Daniel Ita Effiom v. The State

This is an appeal against the decision of the Court of Appeal, Akure Judicial Division, delivered on the 22nd day of March, 2018, which affirmed the decision of the High Court of Ondo State, Akure Judicial Division, delivered on the 20th day of January, 2016, which imposed the death sentence; twenty-one years’ imprisonment; and fourteen years imprisonment, on the appellant, for the offences of murder, robbery and conspiracy to commit murder, respectively, upon his conviction.

Daniel Ita Effiom, the appellant, was an employee of the victim (now deceased), Prof. Albert Adeoye Ilemobade, who lived at No. 1 Ikere Street, Ijapo Estate, Akure, Ondo State. The appellant served the deceased as his gateman/security guard.

On the 21st day of June, 2015, the deceased was declared missing and suspected to have been kidnapped when he and his Toyota RAV4 SUV could not be found at his residence. The appellant was also found missing. Reports were made by the deceased’s family to the Police, who swung into action to unravel this mysterious disappearance of the deceased and his car.

At about mid-day

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on the 26th day of June, 2015, the Police informed the deceased’s family that the appellant and one Olayemi Bamitale, the deceased’s erstwhile driver, were arrested at Ijebu-Ode while trying to sell a Red coloured Toyota RAV 4 SUV registered in the deceased’s name. Upon interrogation, the two led the Police to the discovery of the deceased’s decomposing corpse in the garage of his house. It was alleged that they had made confessional statements wherein they described how they deceived the deceased out of his house, strangulated him and dragged his corpse into the garage after covering him in diesel oil.

After investigation, the appellant and Olayemi Bamitale were arraigned before the trial Court on a three-count charge of conspiracy to commit murder, murder and robbery of the deceased contrary to the provisions of Sections 342, 319, and 1 (2) (b) of the Criminal Code, Cap 37 vol. 1, Laws of Ondo State, 2006, and Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, (LFN) 2004, respectively. The arraignment took place on the 25th day of October, 2015, wherein the appellant pleaded “Not Guilty” to the three counts of

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conspiracy, murder and robbery on the information.

At the trial, the respondent as Prosecution fielded four witnesses, PW1-PW4, and tendered documentary evidence contained in eight (8) exhibits (PW1- PWG) to establish its case, after which the appellant, in his defence, simply testified for himself and did not call any other witness.

At the conclusion of trial, the trial Court was convinced that the appellant was properly and duly linked with the commission of the three offences. Hence, on the 20th day of January, 2016, the trial Court delivered written reasons in finding the appellant guilty of the three offences and sentenced him as follows: fourteen (14) years term of imprisonment for conspiracy; twenty-one (21) years term of imprisonment for robbery; and sentence to death by hanging for murder.

Dissatisfied with his conviction and sentence, the appellant lodged an appeal before the lower Court via a Notice of appeal filed on the 3rd day of March, 2016, which dismissed his appeal and affirmed the decision of the trial Court.

Dissatisfied with the decision of the lower Court, the appellant has lodged this instant appeal via a Notice

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of Appeal filed on the 3rd day of May, 2018. The said Notice of Appeal contained four grounds of appeal from which the appellant distilled four issues for determination in his brief of argument filed on the 29th day of June, 2018, to wit:
1. Whether the lower Court was not in error when it held that the Prosecution has proved its case beyond reasonable doubt?
2. Whether the lower Court did not misdirect itself when it held that the failure of the respondent to call the medical practitioner who conducted the autopsy examination on the corpse of the deceased did not vitiate the admission and validity of the said report?
3. Whether the lower Court was not in error to have relied heavily on the testimony of the deceased’s son without exercising some level of circumspection?
4. Whether the decision of the lower Court is not against the weight of evidence having regard to all the circumstances of the case?

In opposing the instant appeal, the respondent by his brief of argument filed on the 19th day of March, 2019, also submitted four issues for determination, to wit:
1. Whether the lower Court was right when it held that the

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Prosecution has proved its case beyond reasonable doubt?
2. Whether there was a misdirection in law when the lower Court held that the failure of the respondent to call the medical practitioner who conducted the autopsy examination on the corpse of the deceased and authored exhibit PWEG did not vitiate the admission and validity of the said report?
3. Whether the lower Court was right to have relied heavily on the testimony PW1, who happens to be the deceased’s son.
4. Whether the decision of the lower Court is not against the weight of evidence having regard to all the circumstances of the case?

Before wading into further discussion of the issues for determination in this appeal, I think, this is an appropriate time to make some pertinent observations with respect to the omnibus ground of appeal filed by the appellant in his Notice of Appeal, from which issue No. 4 was formulated. No Court should sidestep a defective ground of appeal to grapple with the main appeal founded on such ground. Rather, the Court is enjoined to show its disapproval and indeed, has to deprecate want of industry in drawing up any such defective ground of

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appeal.

Broadly speaking, grounds of appeal are meant to reflect the reasons the decision is considered by the appellant to be wrong. See: Saraki v, Kotoye [1992] 9 NWLR (Pt 264) 156, 184. Furthermore, an omnibus ground of appeal is a general ground of appeal in either a civil or a criminal appeal.

The modes of drafting grounds of appeal on general and omnibus ground in civil and criminal appeals are distinct. In couching an omnibus ground of appeal in criminal appeals, the words used are traditionally “the judgment or decision is unwarranted or unreasonable and cannot be supported having regard to the evidence adduced.” On the other hand, in civil appeals, the omnibus ground is couched as judgment or decision is wrong having regard to the weight of evidence.” See: Atuyeye v. Ashanu [1987] 1 NWLR (Pt 49) 267; Adeyeri v. Okobi [1997] 6 NWLR (Pt 510) 534; Okezie v. Queen (1963) All NLR 1; Akibu v. Opaleye (1974) 11 SC 189; Aladesuru v. Queen (1956) SCNLR 49.
Other cases include: Shehu v. The State (2010) LPELR-3041 (SC), [2010] 8 NWLR (Pt 1195) 112; Ogunleye Sanmi v. The State (2019) LPELR-47418 13 NWLR (Pt 1690) 551; Mohammed v. State [2023] 1

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NWLR (Pt 1865) 371.

I have to set forth Ground 4 in extenso for ease of reference and to bring out the point.

GROUND 4
The decision of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial and is against the weight of evidence.
Without much difficulty, even a passing glance at Ground 4 would readily show that it is improperly framed and it has not met the circumstances in a criminal appeal. One fundamental distinction between burden of proof in civil and criminal matters is that, whereas in civil matters decisions are reached based on the weight of preponderance of evidence, in criminal matters it is proof beyond reasonable doubt. See: Section 135 (1) of the Evidence Act, 2011 (as amended). To couch an omnibus ground in the manner done here is incurably bad. See: Atuyeye v. Ashamu (supra). It is therefore beyond argument that the said ground is totally incompetent.
My observations have finally come to this, that is to say, that issue No. 4 raised for determination in this appellant’s brief of argument automatically abates as it has not been distilled from a

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competent ground of appeal. And I so hold. I shall now consider the three remaining issues formulated by the appellant.

ARGUMENTS OF COUNSEL
SUBMISSIONS ON ISSUE ONE
After a review of the Prosecution’s evidence at the trial Court and the findings of the two lower Courts, learned counsel for the appellant came to the conclusion that the Prosecution has not discharged the burden placed by the law on it to prove its case beyond reasonable doubt.

Firstly, it was contended that the Prosecution was only able to establish the death of the deceased but other ingredients necessary to establish the crime of murder as enunciated in Olaiya v. State [2017] 9-12 SC 89, have not been conclusively proved by the Prosecution.

Secondly, that there was a lot of inconsistencies in the confessional statements of the appellant and the second accused person viz-a-viz the viva voce evidence of the appellant at the trial, which the Prosecution was unable to justify. Elaborating further, he posited that the evidence given at the trial by the appellant was straight forward and unambiguous to the effect that he had no grouse with his late boss to warrant

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killing him and that it was the second accused person who along with some others, in pursuit of vengeance, stormed the residence of the deceased and effected the murder of the deceased.

Thirdly, that both confessional statements of the two accused persons were written with the same handwriting and ought to be treated with circumspection.

He further lamented that PW1 claimed to have been “informed” about the incident and PW2 testified that he received a distress call regarding a case of kidnapping as well as the two accused person’s attempt to sell the deceased’s car. Yet, none of the persons who gave the information were produced at the trial. He took the view that such testimonies were necessary, as it would have helped to debunk the appellant’s claim that he was kidnapped and show that he was a co-conspirator in the incident.

Finally, it was opined that all the evidence of the Prosecution witnesses are largely hearsay evidence. None of the Prosecution witnesses was at the scene of the crime when the crime was committed. He referred this Court to the following statutory and judicial authorities: Armels Transport Ltd v Madam Martins (1970) 1

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All NLR 2; Management Enterprises Ltd v Otusanya (1987) 4 SC 252; Ijiofor v State (2001) 4 SC (Pt 11) 7, 35- 40, per Ejiwunmi, JSC. Also: Section 37 (a) of the Evidence Act, 2011 (as amended).

He urged this Court to resolve this issue in favour of the appellant and to hold that the Prosecution did not prove its case conclusively beyond all reasonable doubt.

For the respondent, it was submitted that the ingredients necessary to establish a case of murder as set out inOlaiya v. State (supra) and Adamu v. State (2014) 10 NWLR (Pt 1416) 441, 460, can be proved either by:
a) Confessional statement of the defendant;
b) Circumstantial evidence; or
c) Evidence of eye witness of crime which is referred to as direct evidence.

Therefore, it was posited that the Prosecution proved the first ingredient of murder, that is, the death of the deceased, by exhibit PWEG, a medical report issued from the State Specialist Hospital Akure and signed by Dr. S. A. Osasan. In addition, exhibits PW1, PW1A, and PW1B were confessional statements made by the appellant which corroborated the fact that the deceased died and his body was dumped in his

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store. None of this evidence was objected to at the trial by the appellant, who in fact conceded that the Prosecution had proved this first ingredient beyond reasonable doubt.

It was further contended that the second ingredient of murder, that the death of the deceased was caused by the appellant, was proved by the confessional statements of the appellant contained in exhibits PW1, PW1A, and PW1B, tendered in evidence by the Prosecution without any objection from the appellant. He restated the principle of law that an accused person may be convicted solely on his free and voluntary confession, and referred this Court to the cases of Alo v. State (2015) 2 SC 1-2 and Ubeirho v. State (2005) 2 SC 1, 18. He added that the testimonies of PW1 and PW3 also corroborated the contents of in exhibits PW1, PW1A, and PW1B.

It was further argued that the natural consequence of choking and strangulating the deceased was death, which the appellant admitted his involvement in by his confessional statement, thereby establishing the third ingredient of murder. Consequently, the Prosecution established all the three ingredients of murder beyond reasonable doubt. In

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support of his submission, he cited the following cases: Garba v. State (2000) FWLR (Pt 24) 1444; Ibikunle v State (2007) 1 SCNJ 207 at 2323.

In addressing the issue of same handwriting used to write both statements of the two accused persons, learned counsel submitted that the appellant neither challenged not objected to his extra-judicial statement when sought to be tendered in evidence at the trial. Neither did he raise the issue of same handwriting before the two lower Courts when he had the opportunity to do so. He urged this Court to discountenance same having been raised for the first time in this Court.

Addressing the failure of the Prosecution to call the persons that gave information to the Police, it was opined that the number of witnesses to call to prove its case lies solely at the discretion of the Prosecution and not the defence and the Prosecution has no duty in law to call a host of witnesses to prove its case beyond reasonable doubt. Reliance was placed on the following cases: Babuga v. State (1996) 7 NWLR (Pt 460) 279, 300, paras B-D; Busari v. State (2015) 5 NWLR (Pt 1420) 343, 369, paras B-C.

On the appellant’s contention

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that all the evidence of the Prosecution witnesses are largely hearsay evidence, learned counsel took the view that the appellant misconceived the meaning of hearsay. Reliance was placed upon a series of cases, in which it has been decided that the evidence of an investigating police officer, such as PW2 and PW4, of what they saw or discovered during investigation is not hearsay evidence. See: Kamila v. State (2018) SC [incomplete citation]; Olaoye v. State (2018) LPELR- 43601 SC; Anyasador v. State (2018) LPELR- 43729 (SC).

He urged this Court to hold that the Prosecution proved its case of murder against the appellant beyond all reasonable doubt as required by law.

SUBMISSIONS ON ISSUE TWO
On this issue, it was pointed out that the autopsy report tendered in evidence at the trial Court was not tendered personally by the maker, Dr. S. A. Osasan. Such failure to invite Dr. S. A. Osasan who conducted the autopsy report was fatal to the case of the Prosecution. This failure, learned counsel opined, has also deprived the appellant the opportunity of cross-examining Dr. S. A. Osasan on his report, thereby infringing on the appellant’s

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constitutional right to fair hearing, particularly considering the very nature of offences alleged against him. In support of his submission, he cited a behemoth of judicial authorities, as follows: Peters Ram and Anor v. Mohammed and Anor (2008) 5-6 SC (Pt 1) 83; Al- Mustapha v. State [2013] 17 NWLR (Pt 1383) 365, 424, paras A-F; Eseu v. The People of Lagos State [2014] 2 NWLR (Pt 1390) 114, 138, paras D-F; Shofolahan v. State [2013] 17 NWLR (Pt. 1383) 295, 320-321, paras H-A; Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 2000) 659; and Adigun v A.G., Oyo State (No. 1) (1987) (Pt 59) 111.

It was further pointed out that PW3 who presented the report on behalf of Dr. S. A. Osasan, gave evidence in his testimony that: “The cause of the fracture could either be as a result of the neck or a severe blow but it is not certain”. Also that, the advanced state of decomposition of all the soft tissue organs of the deceased’s body made it difficult for them to come to a definitive anatomic conclusion. This testimony, according to learned counsel, shows that the cause of death could not be conclusively established as it could not be convincingly confirmed by

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forensic analysis that the deceased was actually strangulated by the appellant.

Given the above circumstances, learned counsel submitted that the Prosecution’s allegation of murder leveled on the appellant is largely based on suspicion. He relied on the principle of law as enunciated in a host of decided cases to the effect that, suspicion, however strong, will not found or lead to a conviction, since it cannot take the place of legal proof, Shehu v. State [2010] All FWLR (Pt 523) 1841, 1861; Femi Oladotun v. State [2010] All FWLR (Pt 532) 1685, 1706.

He urged this Court to resolve this issue in favour of the appellant.

On his part, learned counsel for the respondent submitted in the first place that medical evidence is not necessary in all murder cases where the cause of death can be inferred from circumstances. To cement this submission, he cited the following cases: Adamu v. Kano Native Authority (1956) SCNLR 65; Bakuri v. State (1965) NMLR 163; Uyo v. A.G., Bendel State (1986) 1 NWLR (Pt 17) 418; Oforlete v. State (2000) 12 NWLR (Pt 681) 415, 430, paras B-D, 432, D-F.

He further argued that the cause of death of the deceased was

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already established beyond reasonable doubt by the confessional statement of the appellant which was corroborated by the testimony of PW1, PW2, and PW4. The Prosecution in addition to the established fact of the cause of death also tendered the medical evidence made pursuant to the Coroner’s Ordinance in evidence as further corroborative evidence that the deceased died from strangulation.

It was further submitted that PW3 stated in his evidence that the head of the team, Dr. S. A. Osasan was in Canada on annual leave and PW3 was cross-examined by the appellant’s counsel on the medical report. He added that PW3 stated that the report was put together by the team and signed by the most senior based on hierarchy.

It was further contended that Section 55 (1) of the Evidence Act does not impose a duty on the respondent to call the maker of a medical certificate as a witness in Court. The appellant also failed to take advantage of Subsection (3) to request the Court to compel the attendance of the head of team that signed the medical report to appear for cross-examination upon his return from vacation in Canada. Reliance was placed on Section 55 (1), (2)

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and (3) of the Evidence Act as well as Edoho v. State [2010] 14 NWLR (Pt 1214) 651, 677-678.
He urged this Court to resolve issue two against the appellant.

SUBMISSIONS ON ISSUE THREE
It was the submission of learned counsel for the appellant that the evidence of PW1 was not watertight so as to be relied upon to convict the appellant. According to learned counsel, the lower Court ought to have taken the evidence of PW1 with some level of circumspection considering the following: one, PW1 is the son of the deceased and an interested person two, at paragraph 2 of PW1’s testimony, he could not distinguish between 28th Monday June, 2015, and 29th Monday June, which calls into question the veracity of his evidence; and three, PW1 is not a witness of truth whose evidence could be used as a basis of sentencing an accused person to death. The same ought to be expunged from evidence.

He urged this Court to resolve issue three in favour of the appellant.

For the respondent, it was submitted that the misstatement of 28th June, 2015 as Monday as opposed to 29th June, 2015, is a mere discrepancy that is immaterial and goes to no issue as to

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whether the decomposed body was found in the garage and transferred to the mortuary as well as the public parade of the appellant having publicly confessed to the murder of the deceased, which happened on Monday 29th June, 2015.

He referred to the following cases: Akindipe v. State (2012) LPELR- 9345 (SC); Ibe v. State [1992] 5 NWLR (Pt 244) 642, 649, para B; and Nasamu v, State (1979) All NLR 193, 197-198. He urged this Court to discountenance the arguments and submissions of the appellant in this regard.

REPLY BRIEF
In response to the submissions of the respondent, the appellant filed a reply brief on the 16th day of May, 2022 but deemed properly filed on the 30th day of November, 2023.

In response to respondent’s submission that a Court may convict an accused solely on the strength of his own admission, learned counsel for the appellant submitted that the most germane aspect of a confessional statement which may render it believable and which may then allow a Court of law to convict on it is the voluntariness of the alleged confessional statement.

He then urged this Court to discountenance respondent’s submissions in this

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regard as neither PW1 nor PW3 are Police Officers who had custody of the appellant and who directly interrogated him as to be able to establish to the satisfaction of the Courts that Exhibits PW1, PW1A, and PW1B, were freely and voluntarily given by the appellant.

On the alleged intentional act of the appellant which caused the death of the deceased, learned counsel submitted that nowhere in the purported confession did the appellant admit to strangling the deceased and no other forensic evidence was presented by the prosecution which actually shows that the appellant asphyxiated the deceased person.

On the issue of failure to call collaborating witnesses, learned counsel submitted that the need for corroborating evidence was made more exigent because the prosecution largely relied on the confessions of the two accused persons, one of whom had raised the defence of kidnapping and compulsion against his co-accused. He further pointed out that no rationale was given by the two lower Courts for discarding the defence raised by the appellant and instead gave credence to the statements of PW1 and PW2.

It was further submitted that while the

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prosecution is not constrained to call all the witnesses available to it during the trial, the law remains that the prosecution must call all witnesses necessary for the establishment of all the ingredients of the offence with which the appellant is charged. In support of this submission, he cited the case of Babuga v. State [1996] 7 NWLR (Pt 460) 279, 292, paras H, per Belgore, JSC.

On issue two, learned counsel submitted that the respondent has missed the gamut of the arguments of the appellant under issue two and also misapplied the provisions of Section 55 of the Evidence Act, 2011.

He took the view that PW3 did not lead the team that conducted the autopsy on the remains of the deceased and as such PW3 cannot be the appropriate person to present the said certificate since he would be unable to answer most of the relevant cross- examination questions of the appellant.

It was further contended that Section 55 (2) of the Evidence Act does not obviate the overriding provision of Section 36 (2) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). Therefore, the argument of the respondent that the appellant slept on

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his rights to insist on the presentation of the head of the autopsy team is faulty as it is not in consonance with the provisions of the Constitution referred to above.

While referring to Section 55 (3) of the Evidence Act, 2011, counsel submitted that the trial Court who oversees the conduct of the trial, also has the discretion to order for the production of the Head of the autopsy team for the purposes of cross-examination. The instant case, he added, is one deserving of the trial Court to have exercised its discretion.

As regards issue 3, it was submitted that the two lower Courts failed to appreciate the fact that PW1’s testimony when taken as a whole is filled with hearsay, contradictions and conflicts. He further argued that the date on which PW1 allegedly witnessed the parade of the accused persons and when they allegedly confessed to the crimes is very material and same cannot be relegated to a position of mere inconsequentiality.

On the strength of the foregoing submissions, he urged this Court to discountenance and dismiss the submissions of the respondent as contained in its brief of argument and uphold the submissions of the

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appellant as contained in its brief of argument.

RESOLUTION OF THE ISSUES
My Lords, before I make an in-depth examination of the contentions of counsel, I, wish to make a preliminary observation as to the scope of the appeal before this Court.
The appellant herein was charged and convicted for three offences at the trial Court, namely: conspiracy to commit murder, murder and robbery contrary to the provisions of Sections 342, 319, and 1 (2) (b) of the Criminal Code, Cap 37 vol. 1, Laws of Ondo State, 2006, and Robbery and Firearms (Special Provisions) Act, Cap. RI 1, Laws of the Federation of Nigeria, (LFN) 2004, respectively. When a trial has been completed and the judgment of the trial Court given, there is at once a presumption of regularity and validity of that judgment unless and until same is challenged on appeal. See: Section 168(1) of the Evidence Act, 2011. See also: Oyedele v. State [20191 6 NWLR (Pt 1667) 74 and Sanni v. Oruku [2022] 8 NWLR (Pt 1833) 407. This position of law, I am equally aware, is on course at the appellate level and I do not have any intention of truncating the law in the resolution of this appeal.
The

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appellant’s appeal to the lower Court as contained in his grounds of appeal, particulars of errors, issues formulated and arguments thereon at pages 107-122 of the Record of Appeal was centered on the offence of murder only. The appellant neither appealed to the lower Court nor argued that his conviction for conspiracy to commit murder and robbery which earned him terms of fourteen (14) years’ imprisonment and twenty-one (21) years’ imprisonment respectively was wrong. Thus the lower Court never delved into or decided any issue relating to robbery and conspiracy to murder even in sub silentio. But learned counsel for the appellant timidly argued same in paragraph 4.07 of his brief of argument. It also rears its head in some paragraphs of the appellant’s reply brief.
Since learned counsel never sought Leave of this Court to canvass this fresh point, he cannot be heard on it in this appeal. Consequently, arguments concerning his conviction for the offences of conspiracy to murder and robbery as contained in paragraph 4.07 of his brief of argument or any other part of his briefs and reply brief are hereby discountenanced and struck out.

Admirably, the

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lower Court made the following observations at pages 167-168 of the Record of Appeal:
It is discernible from the appellant’s submission that his chief grievance, under issue one, is the lower Court’s findings that the respondent discharged the burden of proof vis-a-vis the allegation of the offence of murder levelled against the appellant. The appellant’s arguments centered on the complaint without any atom of reference to its findings on the other offences; conspiracy and robbery. The import of this circumspection is simple. The appellant disclosed no grouse against the lower Court’s findings on the other two offences. Put differently, he did not appeal against them. [underlining supplied for emphasis]

Having remarked as such, I shall now consider the merit or otherwise of this appeal, of course, bearing in mind the notorious judicial policy that this Court can only depart from the concurrent findings of fact of the two lower Courts if it is fully satisfied that such finding is perverse or was not supported by the evidence on record or there has been violation of some principles of law or same has occasioned a miscarriage of justice on the

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appellant. See: Sale v. State [2016] 3 NWLR (Pt 1499) 392, 169, paras B-D.

Now to the merits of the appeal.
Murder, which is the highest and most criminal species of Homicide, is made punishable under Section 319 of the Criminal Code, Cap. 37, vol. 1, Laws of Ondo State 2006. By virtue of Section 319 of the Criminal Code, any person who commits the offence of murder shall be sentenced to death.
To succeed in convicting an offender of this nature, the Prosecution is required to prove beyond reasonable doubt that the act of the accused which resulted in the death of the deceased fell within the circumstances set forth under Section 316 of the Criminal Code which defines the offence of murder. That is: (a) the deceased died; (b) that the death of the deceased resulted from the act of the accused; and (c) that the act of the accused was intentional with knowledge that the death of grievous bodily harm was its probable consequence.
These three constitutive ingredients of the offence must be proved in order to secure a conviction under Section 319 of the Criminal Code. See the following cases: Itu v. State [2016] 5 NWLR (Pt 1506) 443;

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Famakinwa v. State [2016] 11 NWLR (Pt 1524) 538; Babatunde v. State [2014] 2 NWLR (Pt 1391) 298; State v. Adu [2022] 7 NWLR (Pt 1830) 461; Akinfe v, State [1988] 3 NWLR (Pt 85) 729; Onah v. State [1985] 3 NWLR (Pt 12) 236; Maigari v. State [2013] 17 NWLR (Pt. 1384) 425; Madu v. State [2012] 15 NWLR (Pt 1324) 405; Durwode v. State [2000] 15 NWLR (Pt 691) 467; Idemudia v. State (1999) 7 NWLR (Pt 610) 202; Akpan v. State [2000] 12 NWLR (Pt 682) 607.

Undoubtedly, the burden is primarily on the Prosecution to prove the guilt of the appellant. This burden could be discharged in three ways, namely:
a) By confessional statement of the defendant; or
b) By circumstantial evidence; or
c) By evidence of eye-witnesses otherwise called direct evidence.
It would be injurious to the best interests of society, if other modes of evidence could not avail in judicial proceedings. If it was always necessary to have direct evidence, many criminal acts committed in the community, destructive of its peace and subversive of its unity and security would go wholly undetected and unpunished! The necessity, therefore, of resorting to the other modes of

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evidence, if it is credible and reliable, is obvious and absolute. See: Korah v. The State (1977) 4 SC (Reprint) 167, (1977) LPELR – 3345 (SC), Peter v. The State (1997) 12 NWLR (Pt531) 1; Adie v. The State (1980) 1 – 2 SC 116, (1980) LPELR-176 (SC); Kaza v. The State (2008) 7 NWLR (Pt 1085) 125; Akinlolu v. The State (2015) LPELR – 25986 (SC), (2016) 2 NWLR (Pt 1497) 503.

My Lords, the appellant has dissipated so much energy in an attempt to have this Court exculpate him from liability for the offence of murder. However, all the evidence on record points to the glaring and irresistible conclusion that he committed the offence.

Firstly, the task of this Court has been simplified by the appellant who conceded unequivocally that the death of the deceased is not in dispute in this case. In addition, the viva voce evidence proffered by PW1-PW3, amply, demonstrated that Prof. Albert Adeoye Ilemobade was in fact dead. Exhibit PWEG, being the medical report dated 29th June, 2015, is a concrete evidence of his demise.

Secondly, as can be seen from the record of appeal, the appellant’s confessional statements as contained in exhibit PW1, PW1A, and

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PW1B, not only provided the cause of death but also provided the accurate details and manner of death of the deceased. In exhibit PW1A, the appellant described how he lied to the deceased just to lure him towards the water tank side of the house and the other man Olayemi Bamitale came out and gripped him on the neck and when the deceased attempted to shout, the appellant asphyxiated the deceased by “covering his mouth with a cloth” and they held him on the ground till he died.

The law is trite that a confessional statement so long as it is free and voluntary and direct, positive and properly proved, is enough to ground a conviction. Though not a necessity, it is desirable that evidence outside such a confessional statement be further relied upon by the trial Court in convicting the accused. Evidence corroborating the content of a confessional statement is all the more required where the accused resiles from his confessional statement. See: Ikpo v. The State [2016] 10 NWLR (Pt 1521) 501; Alo v. State (supra) and Ubeirho v. State (supra).

Although the appellant’s conviction could be sustained solely based on his confessional statement alone, the said

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statements were further corroborated by the testimonies of PW1, in whose presence the appellant made the confession and PW3, a medical expert who revealed that there was evidence of strangling with prostration of inner tags, and named the cause of death to be Tramantic Carnival Bone Fracture. It is very clear from the testimonies of those witnesses that the appellant had been identified along with the second accused person as the people who caused the death of the deceased by their joint action. There can be no doubt that a person who choked and strangulated the deceased by neck must have intended to cause such bodily injury as he knew that death would be the probable consequence of his act. That the appellant had no grouse with his late boss to warrant killing him is inconsequential having positively and unequivocally confessed to have asphyxiated the deceased by “covering his mouth with a cloth”. As pointed out by the lower Court at pages 175-176 of the Record of Appeal, the act of strangulation comes within the four walls of the six circumstances by which a person can be adjudged to commit murder. It falls precisely, under Section 316 (6) of the Criminal Code, Cap 37, Laws of Ondo State.

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“(6) If death is caused by willfully stopping the breath of any person for either of such purpose”.

Both the trial Court and the lower Court believed the testimonies of the PW1 and PW3 and I strongly agree that the two lower Courts were right to believe the evidence of PW1 and PW3 which corroborated the confessional statements of the appellant contained in PW1, PW1A and PW1B. There is therefore a concurrent finding of the two lower Courts. The appellant has not disclosed any special circumstance for me to interfere with these findings.

In his reply brief, appellant contended that the appellant testified at trial that none of Exhibits PW1, PW1A, and PW1B were voluntarily made by him as he was mercilessly beaten prior to the extraction of the purported confessional statements. It is my humble view that learned counsel is by his submission seeking to challenge the voluntariness of his confessional statements on appeal. In law, the voluntariness or otherwise of a confessional statement cannot be challenged by an accused person on appeal where the confessional statement was not challenged at the trial Court.

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See: Akpan v. State [1992] 6 NWLR (Pt 248) 439. On the proper time for an accused person to challenge the voluntariness of his confessional statement at the trial Court, see the case ofEffiong v. State [1998] 8 NWLR (Pt 562) 362. Thus, in the instant case, the appellant’s statements were properly admitted in evidence as its voluntariness was not challenged at the appropriate time.

Similarly, the appellant failed to raise the issue that the same handwriting was used to write both confessional statements of the two accused persons when he had the opportunity to do so at the trial. The implication is obvious. It is hereby discountenanced, same having been raised for the first time in this Court without leave to do so.

The appellant also lamented that the oral testimony of the appellant was radically different from his confessional statements. It is the law that a Court can convict on the extra-judicial confession of an accused person which is voluntary and true but inconsistent with his evidence in Court. Once the Court is satisfied that the confession was free, voluntary and true, it is safe to convict. But it is desirable to have outside the confession some

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evidence, be it slight of circumstances, which makes it probable that the confession is true. See the following cases: Egboghonome v. State [1993] 7 NWLR (Pt 306) 383; Aremu v. State [1991] 7 NWLR (Pt 201) 1; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Obiasa v. Queen (1962) 2 SCNLR 402; Kopa v. State (1971) 1 All NLR 150. As I have earlier stated, the appellant’s confessional statements contained in exhibits PW1, PW1A, and PW1B were made voluntarily. It was direct, positive, and true. The trial Court was right to admit it in evidence and act on it and the lower Court was correct to affirm the decision of the trial Court. Moreover, these confessional statements were tendered in evidence at the trial without any objection. The appellant also never distanced himself from the contents of the confessional statements nor denied same at the trial.

It is also worth mentioning that the appellant seriously questioned the non-production of the persons who gave the information to PW1 and PW2 regarding the incidents at the trial to corroborate the evidence of PW1 and PW2. He took the view that such testimonies were necessary, as it would have helped to debunk the

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appellant’s claim that he was kidnapped and show that he was guilty of the offence alleged against him.

When the appellant was arrested alongside the second accused person, he never stated in his confessional statements that he was a kidnapped victim. This kidnap story came for the first time at the trial after the Prosecution had closed its case. PW2 made it clear in his evidence at page 52 of the record of appeal, that prior to the arrest of the appellant and the second accused person, the family of the deceased reported a case of kidnapping on the 22nd day of June, 2015 at Ijapo Police Station because they initially thought that the deceased and the appellant were kidnapped and not that they were actually kidnapped as it was revealed after the arrest and investigation of the appellant and the second accused person. In my humble view, the most important and leading fact, which was proved by the cogent evidence, was that the deceased, Late Prof Albert Ilemoade, suddenly disappeared from his family and home on the 21st day of June, 2015, without any cause known to them, and was never seen alive afterwards. There was no uncertainty as to this fact to

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warrant an account from the informants who informed PW1 and PW2 about the incidents.

I also agree with learned counsel for the respondent that the number of witnesses to call to prove its case lies solely at the discretion of the Prosecution and the Prosecution has no duty in law to call a host of witnesses to prove its case beyond reasonable doubt. See: Babuga v. State (1996) 7 NWLR (Pt 460) 279, 300, paras B- D; Busari v. State (2015) 5 NWLR (Pt 1420) 343, 369, paras B-C.

Finally, on the contention that all evidence of Prosecution witnesses is largely hearsay, I am unable to find which of the witnesses dispositions is laced with hearsay. PW1 gave evidence of the oral confession of the appellant and the second accused person which were made in his presence after the public parade of the accused persons. PW2 and PW4 are from the Department of Criminal Investigation, State C.I. D Akure and Ijebu-Ode Area Command, Anti-Robbery Section, Ogun State. As rightly submitted by learned counsel to the respondent evidence of an investigating police officer of facts he personally saw or discovered in the course of his investigation is not hearsay evidence to

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render such facts inadmissible. See: Odogwu v. State (2009) LPELR- 8506 (CA); F.R.N. v. Saraki (2017) LPELR-43392(CA). In the instant case, PW2 and PW4 gave evidence of what was discovered during the arrest and investigation of the appellant in connection with the offences charged. As shown at pages 52-53 and 57-58 of the record of appeal, PW2 and PW4 never relied on hearsay in their evidence. On what constitutes hearsay evidence, see the following cases: Utteh v. State (1992) 2 NWLR (Pt 223) 257; Ehikioya v. C.O.P. [1992] 4 NWLR (Pt 233) 55; UBN Plc v. Ishola [2001] 15 NWLR (Pt 735) 47; Ojo v. Gharoro [1999] 8 NWLR (Pt 615) 374.

On the strength of the evidence on record and the law, I am comfortable to hold that the respondent proved its case beyond reasonable doubt. Issue one is hereby resolved against the appellant.

Issue two is whether the lower Court did not misdirect itself when it held that the failure of the respondent to call the medical practitioner who conducted the autopsy examination on the corpse of the deceased did not vitiate the admission and validity of the said report?

In the instant case, the learned counsel for the

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respondent has stated the correct position of the law on the use of medical evidence in murder trials. The cases of Adamu v. Kano Native Authority (supra); Bakuri v. State (supra); Uyo v. A.G., Bendel State (supra); Oforlete v. State (supra) were cited by the learned counsel for the respondent.
On this issue, I may profitably quote the dictum of Abba Aji, JSC, in the case of Oladapo v. State [2020] 7 NWLR (Pt 1723) 238 253, paras. A-E.
“It must be emphasized that medical evidence is not always a desideratum in murder cases except where necessary to prove death and cause of death. Furthermore, to call the maker of the report is a matter of choice given by the law. A Court would properly infer from circumstantial evidence that the death of the deceased was caused by the act of the accused without hearing medical evidence. It is also the law that for circumstantial evidence to support a conviction for murder, it must lead only to one conclusion that the murder was committed by the accused. The fact that a medical report was not produced does not diminish the fact that the deceased died. See per Galumje, JSC in Dajo v. State (2018) LPELR-45299(SC),

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[2019] 2 NWLR (Pt 1656) 281.
Similarly, Section 55 of the Evidence Act, 2011 deals with certificates of specified government officers. It provides in Section 55 (1) and as follows:
55. (1) Either party to the proceeding in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government Pharmacist an Assistant Government Pharmacist, a Government pathologist or entomologist or the Accountant-General. or any other pharmacist so specified by the Government Pharmacist of the Federation or of a State. any pathologist or entomologist specified by the Director of Medical Laboratories of the Federation or of a State, or any accountant specified by the Accountant-General of the Federation or of a State (whether any such officer is by that or any other title in the service or the State or of the Federal Government), and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.
(2) Notwithstanding Subsection (1) of this Section, any certificate issued and produced by any officer in charge of any laboratory established by the appropriate authority may be taken as sufficient

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evidence of facts stated in it.
See per Aka’ahs, JSC in Abdullahi v. F.R.N. (2016) LPELR-40100(SC), [2016] 10 NWLR (Pt 1521) 475. To sum this point up, by the provisions of the Evidence Act, it is not mandatory for a medical officer who performed an autopsy on a deceased to be present in Court in order to give evidence during the trial. Production by either party of a certificate signed by the medical officer may be taken as sufficient evidence of the facts. See per Adekeye, JSC in Edoho v. State (2010) LPELR-1015(SC), (2010) 14 NWLR (Pt. 1214) 651.”
In the instant case, PW3 gave evidence that the head of the team, Dr. S. A. Osasan was in Canada on annual leave and PW3 was cross-examined by the appellant’s counsel on the medical report and same can be found at page 56 of the Record of Appeal. It does not also appear that PW3 had any difficulties answering cross-examination questions put forth to him by appellant’s counsel. PW3 concluded his cross-examination by stating that the report was put together by the team and signed by the most senior based on hierarchy.
What is more, the appellant did not apply to the trial Court to have the head of

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team that signed the medical report exhibit PWEG, summoned for cross-examination upon his return from vacation in Canada. Section 55 (3) of the Evidence Act, 2011 (as amended), gives the appellant this right as follows:
(3) Notwithstanding Subsections (1) and (2) of this Section, the Court shall have the power, on the application of either party or of its own motion, to direct that any such officer as is referred to in the subsections shall be summoned to give evidence before the Court if it is of the opinion that, either for the purpose of cross-examination or for any other reason, the interests of justice so requires.
Having waived its right under Section 55(3), it no longer lies in the mouth of the appellant to complain about the admissibility of exhibit PWEG in evidence. I resolve this issue against the appellant also.

Issue three is whether the lower Court was not in error to have relied heavily on the testimony of the deceased’s son without exercising some level of circumspection? This issue need not detain us much.

First and foremost, I must make it clear that blood relationship with a deceased person does not render a witness

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incompetent to testify. Such a witness is a competent, and in fact a compellable witness, even if he is an accomplice. See the following cases: Ben v. State [2006] 16 NWLR (Pt 1006) 582; Ishola v. State (1978) 9-10 SC 31; Akalonu v. State [2000] 2 NWLR (Pt 643) 165. Thus, that PW1 is the son of the deceased and therefore an “interested person” as fallaciously submitted by learned counsel to the appellant, goes to no issue.

I also think that from the facts and circumstance of the instant case, the misstatement of 28th June, 2015 as Monday as opposed to 29th June, 2015, is a mere discrepancy which did not raise a reasonable doubt as to the fact of the discovery of the decomposed body in the garage of the deceased’s residence and its subsequent transfer to the mortuary as well as the public confession to the murder of the deceased by the appellant during his public parade, all of which happened on Monday 29th June, 2015.

It is now settled law that for any conflict or contradiction in the evidence of the prosecution witness to be fatal to the prosecution’s case, the conflict or contradiction must be substantial and fundamental to the main issues in

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question before the Court. See: Onubogu v. State (1974) 1 All NLR (Pt 5; Nasamu v. State (1979) 6-9 SC 153; Enahoro v. Queen (1965) 1 All NLR 125. The mere variation as to date in this issue must be resolved in favour of the respondent. Issue three is also resolved against the appellant.

Having resolved the three issues against the appellant, I find that this appeal is grossly unmeritorious. There was ample evidence to support the appellant’s convictions, and no error or misdirection was identified in the concurrent findings of the two lower Courts which might have deprived the appellant of a chance of acquittal. The appellants’ convictions plainly involve no miscarriage of justice. On the contrary, verdicts of acquittal would have been incomprehensible.

Consequently, I dismiss the appeal. For the avoidance of doubt, the judgment of the lower Court delivered on delivered on the 22nd day of March, 2018, which affirmed the decision of the trial Court delivered on the 20th day of January, 2016, which imposed the death sentence; twenty-one years’ imprisonment; and fourteen years’ imprisonment, on the appellant, for the offences of murder, robbery and

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conspiracy to commit murder, respectively, is hereby re-affirmed.
Appeal dismissed.