Agbor Ele V. The State (2006)

LawGlobal-Hub Lead Judgment Report

JEAN OMOKRI, J.C.A.

The appellant, Agbor Ele and 3 others namely, Sunday Irom Adam, Anthony Edim Inyang and Thompson Okira, were arraigned before the High Court of Cross River State sitting at Obubra, on a charge of murder of one Ekong Ebingha (M) an offence under Section 319(1) of the Criminal code, Cap 31, Laws of Cross River State of Nigeria.

At the trial seven witnesses testified for the prosecution. Sunday Irom Adam died in the course of the trial. At the close of the case for the prosecution Anthony Edim Inyang and Thompson Okira were discharged because there was no prima facie case made out against them. The trial continued against only the appellant. He entered into his defence and testified for himself but called no other witness. At the end of the trial, the trial Judge, Hon. Justice James U. Obasse in his judgment delivered on 30/7/96 found the appellant guilty of the offence of murder and convicted him accordingly. The appellant was sentenced to death.

Dissatisfied with the judgment of the trial court, the appellant appealed to this court on three grounds. The three grounds, shorn of their particulars are as follows:

“Ground1: The judgment of the learned trial Judge is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence before him.

Ground 2: The learned trial Judge misdirected himself in law by relying on the accused statement as confessional and convicting him on it.

Ground 3: The learned trial Judge erred in law when he found that the accused and his dead colleague were in agreement to kill.”

From the 3 grounds of appeal, the appellant distilled a lone issue for determination in his brief of argument dated on 14/6/04 and filed on 16/6/04.

The lone issue formulated is as follows:

“Whether the extra-judicial statements of the appellant can be said to be confession warranting his conviction based on the same without corroboration.”

The respondent in its brief of argument dated and filed on 15/4/05 adopted the brief of the appellant completely and conceded to the appeal.

The parties adopted and relied on their respective briefs before this court.

The appellant’s counsel, Mr. Joe Agi in his brief submitted that from the finding of the court there is no direct or circumstantial evidence against the appellant to warrant his conviction. He pointed out that the trial court relied heavily on Exhibits C and F, the extra-judicial statements of the appellant, which it considered as confessional in nature and based its conviction entirely on them. Counsel then submitted that there is nothing in Exhibits C and F to suggest that the appellant confessed to the murder of the deceased. He submitted also that the Exhibits C and F fall far short of confessional statements as they are not direct and positive. Relying on the case of Ihuebeka vs. The State (2000) 7 NWLR (Pt. 665) 404 at 428; R vs. Omokaro 7 WACA 146; Obosi vs. State (1965) NMLR 119 and Yesufu vs. State (1976) 6 SC 107, Mr. Agi submitted that in the absence of eye witness to corroborate the confessional statement, the conviction ought to be set aside.

He referred to Akinmoju vs. The State (2000) 6 NWLR (Pt. 662) 608 at 627 and submitted that where there are factors capable of two possible interpretation based on circumstantial evidence which are in favour of the accused then the guilt of the accused would not be proved beyond reasonable doubt. He then urged the court to hold that the appellant did not confess to the commission of the crime and allow the appeal.