Ekpo Obongha Mbang V. The State (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A

The Appellant and one Joseph Ubi Igri were arraigned before the High Court of Cross River State, in the Ugep Judicial Division, Holden at Ugep on 13/6/02 for the murder of one Mary Obongha Inah contrary to section 319(1) of the Criminal Code Law of Cross River State.

During the trial, the prosecution called six witnesses while the Appellant did not call any but testified only for himself. At the end of the trial, the Appellant was found guilty as charged and sentenced to death by hanging by the neck until he be dead. The Appellant was gravely troubled and dissatisfied by the pronouncements of the trial Court that, as a result, he filed this appeal which was founded on three grounds.

In the Appellant’s Brief of Argument which was settled by Monday Udo Esq. But adopted before this Court by Mrs. Dorathy Ufot, two issues were distilled for determination of this Court. They are:-

“1. Whether in all the circumstances of this case, the prosecution had proved the charge of murder against the Appellant beyond reasonable doubt.

2. Whether the confessional statements upon which the Appellant was convicted and sentenced were proved to have been made voluntarily”.

With regard to issue NO.1, it was firstly emphasized that there was no direct evidence of the commission of the offence of murder by the Appellant and his co-accused from any of the prosecution witnesses, so the evidence against them were basically circumstantial. Learned Counsel referred to the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 wherein they emphatically stated that they did not know who killed the victim, ‘Mary Obongha Inah’ and were not present when she was murdered. She further referred to the testimony of the Appellant at p. 45 lines 18-24 and the trial Judge’s findings at p. 69 lines 16-26 and submitted that despite all those, the trial Court proceeded to convict and sentence the Appellant to death by hanging relying solely on Exhibits F4 and F5, the alleged confessional statements of the Appellant.

Learned Counsel cited the cases of Friday Aiguoreghian and anor v. The State (2004) 3 NWLR Part 860 p. 367 at 422 – 423 paras F-B, Ubani v. The State (2003) 18 NWLR Part 851 p. 224 at 241 paras B-C, Uguru v. The (2002) 9 NWLR Part 771 p. 90 at 106 paras F-G, Tegwonor V. The State (2008) 1 NWLR Part 1069 p. 630, Sule Ahmed (alias Eza) V. The State (2001) 18 NWLR Part 746 p. 622 at 641-642, section 138 (1) of the Evidence Act, Cap. E. 14, Laws of the Federation, 2004 and Mufutan Bakare V. The State (1987) 1 NWLR Part 82 p. 579 para. H and stated that in a charge of murder, the onus is on the prosecution to prove beyond reasonable doubt, the death of the deceased, the act or omission of the accused which caused the death and that the act or omission of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence.

With regard to ingredients (i) and (ii), Learned Counsel submitted that, they were undoubtedly proven by the prosecution via the medical report tendered as Exhibit A, the evidence of P.W. 2, the victim’s step father and the autopsy performed on the victim’s corpse.

In relation to the third ingredient, Counsel submitted that the prosecution failed to establish a causal link between the death of the deceased and the act of the Appellant because none of the prosecution witnesses saw who, when and how ‘Mary Obongha Inah’ (deceased) was killed. She contended that since that piece of evidence was missing, it means, therefore, that the act of the Appellant did not cause the death of the deceased. She further referred to the cases of Onah V. The State (supra) 236 at 237, Friday Aiguoreghian v. The State (supra) 367 at 418 paras F-H, Oforlete V. The State (2000) 12 NWLR Part 681 p. 451 at 443, paras B-C and Uguru V. The State (supra) p. 90 at 111 paras C-E and submitted that where the prosecution fails to establish a causal link between the death of the deceased and the act of the accused person causing the death, the conviction and sentence of the accused person will be set aside on appeal. She then urged this Court to quash the conviction and death sentence of the Appellant and substitute it with a verdict of acquittal and discharge.

On the circumstantial evidence relied upon by the learned trial Judge i.e., Exhibits F 4 and F 5, the alleged confessional statements of the Appellant, Counsel cited the cases of Sule Ahmed (alias Eza) V. The State (supra) at 646 para. D-F, Obiakor & anor V. The State (2002) 10 NWLR Part 776 P.1612 at 629 paras A-C, paras E-F, Lari V. The State (1980) 8-11 SC p. 81 and Nweke V. The State (2001) 4 NWLR Part 704 588 at 603 paras D-E and submitted that circumstantial evidence sufficient enough to support a conviction in a criminal trial, especially murder, must be compelling and must lead to the irresistible conclusion that the accused and no one else is guilty of the crime. She stated that apart from P.W. 5 who gave similar facts evidence, and, the I.P.O, who testified as P.W. 6, the rest of the prosecution witnesses gave circumstantial evidence surrounding the deceased’s death.

They said they received their information’s concerning the deceased and the Appellant, from two cyclists, namely; Monday Inyang Ibor and John Eyong. According to her, the two cyclists who were vital witnesses were never called to testify by the prosecution. Counsel cited the case of Onah V. The State (1985) 3 NWLR Part 12 P. 236 and stated that failure by the prosecution to call those vital witnesses who would have helped the Court in one way or the other to resolve the issue before it was fatal to its case. She referred to the excerpt from the judgment of the learned trial Judge at pp. 74-75 of the record of appeal and submitted that the prosecution needed the evidence of the two cyclists to establish the fact that the deceased was actually in the company of the accused persons on the day she disappeared. She further contended that since there was no evidence linking the accused with the commission of the crime except the circumstantial evidence of the prosecution witnesses which ought to have been compelling, cogent complete and unequivocal, that the prosecution woefully failed to prove the charge of murder against the Appellant beyond reasonable doubt. She then urged, this Court to resolve issue No. 1 in favour of the Appellant.

On issue NO.2, Counsel submitted that the Appellant promptly brought to the knowledge of the Court that he made the alleged confessional statement under duress, meaning that they were made involuntarily. She further stated that the learned trial Judge failed to consider the other alleged confessional statements of the Appellant tendered as Exhibits F, F1-F3 before convicting and sentencing the Appellant to death for the offence of murder. Counsel made reference to the cases of Nsofor V. The State (2004) 18 NWLR Part 905 p. 292 at 308 at p. 308 para. H, Obidiozor V. The State (1994) NWLR Part 327 p. 380, Nwangbonui V. The State (1987) NSCC 1239 at 1249, Onyejekwe V. The State (1992) NWLR Part 230 (without the page) and the case of Akpan V. The State (1992) NWLR Part 248 p. 439 and stressed that the trial Court ought to have held a trial within trial to determine the voluntariness of the alleged confession. She also referred to Ojegele V. The State (1988) NSCC 276 at 279 per Oputa J.S.C and submitted that failure to conduct such a trial within trial was fatal to the admissibility of Exhibits F4 and F5. She then urged that Exhibits F4 and F5 and the other alleged confessional statements of the Appellant be disregarded and that the accused be discharged and acquitted.

She further referred to the cases of Yusuf V. The State (supra), Shade V. The State (2005) 1 NWLR Part 907 p. 218 at 240 paras H, A-C and Ekpo V. The State (1995) 9 NWLR Part 421 p. 540 and enumerated about six tests a confessional statement must pass before it could be relied upon by a Court to convict and sentence an accused person. She submitted that there is no evidence outside Exhibits F, F1 – F5 to show that the alleged confessional statements were true. She also referred to the evidence of the Appellant at p. 43 lines 4-15 which she claimed, contradicted the evidence of P.W. 6 and stressed that there was no evidence outside the confessional statement to show that it was true, and that the learned trial Judge erred in law when he held that the evidence of P.W. 6 was not contradicted or affected in any way under cross-examination.

Learned Counsel further cited the cases of Nwachukwu V. The State (2002) 2 NWLR Part 751 D. 366, Hassan V. The State (2001) 15 NWLR Part 735 p. 184, Oche V. The State (2007) 5 NWLR Part 1027 p. 231 paras E-G, Onafowokan V. The State (1987) 3 NWLR Part 61 D. 538 at 541 ratio 13 and Gbadamosi V. The State (1991) 6 NWLR Part 196 D. 182 and submitted that the alleged confessional statements were not corroborated, they were not consistent with other facts which had been ascertained and proved at the trial, they were fabricated, invented and manufactured by the police to ease the discharge of the legal burden placed on the prosecution to prove the case beyond reasonable doubt. She further stated that due to the Appellant’s claim that he was coerced into making Exhibits F4 and F5, the failure of the prosecution witnesses to give eye witness account as to how the Appellant murdered the deceased and the failure of the prosecution to call the two cyclists, namely Monday Inyang Ibor and John Enyong, to testify, the learned trial Judge ought to have been careful, sure and satisfied of the truth and veracity of the alleged confessional statements before relying solely on them to convict and sentence the Appellant to death by hanging.