital Mortuary. The records of Okparavero shows that the body of Alero Eniyan was deposited there on the 22nd July, 2009. The body of Alero Eniyan was identified by one Eniyan Ede (PW1) who claimed to be her stepfather. Further examination of Alero revealed that she was aged about 16 (sixteen) years and she measured 4 feet and 11 inches in length. She was slim and dark in complexion. The body of Alero has (sic) bandaged in her head and her chest. Both ties (sic) of Alero were bandaged. Further examination showed that she had corrosive chemical burns that affected her head, face, neck, chest (anterporling) in front up to her upper abdomen. The back of Alero was also affected up to the level of the shoulders. Her entire right upper hand, from the shoulder to the finger, her left arm, that is from her elbow up,

23

her two things (sic). Further examination of her revealed that her skin on her head had shifted (sic) and the skull bone was visible. Her skin had also shifted in the neck and chest but were not revealing the underlying bones. I concluded that the deceased Alero must have died from overwhelming corrosive chemical burns with damage to the tissues in the areas that I have described…”

Under cross-examination at page 80 of the record of appeal, PW3 was unshaken as to the cause of death when he testified that:

“My findings as to cause of death was as a result of overwhelming corrosive chemical burns.”

​From the unchallenged evidence of PW1 and PW3, it is evident that there are other credible evidence on the record showing that the Appellant’s confession was true and probable. Flowing from the evidence of PW1 and PW3, the Appellant’s argument and submissions in respect of the failure of the Respondent to prove the date of death goes to no issue. Although the charge sheet at page 7 of the record of appeal states that the Appellant murdered the deceased on 6th May, 2009, while the evidence of PW1 was to the effect that the deceased died on

24

the 22nd July, 2009. There are credible evidence on the record that the Appellant carried out the dastardly act on the 6th of May, 2009 but the deceased who was hospitalized after the incident, died on the 22nd July, 2009. I am of the firm view that the discrepancy in the date of death as stated on the charge sheet does not subtract from the fact that the deceased died and that it was the act of the Appellant that caused her death. As a matter of fact, the Appellant has not shown that he was misled by the error or that the error occasioned a miscarriage of justice. The case of IBRAHIM V. STATE (supra) is poles apart from the facts of this case. See also AGBO V. STATE (2006) 6 NWLR (PT. 977) 545; AMADI V. FRN (2008) 18 NWLR (PT. 119); EGUNJOBI V. FRN (2012) LPELR – 15537 (SC) at pages 55 – 56 per Peter-Odili, JSC.

​The Appellant’s counsel in this appeal has raised a legion of objections challenging the admissibility of the Appellant’s confessional statement. One of the objections include the fact that the IPO used the word “obtained” in recording the statement of the Appellant and the other is that the Appellant’s confessional statement does not contain an

25

illiterate jurat in compliance with Section 3 of the Illiterates Protection Law of Delta State of Nigeria, 2006.

On the complaint as to the use of the word “obtained”, it is necessary to refer to the evidence of PW2 Effiong Imet, the investigating police officer (IPO). PW2 gave evidence at page 65 of the record as follows:-

“I recorded the statement of the accused at Koko Police Station under caution. The accused volunteered his statement to me under caution. I recorded the statement of the accused for him in English Language… This is the statement I recorded from the accused. When I recorded the statement of the accused, I discovered that the statement of the accused was confessional …”.

Again he stated:

“I can recognized the statement I recorded from the accused and the attestation form while I signed as a witness”.

The witness in his evidence in-chief consistently maintained the use of the words “the statement I recorded” and that he can recognize the statement he recorded. In view of the foregoing, the complaint of the Appellant on this ground is of no moment

​On the absence of an illiterate jurat, assuming

26

the Appellant is an illiterate and his statement was recorded in English language by PW2, the Courts have always accepted such statements without the need for an illiterate jurat. See OLALEKAN VS STATE (2001) 18 NWLR (PT 746) 793. The rationale for this is that one of the major essence of the provisions of the Illiterates Protection Law is to ensure that the person who made the document on behalf of the illiterate is identifiable and traceable so that where there exists a doubt or there is a denial as to the correct statements that were made by an illiterate in a document, the writer would be traced to show whether the contents of the document represented the veracity of what the illiterate asserted. SeeEDOKPOLO & CO LTD VS OHENHEN (1994) 7 NWLR (PT.858) 511, FATUNBI VS OLANLOYE (2004) 6-7 SC 68.

Furthermore, the Illiterates Protection Law avails an illiterate in civil causes and in respect of documents recorded by another at his instance. Where the document creates legal rights and the writer benefits thereunder, the law sets in to protect the illiterate from any fraud by requiring the writer to comply with its requirements. Basically, compliance

27

with the law is in respect of civil matters and the emphasis is on protection of an illiterate in respect of execution of documents which may have the effect of compromising his civil rights and obligations. A statement made to a police officer by a suspect in the course of investigation does not fall within the protection of Illiterates Protection Law, as the statement does not involve the civil rights or obligations of either the accused or the police officer. Hence, based on the foregoing postulations, the Illiterates Protection Law does not apply to statements recorded in criminal cases by the police. See JOHN V. STATE (2017) 16 NWLR (PT. 1561) 304; DAJO V. STATE (2019) 2 NWLR (PT. 1656) 281 at 299; SUNDAY V. FRN (2019) 4 NWLR (PT. 1662) 211.

On the Appellant’s issue no. 3, I am of the view that the dying declaration of the deceased as testified to by PW1 qualified as a dying declaration and same fixes the Appellant at the crime scene.

​It is well established in our law that a statement made by a person in imminent fear of death, and believing at the time it is made that he or she was going to die is admissible as a dying declaration.

28

See Section 40 of the Evidence Act; AKINFE V. STATE (1988) 3 NWLR (PT.83) 729; OKOKOR V. STATE (1967) NMLR 189; KING V. STATE (2016) LPELR – 40046 (SC); OKEREKE V. STATE (2016) LPELR – 40012 (SC) at 37; EZEKWE V. STATE (2018) LPELR – 44392 (SC) at 25 – 26. Strict proof of the actual words used by the deceased is generally required in proof of the dying declaration to avoid any uncertainties. The Respondent in the instant appeal through the testimony of PW1 led evidence as to actual words said as the dying declaration by the deceased and the said statement was a verifiable direct statement by the deceased, directed at the Appellant. PW1 in his evidence at trial said the deceased shouted: “Daddy oh, Daddy oh, Mummy oh, Mummy oh, Edike don kill me, he pour acid for my body”. The statement of the deceased when the Appellant poured acid on her as recounted by PW1 amounts to a dying declaration by the standard of the law of evidence. Considering this issue, the Court below at page 187 of the record of appeal held that:

“The lower Court held that the declaration of the deceased as testified to by PW1 was admissible as a dying declaration. I am in complete agreement.

29

The belief of a person that he is in danger of approaching death is objective and not subjective. The statement of the deceased was made when she believed that she was approaching death as a result of the acid which was poured on her and which caused her death. The statement was admissible against the Appellant in the trial where the cause of death of the deceased was in issue.”

The Appellant’s counsel in his brief made concerted efforts to make a mountain out of a molehill by raising lame issues in a bid to distract the Court from the crucial issues in the appeal.

From the overwhelming evidence on record, I hold that the Respondent had proved the charge of murder against the Appellant beyond reasonable doubt. The Appellant’s confession was proved against him. A confessional statement which is voluntarily made is an admission by the maker that he committed the offence. It is the best evidence in support of the case of the prosecution against an accused person. However, such evidence, apart from being voluntarily made, must be positive, direct, pungent and consistent with other facts as proved in the case. See the case of DAIRO V. STATE (2017) LPELR – 43724 (SC).

30

The Appellant’s confession is consistent with the evidence adduced by PW1 and PW3.

This Court in the case of SMART V. STATE (2016) LPELR -40827 (SC) held as follows:

“It is pertinent to state that the best form of evidence in a criminal charge and trial is where the accused makes a confession and admitting the commission of the offence. In other words, the best person seized with the knowledge of the Act complained of cannot be any other than the actor himself. Hence premium and quality placed on such evidence is conclusive that conviction on same alone is sustainable in law.”

​At this juncture and before I draw the curtain, I wish to deprecate the attitude of learned counsel for the Appellant in manufacturing stories to suit the interest of his client. In attacking the evidence of PW3, learned counsel stated in paragraphs 2.34 to 2.36 pages 12 to 13 of the brief that there was no evidence of how the deceased was preserved and that the deceased was discharged before she died. PW1 stated in clear terms that the deceased died on admission in the hospital and that the body had been in the mortuary. PW1 on page 55 lines 17 to 27

31

stated thus:

“While at Aigbedia’s hospital, the deceased was fed with a straw as her mouth was badly affected by the acid. The condition of the deceased deteriorated and on the 22nd of July, 2009, I received a phone call that she had died and that I should come to the hospital to carry my pregnant wife who had been nursing her by charging her. The deceased has not been buried, her remains were deposited in a mortuary. The parents of the accused came to beg us to settle the matter by offering us financial settlement and I told them that money cannot buy the life of the deceased, whom I brought up from the age of 4 before she died at about 17 years.”

PW3 in both his evidence in chief and under cross-examination on pages 34 and 35 confirmed that the body of the deceased was preserved in the mortuary since 22nd July, 2009. At page 80, lines 9 – 12, PW3 maintained his stand to the effect that the body was preserved, even under the fire of cross-examination. Hear PW3:

“The deceased had died about two years before I carried out the post mortem on her. It is possible to identify the complexion of the deceased, even though she had stayed in the

32

mortuary for a long time because the body was preserved.”

Learned counsel should refrain from manufacturing facts to suit the interest of his client. As a minister in the Temple of Justice, counsel should always be guided by raw facts as disclosed by the evidence before the Court. To be forewarned is to be forearmed, learned counsel should heed to this advice against the future.

In conclusion, by reason of the failure of the Appellant to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court, the appeal fails and same is hereby dismissed. The decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. ll Laws of the defunct Bendel State as applicable to Delta State is hereby affirmed.

---

SC.1023/2017