James Chiokwe V. The State (2012)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the Judgment of the court of Appeal delivered on the 16th day of November, 2004 upholding the conviction and sentence passed on the Appellant for the offence of murder contrary to Section 316 (1) and punishable under Section 319 (1) of the Criminal Code, Cap 30 Vol.2, Laws of Eastern Nigeria, 1963.
FACTS:
The Appellant was tried in the High Court of Enugu State in the Enugu Judicial Division holden at Enugu for the offence of murder contrary to Section 316 (1) and punishable under Section 319(1) of the Criminal Code Law, Cap.30, Volume 2, Laws of Eastern Nigeria, 1963. From the particulars of offence, the Appellant was alleged to have murdered one Dorothy Ibekwe, a 15 year old secondary school girl on or about the 5th day of March, 1983 at Ugbo Edem Nike in the Enugu Judicial Division. The said Dorothy had been raped and murdered.
On the 3rd day of July, 1984 the charge was read and explained and the Appellant pleaded not guilty. The prosecution called 8 witnesses and the Appellant alone testified and called no witness. The trial court presided over by B. O. Okadigbo J. delivered its judgment on 5/3/85 and convicted the Appellant for murder and sentenced him to death.
Dissatisfied with the judgment of the Court of first instance the appellant filed an appeal on L3/3/85 at the Enugu Division of the Court of Appeal. The appellate court heard the appeal and dismissed it on the 16th day of November, 2004 and affirmed the decision of the trial High court.
The Appellant again dissatisfied appealed to this Court by leave of this Court since the appeal was out of time.
On the 4th October, 2012 date of hearing the appeal, the learned counsel, C. I. Enweluzor adopted the Appellant’s Brief filed on 18/3/2010 in which were crafted three issues for determination, viz:-
(a) Whether the learned Justices of the Court of Appeal were right in relying on the alleged confessional statements credited to the Appellant tendered and admitted at the trial court as EXHIBITS B and D in upholding the judgment of the trial court which convicted and sentenced the Appellant to death for murder.
(b) Whether the Learned Justices of the Court of Appeal were right in giving full probative value to Exhibits A, B, C and D and relying on them to uphold the conviction and sentence passed on the Appellant by the trial court.
(c) Whether the Learned Justices of the Court of Appeal were not in error when they held that EXHIBIT C and the evidence of PW1 constitute corroborative evidence to EXHIBITS B and D and thereby upheld the conviction and sentence of the Appellant by the trial court.
Learned counsel however sought leave to withdraw the second issue which was granted with the issue (b) being struck out. He also adopted the Reply Brief filed on 2/2/12.
Mr. Elema, learned counsel for the Respondent adopted the Respondent’s Brief filed on 10/11/11 and deemed filed on 16/11/11 in which were formulated two issues for determination as follows:-
(a) whether the Lower court was right to have upheld the admission in evidence of the Appellant’s confessional statements, Exhibits B and D and the reliance placed on the second documents in the conviction and sentence of the accused persons.
(b) Whether the Lower Court was right in upholding the reliance placed on the evidence of PW1 (the medical practitioner who carried out the post mortem) and Exhibit C murder weapon (the matchet) surrendered to the Police by the Appellant.
The two issues couched on either side are really of the same content and so there is no difficulty in using any of them. For a free flow I shall make use of those crafted by the Appellant.
ISSUE 1:
Whether the learned Justices of the Court of Appeal were right in relying on the alleged confessional statements credited to the Appellant tendered and admitted at the trial court as EXHIBITS B and D in upholding the judgment of the trial court which convicted and sentenced the Appellant to death for murder.
Learned counsel for the Appellant, Mr. Enweluzor, contended that the alleged confessional statements tendered as Exhibits B and D were worthless, of no evidential value and ought not to have been relied upon by the Court below in convicting and affirming the conviction of the Appellant for murder. The reasons being that in taking the confessional statements, Exhibits B and D the Appellant’s right to have the offence explained to him in a language he understood was breached contrary to Section 33 (6) (a) of the 1999 Constitution. He stated on that the evidence of PW5, the Investigating Police Officer was contradictory as to how he obtained the statements of the Appellant and what language English or Pidgin English. That the same malaise visited the evidence of PW7 who said he interpreted to the appellant but did not disclose from which language the interpretation was made and to what language Exhibit D, the second statement was obtained. That the two confessional statements should therefore be rejected. He cited Ezemba v Ibeneme (2004) 14 NWIR (Pt. 8941 617; Adun v. Osunde (2003) 16 NWLR (pt.847) 543 at 650; Unipetrol (Nig.) Plc v. Adireje (W/A) Limited (2004) All FWLR (Pt.231) 1238 at 1243; Asanya v State (1991) 4 SC 42 at 52; Onyegbule v. State (1995) 4 NWLR (Pt.391) 510; Queen v. Wilcoz (1961) 2 SCNLR 295; State v Okoro (1964) l All NLR 423.
He concluded by saying that when these two Exhibits B and D, the defective confessional statements are jettisoned then there would be insufficient evidence to sustain the conviction of the Appellant for murder.
Mr. Elema for the Respondent stated in response by firstly going into the circumstances that led to the confessional statement where Exhibit B was obtained by corporal Elias Ehoda who later testified as PW5. He referred to the trial within trial over the admissibility of the Statement after which the learned trial-within-trial over the admissibility of the Statement after which the learned trial judge rejected the denial of voluntariness of that Exhibit B, had been confirmed by PW2, Deputy Superintendent of Police, Famous Enweluzor to whom the Appellant had been taken. Exhibit D, another confessional statement made before Sergent Nicholas Bisong after the Appellant was transferred from Abakpa Nike Police Station to the State Criminal Investigation Department, Enugu. Exhibit D was admitted without objection. Also Exhibit D had been confirmed by a superior Police officer, this time chief superintendent of police, Elkanah O. Makinde.
Mr. Elema of counsel said the voluntariness of the two statements cannot be faulted as Appellant’s counsel is urging since they were voluntarily made. He cited the case of Jimoh Yusuf v The State (1976) SC 167 at 173.
In resolving this question above under the issue One, which is a query as to the rightness of the Court below in upholding the admission in evidence of the Appellant’s confessional statements, Exhibits B and D and the reliance placed on the subsequent Exhibits in the conviction and sentence of the Accused/Appellant. In answer to this poser going back in time to what the learned Justices of the Court of Appeal had to say or did would shed the necessary light. That Court per Mika’ilu JCA stated:
“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…. 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 statements i.e I did not mean to tell the police that I killed Dorothy Ibekwe”.
“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 PW5 and evidence of PW7, 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 page 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 PW3 and his relations it was after I was beaten up by PW3 and his relations at Ugbo Edem bush that I was brought to the Abakpa Nike police station where I made Exhibit “B”. PW3 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”.
The Court of Appeal went on thus:-
“It is to be noted that PW3 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 PW3 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 PW3. 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 PW5 and PW7 as well as the accused believed the PW5 and PW7 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”.
The Court below indeed considered what the trial Court did as all that the law required in the admissibility and even the utilization of Confessional Statement or statements in the finding of the guilt of an accused and the follow up of a conviction and sentence. The Appellant had been at great effort to try to reduce the value of the Statements firstly by claiming to be illiterate and that he made the first statement Exhibit “B” in Pidgin English and had been recorded in English, a language he did not understand apart from the fact of alluding to having been beaten up thoroughly thereby rendering the voluntariness of the Statement doubtful or inadmissible. That assertion had been debunked in the trial-within-trial of the learned trial Judge apart from the fact that indeed Exhibit “B” had been recorded in Pidgin English. Corning after the matter of Exhibit “D” recorded in English and there had been no objection. Putting Exhibit “D” and even Exhibit “B” under the “litmus test” as to its truth outside the statements themselves and from other external evidence to see if the following are in existence:
(a) Is there anything outside it to show that it is true
(b) Is it corroborated
(c) Are the facts stated in it true as 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 other facts which have been ascertained or proved
These standards above from decided authorities of even this Court have been met as on all courts in these tests, the accused’s confessional statements have not been found wanting. I would return to say that there are other things outside the statements to show that the statements are true. Yes, the confessions are corroborated by other pieces of evidence including the issue of the matchet found where the Accused/Appellant pointed in his house; the Medical Report on the cause of death of the deceased. I place reliance on the following cases:-
Okeke v The State (2003) 15 NWLR (pt.842) 25;
Queen v Obiasa (1962) 1 All NLR (pt.4) 651;
Jimoh Yusuf v. The State (1976) SC 167 at 173.In fact, the confessional statements, Exhibits “B” and “D” are in my view sufficient to ground a conviction, considering the finding in the course of trial within-trial in the case of Exhibit B and later D which cleared some grey areas in the earlier statement are both sufficient in themselves to found a conviction without any other extraneous evidence in corroboration. Edet Obasi v The State (1955) NMLR 119; R v Kanu 14 WACA 30.
The attempt by the Appellant at this stage and even at the Court below to impugn the voluntariness of the statements and thereby have them scuttled is in the light of the circumstances of this case a day dream or perhaps a “wishful thinking” as a possible escape to what is so weighty, true and the admission of the act of an accused well considered and evaluated by the trial Court which the Court of Appeal did not have any reason to interfere with and that rightly so since this Court cannot and is not persuaded to either interfere with or obstruct. The question is resolved against the Appellant and is a positive answer on what the Court of Appeal did.
ISSUE 2:
whether the Learned Justices of the court of Appeal were not in error when they held that Exhibit C and the evidence of PW1 constitute corroborative evidence to Exhibits B and D and thereby upheld the conviction and sentence of the Appellant by the trial court.
Learned counsel for the Appellant, Mr. Enweluzor contended that the learned trial judge was wrong in his conclusion on the corroborative evidence and that the Court of Appeal was therefore in error in accepting Exhibits A and C as the trial court did as corroboration since in respect to Exhibit C, the weapon, no search warrant was executed to get it from the house of the Appellant. That a serious doubt was at play as to who was the actual owner of the matchet, the weapon and if it had not been planted in Appellant’s house. He cited David Obue v The State (1976) All NLR 134 at 139.
He stated on that it was not properly established that Exhibit C was the weapon with which the deceased was killed. He referred to the case of Mohammed v State (1997) 11 NWLR (Pt.528) 339 that there was no expert evidence that Exhibit C had the finger print impression of the Appellant before same was admitted in evidence as corroborative of the guilt of the Appellant. He relied on Queen v. Akpan (1951) 1 All NLR 3; Section 57 (1) of the Evidence Act.
From the Appellant was questioned whether the circumstantial evidence relied on by the trial court which was upheld by the Court of Appeal amounted to sufficient proof. Mr. Enweluzor in answer said the circumstantial evidence was not strong and cogent pointing unequivocally to the guilt of the accused/Appellant. He cited Nasiru v. The State (1999) 2 NWLR (Pt.589) 87 at 98; Ogueri v. State (2000) 2 CLRN 14; Ukorah v. State (1977) 4 SC 167 at 174; Valentine Adie v The State (1980) All NLR 39 at 49.
Mr. Elema for the Respondent said the argument of the absence of a search warrant did not hold water since Appellant’s house was not searched and that there was evidence that it was Appellant himself who took PW7 to his residence and surrendered the murder weapon to PW7. Also, it was Appellant who had earlier taken PW7 to the bush and showed him where he raped the deceased and where he eventually killed her. That there was enough from the circumstantial evidence available from which the guilt of the Appellant was established. That these concurrent findings of the two Courts below were not to be disturbed as there was nothing to support such interference.
In reply on points of law, Mr. Enweluzor submitted that no exceptional circumstances are in existence necessitating the intervention of this Court as the findings were based on evidence that were merely speculative and perverse thus leading to a miscarriage of justice. He referred to Overseas Construction Co. (Nig.) Ltd v Creek Enterprises Nig. Ltd (1985) 3 NWLR (Pt. 13) 407; Ihewuezi & Ors v Ekeanva & Anor (1989) 1 NWLR (Pt. 95) 329 at 248; Umar v Bayero University Kano (1988) 4 NWLR (pt.86) 92.
To answer the question posed under this Issue 2 is really to fulfill all righteousness since giving the answer in Issue One the matter has been adequately settled, but to leave no room for a second guessing I will in a short while place on record what the resolution of this issue is for the abundance of caution. I will refer to part of the judgment of the Court of Appeal relevant to this inquiry. It is thus, firstly quoting from the Confessional Statements of the Appellant thus:-
“Exhibit “C” which was recovered by PW7 when he took the accused person to his house. Then it was found under the accused person’s bed.
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.”
That Court then went on:-
“Thus the trial Court having found that the statements in Exhibits “8” and “D” were voluntary confessions of the accused person it also found that there was evidence corroborating the said statements. The learned counsel for the appellant has averred that the case of THE QUEEN v CHUKWUJI OBIASA (1962) 1 All NLR (Pt.iv), P.551 has similarities with the present cause. 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 PW1 said he performed the post mortem on 8th March 1983 while under cross-examination he said the corpse was received on 8th 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 can not 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 dependent 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.”
On the grouse of the Appellant’s counsel that the matchet, weapon of the dastardly act was brought out from the Appellant’s room without a search warrant. That posturing cannot just stand in the circumstances of this case where the Investigating Police Officer, Nicholas Bisong who testified as PW7 had stated thus:-
“On the 7th March, 1983, I was on duty at state C.I.D. Office when a case of murder was referred to me for investigation. In the course of my investigation, I visited the scene of crime in company of the accused. There the accused showed me where he saw the deceased in a farm when she {the deceased was harvesting yams). The accused told me that he held the deceased by her neck and took her to the side of the farm where he had sex with the deceased.
The accused also took me to a dried river very near to the farm where he said he killed the deceased and dumped her corpse there and covered it with dried leaves. I thereafter took the accused to his house where he showed me where he hid a matchet which he said he used in killing the deceased. I then brought out the matchet from underneath a bench claimed to be his bench by the accused. This is the matched. (sic) Tendered, admitted and marked Exhibit “C”. As a result of what the accused told me in the course of my investigation, I followed him to a house i.e the house of the deceased which is opposite the house of the accused. The accused showed me a window in Dorothy’s house which he said he broke a day before he killed the deceased and that before he could enter the room, he was challenged and he ran back to his house. I thereafter took the accused to the state C.I.D office where I arrested him, charged and cautioned him in Pidgin language with the murder of Dorothy Ibekwe. The accused volunteered a statement in Pidgin English, which I recorded in pidgin English, read it over to the accused and he said it was correct and signed it. I thereafter counter-signed the statement. This is the statement. Tendered, admitted and marked Exhibit “D”. I thereafter took Exhibit “D” and the accused person before the officer in-charge Homicide Mr. Makinde (D.S.P) who read over Exhibit “D” to the accused in my presence and the accused said it was correct. Mr. Makinde then counter signed on Exhibit “D”.”
There was no necessity of a search warrant since the Appellant not only took him to his (accused’s) house and room and showed him where he kept the matchet. Also took PW7 to the house of the deceased showing him the broken window which the Appellant said he broke in the quest to get at the deceased for sex a day before the incident leading to the death of the deceased. Furthermore, the Appellant in the course of the investigation took PW7 to the scene of crime where he kept the dead body after having sex with the victim and killing her. In none of the transactions is the need for a search warrant at play. Therefore, the assertion for the search warrant flies off the handle.
Another point, necessary to be commented upon is that there has been nothing put forward by the Appellant upon which can be founded a doubt, be it inconsequential or minute that the weapon, the matchet did not belong to the Appellant. What learned counsel for the Appellant did was just to put up a submission of such a doubt which did not flow from the evidence before the trial court. It needs be reiterated that submissions of counsel however beautiful or enticing cannot take the place of evidence. This is because address of counsel to be accepted and utilized must be a reminder to court on evidence proffered. On its own, address of counsel cannot stand.
Also to be said is that just as the trial court found and upheld by the Court of Appeal the fact that the murder instrument was consistent with the wounds suffered by the deceased as described by the PW1, Dr. Anthony Okafor who carried out the post mortem. The Appellant’s counsel asking for finger prints of the Appellant on the weapon before it can be accepted or that no forensic examination thereof before the weapon can be taken as the instrument of death, is an elegant argument which is bereft of other factors that could demolish such an argument like the cogent, compelling and direct circumstances which lead to no other explanation than that Exhibit “C” is the instrument deployed in taking the life of the deceased and an act effected by the Appellant. section 139 of the Evidence Act, cap 112 Laws of the Federation of Nigeria has provided the court the mandate to accept the proof of death by circumstantial evidence. This being so since in criminal cases the high possibility of not been availed an eye witness account is not rare. Therefore, when the court can infer from the circumstances available and established other facts which point to no other hypothesis or reasoning than the guilt of the accused then absence of forensic blood test of the deceased on the instrument or the fingerprint of the Accused/Appellant as in this case on that weapon becomes moot.
I see no difficulty in accepting the submission of Mr. Elema for the Respondent that the allegation of the commission of the heinous crime of murder by the Appellant in the brutal rape and murder of the deceased, Dorothy Ibekwe has been found as proven beyond reasonable doubt by the Enugu High Court and affirmed by the Court of Appeal, Enugu Division and nothing new or fresh has been placed before this Court whereby it can disturb or upset these concurrent findings of the two Courts below.
It is without saying that this issue is resolved against the Appellant. The two issues having been resolved against the Appellant, I have no hesitation in saying that this appeal lacks merit and I hereby dismiss it. I affirm the decision of the Court of Appeal which affirmed the Judgment, Conviction and Sentence of death by hanging of the trial High Court.
Appeal is dismissed.
SC.319/2009