James Chiokwe V. The State (2004)

LawGlobal-Hub Lead Judgment Report

MIKA’ILU, J.C.A.

The appellant, James Chiokwe, was arraigned before the High Court, Enugu, on a charge of murder of one Dorothy Ibekwe (F), an offence under section 319(1) of the Criminal Code, Cap. 30, Vol.11, Laws of Eastern Nigeria, 1963. At the trial eight witnesses testified for the prosecution while on the other side only the accused person testified in defence. At the end of the trial, in the judgment delivered on 5th March, 1985 by Hon. Justice B.O. Okadigbo, Judge, the appellant was found guilty of the offence of murder as charged and accordingly convicted. The appellant was dissatisfied with the said judgment and he accordingly filed his appeal before this court on two grounds which are as follows:

(1) That the decision of the trial Judge is altogether unwarranted, unreasonable and/or cannot be supported by law.

(2) That the purported confessional statement was induced by threat and therefore not admissable in law.

Briefs have been filed and exchanged. The appellant’s brief of argument filed on 30th day of September, 2003 has been adopted by the learned counsel for the appellant, Dr. Okereke. On the other hand, the respondent’s brief of argument filed on 14th November, 2003 has been adopted by the learned counsel for the respondent, C.C. Eneh, D.P.P. Enugu.

In the appellant’s brief of argument two issues have been formulated for the determination of this appeal which read as follows:-

1. Considering that there was no eye witness to the killing of the deceased with a matchet, did the weight of evidence establish by circumstantial evidence that the appellant was responsible for the murder of the deceased? In other words, was the circumstantial evidence unequivocal, positive and points irresistibly to the guilt of the appellant to ground this conviction?
2. Were exhibits “B” and “D” properly admitted as confessional statements and was there proof beyond reasonable doubt that exhibit “C” the dusty knife linked the appellant to the commission of the offence?

The same issues have been formulated in the respondent’s brief of argument though differently worded. They read:-

1. Whether the circumstantial evidence available established a charge of murder against the appellant?
2. Whether exhibits “B” and “D” confessional statements and exhibit “C” (the knife) were properly admitted and relied on by the trial court?

I will consider this appeal in the light of issues as formulated in the appellant’s brief of argument.

On the first issue, the averment of the appellant is that considering that there is no eye-witness of the killing of the deceased did the weight of evidence establish conclusively by the circumstantial evidence that it was the appellant who was responsible for the murder of the deceased? Here, the fact that the deceased died as a result of acute loss of blood from the multiple laceration of wounds which could have been caused by a sharp solid instrument like a matchet as the PW.1 deposed may very well be true. But the question to be considered by the court is who did it. Relying upon the case of Nasiru v. The State (1999) 2 NWLR (Pt.589) 87, (1999) 1 SCNJ 83; it is contended that circumstantial evidence is evidence of surrounding circumstances which by undesigned co-incidence is capable of proving a preposition with the accuracy of mathematics. That the circumstance relied upon, in a case based on circumstantial evidence should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence charged had been committed and that it was the accused that committed it. The appellant’s counsel in the appellant’s brief of argument has extensively evaluated the evidence and has ended up in urging this court to follow the decision in the case of The Queen v. Chukwuji Obiasa (1962) 2 SCNLR 402, (1962) 1 All NLR (Pt.IV) 651, 657 because of the similarities of the facts therein with the facts of this case. It is maintained that in that case the appellant was charged with murder and on appeal notwithstanding the statement which the prosecution tendered as a voluntary confession, the court allowed the appeal. The court held, in that case, the confession was not positive, in that it contained certain intrinsic inconsistencies and certain statements, which were inconsistent with relevant facts as proved by independent prosecution witnesses. That in our case, the truth of the confession was doubtful since the facts relied upon by the trial court, as consistent with the accused confession of guilt, were equally consistent with his innocence, and the finding that his being resident in the same village as the deceased amounted to opportunity to kill the deceased, would apply to any other resident of that village. It is added that the statement in the report of the pathologist, that the matchet examined was received on the 10th of December by registered post, being in conflict with the police evidence that the matchet found in the accused’s house had been delivered to the pathologist by a policeman on the 12th December should not have been accepted by the court as “typographical error” without the evidence of the pathologist to that effect; and accordingly, the report should not have been relied upon by the court as a circumstance against the accused. In our case, PW.1 said that he performed the post mortem on 8th March, 1983 at the University of Nigeria Teaching Hospital Enugu. Under cross-examination, he said the corpse was received on 5th March, 1983. It is added that PW.3 said he saw the corpse in a bush at Ugbo Edem in Nike on or about 6th March, 1983. It has been added that the matchet recovered and alleged to have been the one used by the appellant to murder the deceased was not even sent to the pathologist to determine that it was smeared with human blood. In Queen v. Obiasa (supra) the precaution of taking the matchet recovered to determine whether it showed human blood was taken. It was shown to have traces of human blood yet the appeal court refused to convict. This court is urged to follow the decision in Queen v. Obiasa (supra).

Because of the nature of the above arguments on the first issue, I will, in my judgment join the said issue with the second issue as on both issues arguments in respect of the statements tendered as confessional statements of the accused, exhibit “B” and “D” as well as the matchet, exhibit “C” have been made. Moreso, having carefully perused the record of proceedings of the trial court and particularly its judgment, it can hardly be said the judgment of the trial court was solely based on the circumstantial evidence as mainly poised on the first issue. I will comment more on this later. On the 2nd issue, the appellant’s counsel has started by arguing that there was no evidence in the proceedings in which the prosecution gave evidence that the matchet, exhibit “C”, had blood stains on it and that it was confirmed by the forensic laboratory that the blood stain was that of a human being. He argued that exhibit “C” was accepted as dusty and that it has not satisfactorily proved that it was the matchet used in killing the deceased. He has referred to the judgment of the trial court, page 75 lines 18-24, where the trial court stated as follows:

“Happily in this instant case, I have extra judicial confessional statements, i.e, exhibits “B” and “D” evidence and also the matchet “C” which have linked the accused person with the commission of the offence. I am satisfied that it was the accused person who inflicted on the deceased the injuries described by P.W.1 in his evidence.”

The learned counsel for the appellant urges this court in the circumstance not to accept the conclusion of the learned trial Judge that the appellant was linked with the commission of the crime by exhibit “C”.

It is also the averment of the appellant’s counsel in the appellant’s brief of argument that outside exhibits “B” and “D” which are the alleged, confessional statements, the prosecution offered no evidence to discharge the burden of proof beyond all reasonable doubts as expected in criminal offences. He has referred to testimonies of P.W.1 and P.W.4 averring that P.W.4 admitted signing exhibit “A” as interpreter while in fact, he did not interpret the statement of the accused. That P.W.1 did not speak Ibo while the appellant himself said he made his statement in Ibo. He urges this court to hold that the statements of the accused were not voluntarily made and cannot be accepted in law as confessional statement. The appellant’s counsel has also submitted that in Yesufu v. The State (1976) 6 SC 167, 173 (SC 445/1975) evidence was led to show that the appellant and the deceased were neighbours. The court held that it is desirable to have outside a defendants confession to the police, some evidence, be it slight of the circumstance, which make it probable that the confession was true. He has also relied. Upon Paul Onochie & 70rs. v. The Republic (1966) 1 SCNLR 204, (1966) NMLR 307 and R. v. Kanu (1952) 14 WACA 30. He has concluded that the confessional statements have not been well established and on their absence there is no evidence against the appellant. That the court after rejecting the confessional statements is left with no other evidence with which to convict the accused except to acquit and discharge him. In the alternative, the court may be lenient to the accused who has remained in prison custody from 28th March, 1984 when he was arraigned at the Enugu Magistrate court till date by reducing his conviction to manslaughter on the basis that he had set out to have sexual intercourse with the deceased at the farm and along the line lost his senses and killed her after the act. That the murder could not have been pre-meditated.

On the other hand, on the first issue, in the respondent’s brief of argument it has been submitted that in this case of murder, the prosecution had the onus to prove beyond reasonable doubt that: