James Chiokwe V. The State (2004)

LawGlobal-Hub Lead Judgment Report

MIKA’ILU, J.C.A.

The appellant, James Chiokwe, was arraigned before the High Court, Enugu, on a charge of murder of one Dorothy Ibekwe (F), an offence under section 319(1) of the Criminal Code, Cap. 30, Vol.11, Laws of Eastern Nigeria, 1963. At the trial eight witnesses testified for the prosecution while on the other side only the accused person testified in defence. At the end of the trial, in the judgment delivered on 5th March, 1985 by Hon. Justice B.O. Okadigbo, Judge, the appellant was found guilty of the offence of murder as charged and accordingly convicted. The appellant was dissatisfied with the said judgment and he accordingly filed his appeal before this court on two grounds which are as follows:

(1) That the decision of the trial Judge is altogether unwarranted, unreasonable and/or cannot be supported by law.

(2) That the purported confessional statement was induced by threat and therefore not admissable in law.

Briefs have been filed and exchanged. The appellant’s brief of argument filed on 30th day of September, 2003 has been adopted by the learned counsel for the appellant, Dr. Okereke. On the other hand, the respondent’s brief of argument filed on 14th November, 2003 has been adopted by the learned counsel for the respondent, C.C. Eneh, D.P.P. Enugu.

In the appellant’s brief of argument two issues have been formulated for the determination of this appeal which read as follows:-

1. Considering that there was no eye witness to the killing of the deceased with a matchet, did the weight of evidence establish by circumstantial evidence that the appellant was responsible for the murder of the deceased? In other words, was the circumstantial evidence unequivocal, positive and points irresistibly to the guilt of the appellant to ground this conviction?
2. Were exhibits “B” and “D” properly admitted as confessional statements and was there proof beyond reasonable doubt that exhibit “C” the dusty knife linked the appellant to the commission of the offence?

The same issues have been formulated in the respondent’s brief of argument though differently worded. They read:-

1. Whether the circumstantial evidence available established a charge of murder against the appellant?
2. Whether exhibits “B” and “D” confessional statements and exhibit “C” (the knife) were properly admitted and relied on by the trial court?

I will consider this appeal in the light of issues as formulated in the appellant’s brief of argument.

On the first issue, the averment of the appellant is that considering that there is no eye-witness of the killing of the deceased did the weight of evidence establish conclusively by the circumstantial evidence that it was the appellant who was responsible for the murder of the deceased? Here, the fact that the deceased died as a result of acute loss of blood from the multiple laceration of wounds which could have been caused by a sharp solid instrument like a matchet as the PW.1 deposed may very well be true. But the question to be considered by the court is who did it. Relying upon the case of Nasiru v. The State (1999) 2 NWLR (Pt.589) 87, (1999) 1 SCNJ 83; it is contended that circumstantial evidence is evidence of surrounding circumstances which by undesigned co-incidence is capable of proving a preposition with the accuracy of mathematics. That the circumstance relied upon, in a case based on circumstantial evidence should point unequivocally, positively, unmistakably and irresistibly to the fact that the offence charged had been committed and that it was the accused that committed it. The appellant’s counsel in the appellant’s brief of argument has extensively evaluated the evidence and has ended up in urging this court to follow the decision in the case of The Queen v. Chukwuji Obiasa (1962) 2 SCNLR 402, (1962) 1 All NLR (Pt.IV) 651, 657 because of the similarities of the facts therein with the facts of this case. It is maintained that in that case the appellant was charged with murder and on appeal notwithstanding the statement which the prosecution tendered as a voluntary confession, the court allowed the appeal. The court held, in that case, the confession was not positive, in that it contained certain intrinsic inconsistencies and certain statements, which were inconsistent with relevant facts as proved by independent prosecution witnesses. That in our case, the truth of the confession was doubtful since the facts relied upon by the trial court, as consistent with the accused confession of guilt, were equally consistent with his innocence, and the finding that his being resident in the same village as the deceased amounted to opportunity to kill the deceased, would apply to any other resident of that village. It is added that the statement in the report of the pathologist, that the matchet examined was received on the 10th of December by registered post, being in conflict with the police evidence that the matchet found in the accused’s house had been delivered to the pathologist by a policeman on the 12th December should not have been accepted by the court as “typographical error” without the evidence of the pathologist to that effect; and accordingly, the report should not have been relied upon by the court as a circumstance against the accused. In our case, PW.1 said that he performed the post mortem on 8th March, 1983 at the University of Nigeria Teaching Hospital Enugu. Under cross-examination, he said the corpse was received on 5th March, 1983. It is added that PW.3 said he saw the corpse in a bush at Ugbo Edem in Nike on or about 6th March, 1983. It has been added that the matchet recovered and alleged to have been the one used by the appellant to murder the deceased was not even sent to the pathologist to determine that it was smeared with human blood. In Queen v. Obiasa (supra) the precaution of taking the matchet recovered to determine whether it showed human blood was taken. It was shown to have traces of human blood yet the appeal court refused to convict. This court is urged to follow the decision in Queen v. Obiasa (supra).

Because of the nature of the above arguments on the first issue, I will, in my judgment join the said issue with the second issue as on both issues arguments in respect of the statements tendered as confessional statements of the accused, exhibit “B” and “D” as well as the matchet, exhibit “C” have been made. Moreso, having carefully perused the record of proceedings of the trial court and particularly its judgment, it can hardly be said the judgment of the trial court was solely based on the circumstantial evidence as mainly poised on the first issue. I will comment more on this later. On the 2nd issue, the appellant’s counsel has started by arguing that there was no evidence in the proceedings in which the prosecution gave evidence that the matchet, exhibit “C”, had blood stains on it and that it was confirmed by the forensic laboratory that the blood stain was that of a human being. He argued that exhibit “C” was accepted as dusty and that it has not satisfactorily proved that it was the matchet used in killing the deceased. He has referred to the judgment of the trial court, page 75 lines 18-24, where the trial court stated as follows:

“Happily in this instant case, I have extra judicial confessional statements, i.e, exhibits “B” and “D” evidence and also the matchet “C” which have linked the accused person with the commission of the offence. I am satisfied that it was the accused person who inflicted on the deceased the injuries described by P.W.1 in his evidence.”

The learned counsel for the appellant urges this court in the circumstance not to accept the conclusion of the learned trial Judge that the appellant was linked with the commission of the crime by exhibit “C”.

It is also the averment of the appellant’s counsel in the appellant’s brief of argument that outside exhibits “B” and “D” which are the alleged, confessional statements, the prosecution offered no evidence to discharge the burden of proof beyond all reasonable doubts as expected in criminal offences. He has referred to testimonies of P.W.1 and P.W.4 averring that P.W.4 admitted signing exhibit “A” as interpreter while in fact, he did not interpret the statement of the accused. That P.W.1 did not speak Ibo while the appellant himself said he made his statement in Ibo. He urges this court to hold that the statements of the accused were not voluntarily made and cannot be accepted in law as confessional statement. The appellant’s counsel has also submitted that in Yesufu v. The State (1976) 6 SC 167, 173 (SC 445/1975) evidence was led to show that the appellant and the deceased were neighbours. The court held that it is desirable to have outside a defendants confession to the police, some evidence, be it slight of the circumstance, which make it probable that the confession was true. He has also relied. Upon Paul Onochie & 70rs. v. The Republic (1966) 1 SCNLR 204, (1966) NMLR 307 and R. v. Kanu (1952) 14 WACA 30. He has concluded that the confessional statements have not been well established and on their absence there is no evidence against the appellant. That the court after rejecting the confessional statements is left with no other evidence with which to convict the accused except to acquit and discharge him. In the alternative, the court may be lenient to the accused who has remained in prison custody from 28th March, 1984 when he was arraigned at the Enugu Magistrate court till date by reducing his conviction to manslaughter on the basis that he had set out to have sexual intercourse with the deceased at the farm and along the line lost his senses and killed her after the act. That the murder could not have been pre-meditated.

On the other hand, on the first issue, in the respondent’s brief of argument it has been submitted that in this case of murder, the prosecution had the onus to prove beyond reasonable doubt that:

(a) The deceased is dead.

(b) The act or omission of the accused which caused the death of the deceased was unlawful and

(c) The act or omission of the accused that caused death, must have been intentional with knowledge that death or grievous bodily harm was its probable consequence. Reliance made on Abogede v. State (1996) 5 NWLR (Pt.448) 270, 276.

He has submitted that the above pre-requisites have been met in this case. That there is ample evidence linking the appellant with the death. That these facts are visible from both the confessional statements and other pieces of evidence. Also both exhibits “B” and “D” passed the test enunciated in the case of R. v. Sykes (1913) 8 CAR 233. In that case, the appellant retracted his two confessional statements during trial as in the instant appeal. There was allegation of sexual assault before the murder of the deceased girl. The appellant signed the statement being denied and informed the police about some exhibits (trouser and knife) used to commit the offence. But despite the denials, the Criminal Appeal Court discountenanced the denials and reaffirmed the conviction for murder. This case had been followed in Nigerian cases, reference made to Udofia v. State (1988) 3 NWLR (Pt.84) 533, (1984) 12 SC 139, 156. The confessions in our case were corroborated by the fact of discovery of matchet (exhibit “C”) at the direction of the accused and the appellant’s previous attempt to rape the deceased a day before by breaking into her room. He has drawn the attention of this court to the fact that exhibit “B” is the statement of the appellant made to the police at Abakpa Nike. The trial court conducted trial within trial before admitting exhibit “B”. For the 2nd statement, exhibit “D”, it was admitted without any objection by the accused as per page 56 lines 1 and 2 of the record. That as per the matchet, exhibit “C” the denial of ownership of it by the appellant is irrelevant. That the discovery of the matchet was at the instance of the appellant as he told the Police of the knife during oral interrogation, even before his written statement was taken. The respondent’s counsel has submitted that the case of R. v. Obiasa (supra) is quite unlike the present appeal. In that case, there was no trial within trial and that the corpse and the stick allegedly used in striking the decease were not discovered to support the statement of the accused. That the minor inaccuracy by the doctor PW.1 as to the date of the receipt of the corpse at University Teaching Hospital Enugu is immaterial to the fact of the murder of the deceased by the appellant. He has relied on Ehot v. The State (1993) 4 NWLR (Pt.290) 644, (1993) 5 SCNJ 65, 80 where it has been held that minor inaccuracies and discrepancies that do not touch the justice or substance of a case should not be a sufficient ground to disturb a judgment. The respondent’s counsel has concluded by urging this court for the following:

(a) To dismiss the appeal as unmeritorious as the finding of fact is supported by evidence and not perverse. The confessional statements were properly admitted and acted upon by the court below.

(b) The fervent attack that the conviction was based on circumstantial evidence is misconceived. The guilt of an accused person may be proved by confessional statement alone, or circumstantial evidence or evidence of eye witness. The evidence offered by the prosecution consisted of confessional and circumstantial evidence and therefore proper, relying on Emeka v. State (2001) 14 NWLR (Pt.734) 666, 683.

Above are the arguments and counter-arguments of both counsel. This case involved a charge of murder under section 319(1) of the Criminal Code. Undoubtedly, for the prosecution to succeed the following must be proved beyond reasonable doubt:

(i) That the deceased had died.

(ii) That the death of the deceased resulted from the act of the appellant. And

(iii) That the act of the appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence. Refer to Richard Igago v. The State (1999) 14 NWLR (Pt.637) 1, (1990) 10-12 SC 84; Sunday Omini v. The State (1999) 12 NWLR (Pt.630) 168, (1999) 9 SC 1 and Abanta Okendu Ubani & Ors. v. The State (2003) 18 NWLR (Pt.851) 224, (2003) 16 NSCLR 265.

In our case, it is the finding of the trial court that the deceased died as a result of the injuries inflicted on her by her assailant. Part of its judgment, page 75 of the record reads as follows:

“There is no doubt that the deceased died of the injuries and the question is who was the person that inflicted the injuries. It is only in a few case (sic) that criminals perpetrate their crime in the open and the secrecy with which they execute their plans has tended to deprive the prosecution in some cases of eye-witness. Happily, in this instant case, I have the extra judicial confessional statement i.e exhibits “B” and “D” in evidence and also the matchet exhibit “C” which have linked the accused person with the commission of the offence. I am satisfied that it was the accused person who inflicted on the deceased the injuries described by PW.1 in his evidence.”

Based upon the above the learned counsel for the appellant has spent a lot of time averring that the circumstantial evidence is insufficient to warrant conviction of the appeal, which I think is misconception of the judgment of the trial court. Circumstantial evidence has undoubtedly been held to be best evidence particularly where it is overwhelming and leads to no other conclusion than the guilt of the accused. Thus, the principle of law is firmly settled that where circumstantial evidence adduced by the prosecution is so cogent, positive, overwhelming and compelling that it irresistibly and conclusively points to the accused as the perpetrator of the offence alleged to have been committed, a court of law would be entitled to infer from such evidence and surrounding circumstances that the accused committed the offence and convict him accordingly on such evidence. Refer to Nasiru v. The State (1999) 2 NWLR (Pt.589) 87, (1999) 1 SC 1. Therein, Uwais C.J.N. at pages 6-7 had this to say:

“The provisions of section 149 of the evidence Act, Cap. 112 enables a court to accept the proof of death by circumstantial evidence. This has been made so because in criminal cases, the possibility of always proving the offence charged by direct and positive testimony of eye-witnesses is rare. It is therefore permitted to infer, from the facts proved, other facts necessary to complete the elements of guilt or establish innocence.”

But in the present case, it is very clear from the record that the trial court has not solely based its judgment on circumstantial evidence. The judgment of the trial court was based on confessional statements, exhibits “B” and “D” and the matchet exhibit “C” with other surrounding facts supporting the confessional statements.

Section 27(1) and (2) of the Evidence Act reads as follows:

“27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.

(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only”

“Confession” has been defined as a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offence charged, and discloses the circumstances of the act or the share and participation which he had in it. It is a voluntary statement made by one who is defendant in a criminal trial at time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting crime for which he is on trial; a statement which, if true discloses his guilt of that crime and excludes possibility of reasonable inference to the contrary. Refer to Black’s Law Dictionary, 5th Edition, page 269 Vol. (1). It has been held in Onochie & 7 Ors. v. The Republic (1966) 1 SCNLR 204, (1966) NMLR 307 that it is desirable to have outside a defendant’s confession to the Police, some evidence, be it slight, of circumstances which make it probable that the confession was true.

Thus, confession of an accused person to the commission of a crime plays a major part in the determination of his guilt and a court is entitled to convict on the confession if it has come to the conclusion that the confession is voluntary confession which is direct and positive and is properly proved and supported by other corroborative circumstances as shown in the evidence adduced by the prosecution. Refer to Okeke v. The State (2003) 15 NWLR (Pt.842) 25 and the case of The Queen v. Obiasa (1962) 2 SCNLR 402, (1962) 1 All NLR (Pt.IV) 65 1, 657 where it has been clarified that the confession should be tested as to its truth which can be done by examining it in the light of the other evidence to determine the following:

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

(b) Is it corroborated?

(c) Are the facts stated in it true or far as can be tested?

(d) Did the accused have an opportunity of committing the offence?

(e) Is the accused’s confession possible?

(f) Is the confession consistent with the other facts which have been ascertained or proved?

It is therefore desirable to have outside the confession of the accused person some evidence, be it slight, of circumstances which make it probable that the confession was true. Conviction should not be solely and entirely on confession. Refer to Onochie & 7 Ors. v. The State (1966) 1 SCNLR 204, (1966) NMLR 307; The Queen v. Chukwuji Obiasa (1962) 2 SCNLR 402, (1962) 1 All NLR (Pt.IV) 651, 657 and Mufutau Aremu & Anor. v. The State (1991) 7 NWLR (Pt.201) 1, (1991) 7 SCNJ 296.

In this case, there are two confessional statements alleged to have been made by the appellant which have been admitted in evidence as exhibits “B” and “D”. In his evidence in-chief, the appellant had this to say:

“It is true that I told the police in both exhibits “B” and “D” that I killed Dorothy Ibekwe. I was not myself when I made the statement, i.e, I did not mean to tell the police that I killed Dorothy Ibekwe.” (see page 58 of the record)

This has undoubtedly reduced the task of the trial court to the question as to whether the statements were made voluntarily as the appellant has admitted in the above making the statements. In solving the issue of voluntariness or involuntariness of the alleged confessional statement, exhibits “B” and “D”, the trial court acted upon evidence of PW.5 and evidence of PW.7, rejecting evidence of the accused, in disbelieving the fact alleged that the accused was beaten up before he made the statements in exhibits “B” and “D”. Considering the evidence-in-chief of the appellant as per the record of proceedings P.58, one will not quarrel with the trial court in finding that the appellant was not beaten before making the statements. He had this to say:

“It was at the Ugbo Edem bush that I was beaten up by PW.3 and his relations, it was after I was beaten up by PW.3 and his relations at Ugbo Edem bush that I was brought to the Abakpa Nike Police Station where I made exhibit “B”. PW.3 and his relations were not present in the room at the Abakpa Nike Police Station when I made exhibit “B”. I admitted killing Dorothy Ibekwe in exhibit “D” because I was also badly beaten up by the police from the state C.I.D who recorded my statement. It was when I made my statement which was recorded by the police from the State C.I.D. that he beat me up.”

It is to be noted that PW.3 was Nicholas Ibekwe a relation of the deceased, a staff of the University of Nigeria Teaching Hospital, Enugu and not a police officer. It is also to be noted that a trial-within-trial was conducted by the trial court before accepting exhibit “B” in evidence. It is also to be noted that exhibit “D” was tendered in evidence without objection. I think even if PW.3 did beat the accused in the bush, it would have nothing to do with the statement taken by the police in the office in the absence of PW.3. That exhibit “D” having been tendered in evidence without objection the appellant can never be heard to complain. In any case, the trial court who saw and heard PW.5 and PW.7 as well as the accused believed the PW.5 and PW.7 and disbelieved the accused. I must therefore agree with the decision of the trial court that the appellant was not beaten in respect of the two statements. They are therefore voluntary statements of the appellant.

The next question is whether the trial court in convicting the appellant solely relied upon confessional statements exhibits “B” and “D”. From the judgment of the trial court, besides considering the confessional statements exhibits “B” and “D” and also exhibit “C”, the matchet, it considered the following:

“(a) The evidence of PW1 where he clearly described the injuries that were sustained by the deceased and the evidence of the accused in exhibit “D” where he stated that ‘After I sexed her, I carry my knife and cut her on her neck. I also cut her on her hand and on her head and she died’.

(b) Exhibit “C” which was recovered by PW.7 when he took the accused person to his house. Then it was found under the accused person’s bed.

(c) The statement of the accused in exhibit “D” that ‘the knife I show police under my bed is the knife I used to kill Dorothy’.”

Thus, the trial court having found that the statements in exhibits “B” and “D” were voluntary confessions of the accused person, it also found that there was evidence corroborating the said statement. The learned counsel for the appellant has averred that the case of The Queen v. Chukwuji Obiasa (1962) 2 SCNLR 402, (1962) 1 All NLR (Pt.IV) 651, has similarities with the present case. I have seen no similarities between the two cases. In the present case, there are two confessional statements in which one has been admitted after trial within trial, exhibit “B” and the other has been admitted without objection, exhibit “D” unlike the case of The Queen v. Obiasa (supra). The statement in that case contained intrinsic circumstances and certain statements which were inconsistent with relevant facts as proved by independent prosecution witnesses, unlike in our present case. In our case, the confessional statements are direct and positive. The conflict of the date, 10th December as in the statement in the report of the pathologist, the matchet was received, and 12th December when it was alleged to have been delivered to the pathologist by the police cannot be similar to situation of this case in respect of the corpse. Here, PW.1 said he performed the post mortem on 8th March, 1983 while under cross-examination, he said the corpse was received on 5th March, 1983. There is no discrepancy on the date the corpse was received or the date post mortem examination was performed. Moreso, the death of the deceased is not an issue in this appeal but whether it was the appellant who committed the offence which question is resolved in answering the question as to whether exhibits “B” and “D” the confessional statements of the accused have been supported or corroborated by other evidence. The case of the Queen v. Obiasa (supra) is not similar to the present case.

The appellant’s counsel has in the alternative urged this court to be lenient to the accused by reducing his conviction to manslaughter on the basis that he had set out to have sexual intercourse with the deceased at the farm and along the line, lost his senses and killed her after the act. That the murder could not have been premeditated. I feel that to convict a person charged for murder with manslaughter is not a matter of leniency but evidence adduced before the trial court. Where the evidence is sufficient to warrant the trial court to convict the accused for murder the trial court cannot do otherwise but convict the accused for murder and the appellate court has no discretion to be lenient to convict the accused for manslaughter. It is dependant upon what offence has been proved beyond reasonable doubt.

I am therefore satisfied that the confessional statements, exhibits “B” and “D” have been properly admitted and acted upon by the trial court. That the confessional statements are voluntary and despite being direct and positive they have been supported or corroborated by other evidence to warrant the conviction of the appellant by the trial court. All the averments of the learned counsel on the two issues failed. I find that the appeal has no merit. The judgment of the trial court is hereby upheld. The appeal is dismissed.

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Other Citations: (2004)LCN/1652(CA)