Between
UWUA UDO
and
THE STATE
(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC)
This is an appeal against the judgment of the Court of Appeal, Makurdi division, delivered on 2nd May, 2014, affirming the judgment of the High Court of Benue State, holden at Makurdi delivered on 6/12/2006, which convicted the appellant of the offence of culpable homicide and sentenced him to death.
On 17/5/2006, the appellant was arraigned before the trial court on a two-count charge of criminal conspiracy and culpabie homicide punishable with death contrary to sections 96 and 221 of the Penal Code. He pleaded not guilty to both counts.
The prosecution's case was that on 28/7/2004, at Asase Village, North Bank, Makurdi, one Abu (still at large) lured the deceased, Msughter Iortyom, 3 years old, from his parent's house, where he was playing with other children into an uncompleted building where the appellant was waiting with a knife. It was further alleged that the said Abu held the deceased down while the appellant slashed his throat with the knife and killed him. The corpse was left in the uncompleted building, where it was discovered by PW2, who then Jed PW1, the father of the deceased, who had been searching for the deceased, to the site. According to the prosecution, the appellant made a confessional statement, upon his arrest, wherein he confessed to his part in the crime and stated that the said Abu promised him a fee of N60, 000.00 if he assisted in killing the deceased. The respondent called three witnesses and tendered exhibits, including Exhibits 4 & 5, the appellant's confessional statements. The appellant testified in his own defence and did not call any other witness.
At the close of the trial, and after considering the written addresses of learned counsel, the trial court found the appellant guilty of the offences charged, convicted him and sentenced him to death.
His appeal to the lower court was unsuccessful, hence the instant appeal to this court.
At the hearing of the appeal on 3rd December 2015, WILSON DIRIWARI ESQ., leading YINKA ADENIRAN ESQ., adopted and relied on the appellant's brief of argument filed on 4/9/2014 and urged the court to allow the appeal, set aside the judgment of the lower court and discharge and acquit the appellant. MRS. J.N, ADAGBA, Assistant Director Legal Drafting, Ministry of Justice, Benue State, adopted and relied on the respondent's brief, which was deemed properly fiied on 18/2/2015 and urged the court to dismiss the appeal and affirm the judgment of the lower court.
From the 4 grounds of appeal contained in the notice of appeal filed on 13/3/2014, the appellant framed 3 issues for determination. They are:
1. Whether it is the original or Certified True Copy of Exhibit 5 (that is, the Appellant's alleged confessional statement to the Police), being a public document that is admissible in evidence under the Evidence Act, 2011.
2. Whether the defence of alibi raised by the Appellant, but was not properly considered by the Courts below, would avail the Appellant,
3. Whether if this Honourable Court agrees with our contention under Issue one above, to the effect that it is only a Certified True Copy of Exhibit 5 and not the original that is admissible in law, the Respondent herein has proved the guilt of the Appellant beyond reasonable doubt, with cogent, credible and compelling evidence as required under Nigerian criminal jurisprudence to secure the conviction and sentence of the Appellant.
The respondent, on its part, formulated two issues for determination as follows:
1. Whether Exhibit 5 is a public document requiring certification to be admissible.
2. Whether having regard to the weight of evidence, the Court of Appeal rightly held the Respondent proved its case against the appellant and that the defence of alibi does not avail the appellant.
As the issues formulated by both parties are substantially the same, I shall determine the appeal on the issues formulated by the appellant. I however re-couch Issue 3 to read:
Whether the respondent proved the guilt of the appellant beyond reasonable doubt.
Issue 1
In support of this issue, it is the contention of learned counsel for the appellant that Exhibit 5, being a document emanating from the custody of the Nigeria Police Force, qualifies as a public document within the meaning of the Evidence Act, 2011 and therefore only a certified true copy thereof is admissible in evidence. For the definition of 'public officer' he referred to Section 18 (1) of the Interpretation Act and for the definition of public service of the Federation' he relied on Section 318 (1) (h) of the 1999 Constitution (as amended). He also referred to Sections 102 (a) (iii) and 105 of the Evidence Act, 2011 and submitted that upon a community reading of the provisions referred to, only a certified true copy of Exhibit 5 is admissible in evidence. He relied on the case of: Tabik Invest Ltd. Vs GTB Pic, (20111 17 NWLR fPt,1276) 240 (5) 261 - 262 G - A. He submitted that even though no objection was taken to the admissibility of Exhibit 5 at the time it was tendered, the court has inherent power to reject and expunge inadmissible evidence wrongly or inadvertently admitted. He referred to: Phillips Vs E.O.C. & Ind. Co. Ltd, (2013) 1 NWLR (Pt.1336) 618 @ 644 - 645 G - B: Abolade Agboola Alade Vs Salawu Jagun Olukade f!976) 1 SC 83: Onichie Vs Odogwu (2006) 6 NWLR
(Pt.975) 65 (5) 85 H & 86 C.
He disagreed with the finding of the court below at pages 127 -128 of the record to the effect that it is not necessary to tender a certified true copy of a document where the original is available. Referring to Sections 85, 86, 87 (1), 88, 89 (1) (e) & (f), 90 (1) (c), 102 (a) (iii), 103, 104 (I), (2) & (3) and 105 of the Evidence Act, 2011, he reiterated his submission that the only kind of public document admissible in law is a certified true copy and no other kind. He referred to the case of: Araka Vs Egbue (2003) 17 NWLR (Pt.8481 1 (5) 18. He conceded that documents may be proved either by primary or secondary evidence and that the primary evidence is the document itself while the secondary evidence is the certified true copy of the original where the document in question is a public document within the meaning of the Evidence Act. He submitted that Sections 88, 89 (1) (e) & (f), 90 (1) (c) and 104 of the Evidence Act constitute exceptions to the general rule that a document may be proved by the production of the document itself. He contended that even where the original of a public document is available, it is only secondary evidence of the document duly certified that is admissible in evidence. In support of this submission, he relied on the cases of Ajao Vs Ambrose Family & Ors. (1969) 1 NMLR 24 @ 30; Anatogu Vs Iweka II (1995) 8 NWLR (Pt.415) 547 @ 571 - 572; Yero Vs UBN Ltd, (2000) 5 NWLR (Pt.657) 470 @ 478 - 479; Lawson Vs Afani Const. Co, Ltd. (2002) 2 NWLR (Pt.752) 585 @ 598 & 613 - 615, He noted that Sections 96, 97 (1) (e) & (f), 2 (c) and 109, 110 and 111 of the Evidence Act, Cap. 112 LFN 1990 construed and interpreted by this Court and the Court of Appeal in the cases cited are in pari materia with the provisions of Sections 88, 89 (1) (e) & (f), 90 (1) (c) and 104 of the Evidence Act, 2011, He urged the court to resolve this issue in the appellant's favour.
In reaction to the above submissions, learned counsel for the respondent submitted that Exhibit 5 is not one of the public documents under the purview of Section 104 of the Evidence Act, 201L He noted that Exhibit 5 was tendered from the Bar without objection by learned counsel for the appellant. He argued further that Exhibit 5 constitutes primary evidence under Section 86 (1) of the Evidence Act. He submitted that being the appellant's original statement and not a photocopy, there was no need for it to be certified. He submitted with respect to Section 104 of the Evidence Act, that it only comes into play when a person makes a demand for the use of a public document. He submitted that in that circumstance, such public document must be certified as a true copy of the original, which is not the case here. He submitted that the authorities cited by learned counsel for the appellant are not apposite. He distinguished the case of Tabik Invest. Ltd. Vs GTB Plc, (supra) on the ground that the decision was to the effect that where primary evidence of a public document is not available, the only acceptable secondary evidence is a certified true copy of the document. He asserted that Exhibit 5 is primary evidence, tendered in its original form and therefore rightly admitted in evidence by the trial court. He contended that Sections 85, 87 and 88 of the Evidence Act, 2011 all support the respondent's position. He urged the court to resolve this issue in the respondent's favour.
For ease of reference, I deem it appropriate to set out the provisions of Sections 85, 86, 87 (1), 88, 89 (1) (e) & (f), 90 (1) (c), 102 (a) (iii), 103, 104 (1), (2) &.{3) and 105 of the Evidence Act, 2011 below:
"85. The contents of documents may be proved either by primary or secondary evidence
86 (1) Primary evidence means the document itself produced for the inspection of the Court"
87 (1) Secondary evidence includes -
(a) certified copies given under the provisions thereafter contained in this Act;
(c) copies made from or compared with the original.
88. Documents must be proved by primary evidence except in the cases mentioned in this Act.
89 (1) Secondary evidence may be given of the existence, condition or contents of a document when:
(e) the original is a public document within the meaning of Section 102 of the Act.
(f) the original is a document of which a certified copy is permitted by this Act, or by any other law in force in Nigeria,
90 (1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows; (c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence, is admissible,
103. All documents other than public documents are private documents.
104 (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
105 Copies of documents certified in accordance with Section, 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies".
102 The following documents are public documents:-documents forming the acts or records of the acts of public officers, legislative, judicial and executive, whether in Nigeria or elsewhere,"
By the combined effect of Sections 85, 86 (1) and 87 (1) of the Evidence Act 2011, there are two ways by which the contents of documents may be proved: either by primary or secondary evidence. Primary evidence is the document itself produced for the inspection of the court, while secondary evidence includes certified copies of the original duly certified in accordance with the relevant provisions of the Evidence Act. By Section 88 of the Act, documents shall be proved by primary evidence, except m cases stipulated in Section 89 of the Act, where secondary evidence may be given. Section 87 (a) and (c) provides that secondary evidence includes certified copies of the original and copies made from or compared with the original. Some of the circumstances in which secondary evidence relating to the
existence, condition or content of a document may be given include: (i) where the original has been destroyed or lost and every effort has been made to search for it; (ii) where the original is a public document within the meaning of Section 102 of the Act; and (iii) where the original is a document of which a certified copy is permitted by the Act or any other law in force in Nigeria. See: Section 89 (c), (e) and (f) of the Evidence Act.
There is no doubt that Exhibit 5, which forms part of the official acts of the Police, is a public document within the meaning of Section 102 (a) (iii) of the Evidence Act.
The law has always been that the best evidence of the contents of a document is the document itself produced for the inspection of the court. See: Fagbenro Vs. Arobadi (2006) 7 NWLR (Pt. 978) 172
It is also the law that the only admissible secondary evidence of a public document is a certified true copy thereof. In Araka Vs Egbue (2003) 17 NWLR (Pt. 848) 1 @ 18 D E, Tobi, JSC while interpreting Section 97 (2) (c) of the Evidence Act Cap.112 LFN 1990 (now Section 90 (1) (C) of the Evidence Act, 2011), held thus:
"It is clear from the provision of Section 97 (2) (c) that the only `acceptable secondary evidence of public document is a certified true copy of the document. The subsection has put the position precisely, concisely and beyond speculation or conjecture by the words 'but no other kind of secondary evidence is admissible."
Per Edozie, JSC @ 26 C - G (supra):
"Guided as I am by the principles enunciated in the above cases [on the golden rule of interpretation of statutes] it is my view that section 97 (2) (c) of the Evidence Act (supra) does not admit of any ambiguity. The language is clear, explicit and categorical, that the only admissible evidence to prove the existence, condition and contents of a public document is a certified true copy of the original and no other type of secondary evidence is admissible.'' (Emphasis mine)
See also: Iteogu Vs LPDC (2009) 11-12 (Pt.l) SCM 47; Kubor Vs Dickson (2012) LPELR-9S17 (SC) @ 51 D G; Omisore Vs Aregbesola (2015) 15 NWLR (Pt,1482) 205 @ 294 H.
I have given careful consideration to the authority of Tabik Investment Ltd. & Anor. Vs Guaranty Trust Bank Plc. (supra), the judgment of this court in a civil suit, relied upon by learned counsel for the appellant. It is important to bear in mind that the decision of a court must always be considered in the light of its own peculiar facts or circumstances. No case is identical to another, though they may be similar. Thus each case is only an authority for what it decides, and nothing more. See: Skye Bank Plc. & Anor. Vs Chief Moses Boianle Akinpeiu (2010) 9 NWLR (Ptll98) 179; Okafor Vs Nnaife (1987) 4 NWLR (Pt64)129.
The Issue that arose in that case was the admissibility of documents purportedly certified but not certified in full compliance with the provisions of Section 111 (1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria (LFN) 1990. The documents tendered before the trial court from the custody of the Police were purported to be certified true copies of the originals.
However no legal fees were paid for the certification. The contention of the plaintiffs/appellants was that since the witness who tendered the documents was a Police officer, he need not pay for the certification of the documents. This court held that in the certification of documents, ail the conditions contained in Section 111 of the Evidence Act are mandatory and must be complied with, to with, that is:
i. the necessary fees must be paid for certification;
ii. there must be an endorsement or certificate indicating that it is a true copy of the document in question;
iii. the endorsement or certificate must be dated and signed by the officer responsible for the certification with his name and official title.
The court further held that the lower court rightly held that failure to pay the legal fees amounted to non-compliance with the provisions of the Evidence Act. It concluded however that the lower court was wrong to have expunged the documents and ought to have ordered the plaintiffs to pay the necessary fees. I am of the considered view that the facts of the case as stated above are distinguishable from the facts of this case.
In the instant case, the appellant's statement, Exhibit 5 was produced pursuant to a notice to produce issued to the respondent and tendered from the Bar with the consent of counsel. This is
evident from the proceedings of 18/10/2006 reproduced below:
"18/10/2006
Accused present.
J.N. Adagba, SC, for the State.
S.S. Abba for the accused.
Adagba: We have an application. We were served notice to produce the statement made
by the accused at C Division. We obliged. We made copies available to the defence. We want
to tender it from the Bar. This is the statement. Abba: We do not oppose.
Court: - The statement of the accused dated 30/7/2004, mutually agreed to be tendered
from the Bar, is hereby admitted in evidence as Exhibits 5."
Exhibit 5 is the statement made to the Police on 30/7/2004 by the appellant in its original form, i.e. primary evidence thereof within the meaning of Section 86 (1) of the Evidence Act. Sections 104 and 105 of the Evidence Act are not applicable in the present circumstances, since what was produced and tendered from the Bar is the original statement and not a copy thereof. The appellant, through his counsel had the opportunity of objecting to the admissibility of the document at the time it was tendered. He failed to avail himself of the opportunity. Indeed as stated above, the statement was produced at his request.
The case of Ajao Vs Ambrose Family & Ors. (1969) 1 NMLR 24 @ 30 is clearly distinguishable from the facts of the instant case, as what was in issue In that case was the certification of a photostat copy of a document, In all the references in that case, highlighted at pages 16 - 17 of the appellant's brief, this court clearly made the point that the document marked Exhibit 2 was not a certified true copy but a photostat copy and it was therefore inadmissible as secondary evidence of a public document which it purported to be.
In the instant case, the original statement of the appellant, tendered from the Bar and admitted in evidence without objection was properly admitted in evidence.
This issue is accordingly resolved against the appellant.
Issue 2
In respect of this Issue, it is the contention of learned counsel for the appellant that the trial court and the court below erred in rejecting the appellant's defence of alibi raised during the course of his defence on the ground that he ought to have raised the defence at the Police station at the time he was making his statement. He contended that the appellant could not have raised the defence at that stage on account of prevailing circumstances, to wit: that he was "coerced, compelled and tortured" into confessing to the crime. He referred to the appellant's testimony at pages 46 and 48 of the record wherein he stated that on the day of the incident he was at TSE Bagu. He argued that the circumstances under which the appellant's statements were procured makes his situation peculiar and the defence worthy of consideration by the court. He submitted further that each case must be decided on its own peculiar facts. He cited the case of: Magit Vs UniAgric Makurdi (2005) 19 NWLR (Pt.959) 211 @ 247 G. Relying on the case of: HDP Vs INEC (2009) 8 NWLR (PM143) 297 ® 319 D H, he submitted that the current trend is for courts to Jean in favour of doing substantial justice and avoid undue reliance on technicalities.
He submitted further citing Olaiya Vs The State (2010) 3 NWLR (Pt.1181) 423 @ 436. that once the defence of alibi raised the prosecution has a duty to investigate and rebut the evidence. He argued further that the court has a duty to consider every defence raised by an accused person at trial, no matter how worthless, improbable, weak or stupid it might be. See: Ogunye Vs The State (1999) 5 NWLR (Pt.604) 548 (3) 570 - 571 G - A.
In response to the above submissions, learned counsel for the respondent submitted that contrary to the appellant's contention, notwithstanding the fact that the defence of alibi as raised at the trial for the first time; both the trial court and the court below considered the defence and found that it did not avail him. He submitted that an accused person wishing to rely on the defence of alibi must do so at the earliest opportunity by giving the details and particulars of his whereabouts to the Police promptly upon his arrest in order to avail the Police the opportunity to investigate, verify or confirm the truth or otherwise of the alibi. He referred to: Ndidi Vs The State (2007) 13 NWLR (Pt 1052) 633 to the effect that raising a defence of ailbi at the trial is of no help to an accused person. He observed that the defence was not raised in either of the appellant's two statements to the Police. He also argued that having not objected to the admissibility of Exhibit 5 when it was tendered, the appellant cannot challenge it at this stage. He noted that the defence of alibi was raised in 2006, two years after the appellant made his statements to the Police and submitted that the trial court and the court below rightly rejected it.
He submitted further that none of the prosecution witnesses was confronted with the issue of alibi under cross-examination. He referred to the case of: Agbanifo Vs Aiwere (1998) 2 SCNJ 149, wherein it was held that it is improper for the appellant or his counsel to hide the issue of alibi from the Police investigator and prosecution witnesses, fail to cross-examine the witnesses, and then attempt to testify in respect thereof after the prosecution has closed its case. He also cited: Okosi Vs The State (1989) 2 SCC (Pt. l) 126 @ 132 in support of his contention that the appropriate stage to challenge any evidence led by the prosecution is during cross-examination. Having failed to take advantage of cross-examination, learned counsel argued that the defence raised in the course of the appellant's defence at the trial is improper and the learned trial Judge was right to dismiss it in the absence of any special circumstance shown.
The position of the law is that the legal burden of proving its case against an accused person beyond reasonable doubt rests squarely on the prosecution and never shifts. However the burden of Introducing evidence on an issue, known as the evidential burden, may be placed by law on either the prosecution or the defence depending on the facts and circumstances of the case. See: Esangbedo Vs The State (1989) NWLR (Pt.113) 57 @ 69 - 70 H - A.: Woolminqton Vs D.P.P. (1935) A.C. 462. Where the evidential burden placed on a party in respect of a particular issue is not discharged, the issue would be resolved against the party without much ado. See: Esangbedo Vs The State (supra) at page 70 B - C. It was explained in Esangbedo's case (supra) at page 70 E - F that where, for example, a defence of alibi is raised, the ultimate or legal burden remains on the prosecution to establish the guilt of the accused person beyond reasonable doubt. However the evidential burden of eliciting or bringing evidence in respect of his defence of alibis on the accused. By raising the defence of alibi, the accused person is not seeking to prove his innocence but to raise a doubt as to what might otherwise have been a fool proof case by the prosecution. See: Egbarika Vs The State (2014) 4 NWLR (Pt.1398) 558 (9) 584 A - E.
On the meaning of alibi, this court, per Obaseki, JSC in: Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92 (5) 109 C - G, held thus:
'What is the meaning of alibi? It is a defence where an accused person aiieges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must he given. This is normally done at the first opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police. .,.
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt Adedeji Vs The State (1971) 1 ALL NLR p. 75. Failure by the police to investigate and chock the reliability of [the] alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement as was done in the case of Onafowokan Vs The State (1987) 7 SC; (1987) 3 NWLR (Part 61) page 538, ... The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi: Bozin Vs The State (supra). Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established.
The ipse dixit of the accused, i.e. that he was not present is not enough. To raise the defence he must give particulars of his whereabouts at that particular time."
(Emphasis mine)
From the excerpt of the above decision, it is dear that the initial evidential burden of setting up enough facts upon which the defence of alibi can rest, is on the accused person. He must raise the defence at the earliest opportunity to afford the prosecution an opportunity to investigate and rebut the evidence in order to discharge its burden of proving the guilt of the accused beyond reasonable doubt. See: Aqu Vs The State (1985) 9 SC 179: Ayan Vs The State (2013) 15
NWLR (Pt.1376) 34: Ndidi Vs The State (2007) 13 NWLR (Pt.1052) 633. I think it goes without saying that an alibi raised after the prosecution has closed its case and during the appellant's
defence could hardly be described as being "promptly and properly put up.'' The sum total of his defence of alibi is as follows:
At page 46 lines 10 & 11 of the record:
"When Msutegher was allegedly killed, I was at Tse Bagu."
And at page 48 lines 2 & 3;
"When Police arrested me at Tse Bagu one elderiy man, who gave me land to farm was present. His name is Chia Bagu."
Even if it had been raised at the earliest opportunity, the defence is vague and bereft of detailed particulars that would enable the Police investigate. I entirely agree with the court below, which affirmed the finding of the trial court on this Issue, that the defence of alibi was unreliable and raised too late in the day to be of any benefit to the appellant. The court gave full consideration to the issue before dismissing it.
It was the further contention of learned counsel for the appellant that the defence could not have been raised at the Police station due to "prevailing circumstances" having regard to the evidence of the appellant at the trial that he was "coerced, compelled and tortured" into confessing to the crime. With due respect to learned counsel, the contention does not hold water. This is because the Appellant's statement, Exhibit 5, was admitted in evidence without objection. He was duly represented by counsel. It was never contended that the statement was made involuntarily and there was no application for a trial within trial to be conducted to test its voluntariness. Again the issue being raised after the prosecution had closed its case is belated. It is an afterthought and cannot avail him. I accordingly resolve this issue against the appellant.
ISSUE 3
In support of this issue, learned counsel for the appellant referred to the evidence of PWT (the father of the deceased child) and PW2 (the neighbour who discovered the corpse of the deceased) and submitted that neither of them was an eyewitness to the crime. He noted that while PW1 claimed to have been present at the Police station when the appellant allegedly confessed to committing the crime, PW2's testimony was that his attention was drawn to the corpse of the deceased in an uncompleted building by his friend, and he thereupon alerted PW1, whom he knew had been searching for his son. He submitted that the testimony of PW3, one of the investigating police officers, was merely to the effect that the appellant confessed to him at the Police station that he killed the deceased. Relying on Section 131 (1) of the Evidence Act, 2011 and the case of Ani Vs The State (2009) 16 NWLR (Pt.1168) 443 @ 457 458 F B. he submitted that the burden of proving the guilt of an accused person lies on the prosecution throughout the proceedings and that the standard of proof is beyond reasonable doubt.
On the ingredients to be established to secure a conviction for murder, he cited the case of:
Maiyaki Vs The State (2008) 15 NWLR (Pt.1109) 173 ® 192 - 193 G B wherein it was held that the prosecution must prove:
1. That the deceased had died;
2. That the death of the deceased has resulted from the act of the appellant; and
3. That the act or omission of the accused, which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its probable consequence.
That the three ingredients must co-exist and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved.
Learned counsel contended that the respondent did not lead any evidence to establish that the death of the deceased resulted from the act of the appellant. He also submitted that the appellant was not linked with the crime. He submitted that the appellant's conviction was against the weight of evidence as the respondent failed to lead cogent evidence to establish his guilt. He urged the court to set aside the conviction and sentence.
In reaction to the submissions of learned counsel for the appellant, learned counsel for the respondent submitted that the court below rightly held that the respondent had proved its case beyond reasonable doubt and properly dismissed the defence of alibi. He submitted that the appellant's confessional statement, Exhibit 5, is positive and direct and is sufficient to convict him for the commission of the offence charged. He noted that Exhibit 5 contains a detailed
narrative of how the appellant and one Abu (now at large) conspired together to slaughter the deceased 3-year-old child. He noted that there was no objection to the tendering of Exhibit 5. He submitted that a free and voluntary confession, which is direct and positive and properly proved, is sufficient to sustain a conviction. See: Arogundare Vs The State (2009) Vol. 169 LRCN 23. Citing the case of: Akinmogu Vs The State (2000) 6 NWLR (Pt.662) 608, he submitted that it is settled law that an admission made at any time by a person charged with an offence, even before it has been decided to formally charge him with committing a crime, without administering a caution, suggesting that he committed the offence is a relevant fact against him. He referred to the evidence of PW1 at page 31 lines 10 -13 and at page 33 line 4, wherein he testified that the appellant confessed to the crime in his presence.
He maintained that the appellant was linked with the death of the deceased and referred to Exhibit 3, the medical report, which was unchallenged, which stated the cause of death to be "cardiac respiratory failure from laceration of the trachea and carotid arteries and jugular vein