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ENEBELI v. STATE (2021) LCN/4985(SC)

In The Supreme Court

On Friday, June 04, 2021


Before Our Lordships:

Mary Ukaego Peter-Odili -Justice of the Supreme Court of Nigeria

John Inyang Okoro -Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa-Justice of the Supreme Court of Nigeria

Adamu Jauro -Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim -Justice of the Supreme Court of Nigeria







GODSPOWER EROGA, Esq.-For Appellant(s)

C.O. AGBAGWU ESQ., Deputy Director, Department of Appeals,

Ministry of Justice, Delta State  –  For Respondent(s)

Adamu Jauro, J.S.C. (Delivering the Leading Judgment)

This appeal is against the decision of the Court of Appeal, Benin Division delivered on 7th June, 2016 in appeal No. CA/B/239C/2013 wherein the Appellant’s appeal was dismissed and the judgment of the Delta State High Court sitting in Sapele delivered by E.N. Emudainohwo J. (Mrs.) on the 16th July, 2012 was affirmed.

Brief statement of Facts

The Appellant was charged on a one count charge of murder punishable under Section 319 (1) of the Criminal Code Cap 48 Vol. II Laws of the defunct Bendel State as applicable to Delta State.

In a bid to discharge the evidential burden imposed on it by law, the Respondent as prosecution at trial called three witnesses who testified as PW1 – PW3 and tendered seven exhibits marked Exhibits P1 – P7. The Appellant testified in his defence and called one other witness without tendering any exhibit. PW1 is the step father of the deceased; PW2 is the investigating police officer (IPO), while PW3 is the medical practitioner who conducted autopsy on the deceased. Exhibit P1 is the statement of the deceased, Exhibit P2 – P4 are negatives and photographs of the deceased, Exhibit P5 is the statement of the Appellant, Exhibit P6 is the attestation form of a superior police officer on the Appellant’s statement, Exhibit 7 is the medical report showing the cause of death.

The brief facts culminating into the instant appeal are that the Appellant and the deceased, one Alero Eniyan were lovers, but the deceased’s parents did not approve of their relationship. The parents of the deceased moved her from Koko where they reside to Ologbo with a view to ending the relationship. The Appellant traced her to Ologbo which caused the parents of the deceased to move her to Ondo town of Ondo State where she found a suitor. The deceased however returned to her parent’s place at Koko because of her sister’s birthday and her suitor came to visit her parents to inform them that he wanted to marry her.

It was further submitted that Exhibit P6, the purported attestation to Exhibit P5 shows that Exhibit P5 was not made voluntarily or was not made at all as it was only written at the bottom of Exhibit P6 that “… I confirm/deny that it was a free and voluntary statement.” That the name of the Appellant was not written in the blank space, neither was Exhibit P6 interpreted to him. Learned counsel further submitted that the attesting officer was not called to testify and the contents of Exhibits P5 and P6 contradicted the evidence of PW2 that the Appellant signed the documents as his signature was not on the documents.

Counsel urged this Court to reject the evidence of PW1 as unreliable because he was asleep when the incident occurred and he could not have heard the statement purportedly made by the deceased. On the whole, he urged this Court to allow the appeal, discharge and acquit the Appellant for the offence of murder.

On issue one distilled by the Respondent, learned counsel submitted that in order to succeed in a charge of murder, the prosecution must adduce credible evidence linking the accused person with the crime and all ingredients of the offence must be proved beyond reasonable doubt. Section 135 of the Evidence Act as well as the cases of DIBIE V. THE STATE (2004) 14 NWLR (PT. 893) 257; ADEKUNLE V. THE STATE (2006) 14 NWLR (PT. 1000) 717 were cited in support. It was submitted that the evidence of PW1, PW3 as well as the holding of the learned trial Judge show that the deceased is dead.

Having perused PW1’s testimony on the record, it is evident that his testimony under examination-in-chief was not discredited under cross-examination. The evidence of PW2, the IPO and his findings in the course of investigation was also succinct on the fact that the Appellant poured acid on the deceased which led to her death.

The Appellant’s counsel in this appeal has raised a legion of objections challenging the admissibility of the Appellant’s confessional statement. One of the objections include the fact that the IPO used the word “obtained” in recording the statement of the Appellant and the other is that the Appellant’s confessional statement does not contain an illiterate jurat in compliance with Section 3 of the Illiterates Protection Law of Delta State of Nigeria, 2006.

From the overwhelming evidence on record, I hold that the Respondent had proved the charge of murder against the Appellant beyond reasonable doubt. The Appellant’s confession was proved against him. A confessional statement which is voluntarily made is an admission by the maker that he committed the offence. It is the best evidence in support of the case of the prosecution against an accused person. However, such evidence, apart from being voluntarily made, must be positive, direct, pungent and consistent with other facts as proved in the case. See the case of DAIRO V. STATE (2017) LPELR – 43724 (SC).

Canvassing the position of the appellant, learned counsel contended that the Court should disregard Exhibit “P5” alleged to be the confessional statement made by the appellant because it does not qualify as a confessional statement in law. He cited Section 28 of the Evidence Act, 2011.

That the appellant was charged with the murder of Alero Eniyan on the 6th of May, 2005 and PW1 and PW2 led evidence that the said deceased did not die on the 6th day of May, 2009 but on the 22nd day of July, 2009. That Exhibit “P5” the purported confessional statement captured the activities of the appellant done on the 5th day of May, 2009 and no mention was made of the 6th May, 2009 or 22nd July 2009 and so the appellant could not have on the 5th day of May, 2009 confessed to an offence committed the following day or subsequent days.

The learned counsel for the respondent submitted that the corpse of Alero Eniyan (the deceased) was identified by one Eniyan Ede, to PW3, Francis Nkoli Nwachohor who performed the autopsy which established that the Alero died.

Hear “PW1” Eniyan Ede at Pg. 54 of the Record of Appeal: “At about 2:30am, on the 6th day of May, 2009 I was sleep in my room with my wife when I heard Alero shout”. Daddy oh, Daddy oh, mummy oh, mummy oh, Edike don kill me, he pour acid for my body”.

In view of these few comments and for the more elaborate reasons adumbrated in the lead judgment of my learned brother; I also see no merit in this appeal. It is hereby dismissed by me.

Appeal Dismissed.

Ibrahim Mohammed Musa Saulawa, J.S.C.: My learned brother, the Hon. Justice Adamu Jauro, JSC, has accorded me the privilege of a preview of the judgment just delivered. I concur with the reasoning reached therein, to the conclusive effect that the instant appeal is devoid of merits.

Hence, having adopted the said reasoning as mine, I too hereby affirm the concurrent judgment of the Court of Appeal, Benin Judicial Division delivered on June 6, 2016 in Appeal No. CA/B/239C/2013.

Accordingly, I abide by the consequential order thereby affirming the conviction and sentence of the Appellant by the Court below for the offence of murder, punishable under Section 319(1) of the Criminal Code CAP. 48 Volume II Laws of the defunct Bendel State as applicable to Edo State.

Emmanuel Akomaye Agim, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Adamu Jauro JSC. I completely agree with the reasoning, conclusion, decisions, and orders therein.

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