Bassey Dan Udo Eyop V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

The Appellant was charged for the offence of murder contrary to Section 319 of the Criminal Code Cap 31, Vol. II, Laws of Cross River State of Nigeria, before the High Court of Cross River State sitting at Akamkpa. The particulars of the offence are that he, on the 17th day of April, 2003, at Mankor village, Oban in Akamkpa L.G.A., murdered Eno Udo Etukudo.

At the trial, the prosecution called four (4) witnesses and tendered exhibits while the Appellant testified as the sole witness in defence of the charge. After taking addresses from counsel for the parties, the High Court in the judgment delivered on the 28/11/2008, found the Appellant guilty as charged and sentenced him to death. The appellant’s notice of appeal against the above decision, dated and filed on the 12/2/09, contains four (4) grounds of dissatisfaction with it. In the Appellant’s brief filed on the 21/2/12 but deemed on the 4/7/12, settled by Chief F. O. Onyebueke, Esq., the following issues were raised “for consideration” in the appeal:-

1. Whether the confessional statement was corroborated before the trial court relied on same to convict.
2. Whether the confessional statement qualified as one when the interpreter of the Appellant’s statement from the English to the language which was not mentioned and the interpreted version not tendered in evidence.”

Although the records of the court show that the Respondent was duly served with all the processes of the appeal including the Appellant’s brief, no brief of argument or other processes were filed by or for the Respondent in the appeal.

At the oral hearing of the appeal on the 12/11/12, the parties to the appeal were not represented even though they were duly served with the hearing notice of the appeal. Pursuant to the provisions of Order 18, Rule 9(4) of the CAR, 2011, the court treated the appeal as having been duly argued on the Appellant’s brief since the time within which the Respondent was to file the Respondent’s brief had expired and there was no record of any step taken by it to do so. In the circumstances, the appeal is uncontested because there are no submissions from the Respondent to be considered in the determination thereof and all the submissions contained in the Appellant’s brief are deemed conceded to by the Respondent. See Nwadike v Nwadike (1987) 4 NWLR (56) 394; Okongwu v. NNPC (1989) 4 NWLR, 115; Okesuji v. Lawal (1991) 1 NWLR (170) 661 at 674; Salau v. Parakoyi (2001) 13 NWLR (Pt.731) 602.

However, even in situations like the one in the appeal, failure by a Respondent to file a brief in an appeal does not automatically translate into the success of the appeal because the law requires that the court should consider the grounds of the appeal, the issues raised from them and the submissions by the Appellant and make findings on whether, the appeal is sustainable in law. See Akpan v. State (1992) 6 NWLR (248) 439; Onyejekwe v. Nigeria Police Council (1996) 7 NWLR (463) 704; John Holt Ventures v Oputa (1996) 9 NWLR (470) 101.

In the above premises of the law, I would consider the issues and submissions by the learned counsel in the Appellant’s brief in the determination of whether the appeal is sustainable in law. The learned counsel for the Appellant did not in the brief, indicate from which of the four grounds of the appeal the above two (2) issues were distilled as required by diligence and good quality of brief writing.

However, because the issues can be said to be derivable from the grounds contained on the Appellant’s notice of appeal, even if loosely, I would consider them as presented. Due to the seriousness of the charge with which the Appellant was convicted and sentenced in the judgment appealed against and the two and a half pages submissions made in the Appellant’s brief on the issues for determination, I should reproduce the submissions in their entirety in order to bring out a clear picture of the full complaints of the Appellant in the appeal. The submissions are thus:-

“1. Whether the confessional statement was corroborated before the learned trial judge on it.

2. My Lord, in the course of the investigation the Police obtained two different statements from the Appellant. The statement of 18/4/2008. In the statement of 18/4/2008, the Appellant never admitted the commission of the offence but unfortunately, the prosecution did not tender the statement in evidence. See. Page 90 of the record of proceedings.
3. Whereas the alleged confessional statement as in Exh. 1, was denied by the Appellant as the maker. It is interesting that the prosecution preferred to tender the alleged confessional statement to the earlier one that never contained any admission.
4. I submit with respect that in a criminal trial, the prosecution is not at liberty to pick and choose which of the statement of an accused person to be tendered where there are conflicting statements made by the accused.
5. Therefore, this is an irregular procedure because in a situation like this, the whole statements has to be considered together. See the case of Eze v State (2006) ALL FWLR (Pt.329) p. 849 at 870 – 1, held that in an account where the accused gave inculpatory and exculpatory statements, which statement has to be considered together but the court cannot accept one part that is an admission of facts disadvantageous to the accused and reject another part, otherwise it might not qualify as direct and positive confession. Also admission made at any time by a person charged with crime stating or suggesting the inference that he committed the crime, it must be free, voluntary, direct and positive. It is relevant and probative value should be considered even if subsequently retracted, it is desirable to corroborate the confession no matter how slight. See the case of Akpan v. State (2001) FWLR (Pt.56) 753 at 755
6. Finally, the tests for determining the veracity or otherwise of a confessional statement are whether there is any evidence outside the confession to show that it is true, whether it is corroborated no matter how slightly.
7. My Lord, in this present case, the Appellant made two statements but he denied making Exh. 1 but the trial judge never considered both statements and there was nothing to corroborate same apart from the hearsay evidence of the witnesses. I urge My Lord to resolve this issue in favour of the Appellant and allow the appeal on this issue.
8. Whether the said confessional statement Exh. 1, qualified to be regarded as so.
9. My Lords, it is a well known principle of law that nobody is bound to incriminate himself, that is why confessional statements are thoroughly scrutinized and the courts apply caution before relying on them to convict on Exh 1, of an alleged Superior Police Officer is seen on page 84 lines 14 to 25 of the record.
10. It is my humble submission that the endorsement is of doubtful origin as the identity of the Superior Police Officer is not known and the Lower Court ought to have rejected the statement. See the case of Barmo v State (2000) 1 NWLR 641 (Pt.242) at 433-4. Where it was held that the certainty of the identity of the endorser is in doubt or wanting, such statement ought to be rejected. My Lords, I respectively urged that Exh. 1, be rejected at this stage and same struck out. I urge my Lords, to hold that there was no faithful recording of the statement of the appellant during the time of taking his statement and same affected confessional statement.
11. Finally, the said confessional statement must have been made in the presence of Superior Police Officer. My Lords, the endorsement in English language or in any other language. There is doubt as to the type of language used by the Appellant. It is only when the recorder understands the language of the maker that there is the presumption of faithful recording. See the case of Odiachi Adu v State (1980) 1 CA.
12. My Lords, the question begging for answer is whether the Appellant made his statement. In respect of the present case, the statement of the Appellant was recorded in a different language other than the one used by the Appellant. See page 84 line 7 to 11 of the record of proceeding which reads:

“statement recorded by me in English language and read over to the maker he admitted as being correctly recorded and signed.”

CONCLUSION:

It is my humble conclusion that reliance on the Exh.1, the confessional statement occasioned miscarriage of justice and same violated the right of the Appellant and I urge My Lords with respect to set aside the judgment of the Akamkpa High Court, delivered on the 28th day of November, 2008 and in its place dismiss the case against him and discharge and acquit the Appellant.”

As a foundation, the law (Section 138 of the Evidence Act, 2004 now Section 135 of the 2011 Act) requires that the allegation of the commission of a crime against any person, shall or must be proved beyond reasonable doubt by the person making the allegation, in all judicial proceedings, civil and criminal before courts of law in the country. In all proceedings in which the state alleges or accuses a person or persons of committing some criminal offence/s, it owes the legal burden of proving the allegation or accusation beyond reasonable doubt because it is not the duty of such accused persons/s to prove his innocence which is presumed in his favour by Section 36 (5) of the 1999 Constitution, as amended. This means that it is not enough for the state or prosecution to suspect or make allegation that a person has committed a criminal offence but it must produce evidence which identifies the person accused and which shows that it was his act and no other person’s, caused the offence. As a general principle the legal burden on the prosecution never shift throughout the trial until it was discharged as required by law. See generally, Abadom v State (1997) 1 NWLR (479) 1; Akinyemi v. State (1999) 6 NWLR (607) 449; Aigbadion v. State (2000) 4 SC (1) at 15; Chiamugo v. State (2002) 2 NWLR (750) 225; Ochie v State (2007) 5 NWLR (1027) 214; Ifejirika v. State (2009) 3 NWLR (Pt.593) 59.

The law is also settled that the guilt of an accused person or the commission of a criminal offence can be proved by one of the following:-