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‘’Proof Beyond Reasonable Doubt Does Not Mean Proof Beyond All Shadow Of Doubt …’’




This is an appeal against the judgement of the Court of Appeal, sitting at Makurdi delivered on 9th July, 2013 wherein the court below affirmed the conviction and sentence of the Appellant for the offence of conspiracy to cause death and culpable homicide punishable with death contrary to Section 97 and Section 221 of the Penal Code respectively.
The Appellant who was the first accused at the trial court being dissatisfied with the decision of the Court of Appeal has further appealed to this court vide Notice of Appeal dated 2nd August, 2013 and filed on 5th August, 2013. The said Notice of Appeal contains five (5) grounds of Appeals. Abrief facts giving birth to this appeal may be stated as follows:

The Appellant was charged together with one Moavega Igba who was the 2nd accused at the High Court of Justice, Makurdi, BNenue state on a two count charge of conspiracy to cause death and culpable homicide punishable with death contrary to Sections 97 and 221 of the Penal Code respectively. At the trial, the prosecution called a total of seven (7) witnesses and tendered several documents in evidence in proof of its case. The Appellant testified for himself and called two witnesses in denial of his culpability.
It is the case of the prosecution that the deceased, one Kyernum Kervo, was alleged to have stolen a piece of goat meat at a funeral ceremony, whereupon he was apprehended and handed over to the Appellant and 2nd accused, Moavega Igba by the Elders to take to the Police Station at Gungul. It is their further case that instead of the [Appellant and the 2nd accused taking the deceased to the police station; they took him to the river side, tied his legs and hands and burnt him to death.

The Appellant, whose conviction by the trial court was unanimously affirmed by the Court of Appeal, was arrested after the incident with the 2nd accused whereupon they both confessed to the commission of the crime vide Exhibits B and C respectively.
The appellant testifying in his defence at the trial court, retracted the confessional statement in Exhibit B, stating rather, that after the Elders handed over the deceased to him and 2nd accused directing them to take him to the police station, the elders sent a counter instruction that they should bring him back. According to the Appellant, the counter instruction did not go down well with the irate crowd that was following them, whereupon the crowd seized [the deceased from them. Appellant testified further that he and 2nd accused fled the scene upon being threatened by the mob.

Appellant’s lone issue is, ‘’whether the prosecution has proved all the ingredients of the offences charged against the appellant beyond reasonable doubt as required by law’’.

Referring to Section 138 of the Evidence Act Cap E-14 Laws of the Federation of Nigeria 2004 and the case of Adekoya V State (2012) 3 SC (pt 111) 36, learned counsel for the appellant submitted that in all criminal cases, the standard of proof is proof beyond reasonable doubt and that there is no duty on the accused person to prove his innocence. He also cited the cases of Musa v The State (2013) 2-3 SC (pt 11)75 at 105, Egwumi v The State. (2013) All FWLR (pt 678) 825 and Section 36 [5) of the 1999 Constitution (as amended)
Learned counsel contended that for the prosecution to prove the case beyond reasonable doubt, he must establish that: (1) the deceased died, (2) the death of the deceased was caused by the act of the accused, (3) the act of the accused which caused the death, was intentional with knowledge ‘that death or grievous bodily harm was its probable consequence.’ The case of Adada v the state (2006) An FWLR (or 311) 179 was cited in support.
Learned counsel submitted that the fact that the charge sheet accused the Appellant of killing the deceased on or about the 19th October, 2002 is at variance with the prosecution witnesses testimonies that the deceased died in May, 2002. According to him, this is a substantial contradiction. The 5 [five] months interval cannot be accommodated within the phrase “on or about”. It his contention that the court below was in error to have affirmed the judgment of the trial court. He reasoned that a trial court must not base its decision on speculation or matters not supported by the evidence before the court, referring to Oshodin V the State (2001) 12 NWLR (pt 726) 231.
Again he submitted that whereas PW2 testified that he said the deceased was stabbed, the PW3 who is an Expert Witness testified that there was no trace of the deceased being stabbed. This contradiction, according to him affects the case of the prosecution, citing the case of Udosen V The State (2007) 1-2 SC 58.
Learned counsel opined that though it is not every inaccuracy that will render a witness’s testimony as unreliable; the court below was wrong inholding that the contradictions in this case are not material. Learned counsel submitted further that failure to produce PW6 the IPO for cross examination made his testimony unreliable and that Exhibits B and C recorded by him ought to be discountenanced.
It was further contended that Exhibit B does not carry any signature or thumbprint of the appellant and as such the document cannot be ascribed to him, relying on Aiki V ldowu (2006) All FWLR (pt 293) 356.
Learned Counsel concluded that being that there are multitude of people that followed the deceased shouting: “thief, thief, and the fact that the death of the deceased was not conclusively linked to the appellant, a doubt has been raised. He urged the court to resolve the doubt in favour of the appellant and resolve the lone issue in his favour.

In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with-compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.
As was stated by Lord Denning J, in Miller V Minister of Pensions (1947) 2 All ER 372, a case which has been generally relied upon by courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – ‘of course it is possible but not in the least probable’ the case is proved beyond reasonable doubt.”
See also Nwaturuocha V The State (2011) 6 NWLR (pt 1242) 179, Smart v The State (2016) 1-2 SC (pt 11) 41, (2016) 9 NWLR, (pt 1518) 447, Oseni v The State (2012 LPELR -7833 (SC), (2012) 5 NWLR (pt 1293) 351 Hassan v the state (2016) LPELR-42554 (SC).
In The State V Onyeukwu (2004) 14 NWLR (pt 813) 340, this court held that the expression “beyond reasonable doubt’’ is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.
A conviction for culpable homicide punishable with death under Section 221 of the Penal Code would be sustained if the prosecution is able to prove the ingredients of that offence beyond reasonable doubt. Now the ingredients of the offence of culpable homicide punishable with death or murder are as follows: (a) that the-deceased has died; (b) that the death of the deceased was caused by the act of the accused and, (C) ‘that the fact of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.
See Musa v The State (2009) 1S NWLR (pt 1165) 467 Ilodigiwe v The State (2012) 18 NWLR (pt 1331) 1 Ogédengbe -V The State (2014) LPELR 23065 (SC), (2014) 12 NWLR (pt 1421) 338.
Both the trial court and the court below held that the prosecution proved the above ingredients of the offence of culpable homicide punishable with death and conspiracy against the appellant beyond reasonable doubt.
A confessional statement which is proved to have been v[voluntarily made, cogent and positive and unequivocal, as in this case, amounts to an admission of guilt and a trial court would be right to rely on it to ground a conviction. A retraction of the statement does not make it inadmissible. See R V ltule {1961) All NLR 462 at 465, lsong V The State [2016) LPELR-40609 {SC}, Akpan V the State (2001) 15 NWVLR (pt737) 745.
However before a conviction can be properly founded on such retracted confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. That is to say; 1.there anything outside the confessional statement to show that it is true? ; 2. Is it corroborated? 3. Are the relevant statements of facts made in it most’ likely to be true as far as they can be tested? 4. Is his confession possible? 5. Is it consistent with other facts which have been ascertained and which have been proved?
See Ozare Ubierho V The State (2005) 7 MJSC 168 at 189 paragraphs A-B, Ogudu v The State (2011) 18 NWLR (pt 1278) 1, Saliu v The State (2014) 12 NWLR (pt 1420) 65, Okoh v The State (2014) 8 NWLR (pt 1410) 502.
There is no doubt, as was found by the two courts below, that there is so much outside the confessional statement of the appellant to attest to its veracity as borne out by the evidence of the prosecution witnesses that the appellant and one other, instead of taking the deceased to the police as directed by the Elders, decided to illegally and unlawfully terminate the life of the deceased in a gruesome manner of burning him alive. PW2 saw them burn the deceased by the River side. All other witnesses including PW3 the Medical Doctor testified that the deceased was 100% burnt to death. I have no doubt whatsoever that the confessional statement was voluntarily made and was properly relied upon by the trial court as affirmed by the court below.
On the whole, it is my well-considered view that the court below was right to agree with the trial court that the prosecution proved this charge against the appellant beyond reasonable doubt. The sole issue submitted for the determination of this appeal is in the circumstance resolved against the appellant. All that remains to be said here is that there is no merit in this appeal and is accordingly dismissed. I affirm the judgment of the Court of Appeal Makurdi delivered on 9th July, 2013 in appeal No. CA/J/90c/2008 which had earlier upheld the conviction and sentence of the appellant to death for culpable homicide punishable with death. Appeal Dismissed

John Inyang Okoro, JSCChima Centus Nweze, JSC

M A. Ebute Esq with B. E Sheyin Esq for the Appellant

F. M Ebofuame-Nezam (Mrs) with P C. Ogbonna Esq for the Respondent





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