MICHAEL ANKPEGHER V. THE STATE (2018)

Background

Michael Ankpegher was the first accused person in a two-count criminal charge before the High Court of Justice, Makurdi, Benue State. He and a second accused, Moavega Igba, were charged with conspiracy to cause death under section 97 of the Penal Code and culpable homicide punishable with death under section 221 of the Penal Code. The prosecution alleged that the deceased, Kyernum Kervo, had been accused of stealing a piece of goat meat at a funeral ceremony. The elders at the ceremony handed him over to Ankpegher and the second accused with instructions that he should be taken to the police station at Gungul. Instead, the prosecution maintained that the accused persons took the deceased to a riverside, tied his hands and legs, and set him on fire while he was alive.

The prosecution called seven witnesses and tendered several documentary exhibits, including a medical report and the appellant’s confessional statement, admitted as Exhibit B after a trial-within-trial. The appellant denied responsibility and later retracted the statement. In his defence, he claimed that an angry mob seized the deceased from him and the second accused, after which he fled because the crowd threatened him. The trial court rejected his defence, found him guilty, and sentenced him to death. The Court of Appeal, Makurdi, affirmed the conviction and sentence on 9 July 2013. The appellant then appealed to the Supreme Court.

Issue

The principal issue was whether the prosecution proved all the essential ingredients of conspiracy and culpable homicide punishable with death beyond reasonable doubt. The appellant also challenged the discrepancy between the date stated in the charge and the date given by the witnesses, the reliability of the evidence concerning the deceased’s injuries, the failure to recall the investigating police officer for further cross-examination, and the use of his retracted confessional statement.

Ratio Decidendi

The Supreme Court dismissed the appeal and held that the prosecution had discharged its burden. Proof beyond reasonable doubt does not mean proof beyond every conceivable or fanciful doubt. It requires credible, cogent, compelling and reliable evidence that establishes guilt, leaving only a remote possibility in favour of the accused. The standard is founded on rational and critical assessment of the evidence, not speculation or imaginary doubt.

For culpable homicide punishable with death under section 221 of the Penal Code, the prosecution must prove: first, that the deceased died; second, that the death was caused by the act of the accused; and third, that the act was intentional, with knowledge that death or grievous bodily harm was its probable consequence. The Court found these elements established by the medical evidence, the eyewitness testimony, the surrounding circumstances, and the appellant’s confession.

The Court further held that a voluntary, direct, positive and unequivocal confessional statement amounts to an admission of guilt and may ground a conviction. Retraction affects the weight to be attached to the confession, not its admissibility. As a matter of caution, however, the court should examine evidence outside the confession to determine whether it is probably true. Relevant considerations include whether the accused had the opportunity to commit the offence, whether the confession is possible, whether it is corroborated, whether its factual assertions are likely to be true, and whether it is consistent with established facts.

Court Findings

The Court rejected the argument that the charge was invalid because it stated that the offence occurred “on or about” 19 October 2002, whereas the evidence consistently placed the killing on 19 May 2002. The phrase “on or about” does not require proof of the precise date written in the charge. The prosecution must, however, be consistent about the date it relies upon. Here, the day and year remained the same, the witnesses consistently referred to 19 May 2002, and the appellant himself referred to that date in his statement and evidence. He did not show that the discrepancy misled him or caused a miscarriage of justice.

Under section 167 of the Criminal Procedure Act, an objection to a formal defect on the face of a charge must be raised immediately after the charge is read to the accused. The appellant pleaded to the charge with counsel present and did not object at the proper time. In any event, the discrepancy was cured by the overwhelming evidence and did not occasion a failure of justice.

The Court also rejected the challenge based on the non-recall of PW6. The prosecution had explained that the witness had been transferred and could not attend without transportation funds. The appellant’s counsel had opposed an adjournment sought to secure the witness’s attendance. Moreover, PW7, the officer who led the investigation, testified and was cross-examined. The appellant therefore failed to demonstrate any miscarriage of justice.

Conclusion

The Supreme Court unanimously held that the concurrent findings of the High Court and Court of Appeal were supported by credible evidence and were not perverse. The appeal was dismissed, and the judgment of the Court of Appeal affirming Ankpegher’s conviction and sentence to death for culpable homicide punishable with death was affirmed.

Significance

The decision confirms important Nigerian criminal-law principles concerning the prosecution’s continuing burden of proof, the meaning of proof beyond reasonable doubt, the statutory ingredients of culpable homicide, and the treatment of retracted confessions. It also demonstrates that a minor error in the date stated in a charge will not invalidate a conviction where the accused was not misled and no miscarriage of justice resulted. Finally, the judgment emphasizes that appellate courts will ordinarily not disturb concurrent factual findings of lower courts unless those findings are shown to be perverse, unreasonable, or unsupported by the evidence.