The Absence of Corpus Delicti Does not Preclude the Conviction of an Accused Person
It is a firmly established principle of law that in a criminal trial for murder, the prosecution must prove all ingredients of murder, including the fact of the death of the deceased, beyond reasonable doubt. However, the mere fact that the body of the deceased (corpus delicti) cannot be found, such as to prove that the deceased is in fact dead, will not operate to prevent or impugn a conviction, if there are other circumstantial evidence which irresistibly leads to an inference that the deceased is dead. In the instant appeal, the Supreme Court applied this principle of law and held that the Respondent proved the offence of murder beyond reasonable doubt.
Facts On 25 September 1993, Mr. Bassey John Effiong, a Cameroun-based trader (“PW2”), whilst returning from Cameroun, boarded a flying boat in which he acted as the boat conductor. There were two other passengers in the boat (one of whom was the deceased) in addition to the boat driver and PW2, thus, making a total of four persons on board at the time. During the course of the journey, the boat made a stopover at Abana, where the Appellant (the first accused person) together with the second and third accused persons (who are not parties to the appeal) also boarded the boat. Subsequently, somewhere on the sea way, the Appellant requested the boat driver to slow down as he needed to pass water. The driver obliged this request; whereupon the Appellant stabbed the boat driver with a knife and threw him in to the sea. The second accused person attempted to attack PW2, but ended up attacking the deceased, whom was also thrown into the sea. PW2 and the other passenger who escaped the attack of the accused persons by jumping into the sea, were later rescued by some fishermen. In addition, the corpses of the boat driver and the deceased were later recovered after about four days.
The accused persons were later arrested and arraigned before the High Court of Akwa Ibom State (the “trial court”) for the murder of Okon Uyeh of Udesi Akai Ati (the deceased), an offence punishable under Section 319(1) of the criminal Code. At the trial of the offence, the Prosecution relied on the testimonies of Edward Agabi, the Investigation police office (“PW1”) and PW 2 as well as two exhibits. On their part, the accused persons, each, testified in their defence. Following the conclusion of trial, on 27 October 2009, the trial court found the Appellant and the 2nd accused person guilty as charged and accordingly convicted and sentenced them. The third accused person, however, died in police custody, well ahead of the decision of the trial court.
Aggrieved by the decision of the trial court, the Appellant appealed against same to the Court of Appeal, Calabar (the “Court of Appeal”), seeking a reversal of the judgment of the trial court. However, by a majority decision of the Court of Appeal (with Garba JCA, dissenting), the Court of Appeal dismissed the Appellant’s appeal. Dissatisfied, the Appellant appealed further to the Supreme Court, wherein he raised the sole issue to wit, “whether the Court of Appeal was right in holding that the Respondent proved the charge of murder against the Appellant beyond reasonable doubt”. The Appellant premised his arguments in support of this sole issue on the four grounds namely: (i) the prosecution failed to prove the death of the deceased; (ii) the trial court’s erroneous reliance on the confessional statement of the Appellant; (iii) the trial court’s reliance on the confessional statement of a co-accused; and (iv) the trial court’s reliance on the evidence of a tainted and unreliable witness.
On ground number one, the Appellant submitted that the prosecution failed woefully in proving the death of the deceased, as there was nothing on the record that established that the body examined was that of the deceased person. The Appellant relied on the fact that the post mortem report was inadmissible as same was not tendered and marked as an exhibit before the trial court. Additionally, the Appellant in emphasizing the absence of sufficient evidence in proof of the death of the deceased, submitted that the trial court erred in law by equating the case with that of an ordinary absence of corpus delicti (corpse of the deceased).
On ground number two, the Appellant, whilst placing reliance on several decided authorities, submitted that the trial court erred in law by acting on the confessional statement of the Appellant despite the Appellant’s vehement objection to same on the ground of the involuntariness of same.
On ground numbers three and four, the Appellant contended that the trial court erred in law by acting on the confessional statement of the second accused person and the evidence of a tainted witness in the person of PW2, in convicting the Appellant. Thereafter, the Appellant urged the Supreme Court to resolve the appeal in its favour on the basis of the foregoing submission.
On its part, on ground number one, the Respondent submitted that although it had the obligation to prove all the ingredients of the murder of the deceased, which it in fact did, the Appellant failed to adduce sufficient evidence to refute the evidence tendered by it, particularly the graphic narrative by PW2, of the roles each accused played in killing the deceased. Against this background, the Respondent submitted that the identity of the deceased was never in doubt and hence, dispensed with the need of a post mortem report. The Respondent relied on the case of USUFU v STATE (2007) 3 NWLR (Pt. 1020) 94 amongst other cases. The Respondent submitted further that the testimony of PW2 clearly showed that PW2, the boat conductor, had no difficulty in identifying the accused persons when he subsequently encountered them at the police station. The Respondent relied on the case of EYISI v STATE (2001) 8 WRN 1 and STATE v SALAMI (2012) Vol. 203 LRCN, which are authorities for the view that a witness’s recognition of an accused person at the scene of the crime is the best evidence.
The Respondent also submitted that all three accused persons were jointly guilty of the offence of the murder of the deceased and it was immaterial which distinct role each accused played, since they jointly pursued their criminal intentions. The Respondent relied on the case of OGBU v STATE (2007) 5 NWLR (Pt. 1028) 635 amongst other cases.
On ground number two, the Respondent submitted that the trial court dutifully conducted a trial within trial before admitting the confessional statement of the Appellant and was therefore certain that the Appellant made the said confessional statement. The Respondent submitted further that in any event, the trial court, additionally, analysed and considered other circumstantial factors before placing reliance on the Appellant’s confessional statement.
On ground numbers three and four, the Respondent disagreed with the Appellant’s characterization of PW2 as a tainted witness and urged the Supreme Court to affirm the conviction and sentence of the Appellant.
On ground number one, the Supreme Court observed that the post mortem report was only submitted at the trial court for identification purposes and that the trial court rightly held that it could not act on the report, since same was not admitted and marked as an exhibit. The Supreme Court relied on the cases of Q v MBOHO (1964) NMLR 49 and AHMADU TEA v COMMISSIONER OF POLICE (1963) NNLR 77. The Supreme Court, however, noted that the absence of the post mortem report was not a sufficient ground to contend that the Respondent failed to prove her case beyond reasonable doubt such as to warrant the interference with the decision of the of two lower courts. The Supreme court thus agreed with the reasoning of the trial court that in the absence of the post mortem report, there were other alternative modes of identification of the corpse of the deceased such as (i) an identification by the deceased’s father or any member of the search party that recovered the corpse; (ii) an identification by PW2, the conductor of the boat, who was with the deceased before his death; and (iii) the evidence of the PW1, who investigated the crime and confirmed the death of the deceased in his testimony during trial, and confirmed that the corpse of the deceased was recovered. Additionally, the Supreme Court held that in any event, the law permits a trial court to convict an accused person even where the body of the deceased cannot be found, provided that there are circumstantial evidence that leads to the inference that the deceased was killed. The Supreme Court relied on the case of JUA v STATE (2010) 4 NWLR (Pt. 1184) 217.
The Supreme Court held further that the Court of Appeal rightly affirmed the decision of the trial court which was to the effect that the Respondent conclusively proved the other ingredients of murder. The Supreme Court observed that the actions of the accused persons caused the death of the deceased and that same was done with the intention of causing his death. The Supreme Court thus held that the Respondent had proved the commission of the offence by the Appellant beyond reasonable doubt.
On ground number two, the Supreme Court observed that the trial court took the view that the Appellant’s testimony in his examination in chief amounted to a retraction of his confessional statement and that same was of no moment, as It did not affect its ability to convict the Appellant, more so as the inconsistency rule does not apply to an accused person. The Supreme Court, thereafter, recounted the jurisprudential evolution of the inconsistency rule, which culminates in the current position of the law that the inconsistency rule does not apply to the evidence of an accused person. Against this background, the Supreme Court endorsed the view of the trial court that the retraction of the confessional statement was of no moment and held that the trial court rightly relied on the Appellant’s confessional statement. The Supreme Court relied on the cases of OGUDU v STATE (2011) Vol. 202 LRCN 1 and NWACHUKWU v STATE (2012) 12 NWLR (Pt. 782) 543.
On grounds number three and four, the Supreme Court held that the contention of the Appellant that the trial court relied on the confession of the 2nd accused person in convicting him to be false and misleading, having regard to the record of proceeding at the trial court. Furthermore, on ground number four, the Supreme Court adopted the reasoning of the Court of Appeal which was to the effect that the PW2 was beyond the characterisation of a tainted witness as held in the case of ISHOLA v STATE (1978) NSCC 499, having regard to the fact that PW2 only met the Appellant for the first time on the boat and that there was no previous animosity or grudge between both parties that could warrant the exclusion of PW2’s evidence.
The Supreme Court accordingly resolved the sole issue in favour of the Respondent, dismissed the appeal and affirmed the conviction and sentence of the Appellant. Representation: For the Appellant: Sonny O. Wogu with C. P. Egwuatu (Mrs.)
For the Respondent: Uwemedimo Nwoko, (the Hon. Attorney General of Akwa Ibom State), with C. O. Ekwu (Miss.)
Reported by Tochukwu J. Anaenugwu, Aluko & Oyebode, Lagos.