⦿ CASE SUMMARY OF:
Ijekpa Obasi v. The State (2014) – SC
⦿ LITE HOLDING
Evidence which is unassailed is enough to convict an Appellant.
⦿AREA OF LAW
– Criminal Law.
– Confessional statement.
(2014) JELR 36344 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
ITA GEORGE MBABA, JCA
* FOR THE APPELLANT
– Anaga Kalu Anaga Esq.
* FOR THE RESPONDENT
– Chief Umeh Kalu.
⦿ FACT (as relating to the issues)
This is an appeal against the decision of Abia State High Court in charge No. HOH/2C/2004, delivered on 14/1/2011 by Hon. Justice K.C. Nwankpa, wherein the trial Court convicted the Appellant and one other of the offence of murder, contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol.11, Laws of Eastern Nigeria, 1963, applicable to Abia State.
Appellant was sentenced to death by hanging. At the Court below, Appellant was charged, along with one other; for killing one Agbaeze Kalu Ukariwo and one Itum Kalu Okoroafor on 22nd September, 2003, at Amogudu Abiriba Ohafia Judicial Division, all contrary to Section 319(1) of the Criminal Code, Cap 30 Vol. 11 Laws of Eastern Nigeria 1963, applicable in Abia State.
They were also charged for conspiracy to commit the murder contrary to Section 516(A) of the said Criminal Code, which was later withdrawn. Appellant (as accused person) pleaded not guilty to the charge on 24/1/2008 when the trial commenced, de-novo.
The prosecution called four (4) witnesses to prove the charge. The Appellant testified on his behalf and called no witness. At the end of the trial, Counsel filed written addresses. The trial Court in a considered judgment, convicted the Appellant and his co-accussed for the murder of Agbaeze Kalu Ukariwo, but discharged and acquitted them in respect of Itum Kalu Okoroafor.
This is an appeal by the Appellant.
1. Was the trial judge right in relying on the evidence of PW1, PW2 and PW3 as well as on the confessional statements of the Appellant (Exhibits D and F) to convict the Appellant of murder?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 IS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In this case, PW2 and PW3 were adjudged eye witnesses of how Agbaeze Kalu Ukariwo was chased by rhe Appellant and the other 4 youths (including the 2nd accused) and finally shot and killed. The PW3 (Kalu Oji), in particular gave some gory detail of what happened on page 96-97 of the Records of Appeal:
“On 22/9/2003 I was in the provision store of one Madam Ure. The store is located opposite my own house. . . I saw one pick-up van that was packed at the back of the provision store… While I was still at Ure’s provision store, I saw one Oji Ifigbo of Umueso Abiriba. He asked the whereabouts of the person that parked the pick-up vehicle there… I observed the way he was behaving and that made me to ask him whether something was wrong. He said there was something wrong and I wanted to know what was that; he told me that he met the accused persons and 3 others at the palace of Enachioken where they were holding meeting. That they dismissed and agreed to kill the following persons: (i) Kalu Agbaeze (ii) Itum Okoroafor and (iii) Ekuma Obuagu. He told me to convey the information to the owner of the pick-up van. No long after, the owner of the pick-up van appeared and he is Ekuma Obuagu. I accordingly conveyed the information to him. He got into his pick-up van and drove away. Thereafter, I bought what I went to buy from the provision store and went back to my house. I remained in my house up to 1:30pm and while carrying my baby, I saw the accused persons with three other persons together and they were holding guns and matches and cadges (sic). They tied red ribbon around their heads. It was then I got to know that they were pursuing Kalu Agbaeze and I did not know that Agbaeze had already run into our compound. When realised the information I was given about the plans of the accused persons, I rushed out of the compound to Ure’s provision store and stood … When the accused persons and three others got into our compound, it appeared they saw Kalu Agbaeze there and noticed that Kalu Agbaeze was trying to escape from the compound through a dwarf wall he was climbing. But the accused and three others shot Kalu Agbaeze at the back of the shoulder near the spinal cord. The impact of the gun shot threw him out off the road and he fell down there. I saw the two accused persons and the three others when they came out from our compound to the spot Kalu Agbaeze was lying and they beat some part of his body with their hammer before finally carrying the body and moved away… I made statement to the police…”
Under cross examination, PW3 said he knew the accused persons very well before the day of the incident; that all the five assailants were armed with guns, machetes and hammers at the time of the attack; that they were facing the direction he was standing, when they shot Kalu Agbaeze; that he did not run away when the gun shot went out, though some people ran away. Her statement to the Police was admitted as Exhibit C. I think that evidence remained unassailed, even when PW3 admitted he did not mention the names of the accused persons to the Police at the time he made Exhibit C, and that was because he did not know their names then, though he knew them, physically.
ii. On the issue that none of the witnesses clearly identified who, among the accused and the other 3 assailants, actually shot the gun that stopped Agbaeze, I do not think that mattered, at all, as there was sufficient evidence that each of them was armed with gun, matchet and hammer and they had met to agree to kill Agbaeze and the other 2 persons, and they were all chasing Agbaeze to kill, and shot him, and when he fell, they all beat even the fallen body and carried it away! They acted in concert to attain their objective and each of them was jointly responsible for the cause of the act that snuff off the life of the deceased, Agbaeze, in the circumstances. It was not therefore mandatory for the prosecution to establish the precise act of each of the accused persons (or other assailants) that directly caused the death of the deceased, as they all acted in unison in causing the death of the deceased. After all, in law, when there is an agreement by two or more persons to commit an unlawful act, coupled with intent to achieve that objective, evidence of conspiracy is established and non of the accused can disown the act of the other in accomplishing their mutual or common objective.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
Section 7 Criminal Code;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Haruna v. A.G. Fed. (2012) 2009 LRCN 70: “A court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial judge should evaluate the confession and the testimony of the accuse person and all the evidence available. These entail the trial judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?”
In the case of Salahudeen v. The State (2013) LPELR – 21851 (CA) this Court reiterated: “It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defence against himself.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
The ingredients of the offence of murder has been, repeatedly, stated by this court and the apex court in several authorities, that: 1. There must be evidence of death of the deceased 2. The dead resulted from the act/omission of the accused person 3. The accused person caused the death intentionally, or with knowledge that death or grievous bodily harm was the probable consequence of his act/omission. – Mbaba JCA. Obasi v. State (2014)
Of course, the above ingredients can be established by either of 3 ways: i. By positive and direct eye witness account(s) of the killing, when it occurred, Blessing v. FRN (2013) 12 WRN 36; ii. By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the murder can be inferred, Nasiru v. The State (1999) 2 NWLR (pt. 589) 82; Chiokwe v. The State (2005) NWLR (pt. 918) 424 or iii. Confessional statement of accused person, adjudged voluntary, even when it is retracted, where the court is satisfied that it accords with the other pieces of evidence before it. – Mbaba JCA. Obasi v. State (2014)
I think, it is a grave assault on the law and justice system to leave out the Enachioken Eze Kalu Kalu Ogbu and the other named suspects from prosecution for murder of the decease, Agbaeze Kalu Ukariwo, and Itum Okoroafor, and for the conspiracy and assault/battery of the wife, mother and sister of the deceased, Agbaeze The Police and the State have a duty to check that affront to law and order, and I urge them to act. – Mbaba JCA. Obasi v. State (2014)
Appellant had tried to disown his confessional statement, blaming the trial court for not conducting trial-within-trial to determine the voluntariness of the said confessional statement, alleging that he was tortured to make it. I think all that was wishful thinking, and after-thought, since Appellant, (or his Counsel) raised no objection or challenged the said confessional statements at the time they were tendered by the prosecution. – Mbaba JCA. Obasi v. State (2014)
I only wish to add that the Appellant and his confederates deserve to be hanged for their dastardly act of murdering Agbaeze Kalu Ujariwo and Iturm Okoroafor in such a gruesome manner so as to serve as a deterrent to others of their ilk who would dare take the Laws into their hands by unleashing such inhumanity and terror on innocent citizens of this country on the instigation of any person no matter how highly placed. They deserve to die for their indiscretion in hearkening to the voice of the Enachioken (the Chief of Abriba) who unleashed them like barbarians on his perceived enemies in this 21st century. May God bless their souls! – Ignatius Aguba JCA. Obasi v. State (2014)