Moses Jua V The State (2010)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

This is an appeal against the judgment of the Court of Appeal which affirmed the judgment of the trial court, which convicted the appellant for culpable homicide punishable with death. The appellant was charged along with three other persons. Two of them died in the course of the trial

The prosecution called six witnesses. The case is that a motor cycle was stolen. Appellant was the suspect. Police Constable Rotimi Jeremiah took the appellant to Ipee to produce the particulars of the motor cycle. That was the last time Rotimi Jeremiah was seen alive. In the course of investigation, the appellant made both oral and written confession and statements that he, together with the other accused persons, killed the deceased. The confessions were made at Ede Police Station.

The appellant was arrested. He was led to the scene of crime by the police. The clothes last worn by the deceased, four teeth and some strands were recovered at the scene. Appellant’s efforts to escape from arrest were not successful.

At the trial, appellant retracted his confessional statement. He denied killing Rotimi Jeremiah. The learned trial judge did not believe his evidence. He was therefore convicted and sentenced to death. His appeal to the Court of Appeal was dismissed. This is a further appeal to this court.

Briefs were written and exchanged. Counsel for the appellant formulated the following issue for determination.

“whether the prosecution proved the case against the Appellant beyond reasonable doubt as required by section 138 of the Evidence Act.”

Counsel for the Respondent has formulated the following issue for determination.

“Whether the prosecution has not proved its case beyond reasonable doubt in the circumstances of this case”

Both issue dovetail on proof. That is the common denominator. The apparent or seeming different is that while the issue of the appellant is couched in a language of neutrality, so to say, that of the respondent is couched in language of negativity. I do not see any substantial difference when both are taken in the light of the facts of the case, it is like a dozen and twelve. They come to the same thing at the end of the day.

Learned counsel for the appellant Mr. Ojutalayo submitted that as none of the prosecution witnesses was an eye witness, circumstantial evidence to be relied upon must be cogent and compelling as to lead to only one conclusion and it is to the guilt of the accused person. He referred to the case of State v. Usman (2005) MLR (Pt.906) 80 at 124. He submitted that the concurrent findings of the two courts are perverse and urged the court not to reply on them. He dealt specifically with evidence of PW4 and PW.6 at pages 8 and 9 of the Brief.

Learned counsel submitted that by virtue of section 138 of the Evidence Act, the prosecution has a duty to prove the case against the appellant beyond reasonable doubt and that the appellant has not duty to prove his innocence as he is presumed innocent until proved guilty. He contended that in order to convict the appellant of offence of culpable homicide punishable with death, the prosecution must prove the following ingredients beyond reasonable doubt.

(a) That the deceased has died.

(b) That the death was caused by the Appellant.

(c) That the appellant had intention of causing the death of the deceased or to cause him grevious bodily injury.

He referred to Ahmed v. State (2004) 2 SCNJ 1; Nwachukwu v. State (2007) 7 SC NJ. 230 at 254; Ogba v. State (1992) 2 NWLR (Pt.227) 164 at 168; Akinfe v. The State (1998) 3 NWLR (Pt.85) 729 AND Omah v. The State (1985) 3 NWLR (Pt.12) 236.

Learned counsel submitted that the quality of circumstantial evidence which led to the conviction of the appellant failed to meet the required standard of the law to justify the conviction. He argued that for circumstantial evidence to be strong enough to support conviction, it must be positive and unequivocal and must also prove irresistibly the guilty of the appellant. Besides there must be no other co-existing circumstance throwing doubt on the inference that the appellant and no other person is guilty of the alleged offence. He referred to Gabriel v. State (1989) 5 NWLR (Pt.122) 457; Igabele v. State (2004) 15 NWLR (Pt.896) 331-332; Nasiru v. State (1999) 2 NWLR (Pt.589); without the page and Nwaeze v. State (1996) 2 NWLR (Pt.428) 1

Counsel went through the evidence of PW.1, PW.5, PW.4, PW.3 in that order and submitted that the prosecution did not prove its case beyond reasonable doubt. He contended that there were many unanswered questions from the case of the prosecution against the appellant. He put some of the questions as follows:

“(i) What kind of fire was made that burnt a whole human being including his bones and skull but left his hair and only four of his set of teeth unburnt

(ii) It is safe to assume that the essence of burning the body was to destroy any trace of the victim, Rotimi. Would a criminal who went to the extent of burning even bones, spare the victim’s jumper and trouser”

To learned counsel, failure on the part of the Court of Appeal to answer the above questions raised sufficient doubt as to the credibility of the evidence of the prosecution witnesses. He submitted that there was no proper evaluation of the evidence, a failure which occasioned miscarriage of justice. He referred to Udo v. State (1992) 2 NWLR (Pt.158) 567 at 587.

Learned counsel argued that in the absence of direct or circumstantial evidence on the part of the prosecution regarding the occurrence of the death of Rotimi Jeremiah, this court should hold that the findings of the lower courts are perverse. Counsel submitted in the alternative that the circumstantial evidence adduced by the prosecution witnesses is not strong enough to link the appellant with the commission of the alleged offence. In every murder case, the main burden is on the prosecution to prove that the act of the accused caused the death of the deceased. He referred once again to Gabriel v. The State

Learned counsel submitted that in the light of the inability of the prosecution to produce the corpus delicti the evidence that certain uterine were collected from the body of the deceased was not strong enough to convict the appellant of the offence of culpable homicide punishable with death.

Counsel argued that apart from the appellant there were other persons charged along with him as co-accused who had opportunity of committing the alleged offence based on the evidence of the prosecution witnesses. He further argued that the evidence of PW.5 which was corroborated by the 4th accused, James Yaji, who was discharged by the learned trial judge, shows that the cutlass admitted as Exhibit B which was tendered through PW.5 was not recovered from the appellant but from the 4th accused. He relied on the evidence of the 4th accused.

Counsel argued that the finding of the Court of Appeal that the appellant was last seen with the deceased in inapplicable in the case because there seems to be a missing link and obvious loopholes in the evidence of the prosecution. He examined the evidence of PW.4 and related it to the evidence of PW.6. He asked six questions relating to the conduct of PW.6 at pages 24 and 25 of the Brief and submitted that the failure of the prosecution witnesses to provide answers to the questions in the course of the trial is fatal and rendered the evidence of the prosecution in support of the “last seen” theory very incredible and hollow contrary to the concurrent findings of both the High Court and the Court of Appeal. Counsel argued that Cpt. Uzor was an essential, relevant and material witness to the prosecution if the “last seen” theory must be rightly invoked against the appellant. He referred to Opeyemi v. State (1985) 6 SC 347 and section 149 (d) of the Evidence Act.

Learned counsel submitted that the Court of Appeal having expunged Exhibit F (the alleged confessional statement of the appellant) it becomes an irrelevant material in considering the guilt of the appellant in the case, and that the only evidence of the appellant worth considering is his evidence on Oath before the High Court and nothing more. Counsel quoted copiously the evidence of the appellant at pages 28 and 29 of the Brief and contended that the courts did not give any consideration to the evidence of the appellant.

Learned counsel urged the court not to believe the evidence of PW.4 which he said was not corroborated. He gave five reasons at page 33 of the Brief.

Learned counsel argued that the proper order the Court of Appeal ought to have made having rightly expunged the confessional statement was an order of discharge and acquittal, as the prosecution did not prove its case. He referred to Ogunshowobo v. Inspector General of Police (1958) WRNLR 23.

Learned counsel urged the court to reverse the concurrent findings of the two courts as they are perverse. He referred to Akinkunmi v. State (1987) 3 SC at Page 152. He urged the court to allow the appeal.

Learned counsel for the respondent, Mr. Wahab Egbewole addressed the court on the following: (i) Proof beyond reasonable doubt. (ii) Quality of circumstantial evidence (iii) Last seen theory (iv) Evaluation of evidence (v) Calling of witness (vi) Confession by appellant outside the confessional statement and (vii) Absence of Corpus Delicti.

On proof beyond reasonable doubt, learned counsel submitted that by virtue of section 138 of the Evidence Act, it is the duty of the prosecution to prove its case against the accused person beyond reasonable doubt. Relying on Oteki v. The State (1986) 4 SC 222 and Bakare v. The State (1987) 3 SC 5, learned counsel submitted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. He relied on the confession of the appellant to PW.4, PW.5 and PW.6 that he and other accused persons killed the deceased. Learned counsel also relied on Exhibits A, A2 and D1 and D3. Relying on the case of Lawanson v. The State (1975) 4 SC 115, learned counsel argued that the appellant had a duty to do some explanation to prove that the prosecution was not right in its allegation that he killed the deceased.

On the quality of circumstantial evidence, learned counsel argued that in the discharge of the burden of proof by the prosecution, it is not compulsory that there should be direct evidence leading to the involvement of the accused person in criminal activity; circumstantial evidence that are compelling, cogent, unequivocal and irresistibly lead to the guilt of the accused person, can sustain conviction. He referred to Peter v. State (1997) 12 SCNJ 53; Akinmoju v. The State (2000) 4 SCNJ 149; Adio v. The State (1986) 2 NWLR (Pt.24) 581; Mohammed v. State (2007) 11 NWLR (Pt.1045) 305 Igho v. State (1978) 3 SC. 8; Emeka v. State (2001) 14 NWLR (Pt.734) 666; Archie v. State (1993) 6 NWLR (Pt.302) 75. Counsel enumerated four conditions which the prosecution should satisfy in the case at page 9 of the Brief and submitted that the conditions were satisfied by the prosecution. As the appellant failed to provide any explanation in his defence, this court should uphold the decisions of the two courts, counsel argued. He relied on Nwaeze v. The State (1996) 2 SCNJ 42.

On last seen theory, learned counsel submitted that in murder or culpable homicide cases where the deceased was last seen with the accused, such an accused, like the appellant, has a duty to explain or show the whereabout of the deceased or how the deceased met his death. Where no such evidence is forthcoming, as in this case, the court has justification to draw conclusion that is was the accused that killed the deceased. He relied on Archibong v. The State (2006) 14 NWLR (Pt.1000) 349 at 395; Adeniji v. The State (2001) 5 SCNJ 371; Adepetu v. The State (1998) 7 SCNJ 83 and Lawal v. The State (1975) 4 SC 115.

Learned counsel relying on the evidence of PW.6 argued that the submission of counsel for the appellant that there was no eye witness is hollow and cannot stand.

On the evaluation of evidence, learned counsel submitted that as it is the prerogative of the trial court to evaluate the evidence presented by the parties, an appellate court will not interfere in the finding of fact except in exceptional cases. He referred to Abidoye v. Alawode (2001) 6 NWLR (Pt.709) 463 at 473 and Lagga v. Sarhuna (2008) 6-7 SC (Pt.1) 101. Counsel submitted that the Court of Appeal is right in upholding the correct findings of fact of the trial court.

On calling of witnesses, learned submitted that only essential witness need be called and it is not important that a particular witness must be called. Learned counsel did not see his way clear why counsel for the appellant insisted that Cpt. Uzor and any policeman from the police station at Ede should be called. He referred to Iyere v. Bendel Feed and Flour Mills (2001) 7 – 12 SC. 151, Oduneye v. The State, supra R. v. Agagariga (1961) 1 All NLR 462; and Opayemi v. The State 91985) 4 NSCC 921.

On confessional by the appellant, learned counsel argued that the Court of Appeal did not reject the confessional statement on the basis whether it is true or not but rather because the trial within trial ordered by the trial court was not concluded. He pointed out that the Court of Appeal found the appellant guilty after expunging the confessional statement from the totality of the evidence available in the case. He cited Idowu v. The State (2000) 7 SCNJ 259 and Ikemeson v. The State (1989) 3 NWLR (Pt.110) 455; Dana v. State (1980) 8 – 11 SC 236 at 267 – 268.

Learned counsel contended that appellant should not be allowed to run away from his guilt. He pointed out that the appellant had the ample opportunity to show during the cross examination of the witness called by the prosecution that he did not commit the offence but he only waited till the time of presenting his case to deny the prosecution’s case and put forth this defence. Citing the case of Agbonifor v. Oba (1988) 1 NSCC 237 at 248; learned counsel argued that the veracity of the defence must be tested by cross examining the prosecution witnesses on facts. Counsel argued that the failure on the part of the appellant to put across his case and confront PW.2, PW.3, PW.4, PW.6 and only to wait for the defence, is an afterthought. Counsel contended that since there are facts outside the confessional statement, the appellant was properly convicted.

On the issue of absence of corpus delicti, learned counsel argued that is not compulsory that there must be corpus delicti before an accused can be convicted. The only thing that the court has to take into consideration is whether there is positive evidence that the victim is dead. He relied on Bubu v. The State (1990) 7 NWLR (pt.460) 229 at 296. Counsel called in aid the fact that the victim was last seem with the appellant and the further fact that the clothes worn by the deceased were seen at the scene of the crime as well as strands of human hair and four human teeth.

Learned counsel contended that it is not the law that the cause of death must be proved by medical evidence rather the only duty on the prosecution is to show that the death of the victim was the real consequences of the act of the accused to the exclusion of all other reasonable cause. He relied on Ubani v. The State (2003) 12 SCNJ 11. Counsel finally submitted that the circumstances as proved by the prosecution in the case fix the appellant as the killer of the deceased, PC Rotimi Jeremiah. He urged the court to dismiss the appeal.

In his reply Brief, learned counsel for the appellant submitted that the onus of proof is on the prosecution throughout the case. Relying on Shande v. State (2005) 1 NWLR (Pt.107) 218 AT 239 and Ameh v. State (1978) 6- 7 SC 27; Ugo v. Commission of Police (1972) 11 SC 37; Counsel submitted that the prosecution failed to prove its case against the appellant beyond reasonable doubt having regard to the several lapses inherent in its case as clearly highlighted in the Brief. He urged the court once again to allow the appeal.

The burden of proof in a criminal case is on the prosecution and it is beyond reasonable doubt. That is what section 138(1) of the Evidence Act says. The subsection provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceedings, civil or criminal, it must be proved beyond reasonable doubt.

Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not fanciful doubt, it is not an imaginary doubt. It is a doubt as would cause prudent man to hesitate before acting in matters of importance to themselves. See Black Law Dictionary, 6th Edition, page 1265. A prudent man is a man who thinks carefully before taking action. He is careful to avoid risks unpleasantness and difficulties.

While our adjectival law places on the prosecution the duty to prove a criminal case beyond all reasonable doubt, the prosecution has not the duty to prove the case beyond all shadow of doubt. Shadows of doubt could be reflected in the case of the prosecution but that cannot in law stop or inhibit conviction. The court can convict an accused person the moment the prosecution proves its case beyond reasonable doubt. And here, the proof beyond all shadow of doubt do not mean the same thing. The latter places a heavier burden on the prosecution, a burden which is not known to our adjectival law. And so I will use the test of proof beyond reasonable doubt in this appeal.

It is the case of the appellant that the prosecution did not prove the case against him beyond reasonable doubt. That is the only issue his counsel formulated for determination. Learned counsel relied on the fact that there was no eye witness to the act of murder by the appellant. It is not every case of murder, or every case of culpable homicide punishable with death that is proved by eye witnesses. And that, in my humble view, is the only essence of the jurisprudence of circumstantial evidence. In R. v. Sala (1938) 4 WACA 10, there was no direct evidence of anybody who saw the dead body of the person alleged to have been murdered. The West African Court of Appeal held that (1) in such case, the circumstantial evidence leading to the conclusion that the deceased died must be examined with great caution. (ii) In this case, the trial court was satisfied that the circumstantial evidence that the deceased died was so strong as to justify the finding, even though no witness testified to actually seeing the body. Delivering the judgment of the court, Kingdom, C.J. said at page 10.

“In this case the only difficulty is that there is no direct evidence of anybody having seen the dead body of the person alleged to have been murdered. In such cases the circumstantial evidence leading to the conclusion that the alleged deceased is dead has to be examined with great care. In this case we are satisfied that the circumstantial evidence that the child Hardo is dead is so strong as to justify the finding, even though no witness testified to actually seeing the body”

I entirely agree with Kingdom, C.J. I should say that like in Sala, the circumstantial evidence in the case is very strong.

An accused person can be convicted of the offence of culpable homicide punishable with death if there exists cogent and compelling circumstantial evidence to the fact that the accused person killed the victim. See Obosi v. The State (1965) NMLR 129; Onah v. The State (1985) 3 NWLR (Pt.12) 236; Akpan v. State (2000) 12 NWLR (Pt.682) 667.

Both the High court and the Court of Appeal found compelling circumstantial evidence but the appellant does not agree with them. I will go through the evidence to see whether I agree with learned counsel for the appellant that the circumstantial evidence proferred by the prosecution witnesses and relied upon by the lower courts below failed to meet the required standard of the law, to justify the conviction of the appellant.

I entirely agree with the cases cited by learned counsel for the appellant at page 12 of his Brief that for circumstantial evidence to be enough to support a conviction, it must be positive and unequivocal and must irresistibly point at the guilt of the accused. I shall in like manner, also go through the evidence of some of the witnesses. I shall return to the issue of circumstantial evidence.

Learned counsel for the appellant first examined the evidence of PW1 in respect of things found by PW.1 at the scene of the crime. Let me also take the evidence of PW1 first. PW1, Saleh Musa, in his evidence in chief said:

“On 6/4/94, I was in the exhibit room as CID Officer when one Sgt Innocent formally at same address with me, presently serving in Benue Police Command brought one cutlass, hean Yellow guinea jumper, one togu yellow guinea however, three photographs of Suzuki motor cycle with registration No. OY 56G and its negatives. He also brought 3 coloured photographs at the scene of the crime where the deceased was alleged to have been burnt. Some quantity of human hair was also brought to me. This was found at the scene of the crime was also brought to me. Also brought along was some quantity of soil from the scene of crime… I registered all these items as Exhibits Nos. KWS/30/94”.

Counsel appearing for the appellant at the trial court did not object to the admissibility of torn clothes, the photographs of the Suzuki machine and its negative. He did not also object to the admissibility of the cutlass. He however objected to the admissibility of the photographs of the scene of accident.

In a very well considered Ruling at page 10 to 12 of the Record, the learned trial judge admitted the exhibits. He said at page 12 as follows:

“Therefore there was not been a breach or non compliance of the Evidence Law. The photographs are therefore admitted under section 24(4) of the Evidence Law. I therefore admit all the tendered items in evidence and they are accordingly marked as follows:

1. The torn jumper and trouser – Exhibit A and A2
2. The cutlass – Exhibit B
3. The photographs of Suzuki machine and its negative – Exhibit C and C2
4. The photographs of the scene – Exhibit D”

PW1 was not cross examined on the exhibits he tendered and admitted. He was merely examined as to his experience in the force and he answered as follows:

“I am an experience Policeman, I joined the Police on June 1982. I was posted as an exhibit Keeper in December 1992. It is not compulsory to get police report on lost item. There is not report that the items burnt in the case were burnt in Lagos. The things got burnt at a government laboratory. We have dispatched books in the Police.”

That is all that came out from the examination. The main aim or objective of cross examination is to destroy or damage the case of the prosecution and to make the court believe that the accused did not commit the offence; or if he committed the offence there are valid defences available to him. It looks to me from the answers above that the cross examination gave another opportunity to the prosecution to strengthen or fortify its case. How can the experience of PW1 in the police force, particularly as exhibit Keeper be of any use to the proof of criminality of the appellant I can hardly see any nexus. There is none.

PW.3 in his evidence in chief said:

“When we came back from Offa around 6pm we met the complainant who was back with the particulars. We then started to search for constable Rotimi. We spent 21 days after the incident looking for Constable Rotimi and Moses Jua. After 21 days of search we got information from Ede Police State in Osun State that the suspect we were looking for Moses Jua had been arrested and detained there… When they brought Moses Jua, he confirmed that they had killed the Constable PC Rotimi. He then mentioned the names of all the other accused including the accused that was dead.

PW.4 in his evidence in chief said:

“On 28/3/94 the O/C Erinle Police State, one PC Paul Makanjuola and myself left for Ede. On arrival at Ede, we met the DCO and he confirmed that one Moses Jua is in detention in the cell. He was then brought to Erinle. During interrogation at Ede Police State, he confessed that himself and one Joseph Ahen Sebastin were the people who stole the motorcycle and that the father of Sebastine Telu was there when they killed PC Rotimi.

PW.5 who took the confessional statement from the appellant, also said:

“We then searched the house of the accused persons with search warrants. We recovered a cutlass, which was believed to have been used in killing the deceased. Later, the torn guinea jumper, trouser, the cutlass, the teeth were registered as exhibits with the exhibits keepers.”

Witness had earlier said in evidence that he recovered at the scene, one guinea yellow trouser with one yellow guinea jumper worn by the deceased as well as some quantity of human hair and three teeth.

PW.6 in this evidence in chief also confirmed that the deceased was last seen with the appellant. He said.

“Capt. Uzor then said, I should go and call Constable Rotimi Jeremiah, the deceased. I went out to see if the officer in charge of the station was around and I now saw Constable Rotimi Jeremiah coming. Cpt Uzor now told Rotimi Jeremiah to follow the 1st accused to the Ibukun Olu Baptist Church area Ipee. Rotimi then asked him to book their movement to Ibukun Olu Baptist Church Area Ipee which I did. After booking their movement, they left with the motorcycle Reg. No. OY 3562 G both 1st accused and Constable Rotimi.”

The evidence of PW1 and PW6 confirmed that the appellant and the deceased were last seen together. While evidence of accused person last seen together with a victim per se may not be proof of culpable homicide punishable with death, it can support and corroborate other acts of the accused person resulting in the death of the deceased.

Are there such acts in this case Yes. There are. The things recovered from the scene of crime are evidence of the offence. Upon search of the houses of the accused persons including that of the appellant’s house, the cutlass was found. That was the evidence of P.W.5

Learned counsel for the appellant submitted that in the absence of forensic evidence on the exhibits the appellant cannot be convicted of the offences. That is quite a new one to me. With respect, I do not agree with him. Where exhibits point unequivocally to the guilty of an accused person, as evidence as in this case forensic is not necessary. Learned counsel for the appellant rejected the evidence of the prosecution witnesses with a mere waive of the hand at pages 16 to 25. With respect, I do not agree with him. The evidence given by the witnesses were not dislodged by the appellant under cross examination.

Learned counsel submitted that Cpt. Uzor is an essential witness that the prosecution ought to have called. He urged the court invoke section 149(d) of the Evidence act. Section 149(a) does not provide that a particular witness should or must be called. The subsection proposes that a particular evidence should be called. See Igwunor v. Corporative Bank of Eastern Nigeria Ltd (1994) 8 NWLR (Pt.318) 90 at 119; Onuwaje v. Ogbeide (1991) 3 NWLR (Pt.178) 187 AT 162 and Aremu v. The State (1991) 7 NWLR (Pt.201) 1 at 17. Some other witnesses gave evidence of the fact that the appellant was last seen with the deceased and so the evidence of Cpt. Uzor was not inevitable. I repeat that Section 149 (a) is on a failure to call evidence and not failure to call a particular witness. Accordingly the failure to call Cpt. Uzor is neither here not there.

That takes me to the failure of the prosecution to produce the corpus delicti. Learned counsel for the appellant made so much whether of it. It is not in all case where the corpus delicti is produced to secure conviction of an accused person. It is not the law that an accused person must be discharged and acquitted if the body is not produced for medical examination. The law knows that there are instances and circumstances where an accused person takes measures to destroy the body in order to avoid prosecution or conviction if prosecuted. Accordingly where there is evidence that a human being was killed by another human being, the latter can be convicted when the body of the former is not found. The important consideration is whether there is a nexus between the accused and the killing of the victim to the extent that the law comes of the conclusion that is the accused person who killed the deceased.

In Babuga v. The State (1996) 7 NWLR (Pt.460) 279 AT 296, Onu, JSC said.

“As a matter of fact conviction can properly be secured in the absence of a corpus delicti where there is a strong direct evidence. It is true that the body of the deceased has not been recovered, but it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrated, conviction”

I should add here that an accused person can also be convicted on strong and compelling circumstantial evidence in the absence of corpus delicti. The evidence need not necessarily be direct. There is enough evidence that the body of constable Rotimi Jeremiah was burnt. How then can the corpus delicti be found

I should also take the confessional statement of the appellant. Although the Court of Appeal rejected the confessional statement of the appellant, the court accepted the oral confessional to the crime by the appellant. The Court of Appeal said:

“I agree with the learned trial judge that the Appellant had admitted commission of the crime orally to those who arrested him initially before he was ever transferred to the SIIB at Ilorin where the PW5 recorded the retracted statements in writing.”

The best evidence for purpose of conviction is confession to the commission of the crime by the accused person. What the court should look into is whether the confession was voluntary and accords with section 27 of the Evidence Act and not against section 28 of the Act. In the case, the court of appeal rejected the confessional statement but accepted the oral confession made by the appellant to the police. A conviction on the oral confession is proper in law. Although learned counsel faulted the witnesses for the prosecution, I am of the view that they gave inculpatory evidence which justifies the conviction of the appellant and the subsequent confirmation of the conviction by the Court of Appeal. There was not enough cross examination to destroy the veracity of the evidence of the witnesses. The appeal fails. The appellant has to face the gallows. The appeal is dismissed.

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SC.287/2008