Michael Ankpegher V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
JOHN INYANG OKORO, J.S.C.
This is an appeal against the judgment of the Court of Appeal, sitting at Makurdi delivered on 9th July, 2013 wherein the Court below affirmed the conviction and sentence of the Appellant for the offence of conspiracy to cause death and culpable homicide punishable with death contrary to Section 97 and Section 221 of the Penal Code respectively.
The Appellant who was the first accused at the trial Court, being dissatisfied with the decision of the Court of Appeal has further appealed to this Court vide Notice of Appeal dated 2nd August 2013 and filed on 5th August 2013. The said Notice of Appeal contains five (5) grounds of Appeal. A brief facts giving birth to this appeal may be stated as follows:
The Appellant was charged together with one Moavega Igba who was the 2nd accused at the High Court of Justice, Markurdi, Benue State on a two count Charge of conspiracy to cause death and culpable homicide punishable with death contrary to Sections 97 and 221 of the Penal Code respectively. At the trial, the prosecution called a total of seven (7) witnesses and
1
tendered several documents in evidence in proof of its case. The Appellant testified for himself and called two witnesses in denial of his culpability.
It is the case of the prosecution that the deceased, one Kyernum Kervo, was alleged to have stolen a piece of goat meat at a funeral ceremony, whereupon he was apprehended and handed over to the Appellant and 2nd accused, Moavega Igba by the Elders to take to the Police Station at Gungul. It is their further case that instead of the Appellant and the 2nd accused taking the deceased to the Police station; they took him to the riverside, tied his legs and hands and burnt him to death.
The Appellant, whose conviction by the trial Court was unanimously affirmed by the Court of Appeal, was arrested after the incident with the 2nd accused whereupon they both confessed to the commission of the crime vide Exhibits B and C respectively.
The Appellant testifying in his defence at the Trial Court, retracted the confessional statement in Exhibit B, stating rather, that after the Elders handed over the deceased to him and 2nd accused, directing them to take him to the police station, the elders sent a
2
counter instruction that they should bring him back. According to the appellant the counter instruction did not go down well with the irate crowd that was following them, whereupon the crowd seized the deceased from them. Appellant testified further that he and 2nd accused fled the scene upon being threatened by the mob.
From the five grounds of appeal contained in the Notice of Appeal aforesaid, the learned counsel for the Appellant has distilled one issue only for the determination of this appeal.
On 14th December, 2017 when this appeal was heard, learned counsel for the appellant, M.A. Ebute Esq adopted the brief of argument of the appellant filed on 13th November 2017 but deemed filed on 14th December, 2017. The sole issue is contained in paragraph 3.0 of the unpaginated brief and states:-
Whether the prosecution has proved all the ingredients of the offences charged against the Appellant beyond reasonable doubt as required by law.
Also, in the Respondents brief filed on 13th April, 2016 but deemed properly filed on 14th December, 2017, F.M. Ebofuame Nezam (Mrs) of counsel who adopted
3
the said brief adopted the sole issue distilled by the appellant. I shall accordingly determine this appeal based on the lone issue adopted by both parties.
Referring to Section 138 of the Evidence Act Cap E14 Laws of the Federation of Nigeria 2004 and the case of Adekoya v. State (2012) 3 SC (Pt.111) 36, learned counsel for the appellant submitted that in all criminal cases, the standard of proof is proof beyond reasonable doubt and that there is no duty on the accused person to prove his innocence. He also cited the cases of Musa v. The State (2013) 23 SC (Pt.11) 75 at 105, Egwumi v. The State (2013) All FWLR (Pt.678) 825 and Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
Learned counsel contended that for the prosecution to prove the case beyond reasonable doubt, he must establish that:-
(1) the deceased died,
(2) the death of the deceased was caused by the act of the accused.
(3) the act of the accused which caused the death, was intentional with knowledge that death or grievous bodily harm was its probable consequence.
The case of Adava v. The State (2006) All FWLR
4
(Pt.311) 179 was cited in support.
Learned counsel submitted that the fact that the charge sheet accused the Appellant of killing the deceased on or about the 19th October, 2002 is at variance with the prosecution witnesses testimonies that the deceased died in May, 2002. According to him, this is a substantial contradiction. The 5 (five) months interval cannot be accommodated within the phrase on or about. It is his contention that the Court below was in error to have affirmed the judgment of the trial Court. He reasoned that a trial Court must not base its decision on speculation or matters not supported by the evidence before the Court, referring to Oshodin v. The State (2001) 12 NWLR (Pt.726) 217 at 231.
Again he submitted that whereas PW2 testified that he said the deceased was stabbed, the PW3 who is an Expert witness testified that there was no trace of the deceased being stabbed. This contradiction, according to him affects the case of the prosecution, citing the case of Udosen v. The State (2007) 12 SC 58.
Learned counsel opined that though it is not every
5
inaccuracy that will render a witnesss testimony as unreliable; the Court below was wrong in holding that the contradictions in this case are not material. Learned counsel submitted further that failure to produce PW6 – the IPO for cross examination made his testimony unreliable and that exhibits B and C recorded by him ought to be discountenanced.
It was further contended that Exhibit B does not carry any signature or thumbprint of the appellant and as such the document cannot be ascribed to him, relying onAiki v. Idowu (2006) All FWLR (Pt.293) 356.
Learned counsel concluded that being that there are multitude of people that followed the deceased shouting thief! Thief!, and the fact that the death of the deceased was not conclusively linked to the appellant a doubt has been raised. He urged the Court to resolve the doubt in favour of the appellant and resolve the lone issue in his favour.
In response, the learned counsel for the Respondent quoting copiously from the judgment of the lower Court, submitted that the Court of Appeal understood the essential ingredients of the offence of culpable homicide punishable with death and held that the
6
prosecution proved the charge beyond reasonable doubt.
It was the submission of learned counsel that there is good reason for the trial Court to have believed and accepted the evidence of the prosecution which include that of PW2, the only eye witness to the dastardly and heinous act of the Appellant, the medical Report in Exhibit A which stated that the deceased, Kyernum Kervo died of second degree burns covering his entire body, as well as the confessional statement of the Appellant in Exhibit B, where the appellant gave a vivid account of how he and the 2nd accused burnt the deceased to death.
Learned counsel submitted that there was no contradiction in the evidence of prosecution witnesses. Rather, that there was contradiction between the DW1 and DW2, for whereas the DW1 testified that the Elders received information of the death of the deceased before the appellant and the co accused arrived the funeral compound, DW2 testified that the two accused persons arrived the funeral compound and sat with the Elders long before the crowd came to report the killing of the deceased. He submitted that both the trial Court
7
and the Court below were right to reject their testimony.
On the alleged contradiction between the evidence of PW2 and PW3 in respect of wound on the deceased, learned counsel submitted that it is a non issue in view of the evidence in both Exhibits A – the Medical Report and the testimony of PW3 that the deceased was 100 per cent burnt to death.
On the issue of contradiction in date, he submitted that the legal consequence of the provision of Section 202 of the Criminal Procedure Code is that unless and until the accused/appellant can show how the error on the part of the prosecution in correctly stating the date of the alleged offence in the charge against him, occasioned a miscarriage of justice to his case, his quest to use the said error as an escape route to avoid the legal consequences of his actions, should not be upheld by the Courts.
Learned counsel submitted that the appellant in his evidence in Court confirmed that the deceased died on 19th May, 2002. It is his view that the phrase on or about used in respect of the date in the charge does not impose a duty on the prosecution to prove a particular date. He referred this Court to the
8
resolution of the issue by the Court below and the authorities discussed. He opined that the case of Adekoya v. State (2012) 3 SC (Pt.111) 36 at 64 does not apply to the facts of this case.
Learned counsel contended that issues of PW6 not being cross examined and the appellant not signing Exhibit B are fresh issues not captured in the lone issue for determination and should be discountenanced. On its merit, he submitted that it was the appellants counsel who opposed an adjournment to enable PW6 to appear for cross examination. Moreso, PW7 who investigated the case with PW6 testified and was duly cross examined, and as the appellant did not show how the non recall of PW6 led to a miscarriage of justice, the argument ought to be disregarded.
On the confessional statement of the appellant which he retracted, the learned counsel commended the resolution of the matter by the lower Court on page 172 lines 23 – 24 and page 173 lines 1 -5 of the record of appeal to this Court.
Finally, learned counsel submitted that being a concurrent finding of the two Courts below, this Court should not upset it as the appellant has not shown the
9
findings to be perverse, relying on Shodiya v. The State (2013) All FWLR (Pt 701) 1543, Jua v. The State (2010) All FWLR (Pt 521) 1427, Ismail v. The State (2012) All FWLR (Pt.609) 1107.
He then urged the Court to resolve the sole issue against the appellant.
RESOLUTION OF ISSUE:
Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply
10
means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.
See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan v. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond
11
reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.
A conviction for culpable homicide punishable with death under Section 221 of the Penal Code would be sustained if the prosecution is able to prove the ingredients of that offence beyond reasonable doubt. Now the ingredients of the offence of culpable homicide punishable with death or murder are as follows:-
(a) that the deceased has died;
(b) that the death of the deceased was caused by the act of the accused and,
(c) that the act of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See Musa v. The State (2009) 15 NWLR (Pt.1165) 467, Ilodigiwe v. The State (2012) 18 NWLR (Pt.1331) 1 Ogedengbe v.
12
The State (2014) LPELR-23065 (SC), (2014) 12 NWLR (Pt.1421) 338.
Both the trial Court and the Court below held that the prosecution proved the above ingredients of the offence of culpable homicide punishable with death and conspiracy against the appellant beyond reasonable doubt. On page 175 of the record of appeal, the Court below states:-
From the totality of the evidence adduced by the prosecution, it is evident that prosecution has proved beyond reasonable doubt that it was the act of the Appellant and one other co-accused that caused the death of the deceased. Prosecution has also established beyond reasonable doubt that the Appellant knew that death or grievous bodily harm was the probable consequence of his act. The appellant and the co-accused instead of them to take the deceased to the police station, they decided to take him to the river side, tied him and set him ablaze. The conduct of the appellant clearly showed that he knew that death or grievous bodily harm was the probable consequence. Appellant took the law into his hands. Prosecution had in my humble view proved the essential ingredients of the offence of murder beyond reasonable doubt.”
13
Notwithstanding the concurrent findings of the two Courts below that the prosecution proved all the three ingredients of the charge against the appellant beyond reasonable doubt, the appellant is still not satisfied. One such area of dissatisfaction has to do with the date of the commission of the offence. Whereas it is stated in the charge that the offence was committed on or about 19th October, 2002 the prosecution witnesses including the confessional statement of the Appellant show that the deceased was killed on 19th May, 2002. For me, I think the resolution of this issue by the Court below cannot be faulted at all. On pages 165 – 168 of the record, the Court below had this to say inter alia
The charge reproduced supra alleged that the offence of murder was committed on or about the 19th October, 2002. I wish to note that all the prosecution witness i.e. PW1, PW2, PW3. PW4, PW5 and PW6 mentioned the date of the offence as 19/05/2002. The alleged confessional statement also bears the date of 19/05/2002 as date of the commission of the offence of murder. The medical report Exhibit
14
A also disclosed probable date of death of the deceased Kyernum Korve as 19/05/2002. It is therefore an undisputed fact that the date stated on the charge being 19/10/2002 as the date of commission of the offence is at variance with the date the witnesses gave in their testimonies being 19/05/2002 as the date the alleged offence of murder was committed.
The question now is whether the discrepancy as to date has occasioned miscarriage of justice
As clearly stated inAwopejos case (supra), when the phrase on or about is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It appears that except where an accused person could show that he was misled, the error regarding the failure of prosecution to state the precise date in the charge will not be fatal to the prosecutions case. See also Garba v. State (1999) 11 NWLR (Pt.627) 422 and Shehu v. The State (2010) 8 NWLR (Pt.1195) 112. In the instant case, all evidence adduced point to the fact that deceased was killed on 19/05/2002. This includes the alleged confessional statement of the accused/appellant. The error
15
notwithstanding, it appears appellant was not misled and so no miscarriage of justice has been occasioned.
As can be seen above, it is clear that all the prosecution witnesses testified to the fact that the deceased was killed by the appellant and his co-accused on 19th May, 2002. There is no contradiction by any prosecution witness contrary to the argument of the learned counsel for the appellant. The only discrepancy which can be found is in the month which the offence was committed. Both the day i.e. 19th and the year i.e. 2002 tally both in the charge and the evidence of witnesses. As was rightly observed by the Court below, this is a mere discrepancy which has not led to any miscarriage of justice. Moreso, the appellant has not shown that he was misled at all. He took his plea with his counsel in attendance.
If they had any misgivings about the charge, they ought to have raised an objection immediately after the charge was read to him and not later or now.
By virtue of Section 167 of the Criminal Procedure Act, an objection to a charge for any formal defect on the face thereof, must be taken immediately after the charge has
16
been read over to the accused. See Shehu v. The State (supra), Obakpolor v. The State (1991) 1 NWLR (Pt.165) 113 at 124, 129 135, Agbo v. The State (2006) 6 NWLR (pt.977) 545. And accused person, who acquiesced to an irregular procedure of his trial, cannot complain about the irregularity on appeal except and unless it has led to a miscarriage of justice.
Section 202 of the Criminal Procedure Code provides:-
The charge shall contain such particulars as to the time and place of the alleged offence and the person, if any, against whom, or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
When the above provision is placed side by side the charge which the appellant was tried, it is seen that the charge complied with the provision of the law. Although the charge contained the month of October instead of May, the evidence of PW1, PW2, PW3, PW4, PW5, PW6 and PW7 corrected the mistake made in the charge. Even the confessional statement of the appellant and the evidence of DW1 and DW2 agree that the deceased
17
was killed on 19/05/2002. Even if the discrepancy was a defect in the charge, the overwhelming evidence of the prosecution witnesses have cured it and no failure of justice has been occasioned thereof.
And in any case, it is trite that whenever the phrase on or about is used in a charge, the prosecution is not bound to prove a particular date. The date of the offence could be on the date written in the charge or about that date. In such circumstance, the prosecution must be consistent with a particular date as done in this case. From the consistency in the evidence of prosecution witnesses as touching the date of commission of the offence, it clearly shows that the month of October inserted in the charge was a mistake which I agree with the Court below to be a mere discrepancy. It cannot vitiate the conviction of the appellant because the quality of evidence led against him is unassailable.
The other aspect of this issue which needs attention is about the argument that failure to recall PW6 to testify rendered Exhibit B – the confessional statement of the appellant unreliable. As was rightly pointed out by the
18
learned counsel for the Respondent in their brief of argument particularly paragraph 4.35, there is no ground of appeal attacking the decision of the lower Court on this issue and ordinarily, ought to be discountenanced. However, this is a criminal matter in which the liberty and indeed the life of the appellant is at stake. I shall consider the matter as part of the lone issue submitted for determination.
The Court below made the following observations on pp.170 – 171 of the record regarding the issue:-
The Learned Senior Counsel had argued that notwithstanding the trial within trial, Exhibit B should not be accorded any weight because PW6 was not recalled for further cross examination. I would have agreed with the Learned Senior counsel but for the fact that PW7, Retired Police ASP was called as a witness. He said he was the head of the team who investigated the complaint. He was the person who detailed PW6 to record the statement of the Accused/Appellant and he did it on 27/5/2002 under his supervision in Room 5 Homicide Section, State CID. PW7 also gave evidence that he went to the scene along with PW6. At the scene, PW6 recovered the dead body and they also saw the
19
burnt grass where deceased was killed. Under cross examination he maintained that he did some investigation. His investigation revealed that accused/appellant and one other took the deceased to the bush and killed him. Investigation also revealed that the deceased also stole goat meat at the burial, he was caught and the Appellant and one other accused took him to the bush and killed him. PW7 who led the investigation was cross examined by Appellant’s counsel as such the failure to recall PW6 did not occasion any miscarriage of justice.
The confessional statement was endorsed by Superior Police Officer and the appellant did signed (sic) it.
I agree entirely with the above resolution of the issue by the Court below. PW7 who headed the investigation team evidence and was cross examined by the learned counsel for the appellant. Quite apart from that, the inability of the PW6 to be cross examined was not caused by the Respondent. The record of the Court indicates that on 13th July, 2005, when this matter came up for hearing at the trial Court, the PW6 was absent and the reason given was that having been transferred to Benin and his salary having
20
not been paid, he could not transport himself to Makurdi to be cross examined. The prosecution then applied for an adjournment to enable him to appear. The learned counsel for the appellant opposed the application which was upheld by the learned trial Judge. The Respondent was forced to close its case. My view is that if cross examination of PW6 was important to the Appellant, his counsel should have exercised patience for him to be able to transport himself to Court. Having been partly responsible for failure to cross examine PW6, the appellant should not be heard to complain thereafter. See pages 66 to 67 of the record of appeal. I agree with the Court below that the learned trial Judge was right to accord weight to the said confessional statement of the appellant.
A confessional statement which is proved to have been voluntarily made, cogent and positive and unequivocal, as in this case, amounts to an admission of guilt and a trial Court would be right to rely on it to ground a conviction. A retraction of the statement does not make it inadmissible.
See R v. Itule (1961) All NLR 462 at 465, Isong v. The State (2016) LPELR-40609 (SC), Akpan v.
21
The State (2001) 15 NWLR (Pt.737) 745.
However, before a conviction can be properly founded on such retracted confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. That is to say:-
- Is there anything outside the confessional statement to show that it is true
- Is it corroborated
- Are the relevant statements of facts made in it most likely to be true as far as they can be tested
- Is his confession Possible
- Is it consistent with other facts which have been ascertained and which have been proved
See Ozare Ubierho v. The State (2005) 7 MJSC 168 at 189 paragraphs A – B, Ogudo v. The State(2011) 18 NWLR (Pt.1278) 1, Saliu v. The State (2014) 12 NWLR (Pt.1420) 65, Okoh v. The State (2014) 8 NWLR (Pt.1410) 502.
There is no doubt, as was found by the two Courts below, that there is so much outside the confessional statement of the appellant to attest to its veracity as borne out by the evidence of the prosecution witnesses that the appellant and one other, instead of taking the
22
deceased to the police as directed by the Elders, decided to illegally and unlawfully terminate the life of the deceased in a gruesome manner of burning him with fire alive. PW2 saw them burn the deceased by the River side. All other witnesses including PW3 the Medical Doctor testified that the deceased was 100% burnt to death. I have no doubt whatsoever that the confessional statement was voluntarily made and was properly relied upon by the trial Court as affirmed by the Court below.
On the whole, it is my well considered view that the Court below was right to agree with the trial Court that the prosecution proved this charge against the appellant beyond reasonable doubt. The sole issue submitted for the determination of this appeal is in the circumstance resolved against the appellant.
All that remains to be said here is that there is no merit in this appeal and is accordingly dismissed. I affirm the judgment of the Court of Appeal Makurdi delivered on 9th July, 2013 in appeal No. CA/J/90c/2008 which had earlier upheld the conviction and sentence of the appellant to death for culpable homicide punishable with death.
Appeal Dismissed.
SC.529/2013
