Okokon John Vs. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBOKEKERE-EKUN, (JSC)

The appellant in this appeal was charged before the High Court of Cross River State on a one count charge of manslaughter contrary to section 325 of the Criminal Code. He was alleged to have unlawfully killed one Miriam Sampson on the 13th day of October 2011 at No. 34 Esierebom Street Calabar in the Calabar Judicial Division.

The facts are that the appellant and the deceased lived in the same compound at No. 34 Esierebom Street, Calabar and they shared a common kitchen built by the deceased and which was close to her room. The deceased complained that smoke from the appellant’s cooking was causing her inconvenience and she advised him to build his own kitchen. On 13th October 2011, the appellant wanted to cook in the kitchen and was prevented from doing so by the deceased. A struggle ensued between them and the deceased was alleged to have used the firewood she was holding to hit him on his back, He retaliated by grabbing the firewood from the deceased and hitting her on the head. She died from her injuries the following day, 14th October 2011.

The appellant pleaded not guilty to the charge. The prosecution called two witnesses and tendered two exhibits: the appellant’s extra judicial statement, Exhibit 1 and a stick, Exhibit 2. The appellant testified on his own behalf and did not call any other witness. At the conclusion of the trial, in a considered judgment delivered on 16/9/2013, the trial court found the appellant guilty as charged and sentenced him to 10 years imprisonment with hard labour. On 26/6/2014, the Court of Appeal, Calabar Division dismissed the appellant’s appeal and affirmed the judgment of the trial court. The appellant is still dissatisfied and has further appealed to this court vide a Notice of Appeal filed on 4/7/2014 containing four grounds of appeal.

In the appellant’s brief settled by GODWIN OMOAKA ESQ. which was deemed duly filed on 12/01/2017, four issues were distilled for the determination of this appeal as follows:

(i) Was the court below right to have affirmed the conviction of the appellant for the offence of manslaughter on evidence that is substantially hearsay? (Ground 1)

(ii) Given that Exhibit 1 did not comply strictly with the provisions of section 3 of the Illiterates Protection Law of Cross River State, was it properly admitted in evidence and therefore legal evidence upon which a conviction for manslaughter could be found?

(Ground 3)

(iii) Were the learned Justices of the court below right to affirm the finding of the learned trial Judge that the defence of self defence did not avail the appellant in the circumstances of this case?

(Ground 2)

(iv) Having regard to the evidence, did the prosecution prove the guilt of the appellant beyond reasonable doubt as required by law?

(Ground 4 6)

The respondent’s brief also deemed properly filed and served on 12/01/2017 was settled by E.I. HENSHAW ESQ., Solicitor General/Permanent Secretary in the Ministry of Justice, Calabar, in conjunction with P.S. BISONG ESQ. Director Public Prosecutions and J.I. EMECHI ESQ. Assistant Director both of the Ministry of Justice. Learned counsel adopted the issues as formulated by the appellant. The appellant equally filed a Reply Brief, which was deemed filed on 12/01/2017.

I shall consider Issues 1 and 2 together. I have rephrased Issue 2.

Issues 1 and 2

1. Was the court below right to have affirmed the conviction of the appellant for the offence of manslaughter on evidence that is substantially hearsay?
2. Whether Exhibit 1 was properly admitted in evidence having regard to the provisions of Section 3 of the Illiterates Protection Law of Cross River State.

In support of this first issue, learned counsel for the appellant argued that the evidence of PW1, a neighbour of the deceased and PW2, the Investigating Police Officer (IPO) who were not witnesses to the crime but testified as to what they were told or in the case of PW2, what he saw and discovered in the course of the investigation after the commission of the offence, amounts to hearsay. He noted that in the case of PW1, the persons who gave him information regarding the incident were not called as witnesses by the prosecution. He observed further that in his testimony as to his findings in the course of his investigation and from the statement made to him by the appellant, PW2 alluded to facts not contained in Exhibit 1, such as the fact that the dispute was in respect of the use of a kitchen. He submitted that in the absence of the persons who gave PW2 the information about the cause of the dispute, such evidence amounted to hearsay. Learned counsel also challenged the holding of the court below that PW2’s evidence covered statements recorded from the appellant and “two others” and from some witnesses on the ground that the statements of the witnesses and two others were not tendered in court and that the court was not entitled to speculate as to their content or as to the source of PW2’s evidence. He referred to: Adelenwa Vs The State (1971 – 1972) 7 NSCC 591 @ 594; (1972) 10 SC 3. He referred to the following cases where the courts rejected the evidence related to a witness by a third party who did not testify: Ogo Vs Gharoro (2006) 10 NWLR (Pt.987) 173 & 198 -199 H – A; Nwocha Vs The State (2012) 9 NWLR (Pt.1306) 571 & 593 D – G; Osuoha Vs The State (2010) 16 NWLR (Pt.1219) 364.

On what amounts to hearsay, he relied on Sections 37 & 38 of the Evidence Act, 2011 and several authorities including F.R.N. Vs Usman (2012) 8 NWLR (Pt.1301) 150 @ 160 B-C: Kala Vs Potiskum (1998) 3 NWLR (Pt. 540) 1 @ 15-16 H – A; Subramanian Vs D.P.P. (1956) W.L.R. 96.

He argued that if the hearsay aspect of the evidence of these two witnesses is expunged, the admissible aspects of their evidence would be insufficient to sustain the charge against the appellant.

With respect to Issue 2, learned counsel for the appellant argued that the appellant’s extra judicial statement, Exhibit 1, ought not to have been admitted in evidence by the trial court for failure to comply strictly with the provisions of Section 3 of the Illiterates Protection Law (IPL), Cap. 56 Laws of Cross River State in that it did not contain a jurat and there was no evidence that the document was read and explained to the appellant, an illiterate, in the language he understands. He argued that the court below erred in upholding the trial court’s dismissal of the objection raised on the point on the basis that non inclusion of a jurat did not render the statement inadmissible. He submitted that the onus of proving that a person is illiterate is on the party who raises the issue. He relied on Edokpayi Vs Oke (1964) NMLR 52; Otitoju Vs Gov. Ondo State (1994) 4 NWLR (Pt. 340) 518 @ 529 D. He submitted that in Exhibit 1 the appellant stated that he had no formal education and that the prosecution failed to rebut the evidence that he is illiterate. He submitted further that the trial court found as a fact that the appellant thumb-impressed Exhibit 1. He argued that the thumb impression is prima facie evidence that the appellant is illiterate. He relied on Ezeigwe Vs Awudu (2008) 11 NWLR (Pt.1097) 158 & 178 E-G. He further contended, that PW2, who wrote Exhibit 1, failed to comply with the strict requirements of Section 3 of the I.P.L. by failing to interpret the contents to the appellant and failing to state his (PW2’s) address thereon. Relying on the authority of Itauma Vs Akpe-Ime (2000) 12 NWLR (Pt.680) 15 @ 181 F — G, he submitted that failure to comply with the strict requirements of the law renders the document invalid and inadmissible in evidence. He also cited Udozor Vs Egesionu (1992) 1 NWLR (Pt.218) 458 @ 471 G; Ngwu VS Nnaji (1991) 5 NWLR (Pt.189) 18 @ 30 F-G.

He invited this court to overrule its decision in Edokpolo & Co. Vs Ohenhen (1994) 7 NWLR (Pt.358) 511 & 529 D which was relied upon by the lower court, on the ground that it is “a lone voice in the wilderness” and in conflict with the decisions of this court in the later cases of Itauma Vs Akpe-Ime (supra) and Ezeigwe Vs Awudu (supra). He submitted that the rationale for the decisions requiring strict compliance with Section 3 of the I.P.L is to protect the illiterate against fraud. He relied on U.A.C. Vs Edems & Anor. (1958) NRNLR 33 @ 34; SCOA Zaria Vs Okon (1959) 4 FSC 220 & 223: (1959) SCNLR 562 @ 567-.

He submitted that where there are conflicting judgments of this court on a particular matter, the court is obliged to follow the decision that is later in time. He relied on Mkpedem Vs Udo (2000) 9 NWLR (Pt.673) 631 @ 644 – 645 H – B; Alao Vs Uniform (2008) 1 NWLR (Pt.1069) 421 & 450 F -G. He urged the court to hold that Exhibit 1 is inadmissible and to expunge it from the record.

Learned counsel for the respondent argued in reply that the evidence of PW1 and PW2 was not considered in isolation by the lower court. He submitted that in reaching its decision, the court considered the totality of the evidence before the trial court including the extra judicial statement of the appellant, which was admitted in evidence as Exhibit 1.

He argued that having regard to the statutory functions of the Nigeria Police Force, as provided for in Part II of Section 4 of the Police Act, Cap P. 19 Laws of the Federation of Nigeria 2004, it would be improper to apply the hearsay rule to the evidence of a Police Officer in respect of the outcome of his investigation. He submitted that it is not the law that an Investigating Police Officer (IPO) must have witnessed the commission of a crime before he would be competent to testify regarding his investigation. He submitted that the evidence of PW2 covers what he discovered in the course of investigation, such as statements he recorded (including Exhibit 1) and investigation reports. He referred to Section 49 of the Evidence Act as authority for the admission of such evidence.

On the contention of learned counsel for the appellant that PW2 gave evidence of facts not contained in Exhibit 1 and that the informants were not called to testify, learned counsel submitted that portion of the evidence quoted in paragraph 4.0 at pages 8 – 9 of the appellant’s brief was the result of the interaction that took place between PW2 and the appellant as part of the investigation.

On the failure to call other witnesses, he submitted that the prosecution is not bound to call a host of witnesses except as it considers necessary to prove its case. See: Essien Victor Vs State (2014) 9 NCC 303 (a) 324 E – G: Ogbodo Vs The State (1987) NSCC 429 @ 437. He reviewed the evidence of PW1 and PW2 and submitted that along with Exhibit 1, their testimonies were sufficient to discharge the onus of proof on the prosecution. He contended further that it is trite that a confession alone, if direct and voluntary is sufficient to ground a conviction. See: Yahaya Vs The State (2005) 1 NCC 120 @ 123.

He submitted that there is a presumption of competence in favour of a Police Officer trained to investigate crimes and in the instant case, the appellant failed to challenge the competence of PW2 by way of cross-examination. He disagreed with learned counsel for the appellant that the trial court engaged in speculation in determining whether or not the evidence of PW2 amounted to hearsay. He sought to distinguish the authorities relied upon by learned counsel for the appellant on the issue of the evidence of an I.P.O. being hearsay on the ground that the facts of those cases are different from the circumstances of this ‘case where PW2 gave evidence as to his findings in the course of investigating the crime and no more.

In response to Issue 2, learned counsel for the respondent submitted that Exhibit 1 was properly admitted in evidence. He raised the question as to whether in fact the appellant is illiterate, which is required to be proved by the party making the assertion. He submitted that the statement of the appellant in Exhibit 1, to wit: “I had no formal education cannot be taken as evidence of illiteracy. He noted that education can be obtained in many different ways outside the formal classroom education such as home schooling and adult and non formal education. He urged the court to discountenance appellant’s counsel’s interpretation of the phrase, “I had no formal education.” He submitted that there was no evidence that the appellant was forced to apply his thumb impression on the document.

He distinguished Ezigwe’s case from the facts of this case on the ground that in Ezigwe’s case the court held that a thumb impression is prima facie evidence that the person who thumb printed is illiterate in the absence of any evidence to the contrary. He argued that in this case the statement that the appellant had no “formal” education constitutes evidence to the contrary in the sense that lack of formal education cannot be interpreted to mean a total lack of education. He submitted that Section 3 of the Illiterates Protection Law is usually applied in civil cases to protect illiterates from fraud in matters involving contracts and agreements where the rights and benefits of the illiterate are involved. He noted that all the authorities cited by learned counsel for the appellant are in respect of civil cases and the ratio of the decisions is that a document which does not contain a jurat cannot be admitted in evidence to enable the writer obtain a benefit or right thereunder to the detriment of the illiterate without evidence that the document was explained to him before he affixed his thumb impression thereto. He submitted that a confessional statement in criminal proceedings does not involve the enforcement of rights or the acquisition of benefits.

He submitted that the admissibility of a confessional statement is governed by the legal principles on admissibility as provided for in the Evidence Act, 2011. He referred to the definition of confession as contained in Section 28 (1) of the Act and submitted that the guiding factor for the admissibility of evidence is relevancy. Referring to Section 29 (2) of the Evidence Act, he submitted that a confessional statement is relevant and admissible if it was made voluntarily. He referred to Egbogonome Vs The State (1993) 7 NWLR (Pt.306) 383. He submitted that where it is alleged that the statement was not voluntarily made, a trial within trial would be conducted and if at the end of the trial the court finds it to have been voluntarily made, it is admitted in evidence and becomes part of the prosecution’s case. He referred to Dunugo Vs The State (1992) 2 SCNJ 46. He argued that Exhibit 1 was properly admitted in evidence as the appellant did not deny making it and did not allege that it was made involuntarily.

He submitted that assuming without conceding that Section 3 of the Illiterates Protection Law was applicable, there was due compliance, as found by the trial court to the effect that the statement was taken in English Language, read over and translated to the accused in English Language and recorded by the I.P.O. He submitted that the lower court rightly affirmed the finding. He submitted that the fact that the appellant elected to testify in Efik Language at the trial is not proof that he is illiterate or does not understand English. He submitted that it was unnecessary for PW2 to provide his address on Exhibit 1 since the statement form is a prototype form for witness/accused statement designed for use by the Nigeria Police Force and bearing its insignia.

Learned counsel submitted that the appellant has failed to show that non-compliance with the I.P.L (though not conceded) has occasioned a miscarriage of justice in this case having regard to the fact that the appellant repeated the contents of Exhibit 1 in his oral evidence in court. He referred to Uwaekweghinya Vs The State (2005) 1 NCC 369 @ 371.

On the invitation of the court to overrule its decision in Edokpolo & Co, Ltd, Vs Ohenhen (supra), he reiterated his earlier submission that the Illiterates Protection Law is applicable mainly in civil proceedings to protect an illiterate person from fraud particularly as regards the execution of documents involving civil rights and benefits. He also maintained that there was substantial compliance with the law since the statement was read over and explained to him in English Language before he affixed his thumb impression thereto. He urged the court to resolve these issues against the appellant.

In reply on points of law on the issue of hearsay evidence, learned counsel for the appellant merely reiterated his earlier submissions. With respect to issue 2, he submitted that the statement to the effect that the appellant had no formal education was made in a statement forming part of the proof of evidence which was not tendered in court. He submitted that in the circumstances this court cannot look at it. He relied on: Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92. He submitted further that the general provisions of sections 28 and 29 of the Evidence Act cannot displace the specific provisions of Section 3 of the I.P.L

Learned counsel drew the court’s attention to the fact that in the course of further research, he discovered that the case of Edokpolo & Co. Ltd. Vs Ohenhen (supra), which he invited the court to overrule was not in fact the only decision of this court where it was held that non-compliance with Section 3 of the I.P.L. does not necessarily render a document inadmissible. He referred to other decisions of this court in Wilson Vs Oshin (2000) 9 NWLR (Pt.673) 442; Orlu Vs Goqo-Abite (2010) 8 NWLR (Pt.1196) 307 @ 325 D – F and Anaeze Vs Anyaso (1993) 5 NWLR (Pt.291). The implication of this submission is that he has withdrawn the invitation to the court to overrule Edokpolo’s case. Nevertheless he maintained his position that non-compliance renders the statement inadmissible. He argued that whether the proceedings are civil or criminal, once it is shown that the intended beneficiary of the provisions of the law is illiterate, the document is inadmissible. He urged the court to resolve these issues in the appellant’s favour.

In order to determine whether the court below was right to have affirmed the judgment of the trial court based on the evidence of PW1 and PW2, it is necessary to examine the record of proceedings, particularly the judgments of the two courts to determine whether their decisions were based solely on the testimonies of these witnesses. I have examined the record accordingly and found that in reaching their decisions, the two lower courts considered the evidence presented by the prosecution in its entirety and not piece meal.

The burden of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond a shadow of doubt. See: Section 135 of the Evidence Act 2011; Ikpo Vs The State (2016) 2 – 3 SC (P.III) 88: Woolmington Vs D.P.P-(1935) AC 462: Esangbedo Vs The State (1989) 4 NWLR (Pt.113) 57: Michael Vs The State (2008) 13 NWLR (Pt.1104) 361: Oseni Vs The State (2012) 5 NWLR (Pt.1293) 351 (a) 388 F – G.

What is required is that the court must satisfy itself that the prosecution has established the guilt of the accused person with compelling and conclusive evidence. That the evidence must be so strong as to leave only a remote possibility in the accused person’s favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable.” See: Miller Vs Minister of Pensions (1947) 2 ER 372: Bakare Vs The State (1987) 1 NWLR (Pt.52) 579.

The consideration therefore, is whether, having regard to the entirety of the evidence before the court, the prosecution could be said to have discharged the burden of establishing its case beyond reasonable doubt.

Since Exhibit 1 was admitted in evidence as part of the prosecution’s case, it is necessary to determine whether it was properly admitted in evidence before considering it alongside other evidence that was before the court.

In the said Exhibit 1 the appellant stated inter alia as follows:

“What happened today in the compound I am living is that about 1500 hrs I return to my room at 34 Eshiet Ebom Street is I wanted to cook in the compound kitchen that belong to the landlady. The deceased who was my neighbour said I should not cook in that kitchen – she use stick and beat me with it, those things that I wanted to use in the cooking fell off from my hand. She beat me on my back with the stick. I also use the same stick and hit her on her head and immediately she slumped and fall down. The blood overflow from her head. All effort to revive her prove abortive. She still died. It is because I used stick on her that is why she died so immediately. I am not feeling fine since the thing happened. I have regretted that she died’

Section 28 of the Evidence Act defines “confession” as:

“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.”

The appellant ‘was charged with the offence of manslaughter contrary to Section 325 of the Criminal Code Cap. C.16 Vol. Ill of the Laws of Cross River State of Nigeria, 2004.

The said section provides as follows:

“A person who commits the offence of manslaughter is liable to imprisonment for life.”

“Manslaughter” is defined in section 317 of the Law thus:

“A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”

In proof of the offence of manslaughter, it is not necessary to prove any intent to kill or do grievous harm provided that there is proof that the unlawful act of the accused caused some harm to the deceased, which harm caused his death. See: Shosimbo Vs The State (1974) 10 SC 69: (1974) LPELR – 3066 (SC); R Vs Church (1965) 2 ALL ER 72: Ejeka Vs The State (2003) 7 NWLR (Pt.819) 408: Famakinwa Vs The State (2016) LPELR –SC. 104/2013.

In effect Exhibit 1 in which the appellant admitted causing the death of the deceased, albeit unintentionally, is a confessional statement Section 29 (1) and (2) of the Evidence Act provides:

“(l) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained –

(a) by oppression of the person who made it; or

(b) in consequence of anything said of done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made “by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.”

Thus a confessional statement is relevant and admissible in evidence once it is shown that it was voluntarily made. Where an accused person challenges the admissibility of his confessional statement on the ground that it was not voluntarily made, a mini trial or a trial within trial must be conducted by the court to ascertain its voluntariness. See: Babarinde &. Ors Vs The State (2014) 3 NWLR (Pt.1395) 568: Lateef & Ors. Vs F.R.N. (2010) WRN 85 @ 107; Gbadamosi & Anor. Vs The State (1992) 9 NWLR (Pt. 266) 465. However, where the accused says he did not make the statement at all, it will be admitted in evidence and considered alongside other evidence tendered by the prosecution. See: Owie Vs The State (1985) NWLR (Pt.3) 470; R. Vs Nwigboke & Ors. (1959) 4 FSC 101 @ 102: Isong Vs The State (2016) LPELR – SC.441/2011; (2016) 14 NWLR (Pt.1531) 96.

At the trial, when Exhibit 1 was sought to be tendered in evidence, it was not challenged on grounds of involuntariness. The ground of the objection was that since the statement was recorded in English Language, there was nothing to show on the face of the document that it was interpreted to the appellant.

This is what the trial court held at page 35 of the record.

“At the foot of the statement it is clearly shown thus:

“This statement was taken in English Language, read over and translated to the accused in English Language and recorded by the I. P.O.”

It is equally shown at the beginning of the statement that this statement of the accused was contained [sic: obtained] in English Language without more. There is nowhere it is shown or indicated or recorded that accused gave the statement in his native language to warrant any interpretation… I do not see how a thump (sic) impression only will show accused as an illiterate….The illiterate jurat is meant for illiterate witnesses and not literate one who choose to thump (sic) print instead of signing.

Put differently, there is nothing on the face of the statement to show that accused was an illiterate to require an illiterate jurat. A thumb impression only is not enough.” (Italics mine)

The court below upheld this finding.

I am of the considered view that the first question to answer is whether the Illiterates Protection Law of Cross River State is applicable in the circumstances of this case. The main pillar upon which the contention of learned counsel for the appellant rests is that Exhibit 1 was thumb printed without the inclusion of a jurat and that the thumb printing raises a presumption that the appellant is illiterate.

Section 3 of the Illiterates Protection Law, Cap 56 Laws of Cross River State (now Section 1 of Illiterates Protection Law, Vol. 4 Cap. 11 of 2004) provides:

“1. Any person who shall write any letter or document at the request, on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address; and his so doing shall be equivalent to a statement –

(a) that he was instructed to write such letter or document by the person for whom it purports’ to have been written and that the letter or document fully and correctly represents his instructions; and

(b) if the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being so signed it was read over and explained to the illiterate person, and that the signature or mark was made by such person.”

The purpose of the Illiterates Protection Law is to protect and safeguard illiterates from fraud and exploitation. It is to prevent the writer of a document which creates legal rights from enforcing it against the interest of an illiterate unless he has strictly complied with the law.

The authorities of Itauma Vs Akpe-Ime (supra); Ezeigwe Vs Awudu (supra); Udozor Vs Egosionu (supra) and Edokpolo & Co. Ltd, Vs Ohenhen (supra) all agree on this point. See also: Osefo Vs Nwania (1971) NCLR 421 @ 425 – 426: Wilson Vs Oshin (2000) 9 NWLR (Pt.673) 442. It is worthy of note that the decided cases on strict compliance with the Illiterate Protection Law are in respect of civil matters. The emphasis is on the protection of an illiterate in respect of the execution of documents which may have the effect of compromising his civil rights and obligations.

A statement made to a police officer by an accused person in the course of investigation does not fall within this category as it does not involve the civil rights and/or obligations of either the accused person or the police officer. One of the statutory duties of a police officer is to investigate crimes. A statement obtained from a person accused of a crime or witnesses thereto cannot by any stretch of the imagination be equated with a document that confers an interest in the writer. The statement so obtained becomes part of the evidence for the prosecution, which in any event, has the onerous duty of proving its case beyond reasonable doubt.

Beyond this, it is the duty of the person who asserts that he is illiterate to prove it. In doing so, he must satisfy the court of the following:

(a) the fact that he is illiterate and can only merely sign his name or make a thumb impression.

(b) that the document or documents he signed or thumb printed were not read to him; and

(c) that he could not have signed if the document or documents had been read to him.

See: Anaeze Vs Anyaso (1993) 5 NWLR (Pt.291) 1 @ 36 – 37 H – C.

I have examined the record of proceedings to see whether there was any attempt by the defence to prove that the appellant is illiterate. The evidence of the appellant who testified as DW1 was very brief. He testified in Efik and his evidence was interpreted in English Language:

“I am Okokon John I live at Esierebom Street, Calabar (No. 34). I am a fisherman.

I am now on detention at Afokang Prisons. On 13/10/2011 Madam Mariam fought with me. She used stick and beat me and I beat her too with, the same stick she used on me. Exhibit 2 is the stick she used on me. Exhibit is the stick she used. It is the same stick Madam Mariam used on me.”

There was no evidence before the court to prove that the accused is illiterate. The mere fact that he testified in Efik language is not proof that he is illiterate. In Nigeria, English Language is a second language for many. However when it comes to serious business like giving testimony in court, many prefer to speak in their native dialect with which they are more comfortable and in which they can better express themselves.

This fact, without more cannot be conclusive of the person being an illiterate.

I also agree with the decisions of this court in Edokpolo & Co. Ltd. Vs Ohenhen (supra); Wilson Vs Oshin (supra) and Anaeze Vs Anyaso (supra) that the absence of a jurat even on a document signed by an illiterate goes to the weight to be attached to the document and does not render it null and void. There are many reasons why a person who is literate may thumb print a document such as old age, medical condition such as arthritis, convenience etc. This is why the person claiming to be illiterate must prove it. In Ezeigwe Vs Awudu (supra) and Itauma Vs Akpe-Ime (supra) relied upon by learned counsel for the appellant, the illiteracy of the affected parties was conceded on both sides.

The lower court rightly observed and I agree that there is nothing on the face of Exhibit 1 to suggest that the statement of the accused was taken in any language other than English or that the contents were not read over to him before he affixed his thumb impression thereto.

The provisions of the Illiterates Protection Law are therefore not applicable. The Evidence Act, 2011, has made adequate provision for the admissibility of a confessional statement. As stated earlier, the statement was not challenged as being involuntarily made nor did the appellant deny his thumb impression thereon. I am of the view and I do hold that the trial court was entitled to admit the statement in evidence and consider the weight to be attached to it. The lower court was right to have affirmed the admission of Exhibit 1 in evidence by the trial court.

I now come to the issue of hearsay. What amounts to hearsay evidence was eloquently stated in the locus classicus Subramanian Vs Public Prosecutor (1956) 1 WLR 965 @ 969 wherein it was held as follows:

”Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.”

See also: Arogundare Vs The State (2009) 6 NWLR (Pt.1135) 165; Olalekan Vs The State (2001) 18 NWLR (Pt.746) 793.

The evidence of PW1, Chief Mkpang Cobham, a traffic warden attached to Odukpani Police Station who resided in the same street as the appellant and the deceased, was that on 13/10/2011, he received a call from one Obong Ette, a neighbour of his informing him that the deceased and the appellant were fighting and that the accused had wounded the deceased with a stick. He advised that the landlady should take the deceased to the hospital. The following day, he received another call, this time from one Boniface Effiong a neighbour also residing in the same street, who informed him that the matter between the appellant and the deceased was serious. He rushed home and was taken to the deceased’s room where he found her lying down and not in a good condition. He stated that there were some youths with her. He stated further:

“I asked about Okokon (accused) and they did not see him. I then advised the youths to go to Atakpa Police Station to lay a complaint while I search for the accused because the condition I saw the woman (deceased) I did not believe she will survive. The woman’s condition was critical and they showed me the stick the accused used in beating the accused on the head. I saw the accused and took him to my house. Some youths came to me and told me the woman has died. I asked accused what made him to use the stick and beat the deceased and he told me that the deceased used firewood to beat him and I had to remove my stick that I used to pin cloth and beat the deceased on her head. I hired a vehicle and carried accused to Atakpa Police Station where I lodged a report. I saw the deceased and I identified her as Mariam Sampson.” (Pages 29-30 of the record.)

He admitted under cross-examination that he did not witness the incident.

On whether the evidence reproduced above amounts to hearsay, the learned trial Judge held at page 49 of the record:

“I do not think so because his evidence merely confirmed the fact that when he was informed of the incident, he personally interviewed the accused, also met the deceased in a critical condition before she died; rallied support and make a report to the Police. He therefore gave account of the role he played after he got a report of the fight, the deceased critical condition and her eventual death, his arrest or apprehension of the accused and the eventual handing over to the Police. To my mind, such evidence cannot be termed hearsay simply because he did not witness the fight per se. This is particularly so because the evidence of the fight is to establish the fact that such a statement was made to PW1 and not to establish its truth.”

PW2, the I.P.O. testified as to his findings in the course of the investigation as to what gave rise to the quarrel between the appellant and the deceased and how the appellant hit her on the head in the course of the fight, which eventually led to her death.

He stated inter alia, as follows;

“Accused told me at the station in his statement that the deceased used firewood to hit him too. I asked him where is the place that the deceased hit you with firewood, he told me that the deceased hit him on the head. Accused had a skin barbing as there was no hair on his head. When I looked at his head there was no mark of hitting of firewood on his head. He said again that the deceased hit him again on his back, I looked at his back and there was no mark on his back also. I now come to the conclusion that the deceased only used that stick to scare the accused. That there is nowhere the deceased used a stick on the accused. If she did there could have been a sign or mark evidencing that.”

(Pages 33 – 34 of the record.)

The trial court held at page 49 of the record:

“Equally, the evidence of PW2 (an IPO) about what he personally saw or discovered in the course of his investigation is not hearsay and is admissible. See: Brawal Shipping Nig. Ltd. Vs Ometraco Int’l Ltd. (2011) LPELR – 9258. In the instant case, PW2, the police officer who investigated the crime, gave evidence of what he saw in the house of the deceased during the visit to locus and of what he did subsequent to that and all these are relevant to the case of the prosecution. And as the evidence was not in any way destroyed or affected by cross-examination, it is relevant and admissible. In the end I answer this issue in the negative.”

The court below agreed with these findings. The concurrent findings of fact by the two lower courts are to the effect that beyond what they were told, both witnesses testified as to what they saw or did in relation to-the incident. While it is true that PW1 was informed of the ongoing fight on 13/10/2013 by one Obong Ette and the serious aftermath of the fight the next day by Boniface, his evidence as to the steps he took upon receipt of the information, his observation of the deceased in a critical state, his apprehension of the appellant and handing him over to the Police and identifying the body of the deceased is direct evidence of what he saw and did and is therefore not hearsay. With regard to PW2 he testified not only as to what the appellant told him but also what transpired during the interview where he specifically asked the appellant, based on what he had narrated, to show him evidence of being beaten by the deceased, which he was unable to do. Once the trial court has carried out its duty of evaluating the evidence, having had the advantage of seeing and hearing the witnesses testify and observing their demeanour in the witness box, and its findings affirmed by the Court of Appeal, this court will not lightly interfere with such concurrent findings of fact unless it is shown that the findings are perverse, not supported by the evidence or where such findings are based on wrong inferences from the totality of the evidence or where the trial court applied wrong principles of law to the accepted facts of the case. See: Uche Vs The State (2015) 11 NWLR (Pt.1470) 380 @ 397 E – F; Shorumo Vs The State (2010) 12 SC (Pt.1) 73; (2010) 9 NWLR (Pt.1226) 73; Victor Vs The State (2013) 12 NWLR (Pt.1369) 465 @ 485; Njoku Vs The State (1973) 5 SC 293; Busari Vs The State (2015) 5 NWLR (Pt.1452) 343 @ 373 D – E. I am in complete agreement with the court below that the trial court did not rely on hearsay evidence in convicting the appellant and that in arriving at its conclusion, it considered the totality of the credible evidence before it, including Exhibit 1 the appellant’s confessional statement, which on its own could be acted upon by the court.

A confessional statement which is direct, positive and voluntarily made is sufficient proof of the guilt of an accused and the court is entitled to base a conviction on it. See: Blessing Vs F.R.N. (2015) NWLR (Pt.1475) 1 @ 33 D – F; Adio Vs The State (1986) 2 NWLR (Pt.24) 581; Mohammed Vs The State (2007) 11 NWLR (Pt.l045) 303; Okoh Vs The State (2014) 8 NWLR (Pt.1410) 502; Itule Vs Queen (1961) 2 SCNLR 183; Nwachukwu Vs The State (2007) 17 NWLR (Pt.1062) 31.

Issues 1 and 2 are accordingly resolved against the appellant.

I shall consider Issue 4 next, as its outcome will determine whether it will be necessary to consider issue 3.

Issue 4

Having regard to the evidence, did the prosecution prove the guilt of the appellant beyond reasonable doubt.

In support of this issue, learned counsel for the appellant contended that there was no evidence as to the nature of the injuries suffered by the deceased nor the degree of force allegedly used by the appellant. He submitted that whether or not death would result from being hit on the head with a stick would depend on several factors including the size of the stick, the degree of force used, the proximity of the accused to the deceased and the deceased person’s state of health, to name a few. He submitted that since the deceased did not die immediately but on the following day, it raises the question as to whether there was an intervening factor that could have caused her death. He urged the court to resolve such doubt in favour of the appellant. He submitted that where it cannot be positively proved that the deceased died as a result of the act of the appellant, he is entitled to be discharged and acquitted. He relied on: Shosimbo Vs The State (1974) NSCC 387.

In reply, learned counsel for the respondent submitted that the prosecution satisfactorily proved its case against the appellant through the evidence of its witnesses and Exhibit 1, the appellant’s confessional statement. He submitted that there was no evidence before the court to show the existence of any intervening factor between the time the appellant hit the deceased on the head and when she died, to show that her death might have been due to any other cause. He submitted that the burden of proving an intervening factor lay on the appellant who is asserting that fact. He referred to Section 140 of the Evidence Act 2011 and Rahman Vs C.O.P. (1973) NMLR 87; Opulor Vs The State (1990) 12 SCNJ 71.

On the nature of the injuries sustained by the deceased or the degree of force used, he submitted that these are not ingredients required to prove the offence of manslaughter. He argued that the fact that the deceased died the day after being hit on the head with a stick is sufficient proof of the degree of force applied by the appellant. He submitted that the facts of Shosimbo’s case cited by learned counsel for the appellant are distinguishable from the facts of this case, particularly as in Shosimbo’s case the court found, inter alia, that the shooting of a gun by a soldier on escort duty which caused the death of the deceased was in the prosecution of a lawful purpose i.e. escorting money safely from Benin to Lagos.

In order to establish the offence of manslaughter, the prosecution must prove beyond reasonable doubt that it was the act of the accused, which was unlawful, that caused the death of the deceased. A causal link must be established and proved by the prosecution between the act of the accused and the death of the deceased. See: Sowemimo Vs The State (2004) 11 NWLR (Pt.885) 515; Oforlete Vs The State (2000) 12 NWLR (Pt.681) 415; Apugo VS The State (2006) 16 NWLR (Pt.1002) 227.

In the instant case, the appellant in Exhibit 1 unequivocally confessed to hitting the deceased on the head with a stick, which caused blood to overflow from her head. That effort to revive her proved abortive and she eventually gave up the ghost. The confessional statement of the appellant, which forms part of the prosecution’s case clearly provides the causal link between the act of the appellant and the death of the deceased. There was no evidence of any intervening factor that might have raised doubt in the mind of the court as to the cause of the deceased’s death or the appellant’s part in it.

In light of my findings in the course of resolving Issues 1 and 2 and on the totality of the evidence before the court, I hold that the prosecution proved its case against the appellant beyond reasonable doubt. This issue is accordingly resolved against the appellant.

Issue 3

The final issue for determination is

Whether the Hon. Justices of the court below were right to affirm the finding of the learned trial Judge that the defence of self defence did not avail the appellant in the circumstances of this case.

Learned counsel for the appellant referred to several authorities on the conditions that must co-exist for a successful plea of self defence, to wit:

(a) the accused must be free from fault in bringing about the encounter;

(b) there must be present an impending peril to life or of great bodily harm, either real or apparent as to create honest belief of an existing necessity;

(c) there must be no safe or reasonable mode of escape by retreat; and

(d) there must have been a necessity for taking life.

See: Liyal Vs The State (1988) 2 NWLR (Pt.538) 397; Omoregie Vs The State (2008) 18 NWLR (Pt.1119) 464: Kwaghsir Vs The State (1995) 3 NWLR (Pt.386) 651; Nwambe Vs The State (1995) 13 NWLR (Pt.384) 385. He also referred to Sections 32 (3) and 286 of the Criminal Code.

Taking the factors serially, he submitted that from Exhibit 1, the appellant was not the aggressor as it was the deceased who hit the appellant in the back. He submitted that contrary to the finding of the lower court, that the deceased was already leaving the scene when struck by the deceased, the evidence showed that she hit the appellant from behind and there was reasonable apprehension of grievous bodily harm or violence to his person. Relying on the case of R V. Igwe (1938) 4 WACA and State Vs Gwoji Jire (1965) NNLR 52, he submitted that the weapon used by the appellant was not disproportionate, as he used the same stick that was used on him. He maintained that there was a reasonable apprehension of peril or grave danger. On whether there was a safe or reasonable mode of escape by retreat, he submitted that the two lower courts were wrong in interpreting this to mean that the appellant ought to have fled from the scene. He contended that the facts of the case show that the appellant did not want to fight and only retaliated after he was struck by the deceased. He relied on R. Vs Nwigbo (1950) 19 NLR 144. He submitted that in the circumstances of this case, it was necessary for the appellant to act the way he did. He submitted further that the onus was on the prosecution to disprove the defence of self defence once raised, which it failed to do.

In reply, learned counsel for the respondent submitted that Sections 32 (3) and 286 of the Criminal Code do not avail the appellant in the circumstances of this case on the ground that Section 286 specifically provides that “the force used should not be intended and is not such as likely to cause death or grievous harm.”

He argued that the appellant and not the deceased was the aggressor since he insisted on using the kitchen on that day even after the deceased had advised him to build his own. He argued that the facts as contained in Exhibit 1 or as stated by PW2 do not reveal any peril to life or threat of bodily harm to warrant the attack by the appellant. He submitted that there was sufficient opportunity for the appellant to have retreated, as even from his own statement, Exhibit 1, he stated that the incident occurred as he was trying to enter the back yard against the deceased’s threats. He noted that what occurred was that the appellant turned round and attacked the deceased.

On the nature of the weapon used and its proportionality in the circumstances of the case, he submitted that the deciding factor is the effect of the precipitate action that calls for defence. He submitted that in the circumstances of this case, the effect of hitting the appellant with a stick did not call for the reaction of hitting the deceased to death in alleged self defence. He urged the court to uphold the concurrent findings of the two lower courts.

The law is settled that the defence of self defence, if successful is a complete answer to a charge of murder or manslaughter. See: Omoregie Vs The State (supra); Apugo Vs The State (2006) 16 NWLR (Pt.1002) 227 @ 255 – 256 H – A; Baridam Vs The State (1994) 1 NWLR (Pt.320) 250 @ 262.

Section 286 of the Criminal Code provides:

“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault:

Provided that the force used is not intended, and is not such as to cause reasonable apprehension of death or grievous harm.

If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes, on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”

The defence of self defence is thus only available to an accused person where he proves that at the time of the killing, he was in reasonable apprehension of death or grievous harm and that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve himself from the danger. The force used by the accused person must be proportionate to the force used or immediately threatened against him and reasonable in the circumstances in which it was used. There must be reasonable grounds for the accused person to believe that the only way he could escape death or grievous bodily harm to himself was to kill the assailant. See: Nwuzoke Vs The State (1988) NWLR (Pt.72) 529: Omoreqie Vs The State (supra). The burden is on the prosecution to disprove the defence of self defence. It is also trite that whether the defence will succeed depends on the facts of each case. See: Omorogie Vs The State (supra).

The conditions which must be available for a successful plea of self defence have been set out earlier in the judgment.

The first is that the accused must be free from fault in bringing about the encounter. PW2 testified that the facts he gathered in the course of his investigation were that there was a disagreement between the appellant and the deceased over the use of the kitchen built by the deceased. The appellant in Exhibit 1 confirmed the fact that the deceased asked him not to cook there. I agree with the two lower courts that it was the appellant who brought about the encounter by attempting to cook in the kitchen after he had been asked not to by the deceased. In that circumstance the appellant not the deceased was the aggressor. The next factor to consider is whether there was reasonable apprehension of impending danger to life or grievous bodily harm. In his statement the appellant stated that the deceased hit him on the back with the stick and he used the same stick to hit her on her head whereupon blood started gushing out. PW2 in his evidence testified that he asked the appellant to show him any injury or bruise arising from the alleged beating by the deceased and that he was unable to do so. This suggests that the act of the deceased was not so serious as to create any apprehension of imminent danger to his life or grievous bodily harm. Furthermore, he also stated that he used the same stick to hit the deceased on the head. If he used the same stick it shows clearly that he had disarmed the deceased and any imminent threat had abated. It cannot therefore be said that hitting the disarmed deceased on the head with such force that blood gushed forth was proportionate to being hit by her in the back with a stick, which did not leave a single mark on the appellant’s body. I am also of the view that having taken the stick from the deceased, the appellant had the opportunity to retreat and there was no reason for him to proceed to hit her on the head. I agree with the court below that the head and neck are among the most vulnerable parts of the human body and that a blow to any of these regions with any weapon would almost certainly lead to death or grievous bodily harm, as in the present case.

In the circumstances I hold that the two lower courts were right in holding that the defence of self defence does not avail the appellant in the circumstances of this case. This issue is accordingly resolved against the appellant.

In conclusion, I hold that the appeal lacks merit and is hereby dismissed. The judgment of the lower court affirming the appellant’s conviction and sentence to 10 years imprisonment for manslaughter is affirmed.

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SC.583/2014