Joseph Ubi Igri V. The State (2009)
LawGlobal-Hub Lead Judgment Report
JEAN OMOKRI, J.C.A.
This is an appeal by the appellant against the judgment of E. U. Ofem, J., sitting at the High Court of Cross River State, in the Ugep Judicial Division, holden at Ugep, delivered on 26/11/03, wherein the appellant was convicted and sentenced to death by hanging.
The brief facts of this case are that the appellant and one Ekpo Obongha Mbang were arraigned before the High Court of Cross River State at Ugep for the murder of one Mary Obongha Inah which occurred on the 13/4/01, contrary to section 319(1) of the Criminal Code Law of Cross River State. The charge was read to the appellant and he pleaded not guilty. Thereafter the prosecution opened its case on 4/7/02, and called 6 witnesses to prove its case, while the appellant testified on his own behalf but called no witness. At the conclusion of the trial, the appellant and the other accused, Ekpo Obangha Mbang, were convicted of the offence of murder and sentenced to death by hanging.
Aggrieved by his conviction and sentence, with leave of this court granted on 28/4/08, the appellant appealed to this court on three grounds subscribed in his notice of appeal dated 28/4/06 and filed on13/6/07
In arguing Issue NO.1, learned counsel for the appellant, Mrs. Dorothy Ufot, submitted that in a charge of murder the prosecution must prove the following ingredients beyond reasonable doubt, namely:
(a) The death of the deceased;
(b) That the act or omission of the accused caused the death of the deceased;
(c) That the act of the accused person was intentional with the knowledge that death or grievous bodily harm is its probable consequence.
She referred to many cases on the issue, of which Ubani. V State (2003) 18 NWLR (Pt. 851) 224 at 240; Ugwu vs. State (2002) 9 NWLR (Pt. 771) 91 and Tegwonor vs. The State (2008) 1 NWLR (Pt. 1069) 630, are but a few. She then submitted that the foregoing three ingredients must be satisfactorily established by the prosecution in order to secure conviction for murder against the accused person. Learned counsel conceded that the prosecution proved that the deceased, Mary Obongha Inah is dead and that the cause of death was proved through the medical report, Exhibit A, but from the evidence of the prosecution witnesses and the evidence of the appellant before the court, the prosecution failed to prove whether the act of the appellant caused the death of the deceased. Counsel pointed out that there was no direct evidence linking the appellant to the conviction of the offence of murder, rather the trial court relied basically on circumstantial evidence, similar facts and Exhibit G5, the alleged confessional statement to convict the appellant. Relying on Ahmed vs. The State (2001) 18 NWLR (Pt. 746) 622 at 641 – 642, Obiakor & Anor vs. The State (2002) 10 NWLR (Pt. 776) 612 at 624 and Nweke vs. The State (2001) 4 NWLR (Pt. 704) 588 at 623 learned counsel circumstantial evidence sufficient to support a conviction in a criminal trial especially murder must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer. She referred to the evidence of PW5, who testified on similar facts evidence and the Investigating Police Officer, PW6, and pointed out that apart from them, PWs 1 – 4, who testified in respect of the circumstantial evidence surrounding the death of the deceased recovered their information from two cyclists, namely: Monday Inyang Ibor and John Eyong. She then submitted that the two cyclists were vital witnesses who should have been called because their evidence would have helped the court to resolve the issue in one way or the other. Therefore, failure to call the two cyclists is fatal to the case of the prosecution. She relied on Onah vs. The State (1985) 3 NWLR (Pt. 12) 236.
On Issue NO.2, Mrs. Ufot, relying on Nsofor vs. State (2004) 18 NWLR (Pt. 905) 292 at 308; Akpan vs. State (1992) NWLR (Pt. 248) 439; Nwangbonui vs. The State (1987) NSCC 1239 at 1249 and Onyejekwe vs. The State (1992) NWLR (Pt. 230). She contended that the appellant stated that he made his confessional statements under duress, therefore, the trial court was obliged to conduct a trial within the trial to determine the voluntariness of the alleged confession and failure to do so was fatal to the admissibility of Exhibits G, G1 – G5. She then urged the court to disregard Exhibits G, G1 – G5, the alleged confessional statements of the appellant.
Learned counsel enumerated the tests a confessional statement must pass before it could be relied upon by a court to convict and sentence an accused person. She then referred to Shande vs. State (2005) 1 NWLR (Pt. 907) 218 at 240 and Ekpo vs. The State (1995) 9 NWLR (Pt. 421) 540. She submitted also that there is no evidence outside Exhibits G, G1 – G5, to show that the confessional statements were true and moreover the said confessional statements were no corroborated and they are not consistent with other ascertained facts in the case. She concluded that Exhibits G, G1 – G5, the confessional statements were fabricated, invented or manufactured by the police. She referred to Nwachukwu vs. State (2002) 2 NWLR (Pt. 351) 363; Hassan vs. State (2001) 15 NWLR (Pt. 735) 184; Oche vs. State (2007) 5 NWLR (Pt. 1027) 231; Onafowokan vs. State (1987) 3 NWLR (Pt. 61) 538 at 541 and Gbadamosi vs. State (1991) 6 NWLR (Pt. 196) 182, and submitted that the trial Judge ought to have satisfied himself of the truth and veracity of Exhibits G, G1 – G5, before relying on them to convict the appellant.
Mrs. Ufot also stated that the evidence of similar fact under section 17 of the Evidence Act, introduced by PW5 is inapplicable because the appellant vehemently denied responsibility for the death of Grace Ibiang Usanga on 1999, and that he was neither reported to the police nor tried before any court for the offence. She then urged the court to set aside the judgment of the trial court and discharge and acquit the appellant.
In respect of the trial within trial or lack of it for the respondent in his response in Issue NO.1, submitted that the prosecution proved the three main ingredients or elements for an offence of murder. He relied on Omosere vs. State (2007) NCC 61 at 66 and Adekunle vs. State (2006) 10 MJSC 107 at 172. He submitted that Exhibit A confirms that the deceased died and the corpse was identified by her step-father as that of Mary Obongha Inah. Counsel also referred to Exhibits G and F4, where the appellant and his co-accused admitted killing the deceased. Counsel pointed out the confessional statements were duly endorsed by a Senior Police Officer and the learned trial Judge found that the statements were voluntary. Therefore, there was no need for a trial within trial particularly when the appellant did not object to the admission of their confessional statements in evidence. He referred to Mohammed vs. State (2007) 2 NIGS 574 and Akpa vs. State (2008) 314 NSCQR 1240 and submitted that a free and-voluntary confession of guilt made by an accused person if direct and positive is sufficient to warrant his conviction even without some corroborative evidence.
Counsel submitted, that notwithstanding the above, the learned trial Judge still sought for corroborative evidence at page 81, lines 21 – 24 of the record and at page 82 lines 3 – 6, the trial Judge found that if there was no truth in the confessional statements how were the accused able to lead the police from Calabar to the crime scene at Ekori. Moreover, the account of the appellant and his co-accused on how they killed the deceased is so graphic and detailed, that is, a participant could narrate the story.
Learned counsel contended that appellant’s reliance on Onah vs. State (supra) and submission that failure of the prosecution to call the two cyclists, Monday Ibor Inyang and John Eyong to testify is fatal to the case of the prosecution is not correct. He submitted that the prosecution is not bound to call all its witnesses especially where the appellant clearly, precisely, concisely and unequivocally confessed to the commission of the offence. Relying on Akpa vs. State (supra) at 1253, counsel submitted that the prosecution need not call hosts of witnesses.
On Issue No.2, learned counsel defined the word “confession” and thereafter submitted that once a statement is free and voluntary, direct, positive and properly established, it is sufficient proof of the guilt of the accused person and it is enough to sustain a conviction so long as the court is satisfied with the rightness of such confession. He relied on Yahaya vs. State (supra) Ubiefho vs. State (2005) 1 NSC 146; Oden vs. FRN (2005) 1 NSC 303 and section 27(1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. Learned counsel, reiterated the fact that a confession does not become inadmissible because, the accused denied having made it. He was also of the view that apart from the appellant’s confessional statement which were so precise and concise; there are other points which suggest that they are true.
He pointed out that the appellant and his co-accused after making their confessional statements at the State C. I. D., led the investigating team to the(sic)
Secondly, counsel submitted that the appellant’s confessional statement was so graphic and detailed that the manner of killing the deceased was consistent and fitted exactly the contents of the medical report. He pointed out that the record of proceedings is quite clear about what transpired in court on 28/1/03, when the Investigating Police Officer, PW6, tendered the statements of the appellant. Nowhere is it stated that the appellant’s counsel objected to the admissibility of the confessional statement of the appellant on the ground that it was not voluntarily made rather the objection raised was as to dates and precisely, that the six statements sought to be tendered were not made by the appellant and that the prosecution should produce the statement of the appellant made on 13/4/01. Counsel pointed out that the request of the appellant’s counsel was unreasonable because by 13/4/01, the appellant had not been arrested, so how could he have made a statement. He relied on Nsofor vs. State (2005) 1 MJSC 128 at 138; Shande vs. State (2005) 12 – MJSC 152 at 155; Mohammed vs. State (supra) and Uwaekweghinya vs. State (2003) 6 MJSC 1 at 9, and submitted that the prosecution has proved its case against the appellant beyond reasonable doubt, therefore, the appeal should be dismissed and the judgment of the trial court should be affirmed.
I have considered the issues for determination formulated by the parties in this appeal. Apparently, the respondent adopted the twin issues formulated by the appellant. In the circumstances, I shall adopt and rely on them for the determination of the appeal.
Where a person is charged with an offence of murder, the prosecution must prove:
(a) That the deceased had died;
(b) That the accused person caused the death of the deceased; and
(c) Whether the act of the accused person was intentional with the knowledge that death or grievous bodily harm is its probable consequence.
The prosecution must meet the above stated ingredients or legal requirements through credible evidence and they must be proved beyond reasonable doubt. Furthermore, the three ingredients must co-exist and where one of them is absent or tainted with doubt, the charge is said not to be proved. The onus of proof is on the prosecution throughout and it does not shift except in a few cases. The rationale for this is that a judgment sending a person to death must be seen to be the product of logical thinking based on admissible evidence, in which the facts leading to conviction are clearly found and the legal deductions there from carefully are made. See Igabele vs. State (2006) 25 NSCQR 321 at 333; Tegwenor vs. State (2008) 1 NWLR (Pt. 1069) 630 at 652; Ahmed vs. State (supra); Adava vs. State (2006) 9 NWLR (Pt. 984) 152; Omonga vs. State (2006) 14 NWLR (Pt. 1000)532 and Adekunle vs. State (2006) 14 NWLR (Pt. 1000) 717.
From the evidence of PW1, PW2, PW3, PW4 and PW6 at pages 30 – 35, and 37 – 46 of the record, Exhibit A, the medical report, Mary Obongha Inah died on or about the 13/4/01 at Epenti Ward, Ekori. There is evidence particularly Exh. A, the report of the medical practitioner, Dr. Olajide Legman Lawal, show clearly the cause of death of the said Mary Obongha Inah to be severe haemorohage. See Onyia vs. State (2006) 1 NWLR (Pt. 991) 267; Omonga vs. State (supra) and Idiok vs. State (2006) 12 NWLR (Pt. 993) 7.
Now, the question is who caused the death of the deceased, Mary Obongha Inah. 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.
The prosecution does not always need an eye-witness account to convict an accused of murder if the charge can otherwise be proved. See Igabele vs. State (supra); Lori vs. State (1986) 8 – 11 SC 81 and Emeka vs. State (2001) 14 NWLR (Pt. 734) 666
In the instant appeal, there is no evidence of an eye-witness to prove the guilt of the accused person. We are therefore left with the confessional statement of the appellant or circumstantial evidence. For now, I will deal with the circumstantial evidence first and the confessional statements of the appellant raised in Issue NO.2 later.
In the instant appeal, learned counsel for the appellant, Mrs. Ufot, contended that since the prosecution failed to establish its case through direct evidence of its witnesses that the appellant was the one who caused the death of the deceased, Mary Obongha Inah, then it ought to have called the two cyclists, Monday Inyang and John Eyong to testify since PWs 2, 3 and 4, testified that they were the persons who last saw the deceased and the appellant and his co-accused, when they tried to hire them to convey them to Ekori Beach very late in the night.
Having carefully gone through the record in this appeal, it is my finding that the learned trial Judge after evaluation of the evidence of PWs 2 – 4 regarding the cyclists, rejected their evidence as being hearsay and inadmissible. The trial Judge at page 75, lines 24 – 32 held as follows:
“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.”
It is therefore crystal clear that learned trial Judge never relied on the evidence of PWs 2 – 4. The contention of the learned counsel for the appellant is devoid of substance and it has no legs to stand.
“…I am therefore not in agreement with the contention of the learned defence counsel that since the disappearance of Grace Ibiang Usang was not reported to the police, the evidence about her disappearance cannot be admitted to show that the accused persons committed the present offence. This is because, to prove guilty knowledge of someone charged with the offence of murder, evidence may be given of the accused having previously killed someone or others in circumstances similar to the one with which he is now charged. I agree with the submissions of the Assistant Director of Public Prosecutions (I. E. Ikona) that the similar fact evidence of PW5 is relevant in showing the particular way the 1st accused and his co-evil does eliminate young girls…”
Before proceeding further, it is necessary that I examine the evidence of PW5 on the issue of similar fact. The relevant portions of his evidence in chief at page 35, lines 22 – 32; page 36, lines 1 – 5 are as follows:
“I saw my daughter (Grace Ibiang Usang) on 12/9/99 before I traveled to Lagos and when I returned on 24/9/99 I could not see her again. When I enquired from her sister, I was told she traveled. I latter enquired from the Headmaster of her school who denied knowledge of her whereabouts but said 1st accused had earlier on come to him (the Headmaster) with the picture of my daughter with a story that Grace needed a N1, 000.00 I can (sic) to enable her settle her hospital bills in Calabar. The Headmaster said he contacted other teachers who, together with him, contributed N1, 000.00 and he (Headmaster) gave the money to 1st accused.
From this information I enquired from 1st accused about the whereabouts of my daughter and he denied knowledge and also denied ever receiving any money from the Headmaster. 1st accused and daughter were always moving together because both belong to the same group in the church. I have not seen my daughter up till now.”
And under cross-examination at page 36, lines 6 – 15, PW5 stated as follows:
“CROSS EXAMINATION: I have not reported the case of my missing daughter directly to the police. At the time Mary Obongha Inah got missing, I was not invited to group in the church. I have not seen my daughter up till now.”
And under cross-examination at page 36, lines 6 – 15, PW5 stated as follows:
“CROSS EXAMINATION: I have not reported the case of my missing daughter directly to the police. At the time Mary Obongha Inah got missing, I was not invited to make a statement to the police but later the police invited me to make a statement. In view of circumstances of the death of Mary Obangha Inah which linked 1st accused who was equally linked with the disappearance of my daughter, I ‘m convinced that 1st accused is responsible for my daughter’s disappearance – Grace Ibiang Usang. I was not present when my daughter was killed. I was also not present when Mary Obongha Inah was killed.”
A calm and sober reflection on the evidence of PW5 reveals that he never said any thing about the appellant in this appeal; rather he mentioned the 1st accused at the trial who is, Ekpo Obangha Mbang.
It is also necessary to consider the evidence of PW6 at page 37, lines 11 – 23 of the record, where he stated as follows:
“I am Okon Isangedighi, Inspector attached to the Homicide section of the State CID, Calabar. I know the two accused persons and all the prosecution witnesses. I know one Grace Ibiang Usang (deceased) who was reported about August/September, 1999. She was a school teacher in St. Lawrence Primary School, Ekori, and was also PW3’s daughter. During my investigations 1st accused was said to have killed her and threw her in the Cross River Ekori. It was 1st accused who told me how he killed Grace Ibiang Usang and threw her into the river. That after killing her, 1st accused said he went to the school and collected her salary. 1st accused also said he collected some money from the relations of Grace Ibiang Usang promising to take them to where she was in Calabar and after collecting the money he never took them anywhere…”
Lastly, I reproduce the evidence of DW1, the 1st accused, Ekpo Obongha Mbang at page 43, lines 15 – 23 of the record, where he stated as follows:
“I know one Grace Ibiang Usang. I don’t know where she is. I don’t know if she is dead, but I saw her last in 1999. I was not instrumental to her disappearance. The sister of Grace Ibiang Usanga, Nnanke Ibiang Usanga told me that her sister Grace Ibiang Usanga has not been seen. At the time I was aware that she was missing. I was never arrested for the disappearance of Grace Ibiang Usanga and was also not tried for her disappearance. There is no truth in all the allegations against me. That’s all.”
Having carefully gone through the evidence of PW5, PW6 and DW1, it is clear as crystal that the present appellant was not linked to the killing of Grace Ibiang Usang. Under close scrutiny there is no evidence of similar fact against the appellant. The learned trial Judge was therefore wrong in his findings at page 22, lines 12 – 25 quoted above. The provisions of section 17 of the Evidence Act and the common law doctrine of similar facts evidence is not applicable in the instant case on appeal because the appellant was not mentioned anywhere in the evidence of the witnesses regarding evidence of similar facts. However, that is not the end of the matter, because there are the confessional statements of the appellant which were elaborately addressed under Issue NO.2 by the appellant. I shall now consider the issue.
The issue here, as contended by the appellant, is whether the confessional statements upon which he was convicted and sentenced were proved to have been made voluntarily. My first port of call is the provision of section 27 of the Evidence Act and it provides as follows:
“27(1) a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
(2) Confessions, if voluntary, are deemed to be relevant facts against the persons who make them only.”
See Yusuf vs. State (1976) 6 SC 167 and Nsofor vs. State (2004) 18 NWLR (Pt. 905) 92.
Proved, is sufficient without any corroborative evidence so long as the court is satisfied as to truth of the confession. See Akpa vs. State (2008) 14 NWLR (Pt. 1106) 72 at 100 – 101; Milla vs. State (1985) 3 NWLR (Pt. 11) 190; Atano vs. A-G. Bendel State (1988) 2 NWLR (Pt. 75) and Bature vs. State (1994) 1 NWLR (Pt. 320) 207.
At this point I shall consider the confessional statements of the appellant particularly Exhibit G5 and I reproduce same hereunder:
“In addition to my former statement I made to the police on 21/5/01, I wish to state as follows: What I am now saying about the death of one Mary Obongha Inah are as follows: That on the 12/4/01 being Thursday as we returned from farm in the morning hours I and my friend Ekpo Obongha Mbang returned to my house there Mary Obongha Inah now deceased met us in my house there as she arrived she told Ekpo Obongha that she had been look for him. It is then Ekpo Obongha Mbang asked her if she came with the money? I did not know the amount. She replied yes. Ekpo asked her to bring the money, she said she left the money at Ekpo’s house; Ekpo left immediately to his house and came back after collecting the money. He then calls me and suggested we should go to Aferekpe village where Solomon Ntuogha live to see him. When we arrived as we did not see Solomon we went to one Otu’s house and waited for him. There in Otu’s house, my friend Ekpo brought out N80.00 and gave to Otu to cook rice for us thereafter we went to Solomon’s house and we met him. I collected my radio cassette from him. We later went to Otu’s house and ate the rice he prepared. Thereafter we picked a motorcycle from there to Ekori where we dropped at Ekpo’s compound. There in Ekpo’s house he gave me the sum of Two thousand Naira (N2, 000.00) and asked me keep it since I knew where the money come from, I did not asked any question. There after I asked him how much Mary gave to him. He said it was six thousand Naira (6, 000.00) after this he brought our N680.00 and gave to me and said that I should use it for myself. There after I went to my house. When I reached home I bought food for the deceased Mary that was about 5 pm. There I went to the church and came back to change there I met my mother Mary Obla Ihan who told me that one man I named Obongha Inah came and look for me. There I asked my mother what does he said? She said he ask her about church activity. By this time I locked myself inside my room. My mother was not aware that Mary was in my room. As I opened my room and saw her she told me that her father came and looks for me. I replied her that let her wait until Ekpo’s master called Sam Archibong being herbalist would free her before we shall go and tell Mary’s father. There I lucked her back inside and went to church. There in the church Ekpo met me and called me there we follow together to my house in the night. There in our house people have already slept. There my friend Ekpo told me that I should call her out to go and kill her. There I asked Ekpo that if we kill her where we are going to keep her. Ekpo said we should go to the beach Ekori beach. There I told Ekpo that since this girl is being look for if we work with her to Ekori beach people would us. Ekpo then told me that he know where he would ask her to go and wait for us. I did not accept that he then ask me where we can see a motorcyclist to take us to Ekori beach. As we discussed I had the sound of the motorcycle. I called the cyclist man Ogba he answered me, he asked me who are you? I told him I am Joseph Ubi and he should come out. As he came out I told him that he would carry me and two others to Ekori beach and there’s a girl that we want to go and kill. I told him the girl is from Ekori. He said he want to see the girl. I took the cyclist man to my house there he met the girl and Ekpo in my room. The cyclist man called Monday Eteng alias Ogba Ogba there the cyclist man said no he already parked the motorcycle, his brother would be annoyed for him to bring out again. He then directed me to another cyclist. I refused to contact another person. I came back and told Ekpo let us find another way to deal with this girl. He said since there is no motorcycle around let us take the girl to the bush and kill. As I called the girl out I asked Ekpo would people not see us as their quarreling. Then Ekpo said we should go. Then together we left towards the bush near uncompleted building along Ekomaty Road, Ekori. As we reach the spot there Ekpo asked Mary to stand with me while he is going to call his master Sam Archibong he came back without his master rather he came back and said that his master need me. He asked Mary to wait. I followed him to uncompleted building there he told me that I should not be afraid but be a man by holding her on her hand. After the instruction from Ekpo we came out from different direction to the deceased. Ekpo asked her if his master gripes her on her neck would she fear. She said no. Ekpo did another gesture and gripped her on her throat there she started shouting while I ran immediately and gripped her hand. She was struggling with us and fell down. We ran and hide in the bush for safety as we are concuion of a watch night in a nearby primary school, there after we found the girl stood up and was staggering. We went back and hit her with a plank and she fell again while Ekpo used sword to pierce the girl through her throat and Ekpo ordered me to hit the sword with the plank in my hand, which I did, till the sword pears out of the deceased neck. As we found that she was totally dead she was then buried in the place where she was latter found. Solomon Ntongha did not take part in the killing of the deceased. That’s all my statement Signed Joseph Ubi Igri.”
have also examined and considered Exhibits G, G1 – G4, they compliment Exhibit G5. The appellant’s account of the killing of Mary Obongha Inah in Exhibit G5 is very graphic and detailed that only the killer could narrate such a story. Exhibit G5 shows how the appellant and his co-accused first tried to strangle the deceased but seeing that it would not kill the deceased fast enough they used the cutlass they brought to finish her off and then tried to bury her with the hoe brought for that purpose.
When the corpse of the deceased was eventually found and exhumed, there was a cutlass protruding from her neck as stated by the appellant. Also the hoe the appellant and the co-accused used in trying to bury the deceased was also seen at the scene of crime. In the medical report, Exhibit A, it was clearly stated that a cutlass about 65 cm long was found still protruding from the right side of the neck of the deceased. The entire above are corroborative evidence showing that the appellant’s confession is true.
It is of great significance to note that the appellant led the IPO, PW6, and other police officers from State CID, Calabar, to where the deceased was buried at Ekori. If the appellants on their own free will led PW6 to where they buried the deceased and the corpse of the deceased was actually found there and exhumed, I have no doubt that the confessional statements made by the appellant are true. I am at one with the learned trial Judge when he held at pages 81 – 82 of the record where he held 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.
The evidence of PW6, Inspector Okon Isanghedihi of the State CID 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.”
In Philip Kanu & Anor V The King (1952) 14 WACA 30, it was held that the court law convict on the confessional statement of an accused person alone if it is court can free and voluntary and it is fully consistent and probable, though it is desirable to have, outside the confession some evidence, be it slight, of circumstances which make it probable that the confession was true. See also Nwachukwu vs. State (2002) 12 NWLR (Pt. 782) 543 at 572.
Also in Ubierho V State (2005) 2 NWLR (Pt. 919) 644 at 655, the Supreme Court held thus:
“A man may be convicted solely on his confession. There is no law against it. If a man makes a free and voluntary confession which is direct and positive and is properly proved, the court may if it thinks fit, convict him of any crime upon it. It is however desirable to have some evidence of circumstances which make it probable that the confession was true.”
From the above cases it is clearly implied that the court should seek for corroboration. The word, “corroboration”, simply means confirming or giving support to a person, statement or fact. The purpose of corroboration is merely to confirm and support that which as evidence is sufficient, satisfactory and credible. Corroboration is categorized into two. There are some offences where corroborative evidence by statute, like section 178 of the Evidence act, 1990. There are others, like in the instant case on appeal in which corroboration is required as a matter of practice. Corroborative evidence must be independent testimony connecting or linking the accused 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 offence. In considering whether some evidence is corroborative of another, the court must take all the little items of the former together and see if they all add up to corroboration.
The corroboration need not consist of direct evidence that the accused did commit the offence alleged nor must it amount to a confirmation of the whole account given by the witness. The only important requirement is that the evidence corroborates evidence in some respect material to the charge. See Queen vs. Omisade (1964) NMLR 64 and Nwankwola vs. State (2005) 12 NWLR (Pt. 940) 637 at 679.
In the instant case on appeal, the confession of the appellant to the killing of the deceased was positive and direct. Also there is other material evidence outside the confessions which make Exhibits G, G1 – G5 probable that they are true.
It is also important that the court should not act on the confession without first testing the truth thereof.
The approach to be followed in assessing the quality of a confessional statement whether retracted or not is to ask the following questions:
(a) Whether there is anything outside the confession which shows that it may be true;
(b) Whether it is corroborated in anyway;
(c) Whether the relevant statement of fact made in it are most likely true as far as they can be tested;
(d) Whether the accused had the opportunity of committing the offence;
(e) Whether the confession is possible;
(f) Whether the alleged confession is consistent with other facts that have been ascertained and established.
See Ikemson vs. State (1989) 3 NWLR (Pt. 110) 455 and Edamawe vs. State (1996) 3 NWLR (Pt. 438) 530.
In the instant case on appeal, I am quite satisfied that the trial court properly directed itself as to the approach to be followed in assessing the confessional statement of the appellant. The confessional statements are true because they are consistent with the surrounding circumstance of the death of the deceased and other facts that have been ascertained. For instance:
(a) The deceased disappeared with money which the appellant disclosed she shared with him and his co-accused. See Exhibit G5.
(b) For the duration that the deceased was said to have disappeared, the appellant disclosed he had deceased hidden in his room unknown even to his mother. See Exhibit G5.
(c) Appellant in Exhibit G5 stated:
“Ekpo ordered me to hit the sword with the plank in my hand, which I did till the sword pierced out of the deceased neck. As we found that she was totally dead she was then buried in the place where she later found.”
(d) His co-accused stated in Exhibit F4 that:
“We were unable to remove the long sword on her neck and left her with the sword”.
(e) The medical report, Exhibit A, confirmed that a long cutlass was seen protruding from the neck of the deceased which appellant disclosed him and his co-accused drove into the deceased’s neck using a plank. See Exhibit G5.
(f) The appellant and his co-accused also took PW6, the IPO, from State CID, Calabar, to an uncompleted building at Ekori where the deceased was buried.
Based on the above, the confessional statements of the appellant were voluntarily made and they are true, therefore, the appellant’s confessional statements cannot by any stretch of the imagination be described as “fabricated”, “invented” and “manufactured” by the police as contended by the appellant.
I have also considered the case of Onah vs. State (1985) 3 NWLR (Pt. 12) 236, where it was held that in a criminal case, although the prosecution has the discretion to call whichever witnesses it considered necessary to prove the offence charged, its failure to call very vital witnesses whose evidence may determine the case one way or the other, will be fatal to its case. Having regard to the facts of this case, particularly, the confessional statements, Exhibits G, G1 – G5, it is unnecessary to call a multitude of witnesses when the appellant has confessed to the murder of the deceased. What other witness could be more vital than the appellant who clearly, precisely, concisely and unequivocally confessed to the commission of the offence. In Akpa vs. State (supra), the Supreme Court held at page 95, paragraphs C – D; pages 100 – 101, paragraphs G – G1 of the report, as follows:
“Confession in criminal proceeding 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 eye-witness because the evidence comes out of 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. (Ogwuraba vs. State (1993) 5 NWLR (Pt. 291) 660; Ibeh vs. State (1997) 1 NWLR (Pt. 484) 632.”
Indeed with the confessional statements of the appellant in Exhibits G, G1 – G5, which have been properly proved, there is no better evidence and there is no need for further proof since the appellant confessed that he and his co- accused killed the deceased. Can any witness say it better than the appellant himself? I think not.
I now come to the issue of trial within trial which the appellant has dissipated so much energy in his brief which was presented, adopted and relied upon in this appeal.
It is trite law that where an accused person contends that he did not voluntarily make the statement credited to him, such allegation necessitates the holding of a trial within trial. See Nsofor vs. The State (supra) page 328. Thus, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person. Where an accused admits making the statement but contends that he did not make it voluntarily or under duress or undue influence, etc, then a trial within trial will be conducted in order to determine whether the statement was voluntary or not. See Auta vs. State (1975) 4 SC 125; Gbadamosi vs. State (supra); Effiong vs. State (1998) 8 NWLR (Pt. 562) 362 and Akpan vs. State (supra).
In the instant appeal, it was alleged that the appellant clearly stated during trial that he was forced to sign Exhibit G5. That allegation is misconceived and it is of no moment.
Having carefully gone through the record with a fine tooth comb, I cannot find where the appellant’s counsel objected to the admissibility of the confessional statements, Exhibits G, G1 – G5, which were tendered together, on the grounds that they were not made voluntarily. Rather, the objections raised were as to the dates, and that the six confessional statements were not made by the appellant. Also that the prosecution should produce the statements made by the appellant on 13/4/01.
For the avoidance of doubt, let me refer to the objection made by the appellant’s counsel at the trial court, made at page 39, of the record where he said:
“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.”
The same objection was adopted for the appellant and co-accused. See page 39, lines 3 – 5 and page 40, lines 9 – 141 of the record. A confession does not become inadmissible merely because the accused person denied making. See Ikemson vs. State (supra); Queen vs. Itule (1961) 2 SCNQR 183 and Shande vs. The State (supra) where the objection to the admissibility of the accused person’s statement is merely on minor details such as the dates and not the substance, like the voluntariness of a statement, the statement is voluntary and admissible. See Nsofor VS. State (supra) and Uwaekweghinya vs. State (supra). As to the production of the statement made by the appellant on 13/4/01, that is ridiculous because from the evidence of PW6 by 13/4/01, the appellant had not been arrested. So how could he have made a statement on 13/4/01? See page 39, lines 10 – 19 and page 40, lines 9 – 15 of the record.
In the instant appeal, when the prosecution sought to tender Exhibits G, G1 – G5, neither the appellant nor his counsel raised any objection as to the voluntariness of the statements. Appellant only raised the issue of the voluntariness of the confessional statements in his evidence in chief; precisely that he was forced to sign them. The proper time to raise the objection as to the voluntariness of the confessional statement is at the point when it is to be tendered in evidence so that the voluntariness or otherwise would be determined before it is admitted. It is too late to hold a trial within the trial after a statement had already been admitted in evidence. In Nwachukwu vs. State (2004) 17 NWLR (Pt. 902) 262 at 273 – 290, it was held that:
“A trial within trial is necessary only where a confessional is effectively challenged and not where all the opportunities at trial for such denial were never utilized. Thus, only where an issue arises as to whether a confession was made voluntarily should the exceptional procedure of holding a trial within trial be adopted by the court…”
In the instant case on appeal the retraction of Exhibits G, G1 – G5, the appellant’s confessional statements came only after they had been admitted in evidence, therefore, they could no longer be made the subject of any trial within trial. See Okaroh vs. State (1988) 3 NWLR (Pt. 81) 241; Queen vs. Eguabor (1962) 1 SCNLR 409 and Akpa vs. State (supra).
Indeed the learned trial Judge considered this issue at page 80 lines 25 – 30 of the record, where he held ?as follows:
“It was the same accused persons who did not challenge their confessional statements when they were read to them and the time it was tendering them, a period at which a trial within a trial would have been organized to determine the voluntariness or otherwise of the confessional statements.”
The learned trial Judge was right not to conduct a trial within trial. See also Mustapha vs. State (supra) and Yahaya vs. State (supra) 120 at 123.
In the circumstances, the two issues raised by the appellant have no merit and I resolve them against the appellant. Having resolved the two issues against the appellant, it follows that the appeal is devoid of any substance or merit.
Accordingly, this appeal fails and it is hereby dismissed. The judgment, conviction and sentence of the appellant delivered on 26/11/03 by Ofem, J., in Charge No. HUG/1C/2007 be and is hereby affirmed.
Appeal dismissed.
Other Citations: (2009)LCN/3156(CA)
