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Andrew Ayedatiwor V The State (2018) LLJR-SC

Andrew Ayedatiwor V The State (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Calabar division, hereinafter referred to as Court below or lower Court, Coram: Ndukwe Anyanwu, JCA; C.C. Nweze, JCA; and O. A. Otisi, JCA; delivered on 21st day of May, 2014, which affirmed the appellant’s conviction and sentence for the offence of murder by the trial Court, handed down on 27th October, 2009 by Charles U, Ekpe, J. of the Akwa Ibom State High Court, Oron Judicial Division, hereinafter referred to as trial Court.

The appellant and one Segun Akinlolu had been charged before the High Court of Akwa Ibom State, Oron Judicial Division on one count of murder.

Upon their arraignment before the trial Court, the accused pleaded not guilty to the charge and the case later proceeded to trial. The prosecution called two witnesses and tendered two documents marked exhibits 1 & 2 respectively.

PW1 – Edward Agabi was the investigating Police Officer (IPO). He testified that he was serving at Ewang, Mbo Local Government area when the incident in

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question took place and he was detailed to investigate the case against the two accused persons and one other who later died. The case of murder was originally reported at Oron Police Station but later transferred to Ewang Divisional Police Station for investigation. Having contacted the complainant, one John Effiong (alias Bassey John), he visited the police station on 5th October, 1993 to inform him that he received information that those who stole the engine boat which led to the alleged murder of Okon Uyeh had been arrested and were been detained in Abonima. He proceeded to Abonima Mame Police Post where he met the accused persons. They made statement and admitted that they stole the outboard engine and boat. The complainant had earlier identified the accused persons as those who attacked him and others on the high sea and then seized their boat and stabbed the deceased. The matter was later transferred to the Police Headquarters, Uyo.

At the police headquarters, he rearrested the accused persons, cautioned them in English language and each volunteered a statement in English language which he recorded. He read the said statement

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over to each of them and each signed his respective statement as correct. He countersigned as recorder. The case was that, the accused persons were passengers in a speed boat driven with the deceased Okon Uyeh, in the High sea. The accused attacked the deceased and other occupants of the said speed boat. The deceased was stabbed and thrown into the sea with one Eteyen and later carted away the speed boat. The complainant had, upon seeing what was happening, by himself jumped into the sea along with another passenger of the boat. The two were later rescued by the fishermen on the sea. The said sea boat was being powered by a 75 horse power outboard engine. The corpses of the deceased Okon Uyeh and Eteyen were later recovered and deposited at the hospital where a Post Mortem examination was carried out on the corpses. The post mortem report was tendered and admitted as ID.1 by the trial Court. The statement of the 1st accused was produced and tendered in evidence but an objection was raised by the defence. The trial Court later conducted a trial within trial to determine the admissibility and voluntariness of the statement. In a

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considered ruling of the trial Court on 14th February 2007, the objection was overruled and the statement was held to be voluntary confession of the 1st accused – Segun Akinlolu and same was admitted in evidence and marked Exhibit 1.

On the 28th February, 2007 when the trial proceeded, the statement of the appellant was tendered by the IPO and as there was no objection, same was admitted in evidence and marked Exhibit 2. PW1 however admitted under cross examination that he did not take the accused persons before a superior Police officer after obtaining their respective confessional statements.

PW2, one John Effiong, alias Bassey John was the complainant. He was a trader, selling clothing materials in Cameroun. He was returning from Cameroun on 25th September, 1993 and had boarded a flying boat where he acted as conductor to the boat. With two other persons and the driver they were four persons in the boat.

Somewhere on the high sea, the 1st accused person had asked the boat operator to slow down for him to urinate. As the boat slowed down, the 1st accused brought out a knife from his body and stabbed the operator and pushed him into the sea. The appellant

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stabbed the deceased Okon Uyeh and also threw him into the sea. Whilst the attack was going on, PW2 and one other passenger jumped into the sea, where they remained until they were rescued by the fishermen in the evening of the same day. The appellant and the co-accused were said to have made away with the boat and the sum of N20,000 in the boat, the property of one of the Passengers.

The appellant testified in his defence but called no other witness. At the conclusion of the hearing, in its reserved judgment, the trial Court found the appellant guilty as charged. He was convicted and sentenced to death by hanging until pronounced dead.

Being aggrieved by the judgment of the trial Court, the appellant appealed to the Court below. In its considered unanimous judgment delivered on 21st May, 2014, the appeal was found unmeritorious and was accordingly dismissed, leading to the instant appeal.

The Notice of Appeal to this Court was filed on 27th May, 2014 containing two grounds of appeal. The appeal was later heard on 09/11/2017.

When arguing the appeal, learned counsel for the appellant, M. A. Ebute, Esq. relied on the

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brief of argument earlier filed on 3/11/2017 out of time but was deemed properly filed and served on 09/11/2017. In the said appellant’s brief of argument, he distilled the following sole issue for determination:-

Whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the appellant’s conviction for murder by the Court below. (Distilled from the two Grounds of Appeal.)

Learned counsel referred to the three ingredients the prosecution is required to prove or establish in order to secure conviction. He relied on a number of decided cases, including Ogba Vs. The State (1992) 2 NWLR (Pt.222) 164; Monday Nwaeze Vs. The State (1996) 4 NWLR (Pt. 143) 375; Gira Vs. The State (1996) 4 NWLR (Pt.443) 375.

Learned counsel contended that, in criminal cases, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and unless the prosecution has discharged that onus, it is not entitled to succeed. He submitted that on a calm evaluation of the evidence led by the prosecution at the trial, it failed to prove beyond reasonable doubt the offence of

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murder allegedly committed by the appellant and the learned trial Judge was wrong to have convicted the appellant on the basis of the inconclusive and contradictory evidence. He submitted further that the Court below was therefore wrong to have affirmed the judgment of the trial Court.

Learned counsel evaluated the judgment of the Court below applying the three ingredients earlier alluded to. He referred to the observation of the Court on page 208 paragraphs 1 and 2 of the record and contended that the finding is erroneous. He contended that the burden was on the prosecution to prove conclusively by cogent and credible evidence, that Okon Uyeh is dead. He contended that there was no evidence that Okon Uyeh is dead, as there was no evidence that the recovered corpse was that of Okon Uyeh.

Learned counsel contended that the evidence on record as to the identity of the recovered corpses is shrouded in confusion. And it is less than satisfactory and utterly fell short of the requisite standard in discharge of the onus on the prosecution.

He reviewed the testimony of PW1, the IPO of the case, at pages 40 lines 27-28; 57 lines 20-23 and 58

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lines 7-9 and 14-15 respectively of the record, He contended that the testimony of PW1 that Okon Uyeh is dead should be rejected, being hearsay evidence. He contended that PW1 was not at the scene of the alleged crime and did not witness the actual killing of the deceased. He contended further that the Police Officer at Abanima who gave PW1 the information was not called to testify. He relied on Sections 37 and 38 of the Evidence Act and Subramanian Vs DPP (1956) WLR 965. He submitted that, in law, evidence of a person who did not personally witness an incident is hearsay. And that such evidence is unhelpful and worthless. He relied on Ojo Vs. Gharoro (2006) 10 NWLR (Pt.987) 173.

He referred to the testimonies of both PW1 and PW2 on the recovery of the corpses of those allegedly thrown into the sea and contended that the Court below was wrong to have found the evidence of PW1 on the recovery of the corpse as unchallenged and accurate. He submitted that it is not, as the prosecution’s evidence on the recovery of corpses is materially and inherently contradictory. He submitted that the testimony of PW2 is hopelessly hearsay and inadmissible.

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Learned counsel contended that proof of identify of the corpse of a deceased person is vital to a successful prosecution of the offence charged. The corpse is to be identified by a person who knew the deceased while he was alive. He relied on Princewill Vs. State (1994) 6 NWLR (Pt.145) 469.

See also  Yelli V. State (2022) LLJR-SC

Learned counsel contended that in this case no one was called, who identified the corpse as that of Okon Uyeh. And that it was not in dispute that PW1 did not know the deceased prior to his death, he could therefore not possibly have identified the deceased without assistance by someone who knew the deceased while he was alive. He contended further that, to the detriment of the prosecution’s case, no medical evidence was given regarding the identity of the recovered corpse. The doctor who performed the autopsy, was not called to testify, for him to have testified on who identified the corpse to him, neither was the post mortem report admitted in evidence. He submitted that there is nothing positive and conclusive to show that the recovered corpse was that of Okoh Uyeh – the deceased.

Learned counsel reviewed the testimony of PW2 on the identity of the corpse of the deceased, Okon

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Uyeh and contended that even though the law is that an accused person may be convicted of murder where the corpse has not been found and where there is compelling circumstantial evidence to lead to the inference that the person has been killed, he submitted that the principle is not applicable to the instant case, since the recovered corpse was not positively identified as that of Okon Uyeh – the deceased. As a result, he submitted that the prosecution has failed to prove that Okon Uyeh is dead and he urged the Court to so hold.

On the second ingredient, he contended that the prosecution was under obligation to prove beyond reasonable doubt that the death of the deceased was caused by the accused. He contended further that there must be a nexus or link between the act of the accused and the death of the deceased. was it the appellant that caused the death of the deceased, Okoh Uyeh He referred to the testimony of PW2 on page 61 lines 16-25 of the record on how the deceased was stabbed by the appellant and thrown into the sea. Learned counsel referred to the finding of the trial Judge on the said testimony at pages 128, 129 and 130 of the record and

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contended that it is evident that the learned trial Judge rightly found that the prosecution did not establish the cause of death, and this finding, he further contended was not disturbed by the Court below, hence it remains binding.

Learned counsel contended that in disregard of the earlier findings of the trial Court, that the cause of death may not have been established, the learned trial Judge subsequently held that the appellant caused the death of the deceased by throwing him into the sea. He referred to the decision of the Court below in affirming the subsequent findings of the trial Court at pages 209-210 of the record. He submitted that the conclusion of the Court below, that the appellant threw the deceased into the sea was perverse.

Learned counsel referred to the testimony of PW2 again on how the deceased and others were thrown into the sea and how he remained in the sea until he was rescued by a fishing boat. He contended that it was wrong of the Court below to find that the deceased was thrown into the sea, whether stabbed or not and was later found dead, and that the unfortunate death of the

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deceased was caused by the appellant.

Learned counsel contended that having disbelieved the testimony of PW2 on the stabbings, it was no longer open to the learned trial Judge to believe the portion of PW2’s testimony that the appellant threw the deceased into the ocean, for the reason that, the totality of the testimony of PW2 was not credible. And it was wrong of the Court below to have affirmed the finding.

Learned counsel contended further, that there was not a grate of evidence suggestive of the fact that the presumed throwing of the deceased into the sea was the direct and immediate cause of his death. In other words, that there is no nexus or link between the death of the deceased and the act of the appellant. He contended further that it is apparent that both Courts below proceeded on the mistaken assumption that, to throw a person into the sea, without more, is sufficient to cause the person’s death. He submitted that the cause of death must be directly traceable to the act of the appellant. But that in this case the prosecution failed to show with certainty that the deceased died as a direct result of the act of the appellant. He submitted

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that the prosecution failed to prove that the appellant caused the death of the deceased and urged the Court to so hold.

On the third ingredient of the offence of murder, learned counsel contended that the prosecution was expected to prove that the act or omission of the appellant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm has its applicable consequence.

He referred to the findings of the trial Judge that by throwing the deceased into the sea, the appellant intended to cause the death of the deceased. He contended that the mere fact that the deceased was thrown into the sea, was not sufficient basis to infer that the appellant intended to cause the death of the deceased. He contended further that in making the above finding that the appellant caused the death of the deceased intentionally, the Court below, among others, relied on the confessional statement of the co-accused – Segun Akinlolu, to hold that there was evidence outside of Exhibit 2 that confirms or corroborates the contents of Exhibit 2. He submitted that it was wrong of the Court below to have relied on

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Exhibit 1, when same was not adopted by the appellant. He further submitted that it is settled law that the confessional statement of a co-accused is not evidence against a person who has not adopted the statement. He relied on Section 29 (4) of the Evidence Act, 2011.

He contended that the law is that there must be some evidence, no matter how slight, outside the confession which makes it probable that it was true. He submitted that since there was no evidence outside the confession that confirms the truth of the confessional statement, the Court below erred in anchoring the conviction of the appellant on Exhibit 2.

He finally submitted that the prosecution has failed to show that the appellant intended to cause the death of the deceased or knew that death would be a probable consequence of his action. He urged the Court to reverse the decision of the Court below because the prosecution failed woefully to prove any or all the ingredients of the offence of murder against the appellant beyond reasonable doubt, as required by law.

In the respondent’s brief of argument, settled by Uwemedimo Nwoko Esq, learned Attorney General and

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Commissioner for Justice of Akwa Ibom State, filed on 11/10/2016 but which was deemed properly filed and served on 9/11/2017, the respondent distilled a sole issue for determination of the appeal from the two Grounds of Appeal filed by the appellant. The said issue is the same with the sole issue formulated by the appellant, though slightly differently couched.

The respondent stated that it is instructive to note that the appellant in the instant appeal was the 2nd accused person in the trial that culminated to this appeal. And that the 1st accused – Segun Akinlolu, who was convicted and sentenced along with the appellant had earlier appealed the same judgment of the Court below to this Court. In the judgment of this Court delivered on 11th December, 2015, the appeal was unanimously dismissed.

Learned Attorney General referred to the ingredients of the offence of murder which the prosecution is required to prove to secure conviction. He submitted that the prosecution, in the instant case, indeed proved the basic ingredients beyond reasonable doubt.

He gave three ways by which the guilt of an accused person can be established, viz:

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(a) The confessional statement of the accused person;

(b) Circumstantial evidence;

(c) Evidence of witnesses.

Learned counsel contended that the prosecution adopted a three pronged measure of all the available modes to prove the guilt of the appellant. Firstly, the confessional statement of the appellant; secondly the circumstance of the case which mathematically pointed at the appellant, as being one of the persons that murdered the deceased and thirdly the uncontroverted eye witness evidence of PW2.

See also  Peoples Democratic Party & Anor V. Chief (Sir) Victor Umeh & Ors (2017) LLJR-SC

He submitted that the prosecution has proved the basic ingredients of the offence of murder against the appellant beyond any measure of doubt.

On the death of the deceased, he referred to the testimony of PW2 at pages 61-63 of the record, that one Okon Uyeh had died. He also referred to the testimony of PW1, the IPO of the case and the findings of the trial Court on the use to which the prosecution put the autopsy report. Learned Attorney General contended that, identification of the corpse of the victim of murder charge, is only required where a medical evidence is essential and not otherwise. He

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also relied on Enewoh Vs State (1990) 4 NWLR (Pt.145) 469.

He submitted that it is no longer a valid legal argument that a medical report and, ipso facto, the person who identified the corpse to the medical doctor for the purpose of autopsy, must be before the Court in proof of the death or the identity of the deceased, where both the identity of the corpse and the cause of death can be inferred from the evidence and circumstances of the case. He relied on Ogumo Vs The State (2011) 7 NQLR (Pt.1245) 314 at 330. He contended that from the combined evidence of both PW1 and PW2, the fact of Okon Uyeh’s death and the recovery of his corpse by a search party of his relatives remain uncontroverted.

Learned counsel contended that notwithstanding the fact that the autopsy report was not tendered and the prosecution did not place evidential reliance on it, there is some evidence before the Court, appreciated by the trial Judge, on the fact of the deceased’s identity. He referred to page 117 of the record on the finding of the trial Court on the evidence of identity of the deceased Okon Uyeh, mentioned in the charge. The trial Court was emphatic that the medical report pursuant to the

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post mortem examination notwithstanding, having not been tendered beyond identification, the evidence of the PW1 and PW2 are sufficient to establish that Okon Uyeh had died.

On the death of the deceased, Okon Uyeh, being caused by the appellant, it was contended by the appellant that the cause of death was not traceable to him because the learned trial Judge had held at pages 128-129 of the record, pursuant to the assertion of PW2 that the accused persons first stabbed their victims before throwing them into the sea and the denial of the accused persons of stabbing the deceased first before throwing him or them into the sea,…. therefore, it would appear that the cause of death may not have been established. However, learned counsel referred to the further findings of the trial Judge on the same point on page 130 of the record, and concluded that the consequence of the act of the appellant in throwing the deceased, an old man, into the sea, obviously frightened by the criminal conduct of the appellant, as testified to by PW2 is the tragic recovery of his corpse by the relatives and PW1 as reflected in the testimony of PW1.

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Learned counsel contended that this finding was not challenged by the appellant neither did he testify to the contrary and the said finding was accepted and upheld by the Court below.

Learned counsel contended that unless the appellant has a contrary story to tell, as to how the deceased died, the pieces of evidence establishing the nexus between the criminal conduct of the appellant and the death of the deceased, Okon Uyeh remain inviolable.

On the contention of the learned counsel for the appellant that the confessional statement of a co-accused is not evidence against a person who has not adopted the statement, learned Attorney General contended that it is not the current position of the law. As the law is that the evidence or statement to the Police of a co-accused can without more be used against him. He submitted that an accused can be convicted on the evidence of a co-accused or an accomplice and such evidence is not illegal under Section 198 (1) of Evidence Act, 2011. He relied onNwankwoala & Anor Vs The State (Vol.3) CAC, 254 at 265.

He referred to the appellant’s own confessional statement, Exhibit 2 made on October 13,

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1993, in which he detailed his involvement with the murder of the deceased, and the finding of the Court below on page 190 of the record. He urged the Court to affirm the concurrent findings of fact by the trial Court and the Court below that the appellant intended to cause the death of the deceased or knew that death would be a probable consequence of throwing the aged deceased into the sea which the deceased actually died.

He finally urged the Court to uphold the decision of the Court below and dismiss the appeal.

As earlier noted, the appellant was charged along with a co-accused, one Segun Akinlolu with the murder of Okon Uyeh. Both of them were found guilty, convicted and sentenced to death by the trial Court, as charged. The co-accused had unsuccessfully appealed, up to this Court, against the same judgment.

The issue for determination of this appeal is, whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the appellant’s conviction for murder, by the Court below. The sole issue was distilled from the two grounds of appeal filed by the appellant.

Murder has long been defined as,

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the taking of human life by a person who either:

(a) has a malicious and willful intent to kill or do grievous bodily harm or;

(b) is wickedly reckless as to the consequences of his act upon his victim.

Therefore, for murder, the suspect must have an evil intent, that is, a criminal intent, although, it is not necessary that there should be an intent to kill. See; R. Vs Vickers (1957) 2 A; ER 741 at 744; Yekini Afosi Vs. The State (2013) 12 SCM (Pt.2) 28 (2013) 13 NWLR (Pt.1371) 329; (2013) 6-7 SC (Pt.111) 37; (2013) 6 SCNJ (Pt.1) 1, (2014) All FWLR (Pt.725) 268.

It is trite law and settled, that for the prosecution to secure conviction for charge of murder, the following must be proved beyond reasonable doubt:

(a) That the deceased had died;

(b) That the death of the person was caused by the accused person;

(c) That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.

See; Edwor Ogba Vs The State (1992) 2 NWLR (Pt.222) 164;(1992) 02 SCNJ 100; Uchenna Nwachukwu Vs. The

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State (2002) 12 SC 50 143 Okolo Ochemaje Vs The State (2008) 15 NWLR (Pt.1109) 10 SCM 103; (2008) 6-7 SC (Pt.11) 1; (2008) LPELR 2198.

In the trial Court, in order to secure conviction, the prosecution called two witnesses and tendered two documents marked as Exhibits 1 and 2 respectively. PW1 was the Investigation Police Officer (IPO) who investigated the case and PW2 was an eye witness in whose presence the alleged act that led to the death of the deceased was carried out.

In law, it is trite that the guilt of an accused who is charged with the commission of a crime can be proved by way of the following:-

(a) confessional statement of the accused which has passed the requirement of the law;

(b) Evidence of eye witness who saw or witnessed the commission of the alleged crime; or

(c) circumstantial evidence which links the accused and no other person with the commission of the crime or the offence charged.

See; Joseph Lori & Anor vs. The State (1980) 8-11 SC (Reprint) 52; (1980) LPELR-1794.

In this case, the appellant was said to have made statement to the police, which statement, when

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tendered in Court was not objected to by the defence and same was admitted and marked Exhibit 2. The said statement of the appellant was adjudged by the trial Judge as confessional and that it was voluntarily made to the police. After reviewing the evidence adduced by the prosecution, the trial Judge, inter alia, came to the following conclusion:-

…from all the circumstances of this case and the evidence tendered, the prosecution has proved its case beyond reasonable all doubt.

The above conclusion finally led to the conviction and sentence of the appellant.

On record, it is clear that the appellant was said to have made a confessional statement linking him to the charge, and PW2 was an eye witness in whose presence the act that led to the death of the deceased was carried out.

See also  Kayode Idowu Vs The State (1998) LLJR-SC

Ordinarily, and the law is trite on the point that, a man may be convicted on his own confession alone even without corroboration and there is no law against it. The position of the law is that if a suspect makes a free and voluntary confession in his extra judicial statement to the police, which confession is found to be direct and positive and the Court is satisfied with its truth, such

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confessional statement alone is sufficient to ground conviction without corroboration. See; Asimiyu Alarape & Ors Vs The State (2001) 2 NWLR (Pt.705) 79; (2001) 2 SC 114; (2001) LPELR 412; Ozana Ubierho Vs. The State (2005) 5 NWLR (Pt.919) 644; (2005) 2 SC (Pt.1) 18; (2005) LPELR- 3283.

There is certainly no evidence stronger than a person’s own admission or confession. The confession is admissible. See; Akeem Agboola Vs. The State (2013) 11 NWLR (Pt.1366) 619; (2013) 8 SCM, 157; (2013) All FWLR (Pt.704) 139; (2013) LPELR-20652.

In Exhibit 2, which was admitted without objection from the defence, the appellant had admitted throwing the deceased into the sea from the boat with others in the boat but that they threw life bouy at them with which to swim to safety.

On this point, the trial Judge opined as follows:

I need not say and it needs no persuasion to believe that to throw a man into an open sea is an act most likely to endanger human life with death as a probable consequence. I disbelieve any statement to the effect that the accused persons threw into the water life bouy with which the victims would use to swim. Their

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intention and plan was to permanently deprive the owners of the boat of their property and to sell same. They never intended the owners to stay alive and come after them for the recovery of their gain. Indeed, the PW2 said the 1st and 2nd accused persons were surprised to see him alive and they expressed their shock openly.

See pages 129-130 of the record.

The second Prosecution witness (PW2) had testified before the trial Court, inter alia, as follows:-

On 29th September, 1993 we were returning from Cameroun by flying boat. We were together with my driver while I was the conductor. There was also an Igbo boy whom I took to Cameroun. My boat driver was by name Eteyen. We branched Abana to look for passengers. There we saw three passengers who said they wanted to go to Oron. The two accused persons here in the dock and one other person where (sic) these 3 passengers. They knew me very well. I have not seen the third person. They said he has died. These three passengers priced me N100.00 each to come to Oron and they entered the boat. Coming on the mid sea, the 1st accused person said he wanted to

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urinate, that i should slow down the boat. When the driver slowed down, the 1st accused brought out a knife and stabbed my driver. I was in front. My driver shouted. The 2nd accused person was staying close to me. Immediately the 1st accused person stabbed the driver that is now reported dead, the person held me and threw me into the water. There was one old man whom we also carried. The 2nd accused person stabbed that man. Infact, when that other man held me I had to jump into the water. Two people were stabbed and thrown into the water, that my driver and the old man named Mr. Okon Uyeh.

See page 61 of the record.

On the ingredients of the offence of murder, the trial Court had referred to the testimony of PW2 and had found as follows:

There was evidence by PW2 who said this man by name Okon Uyeh travelled in the same boat with them on the fateful day. He saw him in the boat but when, according to him, they were assailed by the accused person, Okon Uyeh was one of the two persons stabbed and thrown into the river by the accused persons. The PW1 said the corpse of Okon Uyeh was later recovered

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and a post mortem examination conducted thereon. The medical report on the corpse was only tendered for identification purposes and was not tendered as an exhibit. It can therefore not be used. However, the evidence of the PW1 said he met the relatives of the deceased who helped in the search party and they eventually recovered the corpse of the deceased which he took to hospital for autopsy.

The trial Court also considered the statement (Exhibit 2) allegedly made to the Police by the appellant and found it to be a confession of what he and the co-accused did on the fateful day the deceased was said to have been thrown into the sea. I have also read the said statement. It gave a graphic description of what happened on the day in question, and corroborates the testimony of PW2, who was an eye witness of the whole episode.

The court below on appeal had found as follows:-

There was no medical report on the precise cause of death of the deceased. But it is well settled law that where a victim dies in circumstances in which there is abundant evidence of the manner of death, medical evidence can be dispensed with. See; Awopejo Vs. The State (supra); Ogumo

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Vs. The State (Supra). The deceased was thrown into the sea, whether stabbed or not and he was later found dead. Therefore, death of the deceased was caused by the action of the appellant.

The Court below on page 217 of the record had further found as follows:

From the uncontradicted evidence of both PW2, the eye witness, and of PW1, the confession of the appellant is consistent with other facts which have been ascertained and proved. Although the statement was later retracted by the appellant, the learned trial Judge considered other evidence proffered and was satisfied that the appellant acted intentionally.

The Court below later held that the prosecution proved the offence of murder contrary to Section 319 (1) of the Criminal Code Law, Cap. 31, Vol.13, Laws of Cross River State, as applicable in Akwa Ibom State of Nigeria against the appellant. The appeal was adjudged unmeritorious and dismissed.

The law is trite that where there are concurrent findings of fact by two lower Courts, as happened in this case, this Court will not readily interfere with such findings

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made unless and except there is some miscarriage of justice, or it has been shown that the said concurrent findings of fact as they are, would lead to a miscarriage of justice or were perverse and special circumstances have been shown to that effect. See; Okonkwo & Anor Vs Obi T.N. Adigwu (1985) NWLR (Pt.4) 694; (1985) 5 SC 144; (1985) LPELR-2480; Prince Eyinade Ojo & Ors vs A.G. of Oyo State & Ors (2008) 15 NWLR (Pt.1110) 577; (2008) 6-7 SC (Pt.11) 54; (2008) 12 SCM (Pt.2) 669; (2008) LPELR-2379.

There is no doubt that there were concurrent findings of facts in this case and the appellant did not show that they were perverse. This Court will therefore not interfere with the concurrent findings of facts of the two Courts below. In other words, the prosecution proved the three ingredients it was required to establish to secure conviction for murder. The deceased, Okon Uyeh was proved to have died when recovered from the sea where he was thrown into. That the death resulted from the act of the appellant which act was intentionally done.

As done by this Court in the erudite judgment of my learned brother, Nweze, JSC in the appeal by the 1st accused before the trial Court, who was co-accused to

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the appellant, and who were both found guilty and convicted by trial Court for the murder of the deceased, Okon Uyeh, as reported in Segun Akinlolu vs. The State (2015) 11-12 SCM 1; (2015) 12 SC (Pt.1); (2015) LPELR-25986; I endorse the concurrent findings of the unanimous decision of the Court below and the trial Court. The sole issue is therefore, resolved against the appellant. Without any further ado, I hold that the Court below was correct in affirming the decision of the trial Court that the prosecution proved its case beyond reasonable doubt, and that the appellant was correctly convicted for murder of Okon Uyeh. Accordingly, I hereby affirm the judgment of the Court below, which had affirmed the conviction and sentence of the appellant, for the murder of Okon Uyeh, in its judgment of 21st day of May, 2014. This appeal is unmeritorious and deserves to be dismissed. It is, accordingly dismissed.


SC.356/2014

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