➥ CASE SUMMARY OF:
Emmanuel Ayo V. The State (CA/AK/220C/2013, 17 Oct 2014)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Manslaughter;
Confessional statement;
Relevant evidence;
Manufactured evidence.
➥ CASE FACT/HISTORY
The case of the respondent at the Lower Court was that the Chief of Ode-Igele via Ita-Ogbolu reported to the police that the youth of his community found that where the appellant and his colleagues were living, they were fighting. The police went to where the chief said the fight was going on. On reaching the place, the police met the appellant. There was a corpse wrapped in a sack beside the appellant. The appellant was trying to bury it. Those that were with the appellant ran away when they saw the police. Then the appellant was arrested. The appellant had a cutlass with him. The appellant was asked to identify the corpse. The appellant said it was the body of Ifeanyi who was his colleague. The police took the appellant to the police station with the remains of the said Ifeanyi. There the police took the picture of the appellant with the corpse beside him. The photographer used a digital camera to take the photograph. The photographer was not found at the time the trial commenced, so the photographs were tendered through Corporal Obuo Samuel (PW2), admitted and marked Exhibits A and A1. The statement which the appellant purportedly made to the PW2 was admitted in evidence by the Court after a trial within trial but not marked. When the appellant was transferred from Iju/Ita-Ogbolu Divisional Headquarters to the state C.I.D. Homicide section Akure, the police there took him to the scene of crime. The statement which the appellant purportedly made at the C.I.D. Homicide Section was rejected by the Lower Court after a trial-within-trial on the ground that it was not voluntarily made. The photographs which the police at the C.I.D. Homicide Section claimed to have taken at the scene of the crime were tendered only for identification purpose and were marked ID1, ID2 and ID3.
The defence of the appellant in court was that he was returning from work. On his way from where he had gone to work as a labourer, the police arrested him. He asked the police why he was arrested. The police said that someone was killed in the bush. The appellant said he did not know anything about it. He was taken to the police station. On getting there he saw a corpse on the ground. He was given a cutlass and placed by the side of the corpse and his photograph with the corpse was taken. He was later taken to police headquarters and then to the Court. After hearing evidence of the two witnesses called by the respondent and the defence of the appellant who testified alone in that regard, the Lower Court convicted the appellant for manslaughter and conspiracy and sentenced him to seven years imprisonment with hard labour.
Dissatisfied with the conviction and sentence the appellant has approached this Court by way of appeal.
➥ ISSUE(S)
I. Whether or not the prosecution proved the essential ingredients of the offence of manslaughter beyond reasonable doubt against the appellant?
➥ RESOLUTION(S) OF ISSUES
[APPEAL SUCCEEDS]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[PW1 AND PW2 EVIDENCE WAS HEARSAY
‘In the instant case the only witnesses called by the respondent were two police officers. PW2 who with others purportedly arrested the appellant at the scene said that when they got there, the appellant told them what happened. PW1, who purportedly went to the scene after the appellant had been transferred to the CID Homicide Section from the Divisional Office, said that the corpse had been removed to the mortuary before he visited. It is clear as crystal therefore that the evidence of the two respondents’ witnesses was hearsay. Where the only eyewitness to a crime is the accused alone whatever any other witness would testify to as to the unlawful act is hearsay. See Ahmed v. State (1999) 7 NWC (Pt. 612) 641.’
THE EVIDENCE OF THE POLICE WERE MANUFACTURED
‘In his evidence, the PW2 said that when they got to the scene, the appellant was trying to bury the corpse. On what evidence did he draw this conclusion? On the available evidence before the Court there was no such evidence other than that he PW2 said so. Although the police took photographs of the appellant stooping with a cutlass beside the corpse and also attempting to lift the corpse’s head at the police station, the photograph of the place the appellant was trying to bury the corpse was not taken. So the allegation that the appellant was trying to bury the corpse when the police arrived is without any basis. Why were the photographs of the appellant taken at the police station with the corpse beside him and a cutlass in hand and even getting him to try to lift the corpse from the head or lift the head only? In my view, it was an attempt to manufacture evidence. No police station should be turned into a factory for the manufacturing of evidence. Where a crime is alleged to have been committed, the police have a duty to thoroughly and intelligently investigate it with a view to bringing the perpetrators of the crime to justice. The photographs Exhibits A and A1 were a mockery to put it mildly and the Lower Court ought not to have relied on them.’
THE CONFESSIONAL STATEMENT WAS FALSE
‘Once the police have extracted what it considers a confessional statement from an accused person, it does not usually see the need to conduct further investigation into the matter. Even where it purportedly has other evidence available to it without much effort on its part such evidence is never made available at the trial. Or how else would one explain the failure of the respondent to tender the sack which the PW2 said they found the corpse inside. Although the police anxiously took the photograph of the appellant at the police station holding a cutlass as if it was then he was about to cut the deceased, the said cutlass was not tendered in evidence. The only explanation for the failure to tender these exhibits would only be found in the purported confessional statement extracted from the appellant.’
THE APPELLANT COUNSEL WAS NOT GIVEN OPPORTUNITY TO CROSS-EXAMINE THE PROSECUTION WITNESSES ON THE CONFESSIONAL STATEMENT
‘However as the ruling admitting the extra-judicial statement was delivered after the close of cases of both parties, learned counsel for the appellant was in my view prevented from cross-examining the PW2 through whom it was tendered on it. This undoubtedly touched on the appellant’s right to fair hearing. In the circumstance, the lower court deprived the appellant of his right to fair hearing by relying on a statement which the appellant’s counsel did not have the benefit of cross-examining on. This is my view vitiated the trial.’
NO EVIDENCE TO SUPPORT THE CONVICTION
‘It is surprising that none of the boys who purportedly reported to the chief that there was a fight was called to testify to this fact and where the fight was going on. It is surprising also that the police was able to go there without any aid. I have earlier stated that although they purportedly found the corpse in a sack, that sack was not tendered in Court. Even the cutlass which they purportedly found on the appellant was not tendered in court. Why would all this evidence be produced when there was “a confessional statement? If the lower court had properly asked the questions which it said it did, it would have discovered that there was nothing outside the confession which showed that it was true. That it was not corroborated. That it was not consistent with other facts which have been ascertained and have been proved. That this was another case that cried out to be fed with evidence, relevant evidence.’]
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✓ DECISION:
‘From all that I have stated above the only issue for resolution should be resolved in favour of the appellant: I accordingly do so. The appeal is allowed, the conviction and sentence of the appellant are hereby quashed.’
➥ FURTHER DICTA:
⦿ ESTABLISHING MANSLAUGHTER
In establishing the offence of manslaughter, it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused, some harm to the deceased, which harm caused his death. See Egbirika v. The State (2014) 1 SCNJ 255 at 255 280. The death must be caused by the unlawful act of the accused person. It must be proved not merely that the act of the accused person could have caused the death of the deceased but that it did. See Agugo v. The State (2007) 2 NCC 30 and R v. Oledinma (1940) 2 WACA 202. — J. S. Abiriyi JCA.
⦿ EXHIBIT TENDERED BUT NOT MARKED IS PROPER UNLESS IT OCCASIONS A MISCARRIAGE OF JUSTICE
Let me quickly dispose of the omission to mark the statement. In my view the failure to mark the extra-judicial statement was a procedural slip and did not occasion a miscarriage of justice. The use of the extra-judicial state or reliance on it by the lower court did not occasion a miscarriage of justice either. On the basis of the procedural slip. It did not matter that he referred to it as Exhibit B even though that was unnecessary. He could very well have merely referred to it as the extra-judicial statement or merely the statement of the accused person instead of the rather dishonest reference to it as Exhibit B when it was never so marked. — J. S. Abiriyi JCA.
⦿ CONSPIRACY IS AN AGREEMENT REACHED AMONG TWO OR MORE PERSONS
If conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do, as the law says, then I cannot find conspiracy between the appellant and the two others. Although it turned out that they beat the deceased that was not an agreement reached among them. They merely went to ask the deceased if he was the person who stole from their master’s store. In my view therefore the appellant was wrongly convicted of conspiracy. — J. S. Abiriyi JCA.
⦿ EVIDENCE TO SUPPORT A CONVICTION MUST NOT CREATE ROOM FOR SPECULATION
On the conviction for manslaughter what did the appellant say in the extrajudicial statement to be entitled to the conviction and sentence for manslaughter. This is what he said in part: “… we started beating him with matchet from Ukemmadu hurt (sic) to our hurt (sic). On getting to our hurt (sic) the deceased Ifeanyi (M) doesn’t want to confess we tied him with wrope (sic) on two arm and his two legs then we continue beating him till he collapse we tried to rescue him all effort to do so proved abortive but Glory (M) cut the deceased with matchet on his head.” From the foregoing extract from the extra-judicial statement, was it the beating that caused the death? Was it the cut from Glory? Was it both the beating and the cut? Evidence to support a conviction must not create room for speculation. See Anekwe v. State (2014) 10 NWLR (Pt. 1415) 353 at 379. — J. S. Abiriyi JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
James Shehu Abiriyi, JCA
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
