President Court of Appeal, Justice Zainab Bulkachuwa

In the Court of Appeal
Friday, May 15, 2015
Suit number: CA/AK/45C/2013
THE STATE………………….. Respondent
(JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Ondo State High Court Akure Judicial Division delivered on 7th March, 2011.
The Appellant was charged with the offence of murder contrary to the Section 319 of the Criminal Code Cap 30 Vol. 11 Laws of Ondo State 1978.

The prosecution witnesses (PW1 and 2) were told that the Appellant was related to the murder of one John also called Teacher. PW2 and others went and took the said John to the State Specialist Hospital Akure where the Doctor confirmed him dead.

The Appellant in a statement made at the Police Station, Idanre said it was one Olu that killed the late John. In a later statement made at state C.I.D, Police headquarters admitted after a trial within trial that the Appellant admitted to the killing. In court, the Appellant maintained the story in the first statement that it was Olu that stabbed Teacher.

After hearing evidence and considering the addresses of learned counsel for both parties, the lower court in a considered judgment found the Appellant guilty of the lesser offence of manslaughter, convicted and sentenced him to a prison term of ten (10) years.

ISSUE: “Whether the Trial Judge was right to have relied on Exhibit B, that is, the Confessional Statement of the Appellant to ground a conviction of Manslaughter against the Appellant”

Under our constitution, an accused person is presumed innocent until the contrary is proved. The onus of proof is on the prosecution and does not shift. It is for the prosecution to establish the guilt of the accused person beyond reasonable doubt. Even where an accused person admitted to the police the commission of the offence in his statement, the prosecution is not relieved of the burden. However, proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. See Igabele v. State (2006) 6 NWLR (Pt. 975) 100.
Manslaughter for which the Appellant was convicted is defined in Section 317 of the Criminal Code as follows: “A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter.”

Section 308 of the Criminal Code defines “killing” as follows: “Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatsoever is deemed to have killed that other person.”
It is clear from the evidence before the court that the death of one John alias Teacher was established. See Exhibit 1D4, a “Report of Medical Practitioner” on the deceased John alias Teacher who died as a result of a stab wound on the neck.

Did the appellant kill the deceased? I agree entirely with learned counsel for the Appellant that the evidence of PW1 and PW2, the only prosecution witnesses was hearsay. They were told that the Appellant was related to the death of the deceased. In the absence of any other evidence, it is not surprising that it was to Exhibit B that the Prosecution and the court relied on solely in proof of the killing by the Appellant. As far as the prosecution was concerned and the court accepted Exhibit B as such, it was a confessional statement.

A confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. See Gira v. State (1996) 4 NWLR (Pt. 443) 375. There is no evidence stronger than a persons own admission or confession. Although an accused person can be convicted solely on his confessional statement it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Dibie v. State (2007) 9 NWLR (Pt. 1038) 30. A free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without corroborative evidence so long as the court is satisfied with its truth. See: NWAEZE v. STATE (1996) 2 NWLR (Pt. 428) 1.
Learned counsel for the Appellant submitted that the lower court did not make a finding as to whether or not the statement of the Appellant Exhibit B was voluntarily made.

When the statement was being tendered in evidence the Appellant’s counsel objected because the Appellant said he could not read or write in English and that he was “tortured and forced”. In his evidence at the trial within trial, the Appellant stated that he had earlier made a statement at the Olofin police station, Idanre. He further stated thus:

“When I explained to them at SIB they said I was lying. I was beaten. I denied that I fought with Teacher. I was brought out of the cell at 2am and beaten; they threatened to kill me. I was asked to endorsed a statement which was already written. I cannot read or write. A statement was written when I got to the station and yet another was written which I was forced to sign.”

It is clear from the foregoing that the Appellant was saying that he did not make the statement but that he was forced to sign. In other words, he denied ever making the statement. In the circumstances, the statement was admissible in evidence. If it was admitted the lower court would at the end determine if the Appellant made it and if it so holds to assess the probative value of the evidence therein. If however, the Appellant had admitted making the statement but went further to allege that he made it under duress or any form of inducement or promise, the statement would have been inadmissible, unless a trial within trial was conducted to test the voluntariness or otherwise of the statement and not its truthfulness. See Saidu v. State (1982) 4 SC 41.

In my view, Exhibit B was admissible because the Appellant denied making it. It was not admissible for the reasons stated by the lower court in its ruling one of which is contained at page 20 of the record of appeal being the truthfulness of the statement. This is what the lower court stated:

“I am satisfied with the truth of the statement sought to be tendered in evidence and I hereby admit it as Exhibit B.”
The lower court was also wrong in testing the statement in its ruling on the admissibility or otherwise of the statement in evidence. That test was to have been done as shown earlier in this judgment at the end after the hearing and addresses of learned counsel and at judgment stage where the court would have first determined if the Appellant made the statement and then assess its probative worth or value.

It is instructive to note that the Appellant made two statements to the police. On the 3rd December, 2005 at Olofin Police Station, Idanre the Appellant made a statement (Exhibit A) which the prosecution did not tender. However, it was tendered through PW1 under cross-examination. In this statement which the Appellant made at the earliest opportunity, he said that it was one Olu who stabbed the deceased with a broken bottle. Exhibit A reproduced in part immediately hereunder reads as follows:

“On 2nd Dec. 2005 at (about) between 9:00-10:00p.m, myself and Olu were coming from the house of one man called NEPA. Mainwhile, Olu (now at large) and the deceased known as Teacher had quarrelled earlier on that very day. As Olu saw the deceased coming towards the front of Aina’s house, who is a beer seller, Olu broke the bottle of beer he was drinking and used it to stab the deceased. After stabing the deceased, Olu ran away. The deceased was shouting that (Christopher) “Friday you have killed me, Friday you have killed me. This was because the deceased does not know Olu’s name. Aina is a beer seller at Aponmu Okemaye. I am not the person that stabbed the deceased. The deceased by name Teacher is my friend. We have known for the past 8 months.”

Exhibit B relied heavily upon as evidence on which the Appellant was convicted reproduced extensively immediately hereunder reads as follows:

“On 2nd December, 2005 at about between 9.00p.m. (and) 10.00p.m. I came back from Owena where I go to brush some cocoa plantations for one man called Party. When I came back, I went straight to Mama Aina beer palour, myself and Olumide were sitting outside the beer palour/house. Olumide requested for two bottles of 33 beer and I took one bottle of 33 beer. When Teacher came out from NEPA’s house and called me, I told him that he should leave me but he came to me where I was drinking and touched my head and I swear for him.

Teacher now pushed me and I took the 33 empty bottle and stabbed (sic) him at neck. Teacher now shouted that Friday has killed me I know Teacher has dead. I do not know the original name of Teacher Aina sold the drinks for myself and Olumide. Actually I took some palm wine from one party at Owena in Owena we were up to seven people that drank palm wine at Owena. Olumide is a Yoruba boy and he is my friend he was the only one who witness the fight. Stephen was inside the mama Aina house he did not witness the fight. Immediately Aina gave the drinks she left us outside where we sat on one bench. I did not know anything about dog meat and there was no fight on dog meat. I know I stabbed (sic) Teacher. Aina did not know I was drunk. But I knew in me that I was drunk. I killed Teacher.”
How did the lower court handle the above pieces of evidence? At page 41 of the record of appeal the lower court stated thus: “Learned counsel for the defence has made a heavy weather of the

statements of the accused exhibits A and B, I have gone through the statement in the course of writing this judgment. Exhibit B seem (sic) more probable to me than exhibit A …..”It is trite law that contradictions in the evidence adduced by the prosecution on material issues must be resolved in favour of the accused person. See Igbo v. State (1975) 11 SC 129, State v. Emine &
Ors (1992) NWLR (Pt. 256) 628 and Ononuju v. State (2013) 6 SCNJ 458. It is crystal clear from Exhibits A and B that there were material contradictions in the evidence of the prosecution and the lower court was not entitled to prefer one of the exhibits as against the other.
The two exhibits were violently contradictory. In Exhibit B the Appellant was damnified while Exhibit A was exculpatory. The unanswered question on the available evidence still is who stabbed the deceased? It was not for the court to pick and choose from either Exhibits A and B who stabbed the deceased.

The case of R v. Itule (1961) ALL NLR 462 relied upon by the learned counsel for the Respondent is not applicable to this case. The Appellant at the earliest opportunity told the police in Exhibit A that it was one Olu who stabbed the deceased. In that statement the
Appellant said it was one Olu that stabbed the deceased. There is no evidence the police bothered to look for the said Olu. From what PW1 said under cross-examination they did not look for the said Olu.
The lower court had taken into consideration the failure of the Respondents to investigate the contents of Exhibit A it would have been slow to find that it was the Appellant that stabbed the deceased. It is also instructive to note that the Appellant in his defence in court maintained that it was Olu that stabbed the deceased. It was not enough for the police to merely claim that they were not sure if Olu was with the others at the time of the incident when none of the people who was there was called to testify. There was therefore no basis for the PW1 saying that he was not sure if Olu was at the scene.

PW1 himself was not there. Investigation is a very serious undertaking and should not be taken with the levity with which the police investigated this case. The police should also not find ready company in the courts. Evidence of any crime particularly serious crimes of this nature should be meticulously scrutinized by the courts before finding accused persons guilty at the slightest opportunity.
As no evidence was led by the prosecution to prove that it was the Appellant and not Olu that stabbed the deceased, the Respondent in my view failed to prove, not only the offence of murder for which the Appellant was charged but also the offence of manslaughter for which he was convicted and sentenced to 10 years imprisonment.
In my view the lone issue formulated by the Respondent should be resolved in favour of the Appellant. I accordingly resolve it in favour of the Appellant.
The conviction and sentence of the Appellant are hereby quashed by me and the Appellant discharged and acquitted.

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