Asuquo Okon Asuquo V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
The appellant was charged before the High Court of Cross River State holden at Calabar with the offence of murder contrary to Section 319(1) of the Criminal Code Cap C16 Vol. 3 Laws of Cross River State of Nigeria 2004 in Charge No.HC/59C/2006. The charge reads thus:-
“STATEMENT OF OFFENCE
MURDER contrary to Section 319(1) of the Criminal Code Cap. C16 Vol. 3 Laws of Cross River State of Nigeria 2004.
PARTICULARS OF OFFENCE
ASQUO OKON ASUQUO on or about 21st day of August 2006 at Okurikang village in Calabar Judicial Division murdered one Andong Bassey Andong.
In order to prove the offence the prosecution called four witnesses and tendered six exhibits. One of the four witnesses who testified is PW2, the wife of the deceased who gave an eye witness account on how the appellant went to the deceased house armed with a matchet and when the deceased sighted him, he tried to escape but fell in front of the Presbyterian Church which was not far from the house. It was there the appellant inflicted the matchet wounds on the
1
deceased. The deceased died shortly after while he was being conveyed by PW1 to the hospital. It was PW2 who ran to PW1 for help and on rushing to the scene of the crime PW1 saw the deceased in a pool of blood. PW3 who is a neighbour of the deceased heard shouts from the wife of the deceased in the morning of 21/8/2006. He ran out to find out what was happening. He saw the deceased lying on the ground with wounds all over his body and a deep cut on his hand. He heard the deceased shouting “Udo Udo has killed me” As he turned around he saw the appellant running away with a matchet in his hand. PW4 was mandated to investigate the case after it had been transferred from Odukpani to the State C. I. D. Calabar. He recorded a statement from the appellant tendered as Exhibit 5. An earlier statement of the appellant which was recorded by Sgt. Jane Dickson on 30/8/2006 was tendered without objection and admitted as Exhibit 4.
The appellant testified in person. He denied murdering Andong Bassey Andong. He also denied making Exhibit 4 but made a statement which Sgt. Umo recorded. He said he was at his work place by 7am at Calcemco Calabar on 20/8/2006 and Otu Bassey
2
one of his co- workers saw him at work.
The learned trial Judge, Ita J. (as he then was) meticulously evaluated the evidence adduced during the trial and rejected the alibi which the appellant set up when he testified, found that the prosecution proved all the ingredients of the offence of murder against the appellant convicted and sentenced him to death by hanging.
The appellant was dissatisfied with the judgement of the learned trial Judge and appealed to the Court of Appeal, Calabar on a Notice of Appeal containing 7 grounds of appeal.
The appeal was dismissed. The appellant has further appealed to this Court in his Notice of Appeal filed on 21/7/2014 which has 8 grounds of appeal. Comparing the two notices of appeal, the only difference is that the 7 grounds of appeal filed at the Court of Appeal, the 1st ground is the omnibus ground which is not found in the Notice of Appeal to this Court but all the complaints in the other grounds are the same as in the Notice of Appeal to this Court from which a sole issue was raised namely:-
Whether the Court of Appeal was right in holding that the respondent proved the charge of murder against the
3
appellant
Learned counsel for the appellant enumerated the elements of the offence which must be proved beyond reasonable doubt which are:-
a. The death of the deceased.
b. The act or omission of the accused which caused the death; and
c. That the act or omission of the accused stated in (b)above was intentional with knowledge that death or grievous bodily harm was its probable consequence.
He cited several authorities and submitted that the nature of the evidence adduced on behalf of the respondent was fragile which made it susceptible to reasonable doubts which should have been resolved in favour of the appellant giving the following examples:-
(i) The poor quality of the evidence of the respondents witnesses who are tainted witnesses
(ii) The purported statements made by the appellant which he denied making and therefore inadmissible
(iii) The inexplicable unavailability of the statement made to sgt. Umoh.
(iv) The appellant’s insistence that he set up an alibi upon his arrest and informed the Police accordingly which testimony was not successfully dislodged by cross-examination
(v) Non interpretation of the
4
accused statement from English to Efik to ascertain its correctness.
It is the contention of learned counsel for the appellant that PW1, PW2 and PW3 are tainted witnesses, most especially PW2, the wife of the deceased who claimed to have witnessed the alleged attack on the deceased was not free from equivocation and there were inconsistencies in her evidence which should not have been glossed over.
Learned counsel for the appellant reproduced verbatim the arguments he advanced before the Court below on the evidence of PW1, PW2 and PW3 whom he categorised as tainted witnesses. In resolving the issue the Court below per Nweze JCA (as he then was) stated at pages 133-134 of the record:-
“This submission need not delay us here. As Karibi – Whyte JSC, sagaciously, held in Olalekan v. State (1992) FWLR (Pt.91) 1605, 1628 the evidence of a wife [PW2 was the wife of the deceased person]
who witnessed the brutal murder of her husband [as PW2 did on Monday, August 21, 2006] cannot be regarded as that of a tainted witness that would require corroboration because she cannot be said to have “any other interest to serve” than to identify the killer of
5
her husband. As such, she is one “whose evidence is ………… deserving of utmost credibility and is probable.
In the same vein, Pw1 and PW3, although relations of the deceased person, do not fall into the category of tainted witnesses. Oguonzee v State (1998) 5 NWLR (Pt.551) 521. Ishola v. State (1978) 9 – 10 SC 18; Ben v. State (2006) 16 NWLR (Pt. 1006) 582: Paul Onyia v. State (2005) 11 NWLR (Pt. 991) 252 Ogunye v. State (1995) 8 NWLR (Pt.413) 333. Even then we endorse the respondent’s counsel that the Lower Court found sufficient corroboration of the testimonies of PW1, PW2 and PW3 in exhibits 1, 2A, 2B, 2C, and 2D as well as exhibits 3, 4, 5 and 6, Yahaya v. State INCC 120. 124. John Peter v. State (1994) 5 NWLR (Pt.342) 45.58.74”.
I am in full agreement with the stand taken by the Court below that PW1, PW2 and PW3 were not tainted witnesses whose evidence required corroboration. As stated by Onu JSC in Olalekan v. State (2001) 18 NWLR (Pt. 746) 793 at page 825:
“… it is neither a rule of law or practice that the evidence of relations of victims of a crime need corroboration.
They are neither “tainted” witnesses (see: R v.
6
Omisade (1964) NMLR 67) nor witnesses who have their own purpose to serve (see: Idahosa v. R (1965 NMLR 85)”.
PW2 in her evidence narrated that there was a boundary dispute between her husband’s land and the house of the accused whereby a sister of the accused planted plantain very close to their (PW2) kitchen. The deceased reported the incident to the village council which straightened out the boundary by removing the plantain. This did not go down well with the sister of the accused who quarreled with the deceased and she overheard her telling the deceased that she was going to inform her brother in Bayside Calabar to come and kill her husband.
In exhibit 5 which the appellant retracted in Court but which PW4 recorded on 1/9/2006, the appellant gave his own version of how the incident happened. He said-
“In addition … my sister also informed of the problem they had with the man I killed pertaining to the demarcation of boundary in our compound as we are sharing a common boundary. Upon that information I went to Okurikang village where my sisters are living. I went to Olunkang on Monday 21/8/06. On my getting to the village questioned the
7
boundary council as was done by the village council.
In other words, I was not comfortable with the demarcation. From there I and the deceased quarrel and lastly we fought. No we did not fight, but we were about to fight then I sensed that he will have power more than me, thus I went to our house and carried a matchet. Then with the matchet I pursued the deceased and got him in the frontage of the Presbyterian Church Olurikang where the man fell down. At that place I cut him on the hand and leg. After I had cut him, I ran away and dropped the matchet behind our house”.
The Court below was absolutely right when it held that even if PW2 had her own purpose to serve in wanting to exert revenge on the appellant, her evidence was corroborated by exhibit 5. PW4 who recorded exhibit 5 had nothing to do either with the deceased or PW2 and could not have concocted the sequence of events which led to the death of the deceased as stated by PW2.
The appellant denied making exhibits 4 and 5 but the prosecution disproved this when he was asked to write his name and admitted it as exhibit 6. The trial Court compared the writing in exhibit 6 with his name
8
which was written in exhibits 4 and 5 and came to the conclusion that the person who wrote “Asuquo Okon Asuquo” in open Court exhibit 6 also wrote Asuquo Okon Asuquo on exhibits 4 and 5.
The learned trial Judge considered the possible defences raised in exhibits 4 and 5 and concluded that since the appellant wrestled the matchet from the deceased and deceased thereafter ran away while the appellant pursued him and killed him in front of the church 50 meters from the deceased’s house there was no justification for his action.
The Court below held that it is hardly necessary to prove the cause of death where a man is attacked with a lethal weapon and he died on the spot since it can be inferred that the wound inflicted caused the death. This is the correct position of the law. See: Adamu v. Kano NA (1965) SC NLR 65.
Mohammed Garba v. State [2000] 12 NWLR [Pt.682] 595.
(2000) 4 SC (Pt. 11) 157: Ahmed v. State 120011 18 NWLR (Pt.746) 622. Azu v. State 1199315 NWIR (Pt.299) 303. Since PW2 noticed that the neck of the deceased could not stand and he was confirmed dead on arrival in the hospital, the proper inference that it was the matchet wounds which the appellant inflicted on the deceased that caused
9
his death cannot be faulted.
The elements of murder needed to be proved by the prosecution have been proved beyond reasonable doubt. The claim by the appellant that he raised the defence of alibi is not contained in exhibits 4 and 5 which he retracted in Court. In his oral evidence Court he was referring to what took place on 20/8/2006 which was the day previous to the event and this not an alibi.
Learned counsel for the appellant harped on the statement which the appellant allegedly made to Sgt. Umoh presumably raising the defence of alibi which was nowhere to be found as opposed to exhibits 4 and 5 which were tendered by the prosecution in which PW4 said he recorded exhibit 5 but appellant denied making exhibit 5 to PW4. On the alleged statement the appellant made, learned counsel contended that the trial Court made a definite finding of fact which has not been appealed against.
I do not think the learned trial Judge believed the appellant when he denied making exhibits 4 and 5 but made a statement to Sgt. Umoh. The trial Judge considered exhibits 4 and 5 when he said at pages 51-52
10
of the record:-
“On exhibits (4) and (5) the accused person confirms that after matchetting the deceased he ran away with the matchet which he threw into a bush behind their (accused’s) house. Even if the alibi in this case had been timeously raised, it would have been destroyed by those pieces of evidence which graphically fix the accused person at the scene of crime”.
Did the appellant object to the admissibility of exhibits 4 and 5 as being canvassed by his counsel During the trial this is what the trial Judge recorded at pages 33-34 when PW4 sought to tender the statement of the appellant:-
“Statement of accused in the file dated 24/8/2006 Inyang: Says accused person did not make any statement to police anywhere.
Court: Exhibit 4.
Statement made at SCID dated 1/9/2005
Inyang: Accused made no statement Court: Exhibit 5”.
When the issue of admissibility of exhibits 4 and 5 were raised at the Court below, the Court stated at pages 134-135 of the records:-
“One last response to counsel’s submission here; he challenged the propriety of admitting the statements the appellant made to the Police. According to him the
11
appellant vehemently objected to their admissibility on the ground that he did not make the said statements, paragraphs 2.10et seq pages 12 13 of the brief”.
With respect, this submission would appear to conflate the requirements relating to objections on the grounds of involuntariness and denial of authorship of a statement.
Contrariwise, objections woven around the denial of the authorship of statements or the incorrect recording of such statements would not conduce to their inadmissibility. Such statements that fall into the latter category are admissible in evidence. The trial Court, however, will attend to the accused person’s reaction of the said statement in his judgment; that is to say, will determine whether such denial enures in favour of the accused person, Akpa v. State (2008) All FWLR (Pt.420) 644; (2007) 2 NWLR (Pt.1019) 500.
The reason is simple; such questions relate to the weight attractable to them, Madjemu v. State (2001) 5 SCNJ 31; Obidozor v. State (1987) 4 NWLR (Pt. 67) 48, Dibie v. State (2007) All FWLR (Pt. 363) 83; Ogudor v. State (2011) 12 SC (Pt.1) 71, 97; Owie v. State (1985) 4 S.C. 1, 27; see, generally, S. T. Hon
12
(SAN), S. T. Hon’s Law of Evidence Nigeria Vol. 1 (Port Harcourt: Pearl Publisher, 2012 258-259; J. Amadi Contemporary Law of Evidence in Nigeria vol. 1 (Port Harcourt: Pearl Publishers, 2011) 260 et seq. In all, we agree with the Lower Court that the prosecution proved the second ingredient of the offence of murder”.
It is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: Uluebeka v. The State (2000) 7 NWLR (ft.565) 41; Okoh v. State (2014) 8 NWLR (Pt.1410) 502. Such corroboration is to be found in the evidence of PW2, exhibits 1, 2A, 28, 2C, 2D and 3.
The appellant also raised the issue of inconsistencies and contradictions in the evidence of the respondent against the appellant. It is not every trifling
13
inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit therefrom. See: Okonji v. State (1987) NWLR (Pt. 52) 059; State v. Aigbangbee (1988) 3 NWLR (Pt. 84) 548; Wankey v. State (1993) 5 NWLR (Pt.295) 542; Azu v. State (1993) 5 NWLR (299) 303; Theophilus v. State (1996) 1 NWIR (Pt. 423) 139; Akindipe v. State (2012) 16 NWLR (Pt. 1325) 94. In Akindipe v. State, the Supreme Court per Ngwuta JSC at 113 held that:-
“Though there may be elements of contradictions and inconsistencies in evidence of witnesses at a trial, only those contradictions and inconsistencies shown by the appellant to be substantial and fundamental to the main issue before the Court can lead to a reversal of the judgement appealed against. Minor discrepancy or disparity between a previous written statement and subsequent testimony in Court will not destroy the credibility of the witness”.
In the Court below as in
14
this Court, apart from saying that PW2 did not qualify as an eye witness since she did not witness what precipitated the incident of the deceased running from the shed through the sitting room to the Presbyterian Church where he fell learned counsel did not point to any contradiction which was substantial and fundamental to the main issue on whether it was the appellant who inflicted the matchet wounds that caused the death of the deceased. At the trial Court, learned counsel pointed out that PW2 in one breath said many people came out when she raised an alarm only to turn somersault under cross- examination that people did not come out because of the rain. I do not see how this evidence is material. The fact was established that after the attack the deceased was taken to the hospital where he was confirmed dead.
The last complaint raised by appellant’s counsel is that exhibit 5 was not translated into Efik.
It is a constitutional requirement that if an accused person does not understand English at all and he makes a statement it must be recorded in the language he speaks or understands and later translated into English. See: Section 36 (6) of the
15
Constitution of Federal Republic of Nigeria 1999 (as amended). Where, as in the present appeal, the appellant was cautioned in English and he signed the caution before making his statement which was recorded in English, the appellant cannot thereafter be heard to complain that the statement was not translated into Efik. See Queen v Zakwakwa of Yaro (1960) 1 NCC 8. Nwali v. State (1991) 3 NWLR (Pt.182) 663.
In the latter case where the appellant’s statement was recorded in Ibo and translated to English language, the Supreme Court held that since both versions (Ibo and English) were tendered in evidence, the Court of Appeal could rely on the English translation since the appellant did not disown the statement in English as not being the correct version of what he said and was recorded in Ibo, I have already shown that when the prosecution applied to tender exhibits 4 and 5, the learned counsel for the appellant did not raise any objection to their admissibility. All he said was that the appellant did not make any statement.
There is nothing in this appeal that was not adequately addressed in the Court in the Court below. The appeal lacks any
16
redeeming features for it to succeed. This is a murder that was dastardly executed by the appellant against the deceased who did not bargain for what befell him. The appellant was rightly convicted of the murder of Andong Bassey Andong and appropriately sentenced to death.
I therefore find no merit the appeal and it in hereby dismissed. The conviction and sentence of the appellant by the High Court of Cross River State Calabar in Charge No. Hc/59c/2006 which was affirmed by the Court of Appeal Calabar in CA/C/168C/2013 is further affirmed by this Court.
Appeal dismissed.
SC.705/2014