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Imo Akpan Bassey V. The State (2019)

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AMIRU SANUSI, J.S.C.

This is a criminal appeal against the judgment of the Calabar division of the Court of Appeal (“the lower or court below” for short) delivered on 26th day of April, 2016 which affirmed the decision of the Akwa-Ibom State High Court, Uyo judicial division (Coram Imeh E. Umanah J) of 30th day of June, 2011 in Suit No.HU/21C/2007 wherein the accused person now appellant, was convicted of the offence of murder and sentenced to death. The offence with which the accused/appellant was charged and tried was that of murder, contrary to Section 323 (1) of Criminal Code, Cap 38 Vol.II, Laws of Akwa-Ibom State.

FACTS OF THE CASE

The facts of the case leading to this appeal as could be gleaned from the record of appeal are briefly put thus:-

The case of the prosecution was that one Emem Effiong Etuk (an estranged wife of the accused (complainant) travelled to pay a visit to the accused person/appellant who was keeping custody of her two children, namely Philip Imon Akpan and Magdalene Imoh Akpan at Udem Ebom, after she was informed that the accused/appellant had relocated to

Mbiabong (the last known address of the accused) to the said Ndom Ebom. It was also the case of the prosecution that the complainant did not meet the two children and when she asked of their whereabouts the appellant could not give reasonable or satisfactory explanation. Sequel to that, the complainant reported a case of child stealing at Ifia-gon Police station and the accused/appellant was thereupon arrested. The appellant initially informed the police that he sold the two children to one “Alhaji” at the cost of N100,000. The case was later transferred to the State CID where the accused person thereupon volunteered two statements, dated 16/12/2007 and 17/1/2007 both of which were tendered at the trial and admitted as Exhibits A and B respectively.

In Exhibit A, the appellant stated that he sold the two children, but further investigation revealed that he actually killed the two children to which he later confessed in Exhibit B. Both of them were aged three years at the time of their untimely death.

Investigation further revealed that the appellant threw them into the river leading to the High Sea at Oron.

During the trial, the appellant as accused person, testified for his defence, wherein he stated that the cause of their death was due to accident which occurred while travelling by water with the two children in a boat. At the end of the trial the trial judge found the appellant guilty of murder and sentence him to death.

Dissatisfied with his conviction and sentence to death by the trial Court, the appellant unsuccessfully lodged an appeal at the lower Court below.

As has been the practice in this Court, briefs of argument were filed and exchanged by parties. The appellant’s brief of argument settled by Chioma A. Wogu was filed on 30th November, 2016 wherein, the appellant decoded a lone issue for the determination of the appeal which was couched thus:-

“Whether the Court of Appeal was right in affirming the conviction of the appellant for murder having regard to the evidence before the Court.” (Distilled from Grounds 1 – 7 of the Notice of Appeal)

On its part, the respondent herein, after being served with the appellant’s brief of argument also filed its own brief of argument on 13th March, 2017 settled by the Hon. Attorney General of Akwa-Ibom State, Uwemedimo Nwoko Esq

in which the learned Attorney General also proposed a sole issue for determination which is similar to the lone issue raised by the appellant but merely differ in the way they were couched. The sole issue the Hon. Attorney General raised reads as follows:-

“Was the Court of Appeal (lower Court) not right in affirming the conviction and sentence of the appellant for murder of the deceased”

In view of the similarity in the two sets of issues, I resolve to be guided by the appellant’s proposed issue in determining this appeal due to its elegance and all encompassing nature.

SUBMISSIONS OF LEARNED COUNSEL ON THE SOLE ISSUE

APPELLANT’S SUBMISSION

The sole issue deals with whether the Court below was right in affirming the conviction of the appellant. The learned counsel to the appellant submitted that the Court below was wrong in affirming the judgment of the trial Court having regard to the evidence on record. He contended that both the trial and lower Courts decided to pick between the two(2) drastically different statements made by the appellant within the space of one day and chose to rely and act on the

statement that points to a capital offence instead of statement pointing to a lesser offence. He argued that there was no eye witness to the circumstances leading to the death of the deceased children and that PW1 did not as much visit the scene of the alleged crime i.e. the river leading to the High Sea at Oron. He argued further, that there is no evidence as to the whereabouts of the two children till date. He submitted that there was no credible evidence on the record upon which to find that the death of the deceased children was as a result of act or omission of the appellant. He submitted that the position of the law is that where there are two inconsistent confessional statements, the trial Court is duty bound to adopt an approach that is most favourable to the accused person. He cited the case of THE QUEEN V ZAKWAKWA OF TORO (1960)NSCC 8 and the SAM v STATE(1991)2 NWLR (PT.176)PG 699 at 707. He referred to the judgment of the trial and the Courts below at page 62 of the judgment, and page 132 paragraphs 5 lines 2 to 5 of the Court below at 205-206 of the record and submitted that the position of the law is that if an accused person wishes to

deny a statement attributed to him, the time to do so is when he comes to make his defence. He therefore also submitted that the Court below was in error when it adjudged the denial as an afterthought while holding that the trial Court was right to have discountenanced it. He argued that reliance on a purported confessional statement as the Court below did, ought to result to this appeal being allowed. He argued that the Court below over looked the trial Court’s resort to speculation, in affirming the conviction of the appellant. He then urged this Court to resolved this issue in favour of the appellant and allow the appeal.

RESPONDENT’S SUBMISSION

In response to the above submissions of the appellant’s counsel on the sole issue for determination summarised above, the learned counsel to the respondent also distilled a lone issue for determination.

The issue is whether the Court below rightly affirmed the judgment of the trial Court. He submitted that the facts giving rise to the death of the deceased are not in dispute as both PW1 and DW1 in their oral testimonies have admitted to the fact of death of the deceased children. He argued that the

prosecution tendered Exhibits A and B to establish the cause of death of the deceased and same were admitted without objection from the defence. He argued that confessional statement once admitted in evidence, forms part of the case of the prosecution. He cited the case of NWACHUKWU V THE STATE (2007)17 NWLR (pt.1062)page 31. He submitted that a Court can safely convict on a confessional statement of an accused person where the statement is shown to be direct, positive, unequivocal and voluntary. He urged this Court to hold that the voluntariness of a confessional statement is established where no objection is raised as at the time same is sought to be tendered in evidence by the prosecution. He referred to the cases of ISA V KANO STATE (2016) Vol.260 LRCN 118 at 142 F and EGHAREVBA V THE STATE(2016) Vol.258 LRCN at 213 paragraph F. He submitted that confessional statement can ground or sustain conviction once the Court is satisfied with the truth of the confession by the accused person as in this instant case. He argued that the intention of a person who threw the children into a river is certainly to kill them as death is the natural consequence of such act.

On the selection of the confessional statement of the appellant, he submitted that the law governing admissibility of a confession and its relevance has been settled in plethora of decided authorities. He cited several cases including OSENI V THE STATE (2012)Vo1.208 LRCN. He contended that there was no other admissible confessional statement credited to the appellant except Exhibit B which was found to have been made voluntarily and Exhibit A has no probative value as same was greeted with element of involuntariness as admitted by the appellant himself in Exhibit “B”. He therefore submitted that the two Courts below were right in not attaching any weight to Exhibit “A”. On lack of evidence as to the cause of death, he referred to page 16 of the record where the appellant stated as follow:-

“the police cannot be liable to see or find them again because the time is far and the water must have carried them away”

He then submitted that this is sufficient enough as to the whereabout of the deceased bodies. On alleged conviction of the appellant on speculation, he submitted that a Court can rightly draw inference from the fact before it in order to arrive

at a just conclusion in a case. He referred to the case of LORI V THE STATE (1981) 1 ACLR 267, at 272. He further submitted that the Court was right to infer from the confessional statement Exhibit B which was admitted without any objection and other circumstantial evidence to convict the appellant. He then urged this Court to resolve this sole issue in favour of the respondent and to dismiss the appellant’s anneal.

RESOLUTION OF ISSUE FOR DETERMINATION

The law is trite, that in all criminal cases in common law countries like Nigeria which operates from time immemorial, common law jurisprudence, the burden of proof is always on the prosecution. This notion is entrenched in Section 135 of the Evidence Act which further put the standard of such proof to be beyond reasonable doubt. SeeOgundiyan Vs The State (1991) 3 NWLR (pt.181)519 or (1991)4 SCNJ 44 or (1991)3 SC 100. It needs to be emphasized however, that the burden of proof always remains on the prosecution, except of course, in few limited circumstances such as in the defence of insanity in which the law presumes an accused person to be sane and therefore it casts the burden of establishing the contrary on the accused.

See The State Vs Idapu Emine & Ors (1992) NWLR (pt.256)656 or (1992)LPELR – 3218 (SC).

The law recognises three ways of proving criminal offences namely:-

(a) Through confessional statement of the accused person; or

(b) By direct eye witness account of the commission of the offence charged, or

See Akpan v State (2009) 39 WRN 27; (2008)14 NWLR (pt.1106)72; Bassey v State (2012) 12 NWLR (pt.1314)209; Haruna v AG Fed (2012)9 NWLR (pt.1306)419.

In this instant case, the appellant faced trial on a charge of murder at the trial Court after which he was convicted and sentenced to death. He appealed to the lower Court which dismissed his appeal and affirmed the decision of the trial Court. It was when he became piqued by the dismissal of his appeal, that he further appealed to this Court. The appellant’s stances is that the prosecution, now respondent, failed to establish the charge against him beyond reasonable doubt and that the Court below erred in law when it affirmed his conviction.

The learned appellant’s counsel thereupon argued that the

ingredients of the offence of murder were not proved beyond reasonable doubt.

The law is well settled that in murder cases, (as in this instant case) the prosecution, in order to obtain conviction must prove the under mentioned ingredients of the offence of murder, beyond reasonable doubt. They include the followings:-

(1) That the deceased died

(2) That the death of the deceased was caused by the act(s) or omission of the accused person/appellant.

(3) That the act or omission of the accused/appellant was intentional or with knowledge that death or bodily harm was its probable consequence.

See Okin Nsibehe Edoho vs The State (2010)14 NWLR (pt.1214) 651; Audu v State (2003)7 NWLR (pt.820)516; R. V. Nwokocha (1949)12 WACA 453; R v Owe (1961)2 SCNLR 354; State v Omoni (1969)2 ALL NLR 337.

In the case at hand, the prosecution (now respondent), in proof of its case called one witness and also relied on the confessional statement of the accused/appellant as well as circumstantial evidence. My lords, let us now consider the evidence adduced at the trial in proof or otherwise of the offence charged vis a vis the three ingredients of the offence listed above.

The first ingredient is whether death of a human being was caused. In this case, there is the evidence of PW1 the complainant and DW1 the accused himself now appellant, when he testified for his defence.

At page 105 of the record the appellant when testifying as DW1 stated thus:-

“I know Philip Imoh Akpan and Magdalene Imoh Akpan I know them as my children. They are all dead”

Also at pages 129 lines 14-15 of the record the trial Court found as below

“From the evidence before this Court there is no doubt that Philip and Magdalene Imo Akpan are dead.”

On its part, the lower Court also found that the appellant testified as follows:-

“bodies of Philip and Magdalene Imoh Akpan were not seen. I know them as my children.

They are all dead.”

When being cross examined, DW1 (appellant) stated that the children died in 1991. The Court also found that those pieces of evidence were neither contradicted nor challenged.

The appellant, as per his confessional statement Exhibit B also admitted that he threw his two deceased children into the river. It should be noted that the said confessional statement Exhibit B was voluntarily made by

the accused/appellant and admitted in evidence without any objection. To my mind therefore, the first element of whether death had been established, had been adequately proved through those pieces of evidence highlighted above.

On the second ingredient of the offence of murder is whether the death of the two children was as a result of the act of the accused/appellant. In the present case, two voluntary confessional statements were tendered and admitted at the trial and marked as Exhibits A and B. Those confessional statements were tendered without objection. In Exhibit A the accused appellant initially stated that he sold the two children to one “Alhaji”, at Udi Street at a cost of N100,000. But in Exhibit B, the appellant denied that he sold the deceased children, but instead he confessed that he threw them into the river which leads to High sea. As I stated earlier, one of the three methods of proving criminal offence is through confessional statement. The law is trite however that such confessional statement in order to be relied on to convict an accused must be voluntarily made and must also be free, direct, positive and unequivocal and be satisfactorily proved.

The law however made it desirable for the trial Court to look for some independent evidence outside the confession no matter how slight in order to determine if the circumstances made it probable that his confession was in fact true. See Haruna v AG Federation (2012)3 SC (pt. IIV)40; Ashiwe v The State(1983)5 SC Reprint); Alarape v State (2001)2 SC 114; Galadima v The State (2012)12 SC (pt.II)213; Osuagwu v The State (2013)1-2 SC (pt.I) 37.

However, in multiplicity of judicial authorities of this Court, it has been decided that before relying solely on confessional statement to convict an accused or in the process of evaluation of same, trial Courts are desired to subject the confessional statement to the following six tests; namely

(a) Is there anything outside the confession to show that it is true

(b) Is it corroborated

(d) Was the accused one who had the opportunity of committing the offence

(e) Is the confession possible; and

(f) Is it consistent with the other facts which have been ascertained and have been proved

Once a confessional statement is subjected to these six tests, this Court has held that same can be safely relied upon to ground a conviction. See Musa V State (2013)2-3 SC (pt.II)75 at 94; Nwachukwu vs The State (2007)7 SCM (pt.2)447 at 455; Ikpo v State (1995)9 NWLR (pt.421)540 at 554. From the judgment of the trial Court, it is clear that the trial Court applied the above tests before it relied and acted on Exhibit B, especially considering the fact that the appellant stated how the two children died when he threw them into the river in Uyo Oron sometimes in 2005 and that he did so as a result of his poor condition that he had no money to feed them and that his parents died and he had no other supporter.

On the second ingredient of murder, I am also fully convinced that the two children died as a result of the dastardly act of the appellant simply on the flimsy excuse of alleged impecuniosity or poverty. The second ingredient of the offence of murder has also been established. I am also convinced that the act of the accused/appellant was intentional. He committed the offence without any provocation or physical attack before throwing

the two 3years old twins into the river. Surely, by his act, the appellant knew or had reason to believe that death was going to be the resultant effect of his cruel act.

Again in this present case, the ‘Doctrine of Last Seen’ is also apposite and applicable. The doctrine means that a person last seen with a deceased bears full responsibility of his death. In short, where an accused person was the last to be seen in the company of the deceased and circumstantial evidence overwhelmingly leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give proper explanation as to how the deceased died. See Haruna v AG Federation (supra). In the absence of sufficient explanation, the trial Court in this case was right in drawing the inference that it was the appellant that killed his two children. See Igabele V State (2006) 6 NWLR (pt.975)100; Sabina Chikaodi Vs The State (2012)LPELR – 7867 SC; Obosi v State (1955) NMLR 140. From the facts and circumstances of this case the two deceased children were throughout their lives in custody of their father, the accused/appellant herein and he confessed throwing them

into the river. There is therefore the presumption that he was the one who murdered them since he failed to rebut such presumption. He is therefore culpable as he had advanced no evidence to exculpate himself from guilt. The circumstantial evidence is overwhelming and points to no one else but the accused/appellant. See Rabi Ismail v The State (2011) LPELR 9352(SC).

Thus, in the light of all that I have posited above, I am fully convinced that all the three ingredients of the evidence of murder have been established beyond reasonable doubt against the appellant, as would justify the trial Court to convict the accused as charged. The lower Court was also correct in affirming the conviction and sentence made/done by the trial Court in this instant appeal. I therefore have no hesitation in resolving the lone issue in favour of the respondent against the appellant.

It is noted by me, that there are in this instant case concurrent finding of two lower Courts. As a matter of practice, this Court is always hesitant to interfere with or disturb the concurrent findings of two lower Courts except, of course, where such findings are perverse or misapplication

or misconception of law is prevalent. There does not appear to be any of such defects in this instant appeal as would warrant my interference with such findings. I therefore decline to tamper with or disturb the decision of the two lower Courts.

Apropos of the above, I find this appeal to be lacking in substance or merit. The appeal therefore fails and is accordingly dismissed. I affirm the judgment of the lower Court which had also earlier been affirmed the conviction and sentence of death passed on the present appellant by the trial Court

Appeal dismissed.

SC.900/2016

Imo Akpan Bassey V. The State (2019) LLJR-SC

Imo Akpan Bassey V. The State (2019)

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