3PLR – VICTOR ONYEMAECHI OKOH V. THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
VICTOR ONYEMAECHI OKOH
V.
THE STATE
IN THE COURT OF APPEAL
(BENIN JUDICIAL DIVISION)
ON FRIDAY, THE 28TH DAY OF JUNE, 2013
SUIT NO: CA/B/272C/2012
3PLR/2013/179
OTHER CITATIONS
(2013) LPELR-21009(CA)
BEFORE THEIR LORDSHIPS
SIDI DAUDA BAGE (Presided), JCA
AYOBODE OLUJIMI LOKULO-SODIPE, JCA
TOM SHAIBU YAKUBU, JCA
BETWEEN
VICTOR ONYEMAECHI OKOH – Appellants
AND
THE STATE – Respondents
REPRESENTATION
Ohwovoriole – For the Appellants
O.F. Enenmo (Deputy Director of Public Prosecutions, Ministry of Justice Delta State) with N.D. Agusiobo (Legal Officer) – For the Respondents
ORIGINATING STATE
Delta State: High Court (C.N. Ogadi J- Presiding)
CONNECTED AREAS OF PRACTICE
- Criminal Law
- Women and Children Law
MAIN ISSUES
- CRIMINAL LAW– MURDER: – Ingredients of – Whether a conviction under a wrong law is fatal
- CONSTITUTIONAL LAW: – Section 36 – Offence under a written law – Person charged under a law of a defunct State – Where offence falls under the existing law of emergent State – Whether satisfies the requirements of the provision
- PRACTICE AND PROCEDURE – APPEAL: – Findings of fact – Whether appellate courts will interfere with the trial court’s duty of evaluation of evidence and the ascription of probative value to such evidence
- PRACTICE AND PROCEDURE– EVIDENCE: – Meaning of proof beyond reasonable doubt – Ways prosecution can prove its case against an accused person beyond reasonable doubt
- PRACTICE AND PROCEDURE– INTERPRETATION OF STATUTES:- S. 36 of the 1999 Constitution
- INTERPRETATION OF STATUTE – SECTION 36 OF THE 1999 CONSTITUTION:
CHILDREN AND WOMEN LAW: Murder – Wife-killing – Circumstantial evidential evidence – How proved
MAIN JUDGMENT
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment):
This is an appeal against the judgment delivered on 29/5/2012 by the High Court of Delta State sitting at Owa Oyibu (hereafter simply referred to as “the lower court”) presided over by Honourable Justice C.N. Ogadi (hereafter simply referred to as “the learned trial Judge”). In its judgment, the lower court found the Appellant guilty of the offence of murder and sentenced him to death by hanging.
The Appellant was arraigned in the lower court on the 18/10/2010 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 1976. In the count it was alleged that the Appellant on 17/2/2010 at Idumbiri Farm Road within Owa Oyibu Judicial Division murdered one Patricia Okoh. The Appellant pleaded not guilty to the charge preferred against him and the matter proceeded to trial. In the proof of its case, the prosecution called three witnesses and tendered Exhibits P1 and P2. The Exhibits are the extra judicial statements made by the Appellant to the Police. In his defence, the Appellant denied the charge preferred against him. Having had the benefit of addresses of both the prosecution and the Appellant and after evaluating the evidence adduced, the lower court found the prosecution to have proved its case beyond reasonable doubt and accordingly found the Appellant guilty as charged and sentenced him to death in line with the mandatory punishment prescribed by law.
Being aggrieved with his conviction and sentence, the Appellant lodged an appeal against the same by a Notice of Appeal filed on 11/6/2012. The Notice contained the omnibus ground of appeal. The Appellant subsequently filed another Notice of Appeal dated 26/7/2012 on the same date. The Notice of Appeal contains four grounds of appeal.
In accordance with the Rules of this Court, parties duly filed and exchanged Briefs of Argument. Appellant’s Brief of Argument dated 18/10/2012 and filed on 9/10/2012 was settled by Ekemejero Ohwovoriole, Esq. Respondent’s Brief of Argument dated 17/12/2012 and filed on 18/12/2012 was settled by O.F. Enenmo, Deputy Director of Public Prosecutions, Ministry of Justice, Delta State, (hereafter simply referred to, as “learned DDPP”). The appeal was entertained on 17/4/2013. At the hearing of the appeal, learned counsel to the Appellant – Ekemejero Ohwovoriole Esq., having declared that he was relying on the Notice of Appeal filed on 17/4/2012, adopted and relied on the Appellant’s Brief of Argument in urging the Court to allow the appeal. In the same vein learned DDPP, leading N.D. Agusiobo (Legal Officer), adopted and relied on the Respondent’s Brief of Argument in urging the Court to dismiss the appeal.
The issues for the determination of the appeal as contained in the Appellant’s Brief of Argument read thus: –
“1. Whether or not the trial judge was right in convicting the appellant on a charge not known to law, the law under which the appellant was convicted having been repealed. (Ground 1)
- Whether the guilt of the appellant was proved beyond reasonable doubt having regard to the evidence adduced before the trial court. (Grounds, 2, 3, and 4)”
The issues formulated for the determination of the appeal as set out in the Respondent’s Brief of Argument read thus: –
“ISSUE 1
Whether having regard to the state of evidence before the court the learned trial Judge was not right in law when she held that the prosecution proved the case of murder against the appellant beyond reasonable doubt.
ISSUE 11
Whether the appellant was convicted for an offence known to law.”
The issues as formulated by the parties are in my considered view clearly the same in purport; therefore, the appeal will be determined on the issues as formulated by the Appellant.
APPELLANT’S ISSUE 1:
Dwelling on the issue, the Appellant submitted that the position of the law is that no person can be convicted and punished for an offence except the law under which such person was tried clearly sets out the offence and the punishment therefore, and cited in aid Aoko v. Fagbemi (1961) 1 All NLR 400 and Asake v. Nigerian Army Council (2007) 1 NWLR (Pt. 1015) 408 at 424-425. Reference was also made to the provision of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), LFN 2004. Stating that the charge of murder upon which the Appellant was tried and convicted was brought under Section 319(1) of the Criminal Code Cap 48 Vol. II, Laws of the defunct Bendel State 1976, the Appellant submitted to the effect that he was not convicted for an offence known to law as the Criminal Code Law of the defunct Bendel State had been repealed. That, in the circumstance, the lower court erred in law by convicting him (Appellant) on the one count charge of murder instead of quashing it. This Court was urged to hold that the Appellant’s conviction on the one count charge of murder preferred against him is a nullity. The case of Gbadamosi v. Queen, (1959) 4 FSC 181 at 182 was cited in aid.
Dwelling on this issue, the Respondent submitted to the effect that the Appellant was charged and convicted for murder punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State 1976, as applicable to Delta State. That though the Appellant’s argument on this issue is that at the time Information was filed in this case the Laws of Bendel State 1976 had been repealed, he however did not say in his brief which law repealed the Bendel State Laws. Stating that there is now the Criminal Code Law Cap C21 Laws of Delta State that came into force in 2006, and which has replaced the old Laws of defunct Bendel State, the Respondent submitted that the issue that actually calls for determination is whether the offence for which the Appellant was convicted is known to law? And it submitted that the Appellant was convicted under a known law. That the fact that the charge was brought under a defunct or repealed law does not vitiate the trial. The Respondent stated the trite position of law to be that an appellant court cannot set aside a conviction merely because the charge was brought under a defunct law and cited in aid the dictum of Akpata, JSC; in Yabugbe v. COP (1992) 4 NWLR 153 at 172-173. Reference was also made to Section 166 Criminal Procedure Law CAP C22 Laws of Delta State. It is the stance of the Respondent that there is no evidence on record that the Appellant or his counsel raised objection when the charge was read to him and throughout his trial at the lower court. This Court was therefore urged to affirm the judgment of the lower court.
The Information upon which the Appellant was tried before the lower court ls at page 2 of the record. lt reads thus: –
“STATEMENT OF OFFENCE
Murder punishable under Section 319(1) of the Criminal Code Cap. 48 Vol. II laws (sic) of the defunct Bendel State 1976 as applicable in Delta State.
PARTICULARS OF OFFENCE
VICTOR ONYEMACHI OKOH (M) on or about the 17th day of February, 2010 at Igumubiri Farm road Igbodo within the Owa-Oyibu Judicial Division murdered one Patricia Okoh (f).”
The Information is dated 20/4/2010.
At page 60 of the record, it is shown that the one count Information preferred against the Appellant was duly read over and explained to him in English language to the satisfaction of the lower court and that the Appellant himself haven stated that he understood the charge pleaded not guilty thereto. The Appellant has relied on the provision of Section 36(12) of the amended Constitution in urging this Court to declare his trial before the lower court a nullity as he was tried under a non-existent law, as it were. Section 36(12) of the amended Constitution states thus: –
“Subject as otherwise provided by this Constitution a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore (sic) is prescribed in a written law; and a written law refers to an Act of the National Assembly or a Law of a State, and subsidiary legislation or instrument under the provisions of a law.”
In the light of the provision of Section 36(12) re-produced above, it is my considered view that the Appellant cannot be heard to complain about any infraction of the said provision inasmuch as it is not the position of the Appellant that the defunct Bendel State never had a written law as stated in the Information preferred against him and/or that the written law under which he was charged, tried and convicted was never applicable to Delta State.
Aside from the view expressed above, the issue under consideration was considered by my learned brother Yakubu, JCA, in a recent judgment of this Court delivered on 15/3/2012 in APPEAL NO. CA/B/162C/2012 – BONIFACE ADONIKE V. THE STATE (unreported). Therein his lordship stated thus: –
“I have deeply perused the authority of Yabugbe v. COP (supra) relied upon heavily by the prosecution. The facts of that case are not the same with the facts of this case. However, that authority clearly established that where an accused person was convicted under a repealed law of a defunct state, but under an existing law, an appellate court cannot set aside such a conviction.
In his leading judgment, his Lordship, Akpata, JSC held inter alia:
“I do not agree with learned counsel that the conviction of the appellant is null and void. Section 22(10) of the 1963 Constitution was not breached. That section states that no person shall be convicted of a criminal offence unless that offence is prescribed in a written law. The offence for which the appellant was convicted is defined under a written law. The written law at the time of trial was either the 1959 Law or the 1978 Law. The wording of section 255 of 1978 Law is ipsissmis verbis”
Furthermore, his Lordship, continued:
“Section 166 of the Criminal Procedure Act states that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded as material unless the accused was in fact misled by such error or omission. I will sum up thus: where an offence known to Law is disclosed in a charge and the penalty is prescribed in a written existing law and the charge is erroneously, brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice.”
In his own contribution, M.L. Uwais, JSC (as he then was) was emphatic, thus:
“The offence of assault is common, though to a different degree, to both Criminal codes see sections 351 and 296 respectively. It is, therefore, a fallacy and idle to argue that the appellant was convicted of an offence that was not known to law or that the charge of unlawful assault was based on a nonexistent law. It does not matter as to when Cap. 30 came into force. The fact is that the appellant has not shown that there was a time when neither code applied to the area that constitutes Oyo State. Moreover, a conviction under a wrong law is not fatal if there is the provision of another law under which the conviction can stand see Falobi V. Falobi (1976) NMLR 169 at 177 and Henry Stephens Engineering Ltd V. Complete Home Enterprises Ltd (1987) 1 NWLR (pt. 47) 400 at 48- unless it can be shown that the accused was in fact misled by such error or miscarriage has been occasioned by the reason of the error – see section 166 of the Criminal Code Law, Cap. 31 Laws of Oyo State, 1978”.
It is clear from the submissions of the Appellant in his Brief of Argument that he has not remotely suggested that there is no written law in existence in Delta State that creates the offence of murder and prescribes punishment therefor. The Appellant also has not argued that he was in any way misled by the charge preferred against him, or that he has suffered any miscarriage of justice thereby. Indeed, the Respondent has submitted that the Appellant never objected to the charge preferred against him at any stage of the trial at the lower court. Clearly, against the backdrop of these, and as this Court is bound by its own decisions, I do not see how the Appellant’s conviction and can be held to be a nullity as he has urged this Court to do in the issue under consideration. I hold that the conviction of the Appellant is not a nullity in the circumstances of this case. Accordingly, Appellant’s issue 1 is resolved against him.
APPELLANT’S ISSUE 2:
Dwelling on this issue, the Appellant listed the ingredients of the offence of murder which the prosecution must prove beyond reasonable doubt to secure a conviction. The cases of State v. Ogbubunjo (2001) 1 NWLR (Pt. 698) 576 at 586; and Millar v. State (2005) 8 NWLR (Pt. 927) 236 at 252 were cited in aid. It is the stance of the Appellant that the first of the ingredients of the offence of murder (namely, that the deceased has died) is not in dispute but that the second and third of the ingredients were not proved beyond reasonable doubt by the Respondent. That the Respondent in the bid to establish the disputed elements of the offence, relied on circumstantial evidence due to the fact that there was no eye witness account of what led to the death of the deceased. The Appellant submitted that it was beyond dispute that the lower court relied entirely on circumstantial evidence but that the said circumstantial evidence did not prove the disputed elements. This is because the circumstantial evidence was not cogent, complete and unequivocal and it did not lead to the irresistible conclusion that he (Appellant) and no one else was the murderer. The Appellant also submitted that his conviction was faulty inasmuch as the confessional statement (Exhibit P2) relied upon was not corroborated by any fact outside evidence of the circumstances which made the Appellant’s alleged confession to be true. The cases of Njoku v. State (1992) 8 NWLR (Pt. 263) 714 at 725; and State v. Ogbubunjo (supra) were cited regarding confessional statements; while Ogidi v. State (2005) 5 NWLR (Pt.918) 286 at 319, was cited regarding circumstantial evidence.
The Appellant, while not conceding that the Respondent proved the cause of the death of the deceased, submitted that the Respondent in any in event failed to prove that the death of the deceased resulted from his (Appellant) act. That the evidence relied upon by the lower court in convicting him was evidence of mere suspicion which in a criminal trial cannot suffice to establish the offence charged beyond reasonable doubt and the cases of State v. Ogbubunjo (supra); Adie v. State (1980) All NLR 39 at 44; and Millar v. State (supra) were cited in aid.
Again, the Appellant while not conceding that Exhibit P2 is confessional, submitted that he was provoked into killing the deceased and that in the circumstance, he cannot be guilty of the offence of murder but the lesser offence of manslaughter and the cases of Akang v. State (1971) 1 All NLR 46; and Uwakeweghinya v. State (2005) 9 NWLR (Pt. 930) 227 at 249-250 was cited in aid. The provocation relied upon by the Appellant is the insult heaped on him by the deceased.
Dwelling on this issue, the Respondent submitted to the effect that it proved the offence of murder preferred against the Appellant beyond reasonable doubt and that the lower court was right in law in convicting the Appellant as charged haven regard to the evidence before it.
Reference was made to Section 135 of the Evidence Act 2011 regarding the standard of proof imposed on it (Respondent) and the cases of Ogunzee v. State (1998) 58 LRCN 3512 at 3551; and Edamine v. State (1996) 3 NWLR (Pt. 38) 530 at 531, were cited regarding the meaning of “beyond reasonable doubt” to wit proof by credible evidence of the ingredients of the offence for which the accused person is facing trial. And that the Respondent can do this by: (i) credible evidence of witnesses; (ii) circumstantial evidence; and (iii) by admissions and confessions of the accused to the commission of the crime. It is the stance of the Respondent that it proved the offence preferred against the Appellant by circumstantial evidence and the written confessional statement of the Appellant admitted evidence as Exhibit P2.
The Respondent cited the cases of Ogba v. The State [1992] 2 NWLR (Pt. 222) 164; and Nwosu v. The State (1986) NWLR (Pt. 35) 384 on the ingredients of the offence of murder and submitted that all the ingredients were proved by the credible evidence it adduced particularly the evidence of PWs 1, 2 and 3; and the written confessional statement of the Appellant. It is the stance of the Respondent that what the Appellant is contesting by the issue under consideration is the finding of fact by the lower court.
That as the challenge under this issue deals with the power of the lower court to evaluate evidence and ascribe probative value, this Court cannot interfere with the same as the settled position of the law is that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses while they testified before it. That an appellate court will not interfere with such findings of facts, and it is also not the business of an appellate court to substitute its own view of the facts for those of the trial court. The case of Ogunzee (supra) was cited in aid.
Dwelling on the reliance by the lower court on the confessional statement of the Appellant – Exhibit P2, in convicting the Appellant the Respondent submitted to the effect that the lower court was right in relying on the same as the statement was earlier found to have been made voluntarily. That the retraction of the statement; will not prevent the lower court from relying on the statement. The cases of Akpa v. The State [2010] Vol. 8 LRCN 71; and Edamine v. State (supra) amongst others were cited in aid.
Dwelling on “corroboration”, the Respondent submitted that the lower court was right in law when it found corroboration of the Appellant’s confession in the evidence of PW1 and PW2 and other circumstantial evidence outside the confessional statement. That in any event it is trite law that an accused can be convicted based on his confessional statement so long as it is free and voluntary and it is direct, positive and properly proved. The Respondent urged the Court to uphold the finding of the lower court.
The law reports are replete with decisions of the Supreme Court and this Court relating to the offence of murder and in which the ingredients of the offence are clearly set out. See OLUDAMILOLA V. STATE (2010) All FWLR (Pt.527) 599; and NKEBISI V. STATE (2010) AII FWLR (Pt. 521) 1407. The ingredients of murder which the prosecution must prove beyond reasonable doubt are: (a) that the deceased died; (b) that the death of the deceased was caused by the accused; and (c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It is also settled law that the prosecution in the proof of its case against an accused person beyond reasonable doubt can do this by any or a combination of the following ways: (i) by confessional statement(s); (ii) by circumstantial evidence; and (iii) by evidence of eyewitness otherwise referred to as direct Evidence. See NIGERIAN NAVY V. LT. COMMANDER S.A. IBE LAMBERT (2007) All FWLR (Pt. 398) 574 at 585-586; EMEKA V. THE STATE (2001) 7 NSCQR 582 at 593-594; and MOSES V. THE STATE (2003) FWLR (Pt. 141) 1969 at 1987.
In its Brief of Argument and specifically on the issue under consideration, the Respondent submitted to the effect that the grouse of the Appellant relates to the evaluation and ascription of probative value to the evidence before the lower court and stated the position of the law to be that the evaluation and ascription of probative value to such evidence are the primary duty of the lower court which heard, saw and assessed the witnesses and that an appellate court will not and should not substitute its own views of the facts for those of the lower court.
I am in total agreement with the Respondent that the issue under consideration that by its very tenor admits or concedes the propriety of the evidence evaluated or weighed by the lower court. The Appellant’s complaint relates to the facts of the case, the evidence led on both sides, the evaluation of that evidence, the ascription of probative value to such evidence, the credibility of witnesses who testified, the consideration of all credible evidence and the logical conclusion both of fact and of law drawn by the lower court from the totality of the evidence led. It is no doubt the law that all these are matters squarely within the exclusive competence of the trial judge who saw, heard and believed. Therefore, when the questions involved are purely those of fact an appellate court will not interfere unless the decision of the trial judge is shown to be perverse and not the result of a proper exercise of judicial discretion (to believe or disbelieve witnesses) or that there is no evidence at all to support a particular crucial finding or that the trial court made wrong deductions or drew wrong inferences from admitted or established facts.
What I have to consider under this issue therefore is to look critically at the evidence before the lower court to see whether it erred its handling of the facts and whether it is true that the Respondent did not establish the guilt of the Appellant beyond reasonable doubt having regard to the evidence before it.
I have found it necessary to state the above, because I see from the grounds of appeal in the Notice of Appeal upon which the instant appeal is predicated that though the Appellant in his ground three complained against the correctness of the finding by the lower court of Exhibit P2 to be confessional, he however never distilled an issue in relation to the said ground. In the same vein the Appellant in his Brief of Argument, never argued at all, in what manner the lower court erred in holding the said Exhibit P2 to be a confessional statement. The Appellant simply subsumed ground 3 of the grounds of appeal in the issue under consideration and proffered no submission regarding how the said Exhibit P2 was wrongly held to be a confessional statement by the lower court. To the extent therefore that this is the position as shown in the Brief of the Appellant, I cannot but hold that ground 3 of the grounds of appeal, has been abandoned. In the circumstances, it cannot be a profitable exercise for me to go about considering whether or not the lower court erred in holding that Exhibit P2 is a confessional statement when the Appellant himself has not proffered any argument as to how the lower court erred in its admission of the Exhibit in evidence on 18/7/2011, after a trial within trial was conducted to determine its voluntariness. Hence, Exhibit P2 is clearly, a piece of evidence properly admitted by the lower court and which it was bound to evaluate along with the evidence adduced in the case.
The Appellant it his Brief of Argument has clearly conceded that the Respondent proved the fact of the death of the deceased and that the deceased was the wife of the Appellant – Patricia Okoh. This is so in the light of what is contained in paragraphs 5.1 and 5.2 of the said brief. The Appellant having set out the ingredients of the offence of murder, the first of which reads: “that the deceased died” thereafter stated explicitly that “From the facts of the instant case, the first ingredient is not in dispute.
However, the second and third elements were strongly disputed and the onus fell on the prosecution to prove that the death of the deceased resulted from the act of the appellant and that the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its consequence.”
The judgment of the lower court is at pages 123 of the record. At pages 118-122 of the record, the lower court clearly considered the second element of the offence of murder to wit whether the death of the deceased resulted from the act of the Appellant and also at page 122 the third element to wit whether the act of the Appellant was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It is clear from the evidence adduced at the lower court that the Respondent called no witness that gave an eyewitness account as to anything that the Appellant did to the deceased. The Respondent however adduced evidence through PW2 showing that on 16/2/2010, he saw the Appellant and the deceased (his wife) leave for the farm together and that the Appellant less than an hour thereafter returned without the deceased. The Appellant in his evidence did not challenge the fact that he and his wife went to the farm together and that his wife has not been seen since then. It was however his evidence that his wife left him on the farm to retrieve the duplicate key of the motorcycle which they both rode to the farm from home and that she had not been seen since then. Evidence that the Appellant was the last person to see the deceased alive was therefore before the court from both the prosecution and the Appellant.
Aside from this, the Appellant made a confessional statement to the police which was admitted in evidence as Exhibit P2 after the lower court made a finding consequent to a trial within trial, that the statement was voluntarily made. I have painstakingly perused Exhibit P2 and which was copiously re-produced in the judgment of the lower court at pages 118 – 119 of the record, and I am in no doubt that it is indeed confessional in nature as the Appellant clearly narrated therein that he killed his wife and how he did the killing. The position of the law no doubt is that a properly admitted confessional statement is part of the evidence adduced by the prosecution in the proof of its case. See EGBOGHONOME V. STATE (1993) 7 NWLR (Pt.306) 383. I have hereinbefore stated that Exhibit P2 is clearly, a piece of evidence properly admitted by the lower court and which it was bound to evaluate along with the evidence adduced in the case. The lower court glaringly did this in its judgment and also duly tested it against other facts in this case in order to determine their truthfulness. At the conclusion of the exercise, the lower court ascribed probative value to Exhibit P2.
Proof beyond reasonable doubt, decided cases have consistently held, does not mean proof beyond any shadow of doubt. Once the proof of a case as offered by the prosecution drowns the presumption of innocence of the accused, the court is entitled to convict him although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by section 138(3) of the Evidence Act. Indeed the case of SOLOLA V. THE STATE [2005] AII FWLR (pt.269) 1751 at 1782 clearly shows that there is no other appropriate human being to give evidence of his own guilt more than the accused himself and that if an accused person therefore says he committed the offence and the court comes to the conclusion that he made the statement in a stable mind and not under duress, the accused must be convicted.
Also dwelling on proof beyond reasonable doubt in the case of JUA V. THE STATE (2010) All FWLR (Pt.521) 1427 the Supreme Court stated per Tobi, JSC; at page 1447 thus: –
“…While evidence of the accused person last seen together with a victim per se may not be proof of culpable homicide punishable with death, it can support and corroborate other acts of the accused person resulting in the death of the deceased…..
That takes me to the failure of the prosecution to produce the corpus delicti….It is not the law that an accused person must be discharged and acquitted if the body is not produced for medical examination. The law knows that there are instances and circumstances where an accused takes measures to destroy the body in order to avoid prosecution or conviction if prosecuted. Accordingly, where there is evidence that a human being was killed by another human being, the latter can be convicted when the body of the former is not found. The important consideration is whether there is nexus between the accused and the killing of the victim to the extent that the law comes to the conclusion that it is the accused person who killed the deceased…..
I should also add here that an accused person can also be convicted on strong and compelling circumstantial evidence in the absence of corpus delicti. The evidence need not necessarily be direct. There is enough evidence that the body of Constable Rotimi Jeremiah was burnt. How then can the corpus delicti be found?
The best evidence for purpose of conviction is confession to the commission of the crime by the accused person. What the court should look into is the whether the confession was voluntary and accords with section 27 of the Evidence Act and not against section 28 of the Act….”
The Respondent in the proof of its case against the Appellant glaringly relied on circumstantial evidence and the confessional statement of the Appellant. It is a total misapprehension of the facts of this case as presented by the Respondent for the Appellant to say that the Respondent relied solely on circumstantial evidence. It is also apparent that the lower court duly and appropriately evaluated the evidence before it and came to the right and proper finding that the Respondent proved its case beyond reasonable doubt.
The lower court duly considered the defence of provocation. The defence of provocation as rightly observed by the lower court was not raised by the Appellant in his evidence before the said court. Indeed, it is my considered view, that given the denial of the commission of the offence for which he was charged, it would have been an inconsistency for the Appellant to have raised the said defence at the trial. This is because, provocation admits of the unlawful killing of the deceased. Provocation, unlike the defence of self defence, where it is found to avail an accused person; does not exonerate a killing, but reduces the offence and sentence in respect of the unlawful killing.
Suffice, it to say without dwelling elaborately on the defence of provocation which would appear to have been put in issue in Exhibit P2, that the lower court was eminently correct in its finding that it did not avail the Appellant in the light of the facts of this case, as proved by evidence.
Flowing from all that has been said is that there was no reasonable doubt raised by the Appellant in the instant case and therefore there was nothing that derogated from the evidence led by the Respondent in the proof of the guilt of the Appellant and which sufficiently proved the case of the Respondent against the Appellant beyond reasonable doubt. Appellant’s issue 2 is accordingly resolved against him.
In the final analysis, and as the two issues formulated by the Appellant for the determination of the appeal have been resolved against him, I find the appeal to be lacking in merit. It fails. The judgment delivered by the lower court on 30/5/2010, convicting the Appellant for the offence of murder and the sentence of death passed on him are hereby affirmed.
Appeal dismissed.
SIDI DAUDA BAGE J.C.A:
I read in draft, the leading Judgment of my learned brother Lokulo-Sodipe JCA, I am in complete agreement with. I do not have anything more useful to add. I also find the appeal as lacking in merit, and hence it has failed. The Judgment delivered by the lower court on 30/5/2010 convicting the Appellant for the offence of murder and the sentence of death passed on him are hereby affirmed also by me.
TOM SHAIBU YAKUBU, J.C.A:
I had the privilege of having read in draft, the judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE, JCA. His Lordship, to my full satisfaction, admirably addressed all the issues in this appeal, such that I have nothing more useful to add to it.
I, too find that the appeal is lacking in merits and dismiss it accordingly.
The judgment of C. N. Ogadi, J. dated 29th May, 2012 whereby he convicted the appellant of the offence of murder and consequently sentenced him to death, is also affirmed by me.
