Solomon Akpan Vs The State (1992) LLJR-SC

Solomon Akpan Vs The State (1992)

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U. OMO, J.S.C. 

The appellant here was charged in the High Court of Cross-River State with the murder of one Akpan Peter Udombang, an offence contrary to Section 319 (1) of the Criminal Code. After a trial in which the prosecution called ten witnesses and the appellant only testified in his defence, the learned trial Judge in a reserved judgment found the appellant guilty of murder as charged and sentenced him accordingly.

One appeal to the Court of Appeal, against his conviction and sentence, counsel on his behalf canvassed in his brief the validity of the conviction which he alleged was based on retracted statements of the appellant which were wrongly regarded as confessions, the evidence of tainted witnesses, and failure to prove the cause of death of the alleged victim. Briefs were duly filed by the parties and fully adopted without further expatiation by counsel for them in oral argument. In a majority judgment delivered on 7th March, 1989, the Court of Appeal held the appeal to be lacking in merit, dismissed same and affirmed the conviction and sentence of the trial High Court.

This appeal is against that decision of the Court of Appeal. Three issues were set out by the appellant for determination in his brief, as follows:-

“(i) Whether the Court of Appeal was right to have received argument presented before it by the Respondent in the Court of Appeal when such argument ran totally contrary to the issues formulated by the said Respondent for the determination of the court.

(ii) Was it proper for the Court of Appeal to have held that Exhibits D and E on which the trial court relied heavily for the conviction of the Appellant qualified as confessional statements while whatever P.W.2 reportedly heard from the deceased was a ‘Dying Declaration’ or ‘Res Gestae’

(iii) Was the Court of Appeal right to have affirmed the decision of the trial court when the case against the appellant was not proved according to law”

The respondent in its brief advanced the following three issues for determination:-

(i) Whether the issues in the Respondent’s Brief of Argument attracting adverse comments by the Honourable Justices of the Court of Appeal and reformulated by them rendered the Brief defective and thereby occasioned a miscarriage of justice.

(ii) Whether the Court of Appeal was right in affirming the trial Judge’s findings of the extra-judicial statements of the appellant.

(iii) Whether the Court of Appeal was right in upholding the findings of the learned trial Judge rejecting the defences of the appellant.

The first issues formulated by both sides address the same subject-matter and will be considered first. The complaint of the appellant is very clearly set out in paragraph 5.02 of his brief as follows:-

“The Court of Appeal seriously criticised the way and manner the said issues were set out since it gave the impression that the Respondent was concurring to the attack levelled on the high points in the judgment by the appellant in that appeal. The implication of the Respondent’s adoption of the issues for Determination as formulated by the appellant in that appeal was even brought out more succinctly in the minority judgment of Hon. Justice Macaulay at page I58 of the Records. There, the learned Justice of Appeal (like in the lead judgment) felt that the Respondent having agreed to be bound by the issues raised by the appellant virtually agreed and accepted all the shortcomings complained of in the judgment as argued by the appellant. It is the humble submission of the Appellant herein, that the Respondent in that Court should not have been allowed to present argument running counter to the import of the issues formulated by him. Any argument in the Respondent’s Brief of Argument not being in consonance with the issues formulated should have been struck out by the Court of Appeal.”

After expatiating further on this complaint by citing and considering some authorities on non-compliance with the rules relating to the filing of briefs (Order 6 Rule 3), making submissions on the effect of such non-compliance, the wrong formulation of issues and the consequences of a faulty brief, the appellant further complained in paragraph 5.05 as follows:-

“What was even more embarrassing was that the Court of Appeal in its lead judgment, having detected the defects in the issues formulated by the Respondent, went ahead, seriatim to formulate what should have been the correct issue in respect of each paragraph thereof. Without, His Lordship who wrote the lead judgment doing so, the Respondent’s Brief of Argument would have been most unintelligible and would have made no sense. It therefore, follows that His Lordship was only able to get the sense out of the brief by his correction of the issues as formulated without which it would have been otherwise. By rendering this assistance to the Respondent, as it were, there emerged a case of mistrial and a breach of the rule affair hearing.” (Italics mine)

The complaint here may be summarised briefly thus: that after a caustic criticism of the issues for determination set out by the respondent before it, which gave the impression that it agreed to be a resolution of the issues set out by the appellant in his favour, the Court of Appeal should have struck out respondent’s issues for determination, and refused to hear any arguments presented thereon. Instead of so doing the court below (per Uwaijo, J.C.A,) assisted the respondent by correcting and reformulating those issues in such a way as to make them intelligible, which action resulted in a mistrial and a breach of the rule of fair hearing.

There is no doubt that the respondents counsel was very wrong to have simplistically reproduced as respondent’s issues for determination the very same issues (word for word) formulated by the appellant. If counsel had bothered to read the issues with a modicum of intelligence he would have realised that if the thrust of the issues set out by the appellant may be described as set out in the negative (attacking-the findings/decision of the trial Judge) his own formulation should have been framed in the positive (supporting the very same findings/decision). My impression is that respondent’s counsel was mentally lazy when reading the appellants issues for determination; and decided to adopt them wholesale because the complaint addressed in those issues are the very same complaints which, in his view (and correctly so) the court below should consider in arriving at a decision on the appeal before it. For this simplistic and lazy attitude and consequently wrong formulation of respondent’s issues, counsel was appropriately criticised by the court below, which then proceeded to consider the proper issues before it. That should be the end of the matter but for the complaint now raised by the appellant.

One argument adduced in support of the complaint is that having found that the issues formulated by respondent were not “proper”, the court below should have struck them out, and then prevented the respondent from being heard on these issues on the ground that its brief is defective. What is involved here is not-a failure to formulate issues for determination which means there is no brief as prescribed by order 6 Rule 3 of the Court of Appeal Rules, but the formulation of wrong or defective issues arising in the appeal in an otherwise proper brief. Where even the brief as a whole can be described as faulty, the attitude of this court to such a brief has been stated by Oputa, J.S.C. in Philip Obiora v. Paul Osele (1989) 1 NWLR, (Pt. 97) 279 300 as follows:-

“A bad, faulty and or inelegant Brief will surely attract some adverse comments from the courts but it will be stretching the matter too far to regard such defective Brief as no brief. A faulty Brief is a Brief which is faulty. One cannot close ones eyes to the fact of its existence”

In this case it is only the issues set out that are alleged to be faulty and not the brief as such-. But are all the issues set out by the respondent “faulty” as appellant’s counsel is seeking to make out To decide this, it is necessary to reproduce here the issues for determination as set out in respondent’s brief. They are:

“1. Whether the learned trial Judge was right in basing his conviction of the appellant on Exhibits D and E which the police regarded as confessional statement when the appellant was not taken before a superior police officer as is required by the Judges, Rules.

(2) Whether the learned trial Judge was right when in basing conviction of the appellant on Exhibits D and E when both statements were inconsistent with the appellant’s testimony before the court.

(3) Whether the learned trial Judge was right when he based his conclusion of the guilt of the appellant on the evidence of tainted witnesses who had their own purpose to serve.

(4) Whether the learned trial Judge was right in convicting appellant for murder when the cause of death of the deceased had not been proved by the prosecution.”

A close look at these issues will show that whilst issues 1 and 2 could have been reformulated as indicated by the learned Justice of Appeal (Uwaifo. J.C.A.) in his judgment (see pages 134 to 135 of the record of proceedings), they are as set out equally appropriate to the case of the respondent as they are applicable to the case of the appellant. They are therefore NOT faulty. They also do not fall foul of the criticism that they suggest an acceptance of the appellant’s complaints in them by the respondent. Issues 3 and 4 are the faulty ones vis-a-vis the respondent. They complain that the evidence of witnesses called by the respondent are tainted and assert that the cause of death of the deceased has not been proved by the prosecution (respondent). I repeat the question: should these two have been struck out My firm answer is No, for two reasons. The first is that the argument in the brief in support of these issues show that the respondent is against and not in favour of the appellant’ submissions on them. It is therefore the form as opposed to the content substance) of the issues that are defective, and in its quest to do substantial justice this Court looks more favourably on the substance as opposed to the form on such matters.

The court below was therefore right not to have taken upon itself i.e. suo motu, to strike out the “faulty” issues, because there was no application by the appellant from the time the brief was filed up to the time of argument of the appeal, inviting the court to strike out appellant’s issues for determination on the ground that they are defective. But even if there was such an application, I take the view that the court below would be right to refuse same on the grounds indicated i.e. the need to do substantial justice. Secondly, it is trite that a “Court of Law does nothing in vain.

Since the issues for determination of the respondents are the same as those for the appellant, striking out the former will mean that the same issues will still be before the court for consideration since the appellant’s issues are not faulty. Once the appellant’s issues are not struck out, the court is bound to hear the appellant’s on these issues, and in exercise of its discretion can hear the respondents in oral argument on those grounds vide Order 6 Rule 9 (d) of the Court of Appeal (Amendment) Rules 1984.

The second argument is that the respondents formulation of issues means that it agrees with the complaints of the appellant. This is very superficial. Again, a look at the content of the arguments adduced in support of the issues shows the contrary. No one was therefore deceived, and the parties prosecuted the appeal in the basis of a clear understanding of the respective arguments canvassed. Appellant’s complaint is therefore belated and lacking in merit.

The third argument and the least in order of merit, is that the “re-formulation” of the respondent’s issues for determination by the court below (majority) was an assistance which led to a miscarriage of justice (mistrial and breach of the rule of fair hearing). There really was no re-formulation (i.e. amendment) exercise for the purpose of a consideration/determination of the arguments adduced, undertaken by the court below (per Uwaifo. J.C.A.). What the learned Justice of Appeal did was to “demonstrate” to the respondent’s counsel, how he would better have framed his issues, so as to make him realise his mistakes. He said as much when before embarking on the exercise he said ‘”Let me demonstrate what the respondent’s counsel failed to realise”. The court below did not thereafter proceed to determine the appeal on the bias of any re-formulated issues, because no such issues were in fact finally set out. The answer to the first issue raised in this appeal by the appellant is a qualified YES.

The second issue for determination as set out by the parties addresses the same subject-matters; to wit the propriety of the admission of

(a) Exhibits A and as confessional statements, and

(b) the evidence of P.W.2 (stating what he heard) as a “dying declaration” and “res gestae”.

I will consider these two aspects separately. The first submission on the first aspect here is that these two statements of the appellant are not “confessions” because it has not been established that he made them. Whilst the recorder of the statements and P.W.9- Sgt. Emmanuel Ali, said they were interpreted to him from Ibibio into English (in which he recorded), P.W 10 – P.C. Okon Asuquo, testified on oath in contradiction that he interpreted from Efik into English to enable P.W 9 record the statements in English. Furthermore, the appellant is on record as testifying in Ibibio which is said to be his native and only language. Because of these contradictions it is urged that it cannot be true that the appellant thumb-impressed the statement (Exhibit D) as true. Appellant it is further submitted was therefore right to have challenged the correctness of the statement, in his oral evidence in court. His denial that he never said in his statement that he inflicted matchet cuts on the deceased; his evidence under cross-examination that he objected to some portions of the statement as read by the police and that it was never interpreted to him before he thumb-printed same; should therefore be taken as correct. Finally, that such statement cannot be considered in any sense as voluntary, having been imposed on the appellant by force. In answer, respondent has submitted that the two statements are voluntary confessions. On the language of translation, respondent has further submitted that once the appellant understands Ibibio, he also understands Efik because there is no difference between the two dialects. Ex facie, this submission cannot be accepted as correct. There is nothing on record that says so. The circumstances of the recording of the statement and a closer examination of the documents may however show that this submission is correct, and/or that it is irrelevant for a decision as to whether either or both statements are confessional. The first point in answer to appellant’s submissions on this issue is that the voluntary nature of the statements cannot now be open to any question because (a) they were not challenged at the correct time when this sub-issue should have been canvassed i.e. when the statements were sought to be tendered vide Okaroh v. State (1988) 3 NWLR. (Pt 81) 214.

If they were made under duress or otherwise involuntary, objection must then be raised to their admission. (b) both exhibits were specifically adopted by the appellant as part of his defence. The appellant in his examination-in-chief, inter alia, stated thus

“I am adopting Exhibits D and E as part of my defence in this case.

Some of the contents of Exhibit E were not what I said”

Under cross-examination, he repeated

“Except these portions of Exhibits D and E which I did not make,

I adopt Exhibits D and E as part of my defence”

He never said that he did not make the whole of those statements. What is more, Exhibit E was tendered in evidence by defence counsel in the course of cross-examination of a prosecution witness. In view of these facts it is no longer even open to the appellant to say he did not understand whatever language was spoken to him in translation, be it Ibibio or Efik, A reading of Exhibit E also shows that what he denied saying is less than five percent of the whole statement. Appellant has further submitted that Exhibits D and E do not pass the other test of a confession, which is “to ascertain-as much as possible its truth or otherwise.” This test must seek any other “evidence be it slight, of circumstances which made it probable that the confession was true” vide Kanu and Ors. v. The King (1952) 14 WACA 30; Paul Onochie and 7 ors. v. The Republic (1966) NMLR 307. It is surprising to read the submission that neither the High Court nor the Court of Appeal made any effort to conduct this test. Both courts cited the cases of Godwin Ikpasa v. Attorney-General of Bendel State (1981) 9 Sc. 7 and R v. Sykes 8 CAR. 233. In the latter case the test is stated thus

“…………………………… confession can always be tested as examined, first by the police and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true Is it corroborated Are the statements made in it, of fact, so far as we can test them, true Was the prisoner a man who had the opportunity of committing the murder Is his confession possible Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us

The trial court found corroborating evidence in the testimony of P.W 2, who he said “gave me the impression that he was a truthful witness.” He also relied on the evidence of other prosecution witnesses as to matchet cuts found on the deceased, which evidence is consistent with the statement credited to the accused in Exhibit D; and if I may add, are inconsistent with appellants’ evidence given in his defence of accidental “chisel” wounds. The appellant also admitted encountering the deceased who was riding on a motor-cycle that day; that they struggled (or fought) and in the process some injury drawing blood was inflicted on the deceased. These and many other pieces of evidence satisfy the test in R v. Sykes. They corroborate Exhibits D and E and show beyond any doubt that he had the opportunity of committing the murder. They show that the confessions must be true.

I now come to the second aspect of Issue 2, i.e. the propriety of the admission of part of the evidence of P.W. 2 as “a dying declaration” and/or fanning part of the “res gestae”. Once the evidence of P.W 2 is believed then there is no doubt that what he heard the deceased exclaim: to wit.

“Father of my mother. Akpan Adiata Oba Ikpa is killing me” constitutes a dying declaration by the deceased, and is also part of the res gestae and admissible in evidence. What the appellant has done in paragraphs 5.15, 5.16, 5.17 and 5.18 of his brief, is to attempt to discredit that evidence. In doing this he has set out various portions of it and slanted same to try to show that the testimony cannot possibly be true. I do not intend to follow him on that fruitless exercise. It is enough for me to say that I am not persuaded by that exercise to disturb the concurrent findings of the two courts below believing the evidence of P.W2 as true, as his efforts do not constitute exceptional circumstances to justify my so doing vide Duyile v. Ogunbanjo & sons Ltd.(1988)7 NWLR (pt.72) 601; Ajeigbe v. Odedina (1988) 1 NWLR (Pt. 72) 584 at 598 para. A. The relevant evidence of P.W 2 therefore constitutes both a dying declaration and part of the res gestae vide Sunday Akpan v. The State (1967) NMLR 185 The answer to the second issue as set out is therefore in the affirmative.

Under the third issue which is broadly stated, averring that the case against the appellant was not proved in law, the appellant has in his brief dealt with a motley of sub-issues. His first submission is to re-state that Exhibits D & E were wrongly held to be confessional statements and part of the evidence of P.W 2 also wrongly held to constitute a dying declaration and part of the res gestae. These have been considered earlier. Appellant proceeded to attack the swearing of the mbiam juju which he said was shown to have been based on a false allegation of armed robbery (that never was), and constituted a deliberate plan to implicate the appellant. It is indeed true that some of the witnesses had testified to being unaware that thieves had been visiting the town (and so to that extent the allegation may have been dubious), but the appellant did not succeed in his argument to show how this allegedly false allegation was a deliberate plan to implicate the appellant. Respondent’s counsel has countered, and I agree with, him, that however, false the story may be, the appellant by his own account and in compliance with the dictates of custom, had agreed to swear to the mbiam juju, and had gone to get money to enable him to pay to do so, before the tragic event took place. Appellant has further submitted that he is entitled to the defence of self-defence on the ground that the villagers were chasing him to lynch him and that his life was in great danger. The evil motive of the chase was in itself sufficient provocation. The learned trial Judge considered this defence on the basis of his findings on the evidence led and held that it has “no legs to stand on” and has “collapsed”. Respondents counsel has submitted that the concept of a mob attack is entirely false. Not only the villagers, but also the police, were interested only in arresting and questioning the appellant. As revealed by the evidence, a policeman was in fact at the back of the motorcycle riden by one of the prosecution witnesses, so as to effect a quick arrest. What is more at the point when the appellant wielded his matchet on the deceased, all he got from him were slaps to his cheek. I agree with the learned trial Judge that the evidence led, as believed by him, did not make available to the appellant the defence of self-defence. The mob-lynching story is obviously a non-starter. In any event, when the deceased met the appellant it was a one-to-one affair between them. There was no reasonable apprehension of death or grievous harm to justify inflicting matchet cuts in “self-defence”. His being chased offered no provocation but, even if it did, the retaliation was unwarranted and disproportionate to the provocation alleged offered. Appellant has again repeated his submission that the prosecution witnesses were tainted witnesses, and so their evidence was wrongly relied on. This submission was made in the court below where that court considered it in some detail and came to the conclusion that the prosecution witnesses could not be described as tainted witnesses. This court has considered this matter on several occasions and warned against the tendency to create special category of “tainted witnesses” vide Garba Mailayi & Ors. v. The State (1968) 1 All NLR 116 at 123. In Ishola v. The State (1978) 9/10 S.C. 81 at 100. it was held that this category must be confined to a witness “who is either an accomplice or by the evidence he gives (whether as witness for the prosecution or defence) may and could be regarded as having some purpose of his own to serve” (Note: Italics mine to replace sub-quotations).

Also vide Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 and Adetola and Ors. v. The State (1992) 4 NWLR (Pt.235) 267 (273). The prosecution witnesses were clearly not accomplices, or can it be said they had their own purpose to serve by testifying the way they did. The only purpose they appear to have is that of seeing that the facts of the events are given and justice done. The appellant has alleged that because the deceased died in P.W.2’s parlour it was in his interest to clear himself of any suspicion that would be cast on him. To do this, it is impliedly suggested, he gave false evidence against the appellant. Apart from this suggestion being contrary to the findings of the two courts below, it seems at best a very farfetched proposition, which I find incapable of belief. P.W.8 is said to have another interest of his own to serve i.e. to testify against the appellant so as “to exculpate himself from any entanglements in the offence the appellant was facing”, because appellant had mentioned him as the person who asked him to kill the deceased. If he had hired appellant to kill the deceased, why would he be the very one to raise a false alarm about the visit to his house of armed robbers at night, a false story designed it has been suggested by the appellant in his brief solely for the purpose of implicating the applicant in the murder of the deceased Furthermore, he denied hiring “the deceased to kill the accused and or vice-versa” and was one of those who testified that money was paid for the swearing of the Mbiam juju on the fateful day, a piece of evidence supporting the testimony of the appellant. There is therefore no substance in this submission. Finally, the appellant dealt with the non production of the medical report issued in this case, so as to believe appellant’s story that all that appellant inflicted on the deceased is a chisel wound. Here again, this sub-issue was canvassed in the two courts below, which found against the appellant. Regrettable as it is that medical evidence and/or medical report was not tendered by the prosecution. It was here not a pre-requisite for establishing the cause of death. As I said in Adetola and Ors. v. The State (supra)

“In a case of homicide it is incumbent on the prosecution to prove cause of death, and it can do so either by direct evidence or circumstantial evidence that creates no room for doubt or speculation vide R. v. Oledinma (1940) 6 WACA 202: Uyo v. Attorney-General of Bendel State (1986) 1 NWLR (Pt.17) 418 (426); Gabriel v. The State (1989) 5 NWLR (Pt.122) 457”

In that case, as in this, there is ample direct evidence of the nature of wounds inflicted, on the believed evidence, by the appellant, which ended with collapse and death of the deceased in the house (sitting room) of P.W.2. As to the submission that the learned trial Judge should have visited the locus in quo so as to ascertain whether P.W.2 was able to hear and see what he testified to, there is no ground of appeal covering this submission, which therefore cannot be entertained. Suffice it to say in addition, that neither party invited the court to conduct such a visit. That disposes of the third issue, the answer to which is therefore that the case against the appellant was proved according to law.

All the issues canvassed having been decided against the appellant, this appeal must be and is hereby dismissed. The judgment of the court below is also hereby affirmed.

Other Citation: (1992) LCN/2513(SC)