Basil Akpan Vs The State (2008)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C.
The case of the prosecution is that the deceased, Ikechukwu Njoku, visited the appellant at Jibia and never returned. He was murdered by the appellant. At the scene of crime, police recovered a human body without legs, arms and neck. In the inner room of the appellant’s shop, police found the floor of the room and a mattress soaked with blood. They also found blood stain by the hole of the pit latrine attached to the inner room. When the pit latrine was dug open they saw two human legs. Appellant was arrested for murdering Ikechukwu Njoku on or about 3rd of December, 1989.
The learned trial Judge found the appellant guilty of culpable homicide punishable with death and sentenced him to death. His appeal to the Court of Appeal was dismissed. He has come to this Court. Briefs were filed and duly exchanged. The appellant formulated a single issue for determination:
“Whether the guilt of the Appellant was proved and established beyond reasonable doubt having regard to the evidence adduced at the Trial Court affirmed by the Court of Appeal”
Respondent adopted the issue formulated by the appellant.
Learned counsel for the appellant, Mr. N. Ekanem, contended that in a criminal case the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt and failure to do so will lead to the matter being resolved in favour of the accused. He submitted that contradictions abound in the case of the prosecutiosn.
Learned Counsel pointed out that PW1 stated in evidence that the offence was committed in Jibia on 17th December, 1989 but exhibit 3 tendered by the witness stated that the offence was committed on the 3rd of December, 1989. Relying on the case of Ikemson v. State (1989) ICLRN 1 at 12, learned counsel urged the court to resolve the contradiction in favour of the appellant. He submitted that the case of Awopejo v. State (2000) 6 NWLR (pt. 659) 1 at 13, relied upon by the Court of Appeal is not appropriate as the difference in the timeframe was just a day.
Learned counsel raised three issues on Exhibit 3, the confessional statement of the appellant. First, is the failure on the part of the prosecution to arrest and charge other accused persons mentioned by the appellant as committing the offence within. The failure on the part of the police to investigate and if found true arrest the other accused persons raised some doubt as to the authenticity of Exhibit 3. He cited Anyanwu v. State (1986) 5 NWLR (Pt. 43) 612 at 624. Second, is the failure on the part of the prosecution to call the police officer in whose presence exhibit 3 was made, to give evidence in court. He cited Kasa v. State (1994) 5 NWLR (pt. 344) 269 at 285. Third, is that the appellant ought not to have been convicted solely on his confessional statement. He cited Onubogu v. State (1974) 9 SC 1. He however contended later that a court can convict on the confessional statement of an accused only but for purposes of conviction, the prosecution must prove its case.
Learned counsel also faulted the prosecution for not calling the health officials who exhumed the body parts to give evidence in court as well as the Doctor who conducted the postmortem. He contended that identification of the corpse of the deceased to the Medical Doctor who performed the postmortem examination is a vital factor in determining whether in fact, the Doctor actually performed the postmortem examination on the deceased. He cited Oladimiji v. State (1998) 1 NWLR (pt. 573) 156. He urged the court to allow the appeal.
Learned counsel for the respondent, Alhaji Abdullahi Faskari, while conceding to the submission of appellant that in all criminal cases the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt, and failure to do so will lead to the matter being resolved in favour of the accused, submitted that once the prosecution has adduced evidence which shows that the accused is guilty of the offence charged, the burden of proving that he is innocent shifts to the accused by virtue of section 138(3),139, 141 and 143 of the Evidence Act. He cited Nasiru v. State (1999) 2 NWLR (Pt. 87) 102 and Bakare v. State (1987) 1 NWLR (Pt. 52) 578.
On the issue of contradictions in respect to the date of the commission of the offence learned counsel submitted that it is only contradictions in respect of a material fact or points in the evidence collected by the prosecution that an acquittal will result on the premise that it cannot be said that the case has been proved beyond reasonable doubt. He cited Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 and Ogoala v. State (1991) 12 NWLR (Pt. 175) 509.
Where a ground of appeal complains of contradictions in the ‘evidence of the prosecution witnesses, it is not enough to warrant a reversal of the judgment merely for the appellant to show the existence of the contradictions; he must show further that the trial court did not advert to and consider the effect of the contradictions. The contradictions must be shown to amount to substantial disparagement of the witness concerned, making it dangerous or likely to result in miscarriage of justice to rely on the evidence of the witness or witnesses, learned counsel submitted. He cited Ogbu v. State (2007) 5 NWLR (pt. 1028) 635.
Learned counsel submitted that the testimony of PW1 that the offence was committed on 17/12/89 was a discrepancy which did not materially affect the prosecution’s case. At the trial the appellant was not in anyway misled by the discrepancy. He cited Effiong v. State (1998) 8 NWLR (pt. 562) 362.
On the failure of the prosecution to charge those mentioned by the appellant in Exhibit 3, learned counsel submitted that the failure did not raise doubts as’ to the authenticity of the exhibit. He distinguished the case of Anyanwu v. State (supra) cited by learned counsel for the appellant. On the failure by the prosecution to call the police officers who were present when the confessional statement was made by the appellant, counsel contended that this was because of the inability of the prosecution to secure their attendance. He called the attention of the court to the fact that another police officer, though not mentioned by PW1, testified that he was. Also present when the confessional statement was recorded, and his evidence was never impeached under cross-examination. Although the burden is on the prosecution in criminal cases to prove its case beyond reasonable doubt, ‘counsel argued that it has absolute discretion which witnesses to call to prove its case. He cited Ali v. State (1988) 1 NWLR (pt. 68) 1.
On failure to call the health officials who exhumed the body parts of the deceased, the brother of the deceased and the Medical Doctor who performed the postmortem examination, counsel contended that the position of the law is that where there are several witnesses to an event, the law does not compel the prosecution to call all of them, as witnesses, rather the prosecution is required to call only those it considers material in order to establish its case. He cited Ogbodu v. State (1987) 2 NWLR (pt. 54) 20; Ali v. State, (supra); and Udo v. State (2006) 15 NWLR (pt. 1001) 179. He referred to the evidence of PW1 and PW2 who were present when the body parts were exhumed and identified by the brother of the deceased. He also referred to section 42 of the Evidence Act on the production of certificate and the case of Nwachukwu v. State (2002) 12 NWLR (Pt. 543) 564.
On the issue of identification of the body parts to the Medical Doctor, learned counsel submitted that in a murder trial, proof of identity of the deceased person can be by direct or circumstantial evidence provided such circumstantial evidence leads irresistibly to the conclusion that the autopsy performed was on the body of the deceased. He cited Idemudia v. State (1999) 7 NWLR (pt. 610) 202; Effiong v. State (1998) 8 NWLR (pt. 562) 370 and Ogbodu v. State, (supra).
Dealing with the cause of death in murder cases, learned counsel submitted that it can be inferred from the circumstances of a given case as was in this case where the deceased was butchered by the appellant. The act of butchering the deceased was the cause of death, learned counsel submitted. He cited Ogbu v. State, supra and Oguonzee v. State (1998) 5 NWLR (pt. 557) 521. Learned counsel submitted that Mohammed v. State (2007) 11 NWLR (pt. 1045) 303; Ubierho v. State (2005) 5 NWLR (Pt. 919) 644; Ikemson v. State, (supra). Counsel urged the court to dismiss the appeal.
For an accused person to be sentenced for culpable homicide punishable with death under the Penal Code, the prosecution must prove the following: (a) The death of the deceased.
(b) That the death resulted from the act of the accused person.
(c) That the accused knew that his act will result in death or did not care whether the death of the deceased will result from his act. See Bakare v. The State (1987) 1 NWLR (pt. 52) 579; Kada v. The State (1991) 8 NWLR (pt. 208) 134; State v. Danjummai (1996) 8 NWLR (Pt. 469) 660; Garba v. State (2000) 6 NWLR (Pt. 661) 378; Ahmed v. State (2001) 18 NWLR (pt. 746) 622;State v. Sadu (2001) 15 NWLR (pt. 735) 102.
Although no witness saw the appellant killing the deceased, there is enough circumstantial evidence that he killed the deceased. PW1, a police constable, said in his evidence in-chief at pages 7 and 8 of the Record:
“At Jibia in the cause of our investigation we recovered a human head in a refuse dump. We also neck. With the help of health officials we parked the parts to Public mortuary. In the cause of our
investigation we learnt that one Ikechukwu Njoku visited the accused person at Jibia and did not come back home. This led us to conduct a search in the premises of the accused person both his house and his shop. We saw or found nothing incriminating in the house but at the shop the inner room of the shop we found the floor of the room soaked with blood. We also saw a mattress soaked with blood also in the room. There was blood stain by the hole of a pit toilet attached to the inner room. We suspected that there might be same thing in the pit so with the help of health official we opened up the pit. Inside the pit toilet two human legs were found. The two legs were removed to mortuary.”
PW2, a police sergeant, said in his evidence in-chief at page 11 of the Record:
“…. in the course of the investigation, we found human parts (Head) in a refuse dump. We were together with the brother of the deceased person. The brother identified its part the head. We also found the abdomen i.e. the body without the Head to the limbs. We took the parts to mortuary.”
Both PW1 and PW2, police officers said to their evidence in-chief that parts of the body of the deceased were found in the accommodation of the appellant, the floor of the room; the mattress were soaked with blood. There were blood stains by the hole of the pit toilet, which led the witnesses to recover two human legs. During the course of the investigation, the two witnesses recovered a human body without legs, arms and neck.
The nexus of the criminality of the appellant was given by the identification of the body of the deceased by the brother of the deceased. When the identification is taken along with the body without legs, arms and neck, and in separate places, two legs of the deceased together with the soaked floor and mattress, is very strong circumstantial evidence that the appellant killed the deceased. How did the body without legs, arms and neck, get to the accommodation of the appellant How did the two human legs find their way to the pit toilet of the appellant Did they walk there How did the floor of the appellant get soaked with blood How did the mattress of the appellant also get soaked with blood I believe that after dismembering the body of the deceased, appellant in his downright criminality distributed the body without the legs, arms and necks as well as the legs to different places of his accommodation, to avoid any trace of his brutal and most inhuman murder. Unfortunately for him, nemesis caught him when PW1 and PW2, by application of most excellent investigatory dexterity, exposed the apparently hidden crime.
The above apart, the appellant made a clean breast of his involvement in the crime. He made a confessional statement. In his confessional statement, appellant said in part:
“Felix took the iron rod brought by me and hit Ikechukwu twice on the neck. I also took the iron rod from Felix and continued hitting him while Christian Kalu brought his knife and choked him, on his neck. Peter also hit him with’ iron’ rod till, he stopped breathing … Christian Kalu and Peter took the body of Ikechukwu to the toilet when Felix came with the saw to cut the head, the two hands and legs. We did the cutting because ‘the whole body of Ikechukwu could not enter into the toilet. When Felix ‘cut the hands and the two legs, they took away’ the body and the head leaving behind with me the legs and two hands which I threw into the latrine pit in my shop. Then myself and Madam Hope were busy washing the toilet before Felix, Peter and Christian came back from where they dumped the body, the body of Ikechukwu. ”
The above is a clear, clean unequivocal and direct confessional statement of the appellant. He did not hide his involvement in the killing of Ikechukwu.” He made a very clean breast of is level,of involvement which was deep, penetrating and killing. In law, where an accused person’ confesses to a crime, in the absence of an eye witness of killing he can be convicted on his confession alone once the confession is positive, direct and properly proved. See Milia v. The State (1985) 3 NWLR (Pt. 11) 190; Achabua v. The State (1976) 12 SC 63;The State v. Ironsi (1969) 1 NMLR 203; Atano v. Attorney-General Bendel State (1988) 2 NWLR (Pt. 75) 201; Bature v. The State (1994) 1 NWLR (Pt. 32) 267.
The confession of the appellant to the killing of Ikechukwu is positive and direct. The concession was proved by the tendering of the statement by the prosecution. The statement was admitted as Exhibit 3. How can a person who voluntarily said that he played such a role in the killing of Ikechukwu now ferment a defence on the homicide to exculpate himself from criminal responsibility. He brought the iron rod, knowing it that it can kill. He handed it over to Felix to do the killing. That was not all. He took back the iron rod from Felix and did the hitting himself. The body was cut in parts. Appellant gave the reason for dismembering the body. It is because “the whole body of Ikechukwu could not enter into the toilet.” After the dismembering, appellant performed the duty of throwing the legs and the hands into the pit latrine.
I should take the issues raised by learned counsel for the appellant in the appellant’s brief. The first one is contradictions in the evidence of PW1 and exhibit 3 on the date of the commission of the offence. While PW1 gave the date as 17th December, 1989, Exhibit 3 gave the date as 3rd December, 1989. The correct date is 3rd December, 1989, which was given by the person who committed the offence. He knew it to be 3rd December and he said so. PW1 did not commit the offence. He must have slipped. Is that human slip enough to discharge and acquit the appellant of the charge of culpable homicide punishable with death Does the slip in date of the same month really kill or destroy the actus reus of the appellant Is that not really pursuing the shadow and leaving the substance of the act of killing
I am in entire agreement with learned counsel for the respondent that the evidence on the date by PW1 was a mere discrepancy because it is mere lack of agreement or similarity and no more. Can this court allow the appellant to go home a free man because of the lack of agreement in respect of the date that the offence was committed I think not.
This court dealt with the point in Effiong v. The State (1998) 8 NWLR (Pt. 562) 362 at 372:
“The discrepancy in the evidence of PW5 on the one hand and those of PW2, PW3 and PW6 on the other as to the date the offence was committed did not materially affect the prosecution’s case. PW5 testified that an alarm was raised on 23-8-82 at Bama Police Station and the appellant was declared a wanted person and was arrested on 24-8-82 whereas the other witnesses testified that the offence was committed on 23-6-82 and the appellant arrested on 24-6-82. It was no more than a mere slip and the appellant was not misled by it.”
In Effiong the different dates of the commission of the offence were given by two sets of prosecution witnesses: PW5 on the one hand and PW 2, 3 and 6 on the other. In this appeal, the different dates were given by PW1 and no less a person than the appellant. If this court can hold, and rightly too for that matter, that the mix up in the dates was a mere slip in Effiong, I think I am very much on the correct side to hold that PW1 merely slipped, in the light of the confessional statement of the appellant which put the correct date he committed the offence as 3rd December, 1989. After all they have a common denominator in the last month of the year December and the evidence of PW1 of the 17th day of the month is clearly a slip which merely reflects the humanity in PW1. There is the common adage that no human being is perfect. I think that adage clearly fits in here.
A contradiction can only help a murder accused if it is material and affects the live issue or issues in the matter. A contradiction can only help a murder accused if it relates to a fact which must be determined before the court can arrive at proper verdict. For contradiction in the evidence of prosecution witnesses to affect conviction, it must raise a doubt as to the guilt of the accused person. See Nwosisi v. The State (1976) 6 SC 109; Ishola v. The State (1978) 9 and 10 SC 81; Atano v. Attorney-General of Bendel State (1988) 2 NWLR (pt. 75) 201; Kalu v. The State (1988) 4 NWLR (pt. 90) 503; Igbi v. The State (2000) 3 NWLR (pt. 648) 169. A contradiction which is peripheral to the live issue or issues in the after will not avail an accused person, such as the discrepancy in the two December dates. I therefore dismiss the issue raised by learned counsel for the appellant.
That takes me to, the issue of failure on the part of the respondent to charge other persons mentioned by the appellant in Exhibit 3. They are Felix, Christian, Peter and Hope. The prosecution has an unfettered discretion to prosecute persons in court and because the discretion is unfettered, courts of law do not have the power to question it. The only jurisdiction of the court is to try accused persons presented before it for prosecution. A court cannot go outside the prosecution and ask for some other person to be charged before it.
The mere fact that an accused person specifically mentioned other persons in his statement to the police: in the chain of criminality or criminal liability does not necessarily mean that the persons are in fact guilty of the offence or must as a matter of law be charged to court. And what is more, I know of no law which says that because other persons who committed an offence are not charged to court, the accused person charged to court must, on that ground, be discharged and acquitted.
Criminal liability is personal. It cannot be transferred. This is because the mens rea or actus reus is on the accused in court and cannot be transferred to any other person not charged. By way of recapitulation, I should say that the prosecution is not under any regimental duty or any duty at all, to charge all possible accused persons. I should perhaps mention here the practice where the prosecution, instead of charging a particular suspect, decides to call him as a witness, to ensure the conviction of a particular accused person or particular accused persons. The issue fails.
I go to the submission of learned counsel for the appellant on the failure of the prosecution to call the police officers present when Exhibit 3 was made, the failure to call the health officers who exhumed the body of the deceased and the failure to call the Medical Doctor who conducted the postmortem examination. The prosecution has no duty to call a village, community or barrage of witnesses before the court can convict an accused person. In law, one witness of truth can result in the conviction of an accused person unless in an offence where corroboration is statutorily required. That apart, medical evidence is not a desideratum if the cause of death is clear and particularly in a case, such as this, where the appellant clearly, precisely, concisely and unequivocally confessed to the commission of the offence. Appellant told a ‘pathetic’ and sorrowful story of the role he played in the killing of Ikechukwu Exhibit 3 and there was no need to call a large number of witnesses to testify against him. Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the, horse, who is the accused person. What better evidence than that He knows or knew what he did and he says or said it in court. Is there need for any further proof I think not.
There was no eye witness to the killing. There is however enough circumstantial evidence. It is law that an accused person could be convicted of murder even if the body was not found, If there is enough compelling circumstantial evidence that the accused person killed the deceased. In this appeal, the body of the deceased was recovered, though piece-meal. A court could properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. See Ibo v. The State (1971) NMLR 245. It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused. See The State v. Ifu (1964) 8 ENLR 28.
From whatever angle one looks at this appeal, even from the best angle of or for the appellant, it is clear that the appellant was one of the persons who killed Ikechukwu. In the circumstance, the appeal fails and it is dismissed. He has to face the gallows. It is now his turn. After all, one bad turn deserves another.
SC.293/2006