Anthony Itu V. The State

Supreme Court – January, 2016

APPEAL NO: SC. 706/2013

Areas Of Law
CRIMINAL LAW, MURDER- EVIDENCE- CONFESSIONAL STATEMENT -TAINTED WITNESS

Summary of Facts
The Appellant was brought to the High Court of Delta State on account of a murder charge of one Godswill Itu, who was his nephew. At the trial, the Appellant pleaded not guilty to the charge of murder. The Prosecution, now Respondent, called six witnesses to prove its case, it also tendered four exhibits namely exhibits A and B which were confessional statements made by the Appellant to the Police after his arrest, while Exhibits C and D are one single barrel gun and cartridge allegedly recovered from the Appellant at the scene of the crime. At the end of the Prosecution’s case, the Appellant entered his defence by giving evidence he later called one witness to testify. However in the course of trial the Appellant objected to the tendering of his confessional statement on the ground that the statement was not made voluntarily by him. This lead to a trial within trial. After conducting the trial within trial ,the trial Judge did not deliver his ruling in order to determine the admissibility or otherwise of the confessional statement, but the trial Judge admitted the two statements as Exhibits A and B without evaluating the evidence at the mini trial, promising to do so at the end of the trial. Aggrieved with the conduct of the trial Judge, Appellant appealed to the Court of Appeal where he challenged the procedure of the trial Judge which he claimed led to a miscarriage of justice. The Court of Appeal in a majority decision dismissed the Appellant’s appeal and affirmed the judgment of the Trial Court. Dissatisfied with the judgment the Court of Appeal the Appellant proceeded to the Supreme Court.

Held
Appeal Dismissed

Issue For Determination

Whether the lower court was right in holding that the learned trial judge properly conducted trials within trial before he admitted and relied on exhibits A and B in his judgment against the appellant.
Whether having regard to the circumstances of this case and the totality of the evidence on record, the lower court was right when it affirmed the decision of the learned trial judge who convicted the appellant for murder.

Rationes
MISCARRIAGE OF JUSTICE-MEANING OF MISCARRIAGE OF JUSTICE
“miscarriage of justice simply means justice miscarried. Miscarriage of justice in short means failure on the part of the court to do justice. It is justice misapplied, misappreciated or misappropriated. It was also an ill conduct on the part of the court, which amounts to injustice. Miscarriage of justice arises in a decision or outcome of legal proceedings, that is prejudicial or inconsistent with substantial right of a party. See the cases of The State vs Ajie (supra) or (2000) 7 SC(pt I) 24, Pam and Anor vs Mohammed and Anor(2008) 5-6SC(pt 1) 83.” PER SANUSI, JSC

WRONGFUL ADMISSION OF EVIDENCE- WRONGFUL ADMISSION OF EVIDENCE WOULD NOT LEAD TO REVERSAL OF DECISION WHERE IT DIDN’T AFFECT THE DECISION.
“Wrongful admission of evidence would not by itself, be a ground for reversing a decision where an appellate court finds that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same even if such evidence had not been so admitted. See Section 251 (1) of the Evidence Act 2011 as amended. See also Achibong vs State (2006) 14 NWLR(pt 1000)349 at 494.” PER SANUSI, JSC

PROOF BEYOND REASONABLE DOUBT-PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND EVERY SHADOW OF DOUBT
“The phrase “proof beyond reasonable doubt” does not however mean beyond the shadow of doubt. It is trite to say, that the law will not serve its purpose of protecting the community if it admits fanciful possibilities to deflect the course of justice.” PER SANUSI, JSC

PROOF OF MURDER OR ANY OFFENCE- MURDER OR ANY OFFENCE COULD BE ESTABLISHED BY THE EVIDENCE OF ONE CREDIBLE HONEST WITNESS.
“An offence of murder or any offence, for that matter can be proved beyond reasonable doubt (standard) even through only one credible, honest and untainted witness and not necessarily by calling myriad of witnesses who are not credible or who have interest to serve or who are merely called to tell half-truth. See Nkebisi v State(2010) All FWLR(pt 521) 1407 or (2010) 3 SCN 170; Miiller vs Minister of Pensions (1947) 2 NIER 372.” PER SANUSI, JSC

HOW THE GUILT OF ACCUSED PERSON CAN BE ESTABLISED-THE GUILT OF AN ACCUSED PERSON COULD BE ESTABLISED THROUGH HIS CONFESSION OR CIRCUMSTANTIAL EVIDENCE OR EVIDENCE OF WITNESSES.
“The law is trite, that guilt of an accused person can be proved through any of the following methods:-
(1) Through confessional statement of the accused, or
(2) Through circumstantial evidence
(3) Through the testimony of eye witness or eye witnesses See Emeka v State (2001) 14NWLR (pt 734)666; Igabele v State(2006) 2 SC (pt 11)61.” PER SANUSI, JSC

THE NUMBER OF WITNESSES NEEDED TO ESTABLISH AN OFFENCE- THE PROSECUTION NEED NOT CALL ALL CONCEIVABLE WITNESSES TO ESTABLISH ITS CASE
“The general law in calling of witnesses to testify for party in a criminal trial especially the prosecution, is that it is not the requirement of the law that the prosecution must call all conceivable witnesses. The duty of the prosecution pursuant to the provisions Section 131 (1) of the Evidence Act 2011 as amended, is to call witness or witnesses to prove their case beyond reasonable doubt. See State vs Azeez & Ors(2005) 4SC 188.” PER SANUSI, JSC)

EVIDENCE- WHETHER NUMBER OF WITNESSES DETERMINES A CASE
“It is not the number of witnesses the prosecution calls that matters, or that entitles it to prove its case. Rather, it is the quality of the evidence that is given by the witness or witnesses that matter. In fact, one witness alone may be enough to prove a case or even a murder case.” PER SANUSI, JSC

TAINTED WITNESS- DEFINITION OF A TAINTED WITNESS
“My understanding of a “tainted witness” is that he is one witness who is either an accomplice or by the evidence he gives whether for the prosecution or for the defence may and could be regarded as having some purpose of his own to serve. See Omotola vs State (2009) 7NWLR(pt 1391) 148 at 177.” PER SANUSI, JSC

Statutes Referred To
Evidence Act 2011, as amended.