FABIAN IMOH Vs. THE STATE

Supreme Court – July, 2016

Appeal No: SC. 310/2012

Areas Of Law:

APPEAL, CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

Summary Of Facts

The Appellant was charged under section 233 of the Penal Code for knowingly causing the death of a pregnant victim when with the intention of inducing a miscarriage he injected her. He pleaded not guilty to the charge and the prosecution through its lone witness tendered Exhibit 2 which was the Appellant’s confessional statement and exhibit 5, the post mortem examination report. At the trial, a no case submission was overruled by the trial court and the Appellant gave evidence in his own defence and called other witnesses. He also objected to the admissibility of the purported confessional statement on grounds that it was obtained after he had been severely beaten at the police station and same was neither signed by him or the police officer who recorded the statement. The Respondent on the other hand contended that the Appellant never objected to the admissibility of the statement. The trial court convicted the Appellant for the offence charged and an appeal to the lower court was dismissed hence the instant appeal.

Held

Appeal Dismissed

Issues For Determination

• Whether the Honourable Court of Appeal was right in law when it upheld the conviction and sentence of the Accused/Appeilant by the Honourable Trial Court which was based on his extra judicial confessional statement – Exhibit 2. [Distilled from Ground 1]
• Whether from the totality of the evidence, the Honourable Court of Appeal was right in law when it upheld the conviction and sentence of the Accused/’Appellant by the Honourable Trial Court, based on Exhibit 5 [the    Nigeria    Police    Post Mortem Examination Report] to reach the conclusion that the death of the deceased was caused by the act of the appellant. [Distilled from Ground 2]
• Whether in view of the evidence before the trial court the prosecution proved its case against the appellant beyond reasonable doubt

Rationes

CONFESSIONAL STATEMENT – WHETHER A COURT CAN CONVICT AN ACCUSED PERSON ON HIS CONFESSIONAL STATEMENT ALONE

“The law is trite that though it is desirable for a court to base its conviction on evidence outside an accused person’s confessional statement as well, it is not the principle that where the court is satisfied that the confessional statement is direct positive and probable it cannot convict an accused on the confessional statement alone”. PER M.D. MUHAMMAD, J.S.C

CONFESSIONAL STATEMENT – WHAT AMOUNTS TO A CONFESSIONAL STATEMENT?

“Now, a statement is said to be confessional if it suggests the commission of the whole ingredients of the offence the maker of the statement stands trial for”.  PER M.D. MUHAMMAD, J.S.C

 CONCURRENT FINDINGS OF LOWER COURTS –WHERE THE CONCURRENT FINDINGS OF LOWER COURTS ARE NOT IN BREACH OF ANY PRINCIPLE, IT CANNOT BE SET ASIDE

“The concurrent findings of the two courts having drawn from the evidence on record and not in breach of any known principle cannot, therefore, be set-aside. See Nkebisi v. State (2010) FWLR (Pt 521) 1407 at 1419 and Afolabi V. State (2010) FWLR (538) 812 at 839”. PER M.D. MUHAMMAD, J.S.C

CONFESSIONAL STATEMENT –REQUIREMENT TO JUSTIFY A CONVICTION BASED ON CONFESSIONAL STATEMENT

“The overriding requirement of the law to justify a conviction on the basis of a statement such as Exhibit 2 remains its voluntariness. See David Obue V The State (1976) 2 SC, Queen V. Chukwiyi Obiasa (1962) 1 ALL NLR 651 and Ojegele V, The State (1988) 1 NSCC 276”. PER M.D. MUHAMMAD, J.S.C

RETRACTION OF CONFESSIONAL STATEMENT – CONSEQUENCES OF RETRACTION OF CONFESSIONAL STATEMENT

“Appellant in his oral testimony said he did not make Exhibit 2. This denial or retraction of the confessional statement does not affect its admissibility. Rather the retraction is a determinant of the weight to be attached to the statement. See Dibie v. State (2007) 3 SC {Pt. 1) 176; Ukpong v. Queen (No. 1) (1961) 1 SC NLR 53; Adekoya v. State (2012) 3 SC (Part 111) 36”. PER N.S. NGWUTA, J.S.C

CONFESSIONAL STATEMENT – WHETHER THE MERE RETRACTION OF CONFESSIONAL STATEMENT RENDERS IT INADMISSIBLE

“Admissibility of evidence and particularly documents depends on the purpose for which it is being tendered and so in the case of a confessional statement such as the one in issue, mere retraction of it by the accused/appellant does not render it inadmissible or worthless and untrue in considering the guilt of the accused. If the confessional statement is satisfactorily proved, a conviction founded on it without anything else is sustainable on appeal. See Ogbe v Asade (2010) FWLR (Pt 510) 612 at 638; Ihuebeka v State (20001 FWLR (Pt. II) 1827 at 1847; Idowu v State (2000) FWLR (Pt. 16) 2672 at 2703”. PER M.U.PETER-ODILI, J.S.C

SECTION 233 PENAL CODE LAW – ELEMENTS OF THE OFFENCE OF INDUCING MISCARRIAGE

“As to whether the offence under section 233 Penal Code Law on which the appellant was charged had been proved beyond reasonable doubt, the essential elements of the offence are thus:

(i)         That the woman was with child,

(ii)        That the accused did an act to cause a miscarriage

(iii)       That he did so with that intention,

(iv)       That such act caused the death of the woman; and

(v)        If the cause comes under paragraph (ii) that such act was done by the accused without the consent of the woman. PER M.U.PETER-ODILI, J.S.C

 

Statutes Referred To:

Evidence Act 2011

Penal code CAP 89 laws of the Northern State applicable to Benue State