GANIYU LAWAL v. THE STATE
(2019)LCN/13630(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2019
CA/IB/405C/2016
RATIO
MURDER: IN ESTABLISHING WHETHER THE DECEASED DIED, MEDICAL EVIDENCE IS NOT ALWAYS REQUIRED
In circumstances such as in this case, medical evidence can be dispensed with that the person whose head has been cut off from the body died. It is a matter of common inference. Okpulor v. The State (1990) 11-12 SC 151.
This issue has no merit and is resolved against appellant.PER NONYEREM OKORONKWO, J.C.A.
A VOLUNTARY CONFESSION IS SUFFICIENT TO GROUND A CONVICTION
A free and voluntary confession by a person if direct and positive duly made and satisfactorily proved is sufficient to ground a conviction, Emeka v. The State (2001) 9 SCM; Abass v. The State (1992) 113, it was stated that where a confession is that the accused committed the crime charged; it is in the nature of a plea of guilt to such offence. What more where, besides the confession, the Prosecution has in addition proved some facts and circumstances outside the confession which made it probable that the confession was true. In such case, there is a clean ground for conviction. See Kenneth Ogoala v. The State (1991) 3 SCNJ 61. PER NONYEREM OKORONKWO, J.C.A.
CONFESSIONAL STATEMENT: THE RETRACTION OF A CONFESSION IN HIS ORAL TESTIMONY DURING TRIAL IS OF NOT MOMENT
It has been held in James Chiokwe v. The State that the retraction of the confessional statement of an accused person in his oral testimony in Court during trial is of no moment. James Chiokwe v. The State (2012) 12 SC (pt. V) at 147.PER NONYEREM OKORONKWO, J.C.A.
CONFESSIONAL STATEMENT: TIME TO RAISE ISSUE OF INVOLUNTARY CONFESSION IS AT THE TIME OF TENDERRING EVIDENCE
As the trial Court pointed out, the appropriate time to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence and especially where the accused is represented in evidence as in this case. This is because counsel representing the accused is assumed to know or ought to know what to do at each stage of the proceedings. Henry Odeh v. Federal Republic of Nigeria (2008) 3-4 SC 57; (2008) 4 SCNJ 50.PER NONYEREM OKORONKWO, J.C.A.
COMMON INTENTION: WHEN IT LEADS TO THE COMMISSION OF AN OFFENSE WHICH IS A PROBABLE CONSEQUENCE OF THE ACT
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
In Alagba & Ors v. The King (1950) 19 NLR 129 the judicial committee of the Privy Council confirmed what the trial Judge said that in a case of Common Intention, It does not matter which of the accused did what See R v. Atani (1955) 15 WACA 584.PER NONYEREM OKORONKWO, J.C.A.
JUSTICE
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
GANIYU LAWAL – Appellant(s)
AND
THE STATE – Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): This appeal in a murder trial arose from the judgment of the Ogun State High Court given on 13th October, 2016 whereby the appellant Ganiyu Lawal and three others were convicted of conspiracy to murder and Murder contrary to Section 324 and 316 (3) respectively of the Criminal Code Law Cap 29 Laws of Ogun State of Nigeria and sentenced to death.
While the appellant gave no background facts of the case, the respondent at paragraph 2.01 of respondents brief gave a brief statement of facts as follows:
The facts as presented by the Prosecution witness were on the 15th July, 2000 at about 8am, the appellant, bricklayer, went to the house of the deceased (Maria Adeniji) to call her to help fetch water at a construction site he was working on. However, the deceased never returned home after the days job. Alarm was raised and the appellant and some others were arrested. Upon their arrest the appellant and the others arrested made confessional statements. The appellant led the IPO to his room in his fathers house in his home town at Saki, Oyo State where the
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head of the deceased was found under his bed.
The appellant testified for himself and denied the charge.
The appellant being dissatisfied with the judgment whereby he was convicted and sentenced to death lodged this appeal at the High Court Registry Abeokuta, Ogun State on 8th December 2016 and therein the appellant raised the following 10 grounds of appeal herewith reproduced.
Ground One
The learned trial Judge erred in law when she found on page 15 lines 5-18 of the judgment as follows:
Regarding the 1st ingredient of the offence of murder, that is, whether it has been established that the deceased died; the Prosecution relied on the confessional statements of the accused persons (Exhibit C, C1, D-F), the evidence of PW1 and Exhibit B. PW1 testified that a case of a missing woman was transferred to the SARS Office from Ota Division on the 24/08/2000 along with 2 suspects one of which was the 1st accused and his team was detailed to investigate same. He gave evidence that in the course of investigation the 1st accused led his team to Saki in Oyo State where a human head was found in a polythene bag placed in a red wooden box
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under a bed. PW1 further told the Court that upon his comparison of the head with the picture of Maria Adeniji who was reported missing at Ota Division, he discovered that it was the head of Maria Adeniji that was found. It is noteworthy that the defence counsel did not cross-examine PW1 on the foregoing evidence. By this failure to cross-examine PW1, it is safe to assume that the 1st accused is not disputing these material facts.
Ground Two
The learned trial Judge erred in law when she found on page 16 lines 17-20 as follows:
The evidence of PW1 in this regard was lucid. Same has not been challenged or controverted. I believe the compelling evidence of PW1. I find therefore that it is too late for the defence to deny that one Maria Adeniji died and here head was located in a box under a bed in Saki.
Ground Three
The trial Court erred in law when it held on page 17 lines 27-28 that:
It is remarkable that in his oral testimony, the 1st accused gave evidence which buttressed his statements in Exhibits C & C1.
Ground Four
The trial Court erred in law when it held on page 21
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(lines 19-23) of the judgment that:
The extra-judicial statements of the 4 accused persons (Exhibits C, C1, D-F) with slight variations are materially the same in substance. The confessions therein are unequivocal, compelling, plausible and direct. A confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him upon which alone the Court can convict.
Ground Five
The learned trial Judge erred in law when the Court held on page 23 lines 10-17 of the judgment as follows:
The learned defence counsel submitted that Exhibits C, C1, D-F were not voluntarily made. His submission overlooks the fact that no objection was raised to the admissibility of the documents at trial. As submitted by the learned state counsel, the law is settled that the appropriate stage to raise an objection to a confessional statement is when it is about to be tendered in evidence especially where the accused person is represented by counsel it is assumed that he ought to know what to do at each stage of the proceeding. It is also trite that any belated denial of the
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voluntariness of a confessional statement or its retraction is a mere after-thought.
Ground Six
The learned trial Court erred in law when it held on page 25 lines 7-9 & 14-15 of the judgment as follows:
The common intention of accused persons can be inferred from the evidence led before the Court. In the case at hand, the confessional statements of the accused person show that they all plotted to murder the deceased Maria Adeniji. I readily come to the conclusion and I hold that the Prosecution has proved the offence beyond reasonable doubt.
Ground Seven
The learned trial Judge erred in law in convicting the appellant based on the evidence of the 4th accused person that the head of the deceased Maria Adeniji was taken to an herbalist in a town called Sepeteri.
Ground Eight
The learned trial Judge erred in law in assuming jurisdiction over this charge when ex-facie the Court lacked jurisdiction when the information preferred against the accused person was in gross violation of the provisions of Section 340(1) of the Criminal Procedure Laws of Ogun State and hereby occasioned a miscarriage of Justice.
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Ground Nine
The learned trial Judge erred in law and wrongly assumed jurisdiction in the circumstances of this case when there was no proof that the charge before the Court was made to undergo due process in line with extant procedural rules requiring the procurement of the charge and violated the provisions of Section 36 of the 1999 Constitution and thereby occasioned a miscarriage of Justice.
Ground Ten
The learned trial Judge erred in law and wrongly assumed jurisdiction in the circumstances of this case when there was no proof that the charge before the Court was made to undergo due process in line with extant procedural rules requiring the procurement of necessary consent prior to the preferment of the charge and violated the provisions of Section 36 of the 1999 Constitution and thereby occasioned a miscarriage of Justice.
Evidence
There was only one Prosecution witness led by the Prosecution PW1- Agboola John, Police Officer who also tendered the Exhibits A1, A2, B2, C and C1 being statements of the appellant, Exhibit D being the statement of 2nd accused, Exhibit E being statement of 3rd accused and Exhibit F for
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4th accused.
I have decided to reproduce the evidence of PW1 as recorded and relied on by the trial Judge. The evidence is at page 106-107 of the record thus:
PW1 is Agboola John, Inspector of Police attached to Force CID, special Anti-Robbery Squad, Adeniji-Adele, Lagos, Lagos State. As at year 2000, he was attached to Special Anti-Robbery Squad (SARS), Ogun State Command, Adatan, Abeokuta and he knows all the accused persons. He testified that on 24th August, 2000, a case of a missing person was transferred to their office from Ota Division. He stated that the complainants, one Oyewole and one John Adeniji together with 2 suspects and the case file were transferred. According to PW1, the 1st accused herein and one Esther Shittu were the two suspects that were transferred along with the case file.
When the case got to SARS at Adatan, PW1 and his team were detailed to investigate same. He said he obtained statements from the complainants and he re-arrested the suspects. He said they each volunteered their statements in Yoruba language and he recorded them in English language. He read over the statements to each of them in Yoruba language and
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they respectively signed them as being correct. PW1 said he counter-signed as the recorder and translator. He said due to the confessional statements made by the 1st accused, he took the 1st accused before his Superior Officer named Effiong Edet (now retired) who attested the statement.
On getting to his fathers house where the 1st accused has a personal room, the door of his bedroom was forced open by the father since the key could not be found. PW1 said under the bed, they found a red wooden box in which was a polythene bag which contained the head of one Maria Adeniji who was reported missing at the Ota Division of the Nigeria Police before the case was transferred to them. PW1 said he compared the human head with the picture of the missing person that was given to him and it was the same. They then left Saki and returned to their office.
PW1 gave evidence further that their investigations led to the arrests of the 2nd 4th accused persons. According to him, the 1st accused made additional statement when they returned to their office from Saki and this led to the arrests of the 2nd 4th accused persons as well as the now
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deceased 5th accused. He said the 2nd 4th accused persons were duly cautioned and they equally made confessional statements admitting the crime. PW1 said he took them before the same Superior Officer who endorsed the statements of each of them. They were subsequently charged to Court for murder. PW1 said the accused persons made their statements individually, one after the other and he read over to each of them who respectively admitted same to be correct.
It is PW1s further evidence that at Saki, when the red box was brought out and his picture was taken. He said the members of his team then were one Sgt. Bashiru Taored (now late), Corporate Julius and himself. According to him, at the time of transfer of the case file to their office, the contents of the file were the statements of the complainants; the statements of the suspects transferred; the picture of the missing woman (now the deceased); and the statement of the I.P.O. at Ota (one Corporal Daodu).
He said when they returned to Abeokuta from Saki, he and his team members visited the scene of crime at Ijoko Ota. They also obtained a warrant to bury the head of the deceased. He
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said he worked with Supol. Edet Effiong for over 10 years before the latter retired and can therefore identify his handwriting and signature if he sees them. PW1 identified the signature of Edet Effiong on the statements of the 1st-4th accused persons. He also identified 2 photographs of the woman who was declared missing but is now the deceased Maria Adeniji.
The photographs were admitted in evidence as Exhibit A1 and A2; the Warrant obtained to bury the head of the deceased was admitted as Exhibit B; the 2 statements volunteered by the 1st accused person are Exhibits C and C1; statement of the 2nd accused is Exhibit D; statement of the 3rd accused is Exhibit E; and statement of the 4th accused is Exhibit F.
In so far as the appellant is concerned, I will reproduce excerpts from the judgment of the trial Court perception of the evidence of the appellant.
At page 121 of the record, the trial Court said:
As regards whether the death of the deceased resulted from the acts of the accused persons; PW1 told this Court that when a case of a missing person was transferred to SARS office in Abeokuta from Ota Division, 2 suspects were
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transferred with the case file, that is, the 1st accused and one Esther Shittu. They were at that stage investigating the case of a missing Maria Adeniji. According to PW1, it was the 1st accused that made a confessional statement (Exhibit C) which made the police to go with him to his parents home in Saki where the head of Maria Adeniji was discovered. He gave evidence further that when his team returned from Saki with the 1st accused to their office, the 1st accused made an additional statement (Exhibit C1) which led to the arrests of the 2nd 4th accused persons and the now deceased 5th accused. He said the 2nd 4th accused persons upon their arrests, also made confessional statements (Exhibit D-F) admitting the crime. I have painstakingly read Exhibits C, C1, D-F. The 1st accused in Exhibits C & C1 revealed a lot of information about himself, including his family background, his educational background, his vocational training as a mechanic and how thereafter, he continued work as a mechanic in Saki town. He stated how it was the problem he had with his eyes that made him to leave Saki for Ifo in Ogun State in order to attend the
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Synagogue church for his healing. He stated how he expended the sum of N7,000 he left home with without receiving the anticipated healing. He went on to explain in his confessional statements how he went to live with one Modinat (his relation from Saki) whose husband worked as a bricklayer and how the 3rd & 4th accused persons who are his kinsmen from Saki were squatting in his room.
Commenting on the evidence of PW1 earlier narrated by the trial Judge, the Court stated thus:
In this instance, the cogent, unchallenged evidence of PW1 shows the truth of the statements and indeed corroborates the confessions. I have tested the statements in the confessions and I find them to be true. The confessions gave reasonable explanation for the discovery of the head of Maria Adeniji who was declared missing in Ijoko Ota to be found in a box under a bed in Saki. Also, the fact that the accused persons are labourers on a construction site with 3 of the (the 1st, 3rd and 4th living in the same room) gave them the opportunity to plot the heinous crime and to carry it out. Besides, the deceased Maria being a labourer who used to fetch water was
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an easy target for the accused persons.
It is also not mere coincidence that all the accused persons are related to Saki town. It was the comfortable place for them to search for a herbalist to further their acts. DW1 himself testified that he took the policemen to his fathers house at Saki. He claimed to have been suddenly picked up from the road in Ijoko Ota by the police but could not explain why he had to be taken all the way to Saki town in Oyo State.
DW1 was the 1st accused and appellant in this appeal and the author of Exhibit C and C1 the confessional statements. Of the confessional statements particularly Exhibit C and C1 the trial Court listed the guidelines that guide the Courts in their appraisal and use of confessional statement which are:
(i) Whether there is evidence outside the confessional statement to show that it is true
(ii) Whether the confessional statement is infact corroborated.
(iii) Whether the statement of fact in the confessional statement could be tested as true.
(iv) Whether the accused really had the opportunity of committing the offence.
(v) Whether in the surrounding
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circumstances of the case, the confession of the accused was possible and
(vi) Whether the confession was consistent with other facts which were ascertained and proved at the trial citing.
Nsofor v. The State (2004) 18 NWLR (at 905) 292 and Afolabi v. The State (2010) 19 WRN 117.
Explanation of Appellants Issues
Against the background given, I will now examine the issues for determination raised by the appellant.
Issue One
Whether it was established that
the deceased died.
On the death of the deceased the Court agreed with the Prosecution and also relied on the confessional statements Exhibit C, C1, D and F. Exhibits C and C1 are those of the appellant tendered without objection which gave a detailed account of how appellant lured the woman away from her home for the purpose of fetching water for their brick molding business at a construction site and how he (appellant) and the others had raped her and cut off her head for ritual purposes. As the Court observed, the defence did not challenge PW1 on this evidence by cross-examination citing Okosi v. The State (1989) 1 CLRN 29 at 39.
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There is also the direct evidence of PW1 the Police Officer who led a team of detectives and the 1st accused appellant himself to Saki in Oyo State where they found the bodiless head of the deceased Maria Adeniji in a wooden box under a bed in the room of the 1st accused appellant. PW1 obtained a warrant Exhibit B that enabled the Police to bury the head. As the Court observed, PW1 was not challenged by cross-examination and the Court felt obliged to accept the evidence. In circumstances such as in this case, medical evidence can be dispensed with that the person whose head has been cut off from the body died. It is a matter of common inference. Okpulor v. The State (1990) 11-12 SC 151.
This issue has no merit and is resolved against appellant.
Issue Two
Issue number 2 of the appellant is also connected with Issue Number 1. Taking the evidence of PW1 which was not challenged and matching and relating it with the confessions Exhibit C, C1 and the bodiless head of the deceased Maria Adeniji, the conclusions flowing therefrom becomes inescapable that the deceased died. This issue also has no merit.
Issue Three
In the judgment,
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the trial Judge found and held that the 1st accused person appellant evidence buttressed his statement in Exhibits C and C1. Appellant made an issue out of it. In his testimony in Court, appellant narrated how the police took him to his home town in Saki and to his fathers house. At page 121 of the record the trial Judge recorded thus:
According to PW1, it was the 1st accused that made a confessional statement (Exhibit C) which made the police to go with him to his parents home in Saki where the head of Maria Adeniji was discovered. He gave evidence further that when his team returned from Saki with the 1st accused to their office, the 1st accused made an additional statement (Exhibit C1) which led to the arrests of the 2nd 4th accused persons and the now deceased 5th accused. He said the 2nd 4th accused persons upon their arrests, also made confessional statements (Exhibit D-F) admitting the crime. I have painstakingly read Exhibits C, C1, D-F. the 1st accused in Exhibits C & C1 revealed a lot of information about himself, including his family background, his educational background, his vocational training
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as a mechanic and how thereafter, he continued work as a mechanic in Saki town. He stated how it was the problem he had with his eyes that made him to leave Saki for Ifo in Ogun State in order to attend the Synagogue church for his healing. He stated how he expended the sum of N7,000 he left home with without receiving the anticipated healing. He went on to explain in his confessional statements how he went to live with one Modinat (his relation from Saki) whose husband worked as a bricklayer and how the 3rd & 4th accused persons who are his kinsmen from Saki were squatting in his room.
It was that Police visit with appellant to Saki that led to the finding of the severed head of the deceased Maria Adeniji. It was the visit that led to appellant making additional statement Exhibit C that led to the arrest of 2nd and 4th accused. So, for the appellant, the trial Judge was right in saying that 1st accused/appellants evidence in Court supported his statement in Exhibits C and C1. That is called corroboration. That is direct evidence that supports confessional statements. This issue 3 also, is resolved against the appellant.
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Issue Four
The extra-judicial statements of the 4 accused persons (Exhibits C, C1, D-F) with slight variations are materially the same in substance. The confessions therein are unequivocal, compelling, plausible and direct. A confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him upon which alone the Court can convict.
What the trial Court said represents a true statement of the law from a long time ago till the present. The confessional statement of the appellant and other accused persons were tendered without objection. There was no equivocation on inconsistency in the statements and the trial Judge found it compelling, plausible and direct to rely on. A free and voluntary confession by a person if direct and positive duly made and satisfactorily proved is sufficient to ground a conviction, Emeka v. The State (2001) 9 SCM; Abass v. The State (1992) 113, it was stated that where a confession is that the accused committed the crime charged; it is in the nature of a plea of guilt to such offence. What more where, besides the confession, the Prosecution has in
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addition proved some facts and circumstances outside the confession which made it probable that the confession was true. In such case, there is a clean ground for conviction. See Kenneth Ogoala v. The State (1991) 3 SCNJ 61. This issue is also misconceived and resolved against the appellant.
Issue Five
The learned defence counsel submitted that Exhibits C, C1, D-F were not voluntarily made. His submission overlooks the fact that no objection was raised to the admissibility of the documents at trial. As submitted by the learned state counsel, the law is settled that the appropriate stage to raise an objection to a confessional statement is when it is about to be tendered in evidence especially where the accused person is represented by counsel it is assumed that he ought to know what to do at each stage of the proceeding. It is also trite that any belated denial of the voluntariness of a confessional statement or its retraction is a mere after-thought.
If Exhibit C, C1 of the appellant was not voluntarily made, it was for the appellant either himself or through his counsel to object to the admissibility of those statements at the
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time they were being tendered. If counsel did not object to such statements as being involuntary, any purported retraction is a mere after thought. In this case, no objection whatsoever was raised as to their voluntariness (Exhibit C, C1) or that it was never made by the appellant. Augustine Nwangbomu v. The State (1994) 2 SCNJ 102. It has been held in James Chiokwe v. The State that the retraction of the confessional statement of an accused person in his oral testimony in Court during trial is of no moment. James Chiokwe v. The State (2012) 12 SC (pt. V) at 147.
As the trial Court pointed out, the appropriate time to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence and especially where the accused is represented in evidence as in this case. This is because counsel representing the accused is assumed to know or ought to know what to do at each stage of the proceedings. Henry Odeh v. Federal Republic of Nigeria (2008) 3-4 SC 57; (2008) 4 SCNJ 50. It was these principles that the learned trial Judge restated which appellant has now made a ground of complaint. It is without merit and fails.
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Issue Six
The common intention of accused persons can be inferred from the evidence led before the Court. In the case at hand, the confessional statements of the accused person show that they all plotted to murder the deceased Maria Adeniji. I readily come to the conclusion and I hold that the Prosecution has proved the offence beyond reasonable doubt.
Exhibit C, C1, D and F go to show how the appellant and his co accused formed a common intention to do an unlawful thing to procure a fresh female human head for purposes of ritual by a herbalist in order to become wealthy. They even chose a victim, a woman Maria Adeniji who used to fetch water for bricklayers working on sites including that of the appellant. Besides forming the common intention, they proceeded to set it in motion by the appellant himself going to the house of the victim in the presence of her husband to invite her to fetch water for them at their site. As she got to their site early the next morning, they held her stupefied, and raped her in turns and eventually cut off her head. They later buried her headless body in a shallow grave.
Section 8 of the Criminal Code
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dealing with Common Intention provides thus:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
In Alagba & Ors v. The King (1950) 19 NLR 129 the judicial committee of the Privy Council confirmed what the trial Judge said that in a case of Common Intention, It does not matter which of the accused did what See R v. Atani (1955) 15 WACA 584. The test of the liability is not whether the accused has counseled or procured the offence, but whether it is a probable consequence of the Prosecution of the unlawful purpose to which he was a party.
So long as there is a common intention to undertake an unlawful purpose which is inferred from circumstances disclosed in evidence, it does not matter who did what as the act of one is deemed to be the act of all. In any event, it was the appellant who set in motion the chain of events culminating in the death
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of their victim and carried the bodiless head to his village in Saki which he concealed in a wooden box under his bed in his fathers house. There is ample evidence to impute the act of each to all. See Nwalie v. The State (1971) NSCC 111, Usman Kaza v. The State (2008) 2 SCNJ 373 and State v. Moshood Oladimeji (2003) 11 SCM 121.
In Asimiyu Alarape & Ors v. The State (2001) 3 SCM 1 it (Common Intention) was graphically described thus:
Once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose and in the Prosecution of such purpose, an offence of such a nature that its commission was a probable consequence of the Prosecution of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances, the Court, once the execution of a common intention or design is established, would be right in asserting that it did not matter on such facts which of the accused persons did what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have
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been given by the rest of his co-accused persons. The person actually delivering the blow is said to be no more than the hand by which the others all strike.
Clearly this issue is without merit and is resolved against the appellant.
Issue Seven
Issue Number 7 is associated to issue 6 dealt with above. As indicated in all the authorities cited and considered above, any evidence against one is evidence against all. See Section 8 Criminal Code and cases cited and considered in Issue number 6 above.
Again issue number 7 is without merit and resolved against appellant.
Issues Eight and Nine
Issues number 8 and 9 relate to procedural requirement to arraignment and that trial was in violation or breach of Section 341 (1) of the Criminal Procedure Law of Ogun State and Section 36 of the Constitution.
Section 340 (1) and (2) of the Criminal Procedure Law referred to, makes provisions for consent of a Judge in respect of charge or information for indictable offence while Section 36 of the Constitution provides for fair trial which must ensure that all safeguards to a fair trial are undertaken.
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In this case, consequent upon an application by the Prosecution, a Judge of the High Court of Ogun State Hon. Justice O.A. Ogundeko gave consent on 20/2/2002 for the Director of Public Prosecution to prefer information against the appellant and 3 other accused persons. That satisfies Section 340 (1) and (2) of the Criminal Procedure Law.
In respect of due arraignment, there was due arraignment of which plea was taken at page 50A and 50B of the additional record in this appeal. The appellant and the others were represented by Dr. Akin Onigbinde. Charges were read out in English and translated to Yoruba language to the appellant and others who profess to understand the charge before appellant pleaded not guilty. Counsel Dr. Akin Onigbinde was present in those proceedings of which no objection was raised of any procedural omission or irregularity. Trial then proceeded before the same Judge till judgment.
A Court at trial also enjoys the benefit of the presumption of regularity under Section 168 (1) of the Evidence Act and so can presume that the Preliminaries to an action before it have all been perfected Katsina Local Authority & Anor v. Makudawa (1971) NSCC 119.
These issues
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8 and 9 are baseless and resolved against the appellant.
Issue Ten
Appellant tends by the argument in this issue to suggest that the identity of the purported person murdered was not appropriately resolved and that occasioned a miscarriage of Justice.
In resolving this issue it must be noted that the appellant himself in his statements Exhibits C and C1 identified the victim Maria Adeniji alias Mama Ibeji whom he (appellant) lured and killed. In his Exhibit C1 at page 35 of the record appellant said:
I took the policemen to my room and I brought out a big red wooden box and my father and mother were present. It was my father that brought out a cutlass that was used to break the padlock on the box. I then brought out a black poly bag containing the head of Iya Ibeji known as Maria Adeniji. The policemen then brought myself and the head back to Abeokuta. I intended to take the Iya Ibejis head to Sepeteri town very close to Saki to give to one herbalist whom will use the head to make money for me. I dont know the name of the baba herbalist; it was Semiu Ganiyu that let me know the herbalist on the day we took the head to
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him. But the herbalist requested for ram and white cloth with white dish. Hence the herbalist advised us to preserve the head with ashes; hence I took custody of the head.
This is independent of the evidence of PW1 the Police Officer who recovered the head and compared it with the photographs of the deceased Maria Adeniji alia Iya Ibeji in Exhibit A1 and A2.
This issue has no merit and is resolved against the appellant.
Additional Grounds
I would have at this point ended with this appeal having considered appellants ten grounds of appeal with the ten issues canvassed for the appellant but appellant was not done yet. Appellant filed additional grounds of appeal. The additional grounds of appeal are as reproduced herewith:
11. The judgment of the trial Court delivered on 13/10/2016 is null, void and of no effect as the Court lacked the competence jurisdiction to entertain and determine the case.
12. The learned trial judge erred in law when the Court failed to ascertain that the appellant was taken to a superior Police Officer for the confirmation of voluntariness of his confessional statement.
Appellant further
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raised four issues from the new grounds namely 11 and 12 the issues are as follows:
i. Whether the Prosecutions case was competent so as justify the learned trial Court assuming jurisdiction and proceeded to convict and sentence the appellant (Grounds 8, 9 and 11).
ii. Whether the trial Court was right in finding and holding that Exhibits B, C, C1, D-F proved the ingredients of the offence of Murder and whet Exhibits C, C1 qualified as confessional statements to convict the Appellant (Grounds 1,3,4,5 and 7).
iii. Whether the offence of conspiracy was proved before the trial Court (Grounds 2 and 6)
iv. Whether the appellant ought not be taken to a superior Police Officer in line with Okashetu v. State (2016) 15 NWLR pt. 1534 pg. 135.
I will quickly state that the issues raised in grounds 11 and 12 of the additional grounds of appeal had been raised and treated earlier in this judgment while considering the ten earlier grounds of appeal. The alleged new grounds have adequately been treated but for the avoidance of doubt, whatever appears new therein would be dealt with here.
Issues (i), (ii) and (iii) of the new
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issues for determination have been dealt with in the preceding part of this judgment and will not be repeated. On (iv), whether the appellant ought not be taken to a superior Police Officer in line with Okashetu v. State (2016) 15 NWLR (pt. 1534) at 135.
There is ample evidence that shows that appellant was taken before a superior Police Officer Supol Effiong who ensured in the presence of the appellant his statements in Exhibits C and C1. See page 107 of the record. Exhibit C and C1 themselves carry the evidence of their confirmation by a superior Police Officer.
Earlier, attention has been drawn to the additional record of appeal which at page 50A and 50B of the arraignment shows details of plea before the trial Judge whereby appellant pleaded not guilty.
The next other point is that the Prosecutions written address was not competent having been filed in contravention of Section 10 (1) (2) and (3) of the Rules of Professional Conduct for Legal Practitioner 2007 which provides:
10 (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department or ministry or any corporation, shall not
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sign or file a legal document unless there is affixed or any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, legal document shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
(3) If, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rules (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filled shall be deemed not have been properly signed or filed.
Assuming the respondents brief or legal opinion was not filed, the Judge or Justice of the Appellate Court can and ought to assess the case using his own legal knowledge and experience in coming to Justice.
The case of All Progressives Congress v. General Bello Sarkin Yaki SC 722/2015 has no application in this case.
All other issues 1 – 4 of the additional grounds have been adequately considered in the preceding parts of this judgment and all the 14 issues resolved against the
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appellant.
The appeal having failed on all issues, it is accordingly dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: I agree with my learned brother, Nonyerem Okoronkwo, JCA, that this appeal has no merit and should be dismissed.
The evidence on record shows that the deceased was last seen together with the Appellant, when the Appellant invited her to help fetch water at a construction site he (Appellant) was working on. It is therefore my view that the doctrine of “last seen” applies in this case. This doctrine stipulates that, where the victim of an offence, especially murder was last seen in company of the accused, such accused has the duty to give explanation of how the deceased met his death. In the absence of any plausible explanation, the Court may infer from the circumstantial evidence before him that the accused killed the deceased.
It would be right therefore to say, that this is one of the rare instances where the presumption of innocence may be set aside, so as to require the accused to proffer evidence in prove of his innocence. See Chibuike v. State (2017) LPELR -42727 (CA); Umar v. State (2018) LPELR
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43719 (SC) and Mbang v. State (2009) LPELR – 1852(SC).
In the instant case, the circumstantial evidence led conclusively that the Appellant killed, or participated in killing the deceased. Furthermore, he made a confession which was corroborated by the discovery of the head of the deceased in his room.
For the above reasons and the fuller reasons ably adumbrated in the lead judgment, I agree that this appeal lacks merit. It is hereby dismissed.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the draft of the lead judgment just delivered by my learned brother NONYEREM OKORONKWO JCA. I agree that this appeal lacks merit and ought to fail.
I wish to add that from the overwhelming evidence against the Appellant, the only option open to the Lower Court was to enter a verdict of guilty against him.
The evidence of PWI was that in the course of investigation, the Appellant led him to his room inside his father’s house in Saki where he lives. He said it was there in the Appellants room that the head of the deceased Maria Adeniyi who had been reported missing was discovered inside a red wooden box. PWI was not cross
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examined on this vital point.
The well settled position of the law is that where evidence adduced by a witness is not challenged under cross examination, such is treated as establishing the truth it seeks to. See OFORLETE VS. STATE (2000) 12 NWLR (PT. 681) 415; BABALOLA & ORS. VS. THE STATE (1989) 4 NWLR (PT. 115) 264 and OLUDAMILOLA VS. THE STATE (2010) LPELR 2611 AT 13 PARAGRAPHS C – E. The fact that the head of the deceased was found in a wooden box in the Appellant’s room was thus established.
Furthermore, the Appellant in his Confessional Statement tendered in evidence stated that he went to the deceased’s house to invite her to fetch water at a construction site. The Appellant was the one last seen with the deceased. The law as developed over the years by case law is that the person last seen with the deceased has a duty to explain the cause of his death and where he fails to do so he is presumed responsible for the death. See KOLADE VS. THE STATE (2017) LPELR 42362; ANYASODOR VS. THE STATE (2018) LPELR 43720 AT 21 – 23 PARAGRAPHS F – B and OLUDE VS. THE STATE (2018) LPELR 44070 AT 17 – 20 PARAGRAPHS E – A.
In the case
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of UMAR VS. THE STATE (2018) LPELR 43719 AT 15 – 16 PARAGRAPHS G – A, the Supreme Court Per Aka’ahs JSC held thus:
“The principle of last seen was properly applied since the deceased was last seen alive when he was in the company of the Appellant. What the principle propounds is that if Mr. A was last seen alive with or in company of Mr. B and the next thing that happened was the disappearance of Mr. A, the irresistible inference is that Mr. A was or had been killed by Mr. B and so the onus will be on Mr. B to offer an explanation for the purpose of showing that he was not the one who killed Mr. A. See IGHO VS. STATE (1978) 3 SC 87; GABRIEL VS. STATE (1989) 5 NWLR (PT. 122) 457. ”
In IGABELE VS. STATE (2006) NWLR (PT. 975) 100, this Court Per Kastina Alu JSC (as he then was) in his contributory judgment said at page 123:
“No doubt the evidence against the Appellant was circumstantial evidence. There was no direct evidence. However there is evidence that the deceased was last seen alive with the Appellant.
This was not in dispute. I think good sense and indeed common sense demands that the Appellant should and must put forward some
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explanations to what happened to deceased.
But no explanation was forthcoming.”
The Appellant was the one who went to the house of the deceased to invite her to his construction site to fetch water. He was the last person seen with her alive. He therefore had a duty to explain what caused her death. His explanation led to the discovery of her head in his room. In view of the confession of the Appellant and the evidence of PW 1 and other prosecution witnesses, the judgment of the lower Court cannot be faulted.
In view of the forgoing and other reasons articulated in the lead judgment, I also dismiss this appeal and affirm the judgment of the Lower Court.
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Appearances:
Chief Bayo Lawal with him, M.O. AderonmuFor Appellant(s)
F.E. Bolarinwa AdebowaleFor Respondent(s)
>
Appearances
Chief Bayo Lawal with him, M.O. AderonmuFor Appellant
AND
F.E. Bolarinwa AdebowaleFor Respondent
