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Usen v. State

GODWIN I. USEN

V

THE STATE

COURT OF APPEAL

( CALABAR DIVISION )

MOHAMMED L. GARBA JCA ( Presided and Read the Lead Judgment )

UZO I. NDUKWE-ANYANWU JCA

JOSEPH TINE TUR JCA

CA/C/110/11

TUESDAY, 4 DECEMBER 2012

APPEAL - Contradiction - When a piece of evidence contradicts another -  Applicability of doctrine of an appeal - Conditions precedent to - Discrepancies in - Attitude of court to

APPEAL - Primary duty of trial court to evaluate evidence and ascribe probative value - Appellate court - Attitude of thereto

CRIMINAL LAW AND PROCEDURE - Confession - What constitutes -

Admissibility of - Irrelevance of retraction thereto - Veracity of -

Test for determining - Evidence Act, 2011, section 28 considered

CRIMINAL LAW AND PROCEDURE - Confessional statement - When retracted - Proper step court should take

CRIMINAL LAW AND PROCEDURE - Credible evidence of a single witness - Propriety of basing conviction on

CRIMINAL LAW AND PROCEDURE - Evidence of prosecution’s witnesses - Material contradictions - Effect of - Minor inaccuracies therein - Irrelevance of

CRIMINAL LAW AND PROCEDURE - Murder - Offence of - Essential ingredients of

CRIMINAL LAW AND PROCEDURE - Proof beyond reasonable doubt -  Whether means proof beyond the shadow of doubt

CRIMINAL LAW AND PROCEDURE - Prosecution - Whether mandated to call all witnesses in proof of its claim

CRIMINAL LAW AND PROCEDURE - Relevant piece of evidence recovered from accused’s house - Admissibility of

CRIMINAL LAW AND PROCEDURE - Standard of proof required to prove and establish guilt of accused - Static nature of - When discharged -  Evidence Act, 2011, section 135(1) and (2) considered

EVIDENCE - Admissibility of evidence and weight to be attached to Distinction between

EVIDENCE - Admissible evidence - Source of - Irrelevance of Relevance - Whether is the only test for admissibility of Inadmissible evidence - Impropriety of admissibility of with consent of parties and court - Where admitted - Onus on trial and appellate court to expunge

EVIDENCE - Confession - What constitutes - Admissibility of Irrelevance of retraction thereto - Veracity of - Test for determining - Evidence Act, 2011, section 28 considered

EVIDENCE - Confessional statement - When retracted - Proper step court should take

EVIDENCE - Contradiction - When a piece of evidence contradicts another - Applicability of doctrine of an appeal - Conditions precedent to - Discrepancies in - Attitude of court to

EVIDENCE - Credible evidence of a single witness - Propriety of basing conviction on

EVIDENCE - Evaluation of evidence - Primary duty of trial court to evaluate evidence and ascribe probative value - Appellate court -  Attitude of thereto

EVIDENCE - Evidence of prosecution’s witnesses - Material contradictions - Effect of - Minor inaccuracies therein Irrelevance of

EVIDENCE - Probative value of evidence - Determination of - Guiding factors in

EVIDENCE - Proof beyond reasonable doubt - Whether means proof beyond the shadow of doubt

EVIDENCE - Prosecution - Whether mandated to call all witnesses in proof of its claim

EVIDENCE - Relevant piece of evidence recovered from accused’s house - Admissibility of

EVIDENCE - Standard of proof required to prove and establish guilt of accused - Static nature of - When discharged - Evidence Act, 2011 , section 135(1) and (2) considered

STATUTE - Evidence Act, 2011, section 135(1) and (2) - Commission of crime - Standard of proof required to prove and establish guilt of accused - Static nature of - When discharged

STATUTE - Evidence Act, 2011, section 28 - Confession -  What constitutes - Admissibility of - Irrelevance of retraction thereto Veracity of - Test for determining

Issues:

  1. Whether the guilt of the appellant was established beyond reasonable doubt as laid down by the law before he was convicted for murder and sentenced to death.
  2. Whether there was no miscarriage of justice when the learned trial judge admitted inadmissible evidence and used same to convict the appellant.
  3. Whether the learned trial judge misdirected himself to hold that the doubt created by the materially contradictory evidence of the prosecution should not be in favour of the appellant.

Facts:

The accused, now appellant was alleged to have killed his wife who slept beside him with a matchet. He was arraigned in the High Court of Cross River State on a count of murder punishable under section 319(1) of the Criminal Code. The prosecution claimed that the deceased had shouted the name of PW1; a neighbour, stating that her husband had killed her. The matchet and confessional statement made by the accused were tendered in evidence without objection. The medical examiner who carried out the post mortem also gave evidence. In his defence, the appellant claimed that some armed men including PW1, had attacked his house that night and he had escaped, only to meet the corpse of his wife when he returned. The trial court found him guilty and sentenced him to death. Not satisfied, the appellant filed an appeal to the Court of Appeal challenging his conviction on grounds that the confessional statements admitted and relied on were not made by him and the prosecution failed to establish his guilt beyond reasonable doubt as required by law.

In determination of the appeal, the Court of Appeal considered the following statute:

Constitution of the Federal Republic of Nigeria, 1999, section 36(5):

“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.”