MICHAEL ASSAH V. THE STATE

Legalpedia Citation: (2025-04) Legalpedia 95967 (SC)

In the Supreme Court of Nigeria

Fri Apr 4, 2025

Suit Number: SC.CR/177/2016

CORAM

John Inyang Okoro Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Chidi Nwaoma Uwa Justice of the Supreme Court of Nigeria

Haruna Simon Tsammani Justice of the Supreme Court of Nigeria

Mohammed Baba Idris Justice of the Supreme Court of Nigeria

PARTIES

MICHAEL ASSAH

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

CRIMINAL LAW, EVIDENCE LAW, CONSTITUTIONAL LAW, MURDER, CONFESSIONAL STATEMENTS, CIRCUMSTANTIAL EVIDENCE, BURDEN OF PROOF, PRACTICE AND PROCEDURE, PRESUMPTION OF INNOCENCE, LAST SEEN DOCTRINE

SUMMARY OF FACTS

The Appellant in this case, Michael Assah, was a Police Officer who was arraigned, tried and convicted in the Delta State High Court sitting at the Ughelli Judicial Division on a one-count charge of murder punishable under Section 319(1) of the Criminal Code, Cap 48, vol. 1, Laws of the defunct Bendel State of Nigeria, 1976. The particulars of the offense stated that Michael Assah, on August 18, 2002, at Ughelli within the Ughelli Judicial Division, murdered one Christopher Ojeabulu.

At the trial, the prosecution called three witnesses. PW1 testified that she was a Police Corporal serving with the Appellant at the time of the incident. She stated that on August 18, 2002, a case of attempted robbery involving the deceased was reported at the station. The deceased was put behind the counter to await detention order but escaped. The following day at about 4:45 am, Civil Defence Officers arrested and brought back the deceased to the station. PW1 went to the toilet after that and could not tell what happened to the deceased subsequently.

PW2 testified that he was attached to the Divisional Police Headquarters Ughelli at the time and was a colleague of the Appellant. As a member of the investigating team, he recorded the statement of the officer on duty on the day of the incident.

PW3, an Assistant Superintendent of Police, stated that a petition was written by a lawyer on behalf of Joseph Ojeabulu, complaining about the unlawful killing of his son, Christopher Ojeabulu. The Commissioner of Police directed PW3 and his team to investigate. During the investigation, he received the written statements of the Appellant, which were admitted in evidence as Exhibits C, C1, and C2. An Autopsy Report, a Baretta Rifle, and Investigation Report were also tendered as evidence.

The Appellant testified for himself as DW1 and did not call any other witness. On July 22, 2009, the Appellant was convicted and sentenced to death. His appeal to the Court of Appeal was dismissed, leading to this appeal to the Supreme Court.

HELD

1. The appeal was dismissed.
2. The Supreme Court affirmed the judgment of the Court of Appeal, Benin Division, delivered on July 15, 2015, which had upheld the conviction and death sentence imposed on the Appellant by the trial court.
3. The Court held that the prosecution had proved beyond reasonable doubt that it was the Appellant who aimed and shot at the deceased, leading to his death.
4. The Court found that although the Appellant claimed to have aimed at the legs of the deceased, the medical evidence showed that there were two shots to the chest and abdomen, which caused the death.

ISSUES

Whether the lower Court was not wrong to have affirmed the decision of the trial Court that the prosecution proved its case beyond reasonable doubt? (Grounds 1-5)

RATIONES DECIDENDI

PRESUMPTION OF INNOCENCE – BURDEN ON PROSECUTION TO PROVE GUILT BEYOND REASONABLE DOUBT

It is settled law that a person accused of or charged with having committed a criminal offence is to be presumed innocent until his guilt is proved by the prosecution beyond reasonable doubt. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). That being so, the burden is on the prosecution, who accuses the accused person to adduce cogent, concrete and credible evidence that will rebut the constitutionally guaranteed presumption of innocence in favour of the accused. – Per HARUNA SIMON TSAMMANI, J.S.C.

PROOF BEYOND REASONABLE DOUBT – MEANING AND STANDARD

It should be noted that proof beyond reasonable doubt does not mean proof beyond every iota or shadow of doubt. Proof beyond reasonable doubt only means establishing the guilt of the accused with evidence that is both compelling and conclusive. It also means proof that dispels of all whimsical, sentimental and parochial considerations. Thus, where the evidence adduced by the prosecution is cogent, credible and establishes all the essential elements of the offence charged, it would be said that the offence has been proved beyond reasonable doubt. – Per HARUNA SIMON TSAMMANI, J.S.C.

ESSENTIAL ELEMENTS OF MURDER – REQUIREMENTS FOR PROOF

As rightly pointed out by both Counsels in their opening submissions, for a charge of murder to be proved beyond reasonable doubt, the prosecution must lead evidence to establish the following facts: (a) That the death of human being has occurred; (b) That the death was caused by an act or omission of the accused; and (c) That the act or omission of the accused was done with the intention of causing death or grievous bodily harm; or that the accused knew that death or grievous bodily harm was a probable result of his act or omission. – Per HARUNA SIMON TSAMMANI, J.S.C.

METHODS OF PROVING COMMISSION OF OFFENCE – DIFFERENT APPROACHES

The prosecution may prove the commission of the offence through: (a) the evidence of eye witness(es) who saw when and how the offence was committed. (b) The confessional statement of the accused which is direct, positive, unequivocal and duly proved, showing that the accused has admitted to have committed the offence charge. (c) By circumstantial evidence which by undesigned coincidence proved unequivocally that the accused and no other person committed the offence.- Per HARUNA SIMON TSAMMANI, J.S.C.

CONFESSIONAL STATEMENT – NATURE AND REQUIREMENTS

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime and this includes both extrajudicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. – Per HARUNA SIMON TSAMMANI, J.S.C.

CONFESSIONAL STATEMENT – MUST BE DIRECT AND UNEQUIVOCAL

From the above dictum, confession is a full acknowledgement by a person charged with a crime that he has done something wrong; or has committed the offence charged. Nkie v FRN (2014) LPELR-22877 (SC) State v Salawu (2011) LPELR-8252 (SC) and State v. Salawu (2011) LPELR-9351 (SC). For a statement to amount to a confession within the context of Section 28(1) of the Evidence Act, 2011, it must be a clear acknowledgment of guilt. It must also have been made voluntarily, indicating that he participated in or committed the crime charged. In other words, it must be a direct, positive and unequivocal admission of the allegation of the commission of the crime charged. – Per HARUNA SIMON TSAMMANI, J.S.C.

CIRCUMSTANTIAL EVIDENCE – RELEVANCE OF LIES TOLD BY ACCUSED

Though telling a lie or lying by an accused person in a criminal trial is not evidence of guilt, where the fact of lying is taken together with other relevant facts and circumstances in the case, the lies become relevant facts to the facts in issue and may be weighed against the accused. – Per HARUNA SIMON TSAMMANI, J.S.C.

LAST SEEN DOCTRINE – DEFINITION AND APPLICATION

The last seen doctrine or theory in a criminal trial enjoins the Court to draw inference that a person who was last seen alive with a person who was later found to have been killed or murdered, was the murderer. This is a rebuttable presumption of law which may be rebutted by evidence which explains the manner in which the deceased was killed other than that it was the accused that killed him. Therefore, the law presumes that a person last seen with a deceased bears full responsibility for his death. – Per HARUNA SIMON TSAMMANI, J.S.C.

LAST SEEN DOCTRINE – WHEN INAPPLICABLE

The inference that a person last seen alive with a person later found to have been murdered was the murderer could not be drawn in this very case. It is an inference which may or may not be drawn, depending on the ascertained evidence as to the manner the deceased met his death. Where there is undisputed evidence as to how the deceased met his death, the necessity to draw any inference that it was the person last seen with him alive who killed him would be irrelevant and unnecessary. – Per HARUNA SIMON TSAMMANI, J.S.C.

APPELLATE COURT’S APPROACH TO CONCURRENT FINDINGS – PRINCIPLE OF NON-INTERFERENCE

I had at the inception of this judgment, made finding to the effect that this appeal is against concurrent findings of facts made by the two Courts below. Furthermore, that, where there are concurrent findings of facts, this Court as a matter of policy always abstains from disturbing such concurrent findings unless where they are found to be perverse or have led to miscarriage of justice. – Per HARUNA SIMON TSAMMANI, J.S.C.

PRESUMPTION OF VALIDITY OF JUDICIAL ACTS – BURDEN ON CHALLENGER

It is the law, by virtue of Section 168 of the Evidence Act, 2011, that where a judicial act has been shown to have been done in a manner that is substantially regular, there is a rebuttable presumption as to its validity and/or correctness. The burden is on the person, in this case the Appellant, who disputes its validity and/or correctness to establish from the evidence on record, how it is so. – Per HARUNA SIMON TSAMMANI, J.S.C.

ALIBI – MEANING AND REQUIREMENTS

The defence of alibi simply means that the accused was not at the scene of the crime at the time the deceased was murdered. It means that the accused was “elsewhere”. He was not at the scene of crime at the time it was committed. See Shehu v The State (2010) 8 NWLR (Pt.1195) 112; Olatinwo v The State (2013) 8 NWLR (Pt.1355) 126 and Eyisi & Ors v State (2000)15 NWLR (Pt.691)555. – Per HARUNA SIMON TSAMMANI, J.S.C.

PROSECUTION’S DISCRETION ON WITNESSES – NO OBLIGATION TO CALL PARTICULAR WITNESS

It is the law that the prosecution has the freedom or liberty to choose which witness to call. The defence has no right to decide for the prosecution which witness to call. In other words, the prosecution is only required to call such a number of witnesses that it considers necessary and sufficient to prove its case against the accused. Therefore, the prosecution does not require a legion of witnesses to prove its case. Therefore, the testimony of even one witness which is cogent, credible and convincing may prove a charge beyond reasonable doubt. – Per HARUNA SIMON TSAMMANI, J.S.C.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as altered)

2. Criminal Code, Cap 48, vol. 1, Laws of the defunct Bendel State of Nigeria, 1976

3. Evidence Act, 2011

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