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.