Sunday Effiong V. The State (1998)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C

The appellant was on 27-9-83 convicted at the High Court of Borno State holden at Borno and sentenced to death by hanging under section 221 (b) of the Penal Code for causing the death of Police Constable Isaac Onoh on or about 23-6-82 at Tandari Ward, Borno by stabbing the said Isaac Onoh on the stomach with knowledge that death would be the probable consequence of his act.

He appealed against his conviction and sentence to the Court of Appeal and that court on 4-12-95 dismissed his appeal and affirmed the conviction and the sentence of death imposed on him by the learned trial Judge. He was not satisfied with the decision of the court below and appealed to this court. Nine grounds of appeal were filed on behalf of the appellant and from the grounds of appeal, only one main issue was identified in paragraph two of the appellant’s brief of argument filed on 19-1€¢ 97 as arising for determination in the appeal. It reads:

“The appellant respectively submits that there is only one major issue for determination by this honourable court. The major issue is whether the lower court was right when it held that the guilt of the appellant had been proved beyond reasonable doubt. This issue is related to all the grounds of appeal filed and it encompasses all other minor issues which call for determination.”

The following five issues were formulated in the respondent’s brief:

“(1) Was the appellant herein entitled to any of the defences having regard to the evidence on record

(2) Whether the Court of Appeal was right in holding that the prosecution had proved its case as required by law

(3) Was the lower court right in holding that Exhibits ‘A’ and ‘C’ were properly admitted and proved to sustain the conviction and sentence of the appellant by the trial court

(4) Whether the findings of the courts were amply supported by the evidence on record.

(5) Whether the trial court had jurisdiction to entertain the appellants (sic) case.”

I will consider this appeal strictly on the singular issue submitted and argued in the appellant’s brief of argument. If any ground of appeal was not covered by the issue formulated, that ground of appeal is deemed abandoned by the appellant and it is not open to the respondent to raise an issue from a ground of appeal which the appellant had abandoned. The appellant’s fourth ground of appeal was not argued by the appellant in his brief and it was not proper for the respondent to formulate an issue in respect of such a ground of appeal which the appellant for reasons best known to him decided not to argue. This comment is necessitated by the respondent’s fifth issue for determination. I will therefore ignore it.

The brief facts of the case were that on 23-6-82, P.W.2 (Police Corporal Salmanze Bwah) and the deceased (Police Constable Issac Onoh) were sent to Tandari Ward in Borno town to effect the arrest of the appellant who was suspected to have taken part in various house breaking complaints. The deceased went before P.W.2 to Tandari Ward. Later, P.W.2 met the deceased and the appellant at Peace and Charity Hotel in Tandari Ward. He joined them. After greeting the appellant, P.W.2 introduced himself to the appellant and told him that he was under arrest. When the appellant wanted to know the reason for his arrest, P.W.2 told him and wanted to handcuff the appellant two requested P.W.2 not to disgrace him as he was ready to follow P.W.2. The deceased pleaded with P.W.2 not to handcuff the appellant. He agreed and held the appellant by the shirt and they left for the police station. The appellant twice requested to be allowed to ease himself as they were going to the police station and on each occasion, the deceased pleaded with P.W.2 to allow the appellant to ease himself when P.W.2 was not willing to accede to the request. It was about 9.30 p.m. when the appellant urinated second time and after this, he asked in Hausa whether P.W.2 was going to leave him or not. He then pulled out a long knife tied to his right leg. The appellant stabbed P.W.2 on the left chest and both of them wrestled for the knife. The appellant directed the knife towards the deceased and stabbed him on the stomach and he fell down. The appellant stabbed P.W.2 again in the neck and P.W.3 (Police Constable John Ginde) who rushed to the scene was also stabbed by the appellant. The appellant stabbed P.W.2 for the third time as the witness was still holding him. At that juncture P.W.2 lost grip of the appellant. Police Constable Isaac Onoh died on the spot. P.W.2 ran to the police station and reported the incident and he was taken to the hospital where he was admitted and treated.

At the hearing of the appeal on 5-3-98, Gadzama, Esq. learned appellant’s counsel adopted the brief of argument filed on behalf of the appellant on 19-11-97. He relied on the arguments contained therein and urged us to allow the appeal. It was submitted in the brief that apart from P.W.1 (Dr. Nicholas Prekkop) who is a medical doctor, the remaining four prosecution witnesses belong to the same calling or occupation as the deceased and would naturally have sympathy over the death of their colleague as against the appellant who was alleged to have caused the death. It was his submission that they are tainted witnesses whose objective was to retaliate the death of their deceased colleague. Learned counsel referred the court to the cases of Okoro v. The State (1988)5 NWLR (Pt. 94) 255 at 274, Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615 at 617 and Ukut & ors v. The State (1966) NMLR 18.

It was submitted in the respondent’s brief that P.W.2, P.W.3, P.W.4 and P.W.6 were not tainted witnesses. Rather P.W.2 and P.W.3 were victims of the appellant’s brutal attack and that they testified as to what actually took place and their testimony was corroborated by the appellant’s confessional statement (Exhibit “C”).

A tainted witness is one who is either an accomplice or, by the evidence he gives (whether as a witness for the prosecution or defence), may and could be regarded as having some purpose of his own to serve. I am of the view that there is nothing in the evidence of those witnesses upon which they can be regarded as accomplices or as people having some purposes of their own to serve.

It was also submitted that sufficient and convincing evidence of a qualified and experienced medical doctor who conducted the autopsy is a ” sine qua non” to secure a conviction for culpable homicide punishable with death and that P.W.1 was not qualified and experienced enough to have conducted the autopsy since from his evidence his duties mainly entailed consultation in matters of internal diseases and occasionally performing post mortem examinations.

It was contended in the brief that there was no nexus between the appellant and the cause of death of Police Constable Isaac Onoh. The following reasons were advanced to fault the decision of the courts below:

(a) that P.W.1 in his report Exhibit “”A” asserted that the deceased died as a result of a puncture of the heart and bleeding from the heart whereas P.W.2 and P.W.3 testified that the deceased was stabbed on the stomach and that the heart and the stomach are two distinct parts of the human body;

(b) that no link was established between the cause of death and the appellant;

(c) that there are contradictions as to the date of the incident when it was stated in the charge that the offence was committed on 23-682 while P.W.2, P.W.3 and P.W.6testified that the deceased was murdered on 22-10-82 and P.W.5 stated that he heard the alarm on the night of 23-8-82; and

(d) that the sex of the victim was not in evidence and there was no evidence that the body was identified before the autopsy was conducted.

In this case, medical evidence of the cause of death and the identification of the body to the P.W.1 who performed the authopsy are not essential. There were facts which sufficiently showed the cause of death to the satisfaction of the court. There was the evidence of P.W.2 and P.W.3 to the effect that the appellant stabbed the deceased. he fell on the ground and died on the spot. The learned trial Judge believed them. There is here abundant evidence as to the circumstances leading to the manner of death. The learned trial Judge had this to say about the medical evidence:

“Even if the doctor did not testify as to the cause of the death and there is no medical certificate indicating the course (sic) of death, this court can still infer the cause of death from the circumstances from the fact that on being stabbed in the abdomen P.C. Isaac Onah (sic) draped (sic) dead instantly on the spot that the cause of the death is the stab wound inflicted by the accused to the body of the deceased,”

The court below in affirming the above finding said:

“After a calm view and due consideration of all the evidence adduced before the trial court and the law, I am satisfied that the appellant is inexorably fixed with the acts which resulted in the said injury or harm to wit- stab wound with a lethal weapon on the stomach or abdomen of the deceased from which injury or harm the deceased Police Constable Isaac Onoh died on the spot. There is undisputed credible, accepted evidence, that the deceased died on the spot at Tandari immediately as a result of unprovoked attack and stab wound on the stomach by the appellant on 23-6-82.”

Without the medical evidence and the medical report (Exhibit A), the cause of death of Police Constable Isaac Onoh was established unequivocally by the prosecution. On the confessional statement (Exhibit “C”), it was contended in the appellant’s brief that the statement was not voluntary and should be disregarded. Learned counsel referred the court to (he evidence of the appellant where he testified that he was forced to sign series of paper and that they were not read to him. The appellant in his evidence in court retracted the confession contained in Exhibit “C”.

The learned appellant’s counsel also submitted that if the evidence of P.W.6 who recorded Exhibit “C’ and that of the appellant are weighed, the latter weighs heavier and therefore, the appellant should have been given the benefit or doubt and the confessional statement disregarded. We were referred to section 28 of the Evidence Act and the case of Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 363 at 432. Counsel made an alternative submission that if this court comes to the conclusion that the appellant caused the death of the deceased, then the defence of provocation availed him. On the issue of the voluntariness of Exhibit “C”, it must be remembered that when P.W.6 sought to tender the appellant’s statement (Exhibit “C”), the defence raised no objection to its admission in evidence. At the close of the examination-in-chief of P.W.6, the witness was not cross-examined by Mr. Lawan who appeared for the appellant. In fact, he told the court that he had no objection to the statement being received in evidence. When called upon to cross-examine P.W.6, it was recorded that he had no questions for the witness and the prosecution closed its case. The practice in trial courts has been for an accused person who denies the voluntariness of his extra-judicial statement made to the police, to object to the statement when the prosecution seeks to tender it in evidence. When this is done at that stage, the court proceeds to test the voluntariness of such a statement by conducting a trial within trial on the admissibility of the statement and the onus is on the prosecution to prove that it was free and voluntary and it is the prosecution who should begin. See Auta v. The State (1975) 4 SC 125 and Gbadamosi & ors v. The State (1992) 9 NWLR (Pt. 266) 465 at 480. Exhibit “C” was therefore properly admitted as its voluntariness was not objected to at the appropriate time. There was no irregularity in its admission as confessional statement and the learned trial Judge rightly admitted and treated it as confessional statement. Its contents left no one in doubt as to the implication of the appellant in the offence charged. In this case I am satisfied that Exhibit “C” was a free and voluntary confession of guilt by the appellant and was fully consistent in itself. This inculpating statement was corroborated by the evidence of the prosecution witnesses which showed that the confession was true. See Kanu & ors v. The King (1952)14 WACA 30.

In Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination before a magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence so long as the court is satisfied of the truth of the confession. See Edet Obosi v. The State (1965) NMLR 119. It is however desirable to have outside the confession to the police, some evidence no matter how slight of the circumstances which make it probable that the confession was true. See Onochie & ors. v. The Republic (1966) NMLR 307 and Yesufu v. The State (1976) 6 SC 167 at 173.

A single witness, if believed by the court, can establish a criminal case even if it is a murder charge. See Alonge v. Inspector-General of Police 4 FSC 203; (1959) SCNLR 516: Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538 at 552. In this case, the learned trial Judge could have convicted the appellant on the evidence of P.W.2 and P.W.3 without the extra-judicial statement (Exhibit “C”).

I entirely agree with the finding of the court below on the voluntariness of Exhibit “C”. The court said:

“I have carefully considered all the points and the law raised and applicable to issue (2).

I am satisfied, that:-

(a) the confessional statement Exhibit “A” (sic) was voluntarily, freely made without any duress. threat, promise or inducement;

(b) that there was complete compliance with the Judge’s Rules in relation to the confessional statement;

(c) that the evidence of P.W.2 and P.W.3 corroborate, in every material fact, the voluntary confessional statement Exhibit “A” (sic), made by the appellant;

(d) that the appellant could be convicted on the evidence of P.W.2 and P.W.3 without the confessional statement of the appellant Exhibit ‘A’ (sic) and

(e) that the court could also have convicted the appellant on his confessional statement Exhibit “A” (sic) which is nevertheless corroborated by the evidence of P.W.2 and P.W.3;

(f) that the appdlant was represented by counsel who did not cross-examined (sic) P,W.6 at all or on Exhibit “A” (sic);”

As a result of my conclusion in respect of Exhibit “C”, it is not necessary for me to consider the alternative submission of whether or not the defence of provocation availed the appellant. The discrepancy in the evidence of P.W.5 on the one hand and those of P.W.2., P. W.3 and P.W.6 on the other as to the date the offence was committed did not materially affect the prosecution’s case. P.W.5 testified that an alarm was raised on 23-8-82 at Bama Police Station and the appellant was declared a wanted person and was arrested on 24-8-82 whereas the other witnesses testified that the offence was committed on 23-6-82 and the appellant arrested on 24-6-82. It was no more than a mere slip and the appellant was not in any way misled by it.

I entertain no doubt in my mind that the prosecution proved the charge against the appellant beyond reasonable doubt and he was rightly convicted. See Onafowokan v. The State, supra. In the result, I find no merits in the appeal and it is dismissed. The conviction and sentence imposed on the appellant are hereby affirmed.

SC.144/1997