JOSEPH OKORO ABASI V. THE STATE(1992)

JOSEPH OKORO ABASI V. THE STATE

In The Supreme Court of Nigeria

On Friday, the 9th day of October, 1992

SC.35/1991

RATIO

EVIDENCE- CONFESSIONAL STATEMENT: WHETHER IT IS EVERY CONFESSION THAT RELIEVES THE PROSECUTION OF THE BURDEN OF PROVING ITS CASE BEYOND REASONABLE DOUBT

“…it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. For a confession to form the basis of a conviction it has to be shown to be free and voluntary, positive and proved to be true. See Jafiya Kopa v. The State, (1971) 7 NSCC 166: (1971) 1 All NLR 150.” PER U. MOHAMMED, J.S.C.

EVIDENCE- CONFESSIONAL STATEMENT:WHETHER THE COURT CAN CONVICT SOLELY ON THE CONFESSIONAL STATEMENT OF THE ACCUSED

“It is trite law that a confession alone, even without corroboration can support a conviction so long as the court is satisfied that the confession is true – see for example James Achabua v. The State (1976) 10 NSCC 714; (1976) 12 S.C. 63 per Obaseki, J.S.C. (as he then was).” PER U. MOHAMMED, J.S.C.

INTERPRETATION OF STATUTE – PRINCIPLES OF INTERPRETATION :THE MEANING AND ESSENCE OF PROVISO IN A STATUTE

“It is a well recognised principle of the interpretation of statutes that a proviso is an exception to the main rule. The object of a proviso in a statutory enactment is to qualify or cut down the enacting clause which precedes it. In reality it is used as all exception to the main rule. -See Eme v. State (1964) 1 All NLR 416. Where the words of a section are capable of showing more than one meaning, the proviso will show the proper meaning to be attached to it. See Anyah v. State (1965) NMLR 62.” PER KARIBI-WHYTE JSC.

INTERPRETATION OF STATUTE- INTERPRETATION OF THE COMBINED EFFECT OF SECTIONS 285(3) OF THE CRIMINAL PROCEDURE LAW, AND 186(1) OF THE EVIDENCE ACT

“…the combined effect of the provisions of Section 285(3) of the Criminal Procedure Law, and Section 186(1) of the Evidence Act is that it is mandatory to exclude all witnesses except professional and technical witnesses from the court, after a plea of not guilty and before hearing. But the breach of this section does not affect the validity of the proceedings. A correct construction of the sections is that evidence of a witness will not be rendered inadmissible merely because a witness, other than a professional or technical witness, remained in court in breach of Section 285(3) – See Falaju v. Amosu (1983) 2 FNR 375.(1983) 2 SCNLR 209. It is accepted that the effect of a breach of the provision lies in the weight to be attached to the evidence of such witness. The consideration may be otherwise where the witness would have had no source of knowing the facts to which he had testified except by being in Court while the other witnesses were testifying. See Olawuyi & Anor v. Adeyemi & Anor (1990) 4 NWLR (Pt.147) 746, at p.755. In such a circumstance, the evidence should be excluded. In my opinion, the effect of the proviso on the breach of the provision is that it is a mere irregularity which cannot invalidate the proceedings. The question of the admissibility of the evidence depends upon the nature of the evidence and the fact whether the source of the evidence was from the evidence of those witnesses who had testified when he was in court. The Court of Appeal was right in its construction of the provisions of Section 285(3) of the Criminal Procedure Law, and Section 186(1) of the Evidence Act, when it held that a breach of the section will only affect the weight to be attached to the evidence.” PER KARIBI-WHYTE JSC.

JUSTICES

ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria

SAIDU KAWU Justice of The Supreme Court of Nigeria

UCHE OMO Justice of The Supreme Court of Nigeria

EMMANUEL OBIOMA OGWUEGBU Justice of The Supreme Court of Nigeria

SHEHU USMAN MOHAMMED Justice of The Supreme Court of Nigeria

Between

JOSEPH OKORO ABASI Appellant(s)

AND

THE STATE Respondent(s)

U. MOHAMMED, J.S.C. (Delivering the Leading Judgment): The appellant was at the Afikpo High Court, former Imo State, charged with the murder of one Ude Egwu Oko on 30th December, 1980, under section 319(1) of the Criminal Code. He was convicted and sentenced to death.
His appeal to the Court of Appeal, Port Harcourt was on 16th October, 1990, unanimously dismissed and he has further appealed to this Court on the omnibus ground only.
When the appeal came up for hearing in this Court on 9th July, 1992, learned counsel who signed the appellant’s brief of argument, Chief C. Akwiwu was not in court but Mr. A.M.O. Onukaogu, Principal Legal Officer, Abia State, for the respondent was present and having adopted his brief, judgment was reserved to today.
Briefly stated the case against the appellant was that on 30th December, 1980, he was seen with two women walking out of Afikpo town. The women were each carrying a basin and the appellant had a hammer in his hand. The following day both women were discovered lying on the ground in a bush near Mgbede Akaeze. One of them Ude Egwu Oko, who was named in the charge, was already dead and the other who was unconscious died on the(sic) Following the discovery of the bodies the people of Mgbede Akaeze alerted their councillor who in turn sent for the police. After the bodies were removed to Okigwe hospital the people of Mgbede Akaeze assembled for the purpose of finding out what caused the death of the women. Some of the villagers who saw the appellant with the women the previous day told the gathering what they saw. The appellant, who was there attempted to run away but was restrained. He then pleaded with the villagers not to report him. He even gave N250.00 gratification to the crowd not to report him. He and the N250.00 were however eventually handed over to the police at Okposi where he was detained.
At the police station the appellant made two voluntary statements on 3rd and 6th January, 1981 respectively. They are Exhibits A, A 1 and B, B1. Exhibits A & B are in Ibo, the language in which they were made and recorded, their English translations are Exhibits “A1” and “B1”. In view of the weight attached to these voluntary statements by both lower courts I deem it expedient to reproduce the English translations below:-
“(EXHIBIT ‘A1)
HAF/15c/84 – 1st Statement of Accused person marked Exh “A1” (English version).
POLICE STATION, OKPOSI
Name:              Okoro Obasi (M)
Occupation:           Auto electrician (Motor wiring)
Age:              22 Yrs.
Religion:     Christianity.
Tribe:              Ibo.
Address:           Amaokpu     Ngbede  Akaeze.
Date:              3/1/81     0900 hrs.
I, Okoro Obasi having been duly cautioned in Igbo language that I am not obliged to say anything unless I wish to do so but whatever I say will be taken down in writing and may be given in evidence.
I voluntarily state as follows:-
In 1978, when I was an apprentice electrician with one man called Ogbu Awa at Afikpo. I had a friend called Okoro Nnachi. He is a native of Ogiri Edda. My friend was living at Afikpo and was trading on provisions. One day he invited me to his house near the motor park at Afikpo. During our discussion, Okoro asked whether my father is alive. I told him that my father died during the wartime. He asked what killed him and I said he was killed by Biafran BOFF. This discussion took place in a drinking parlour in the Afikpo motor park, there Okoro was asking about my father, it was not in his house. Okoro said he was in the BOFF during the war and that he came with the group that killed my father. He said that he knew the very man that killed my father. He said it was the manager of the BOFF. He promised to show me the fellow.
On Easter Sunday 1978, Okoro and I were walking towards Amuro Junction Afikpo and Okoro showed me one man who was passing and said that he was the BOFF Manager who killed my father during the war. He did not tell me the man’s name.
One day, the man came to our workshop to charge his motor cycle battery. I refused to talk to that man. Okoro firmly promised to help me revenge what the man did to my father.
On 22/12/80, I left Afikpo for my home town for the Christmas festival. About on 24/12/80, I received Letter written by Okoro to me. He wrote that he would assist me to bring that man, his wife or his son for us to kill. Okoro invited me to his house on 27/12/80 but I did not go. Okoro came to our house that day and I accompanied him to his house at Ogiri Edda. On 30/12/80, Okoro came again to our house and I went out with him to his own house. In his room I saw two women. Okoro took me outside and said that he has brought the people. After looking at the women I became sorry for them. I asked Okoro, “How did you bring the women here” He said that he told them to come and buy rice. Okoro asked me to give him five Naira. I gave him five Naira as he requested.
Okoro called the women out of the room and we set out and as we were going I was behind. On getting nearer the place he told me to go to the front and I obeyed. We were going inside the bush. While we were going, Okoro had a hand bag with him. But I did not ask Okoro about the weapon we would use in killing the women because Okoro was in the BOFF. It was clear to me that we set out to kill the women. As we were still going, Okoro told me that we have reached the place. I heard the women shouting. I began to run away. I did not beat anybody. It was Okoro who beat them. This incident happened on 30th December, 1980. It was in the night time. I ran to my house. On the next day 31/12/80 Okoro wrote to me; he gave the letter to his sister called Cecilia to bring me. It was one man called Linus, an Abakaliki man who read the letter for me. I will bring the letters to the Police.
Sgd:
Inspr.,     1040 hrs.”
“(EXHIBIT ‘B1)
HAF/l5c/84 – 2nd Statement of Accused marked Exh “B” (English version)POLICE STATION OKPOSI, OHAOZARA.
Name:       Okoro Obasi (M)
Occupation:    Auto electrician
Religion:     Christianity
Age:        22 Yrs.
Tribe: Ibo. 0940 hrs.
6/1/81
Address:     Amaokpu Mgbede Akaeze.
I, Okoro Obasi having been duly cautioned that I am not obliged to say anything unless I wish to do so, but whatever I say will be taken down in writing and may be given in evidence.
I voluntarily elect to state as follows:-
Sgd: Okoro Obasi (R.T.1)
It was on 15/12/80 that these three men sent for me. The men are 1, Court, he is an Abakaliki man and he lives at Mgbede Akaeze and 11, Akawo, also an Abakaliki man also living at Ogiri Eddaand 111, Nwali Nwikwo who lives at Ogiri Edda. They said we should look for people from whom we can get money. They said we should attack anybody from Akaeze that people will easily spot us out. Before we started looking for people to rob of their money we took a solemn oath to bind us together, (igbaa Ndu).It was on the main road from Akaeze to Afikpo that we took oath. We sat by the roadside and took the oath. Our aim for taking the oath was that whatever we do none of us will reveal it to an outsider. The materials we used in the solemn oath are – hairs, blood from our body, Igbo kolanut, and illicit gin. We cut out some hairs from each one of us and burnt them and put the ashes into the illicit gin, also we gal a drop of blood from each of us and mixed it with the illicit gin and each of us drank from it.
After the oath taking exercise, Court, Akawoand Nwali went to Amasiri to look for people we should rob of their money. When they reached a rice mill at Amasiri they met their town’s people and because of this they could not get anyone.
On 30/12/80, they sent me to Afikpo to get some people. I left Akaeze at about 0800 hrs, for Afikpo. I went to a rice mill near Eke Afikpo and I got two women. One of them called Eleje. That woman knew me very well and I knew her too. I asked them if they were prepared to buy some rice and they agreed to buy and we set out to buy the rice. When we got Amasiri we stopped. I met my friends Court, Akawoand Nwali and showed them the two women. We contributed money and bought two sledge hammers. Akawo, Court and Nwali first moved down to the scene of this crime and waited, while I led the other. We reached Ndiagu Mgbede Akaeze bush. When we got near a tree called Ukpukpa (Agbono tree). I told the women to wait for me to urinate or (pass urine) one of the women shouted “Does it mean that we are going to be killed” It was about 7.30 p.m. then. At this juncture the following three men emerged, Akawo, Court and Nwali. I hit one of the women with the hammer I was holding and her basin fell down from her head. I ran away but after a while I came back to the scene my friends have recovered all the money they had on their waist. We counted the money and it was N730.00 (Seven hundred and thirty Naira). As we were going back home we shared the money. They gave me N 160.00 (One hundred and sixty Naira). Then, I returned to our house.
Sgd: Okoro Obasi (F.T.I)
Recorded by me. Igbo version.
Sgd:
Inspr. 6/1/81 1050 hrs.
CERTIFICATE: I personally read over this statement to Okoro Obasi, the maker who admitted to have made same in connection with this case.
Sgd:
ASP. 8/1/81  0825 hrs.”In his defence in court the appellant inferred that it was Akawo, Nwali and Court who killed the women and that the only role he played in the killing was to lure the women to the bush where they were ambushed and beaten to death. When he realised what was happening he attempted to escape but the three men held him and forced him to swear to an oath of secrecy.
In the appellant’s brief of argument, the following three issues have been formulated as being the issues for determination:
“(i) Can the conviction of the appellant be said to have been reasonable, warranted and justified having regard to the weight of evidence before the learned trial Judge with particular reference to the evaluation of the evidence of PW5.
(ii) Did the admissions in Exhibits “A”, “A1” and “B” “B1″ relieve the prosecution of its duty to prove the case against the appellant on its own beyond reasonable doubt
(iii) Did the court interpret section 185(3) (sic) C.P.O. (sic) correctly”
Mr. Onukaogu for the respondent adopted the above issues as the ones for determination although in his brief he has cited the correct section of the Criminal Procedure Act as section “285(3)” and not section” 185(3)” as incorrectly cited in the appellants brief.
I think issues (i) and (ii) are closely related and I propose to take them up together. The first point taken up in the appellant’s brief is that the trial Judge placed no reliance on the evidence of PW5 and therefore did not include him as one among 8 (eight) prosecution witnesses who testified in this case whose evidence impressed him” (see paragraph 5: 09 of the brief). The portion of the judgment of the trial Judge on page 40 lines 8 – 10 to the effect that:
“I am impressed by the evidence of the prosecution witnesses, particularly PW.2, PW.3, PW.4, PW.6, PW.7 and PW.8.” was cited in support of the argument that PW.5’s evidence did not impress the trial Judge. With all due respect to learned counsel for the appellant this argument is not tenable, the trial Judge said clearly that he was impressed “by the evidence of the prosecution witnesses, particularly……………………………………………”
To argue that PW.5 did not impress the trial Judge as learned counsel does is to misread and misconstrue that portion of the judgment relied upon. The interpretation placed by counsel on this is obviously wrong and I need say no more on it.
The next point taken is that the trial Judge in his judgment on page 38 lines 20 – 34 said things which were not in evidence and the Court of Appeal supported this. The portion of the judgment cited in paragraph 5.05 of the brief is as follows:”
The identity of the accused at all material time before and after the incident of the death of the deceased was not in dispute. I believe the evidence of PW.5, Egwu Oka, that the accused followed his wife now deceased to his house hurrying her up to what appeared to be her last Journey” (Italics mine).
It was further argued “that the trial Judge was in fact, in error in relying on this fact not contained in the evidence in reaching the conclusion as substantiating his associating the Appellant with the movement and murder of the ‘deceased before and after the murder” (see paragraph 5:05 of the brief).
The first question that comes to mind on this is whether PW5 told the court that he saw the appellant at his house. On page 12of the record, lines 20 – 21, PW5 said:
“The accused person went to the rice mill to my house. When the accused came I asked my wife (italics) whether she would be going to buy the rice…………….” (italics mine).
From this there can be no doubt that PW5 saw the appellant at his house and the contention therefore that PW5 did not inform the trial court that he saw appellant at his house is not tenable.
The next related question is whether the appellant was heard “hurrying the deceased on what appeared to be her last journey.” If PW5 did not say so, what effect would this have on the final decision of the trial court PW5 nowhere in his evidence told the trial court that he heard appellant “hurrying” the deceased, his wife. It is my considered view that whether the appellant was heard hurrying” the deceased or not is immaterial, what is material is that he was seen by PW5 at the house; the “hurrying up” is a mere surplusage which does not disturb the undisputed fact that PW5 said the appellant was at his house with the deceased.
The next point taken in the appellant’s brief relates to the presence of PW5 in court throughout the time 1-4 prosecution witnesses were testifying. It is argued that the trial court interpreted section 285 (3) Criminal Procedure Act, wrongly by not expunging the evidence of the witness for inadmissibility. It is contended that the mere fact that PW5 remained in court during the time 1-4 PWs were testifying not only rendered the evidence of PW5 inadmissible, it also rendered the whole trial a nullity. Learned Counsel for the appellant emphasised that the word “shall” as used in the sub-section under consideration connotes a mandatory duty leaving no room for discretion -Achineku v. Ishagba (l988) 4 NWLR (Pt.89) 411 was cited in support. Learned Counsel argues further that the case of Uwaezuoke v. Commissioner of Police 20 NLR 57 which considered section 186 (1) Evidence Act was a decision of the High Court not binding on the Court of Appeal was wrongly decided.
Mr. Onukaogu argues that the combined effect of Faloju v. Amosu (1983) 2 SCNLR 209; (1983) FNR 376 section 186(1) of the Evidence Act and the second proviso to section 285(3) of the Criminal Procedure Act merely affects the weight to be attached to the evidence of the witness who remains in court while witnesses before him testify:-
Now subsection 285 (3) provides:-
“If the defendant says that he is not guilty the court shall direct that all witnesses shall leave the court and upon such direction the provisions of section 186 of the Evidence Act shall apply: Provided that the Judge or Magistrate may in his discretion permit professional and technical witnesses to remain in court: Provided further that failure to comply with the provisions of this subsection shall not invalidate the proceedings.”
It is perhaps pertinent to observe that in the court below, the appellant’s whole arguments and submissions on this point were based on the provision of section 186 (1) of the Evidence Act and not on the provision of section 285 (3) of the Criminal Procedure Act which was never in fact raised or referred to in that court. The court below in its consideration of the arguments on the matter concluded on page 98 lines 1-4 as follows:-
“…………………A breach of section 186 (1) of the Evidence Act will only affect the weight to be attached to the evidence of the particular witness. See Uwaezuoke vs. Commissioner of Police (1949) 19 NLR 57…………………………………………………”.
In this court however the appellant’s arguments and submissions are that section 285 (3) of the Criminal Procedure Act was wrongly interpreted and that because the decision in Uwaezuoke vs. Commissioner of Police (supra) was the decision of an equivalent of the present day High Court, the Court of Appeal was in error to feel bound by it. I find nothing wrong in the Court of Appeal citing the decision in the Uwaezuoke case with approval. It is not an unusual practice. The Supreme Court has done so, see for example Bornu Holding Co. Ltd. vs. Hassan Bogoeo (1971). NSCC 321; (1971) 1 All NLR 324 when it cited Muhammadu Durumunya v. Commissioner of Police (1961) NNLR 70, a decision of the High Court.
With all due respect to learned counsel for the appellant I do not agree that non-compliance with the provision of section 285 (3) of the Criminal Procedure Act will render the evidence of the particular witness in this case PW5 inadmissible. And to submit that such non-compliance renders the whole proceeding a nullity is to disregard the second proviso to the subsection – ”that failure to comply with the provision of this subsection shall not invalidate the proceedings.” It is my respectful view that such non-compliance will only affect the weight to be attached to such evidence. Indeed in considering the weight to attach to the evidence of such witness, a trial court may have to take into account such factors as the nature of the evidence, its content, the veracity of the witness, the relationship of the evidence of the witness with that already given and whether it can be said that the evidence given by the witness is not from his personal knowledge but has been garnered by his presence in court whilst other witnesses testified.
How then do I answer issues (i) and (iii) in the circumstances I have not the slightest doubt that the answers are the affirmative; that is to say that having regard to the weight placed by the trial Judge on the evidence of PW5 and which was affirmed by the court below, the conviction of the appellant is reasonable. warranted and justifiable and also that the interpretation of section 285 (3) Criminal Procedure Act by the trial court was, in the circumstances correct.
There remains issue (ii) which is the last of the three issues – whether the admissions in the voluntary statements of the appellant relieve the prosecution of its duly of proving the case beyond reasonable doubt.
It was argued in the brief, by reference to Nwogu vs. The State All NLR 213 that the fact that the accused has admitted committing an offence does not automatically make him liable for the offence as such admission does not shift the onus of establishing the guilt of the accused. It was further argued that following the argument that the evidence of PW5 should not have been admitted the identity of the appellant had not been established beyond reasonable doubt.
For the respondent it was submitted that both lower courts accepted the two statements made by the appellant as confessional. The case of James Obi Achabua v, The State, (1976) 12 SC 63; (1962) 2 SCNLR 402 was relied upon for the submission that a confession alone is sufficient to support a conviction without corroboration so long as the court is satisfied of the truth of the confession. It was further argued that even if corroboration was required, the trial court held on page 39 lines 21 – 24 that apart from the confessions there were other pieces of evidence corroborating the confession. It was submitted by reference to the case The Queen vs, Obiasa (1962) 1 All NLR (Part IV) 651 that the pieces of evidence referred to in the trial court’s judgment made the confession probable. It was finally submitted that the prosecution had proved the case against the appellant beyond reasonable doubt.
In the court below the main plank of the appeal was whether the statements made by the appellant were confessions or not and that court dealt with the issue extensively from page 86 lines 6 to 92 and in the last paragraph the following conclusion was, rightly in my view, reached:-
“From the foregoing, it is my conclusion that Exhibit A – A1 is a confessional statement made by the appellant on 3/1/81. But Exhibit B-B1 made on 6/1/81 by the appellant is more detailed. In that statement he narrated how on 15/12/80 he, and three others, namely. Court, and Akawo from Abakaliki and Nwali Nwiko who lives at Ogiri Edda met and agreed to rob people outside Akaeze village where they will be easily identified. They took a solemn oath with hairs and blood from each of their bodies. kolanut and illicit gin which they mixed with ashes and drank”.
The court below went on, on page 94 to answer the issue – whether Exhibits A-A1 and B-B1 could be regarded as confessional statements, in the affirmative. In this court, it is clear that learned counsel for the appellant concedes that these statements are admissions because in formulating issue the word “admissions” has been used. It seems to me that the way the issue is formulated is really begging the question. It is trite law that a confession alone, even without corroboration can support a conviction so long as the court is satisfied that the confession is true – see for example James Achahua v. The State (1976) 10 NSCC 714; (1976) 12 S.C. 63 per Obaseki, J.S.C. (as he then was).
In answering the issue in the affirmative I wish to emphasise that it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. For a confession to form the basis of a conviction it has to be shown to be free and voluntary, positive and proved to be true – see Jafiya Kopa v. The State, (1971) 7 NSCC 166: (1971) 1 All NLR 150.
All the issues having been resolved against the appellant, I find no merit in the appeal and it is dismissed. The conviction and sentence of the trial court affirmed by court below are further affirmed.

A. G. KARIBI-WHYTE, J.S.C: Joseph Okoro Obasi, the Appellant, was tried, convicted and sentenced to death for the offence of Murder at the Afikpo High Court, Abia State on the 30th December, 1980. His appeal to the Court of Appeal against both conviction and sentence was dismissed by the Port Harcourt Division of the Court on the 11th December, 1990. On the 2nd January, 1991, he gave notice of Appeal to this court, against the decision of the Court of Appeal. This is the appeal now before us.
The facts of this case are quite simple. Appellant was charged with the Murder of Ude Egwu Oko contrary to section 319(1) of the Criminal Code. The offence was alleged to have been committed at Ndiagu Bush in Mgbede, Akaeze in Afikpo Judicial Division. In establishing the case against appellant, the prosecution relied on the evidence of eight witnesses, and the confessions in the statements of the Appellant made on the 3rd and 6th January, 1981 respectively and tendered at his trial as Exhibits A and A 1, B and B 1, A 1 and B 1 are English translations of the statements made in Igbo language. The prosecution regarded the statements as confessions and complied with guidance generally adopted when voluntary statements of accused persons amount to admission of the offence charged.
Appellant gave evidence at his trial. He denied making the contents of Exhibits A and B, but never claimed that he was either forced or induced to make any statement to the Police. His testimony at his trial substantially corroborated his statement to the Police in Exhibits “A” and “B”. His testimony was an effort to shift the commission of the offence on the two of his friends, one Nwali and Court, who he said bound him with an oath of secrecy from revealing what happened tothe two women. He denied killing the two women.
It is pertinent to observe that Appellant did not deny taking two women from Afikpo to buy rice from him at Akaeze. This is what he said in his testimony on oath:-
“On the 30th of December, 1980, one a man sent me to Afikpo to collect two to buy rice from him at Akaeze. I came to Afikpo. I went to the rice mill and asked of women who want to buy rice. Two women came out and left with them to Akaeze. I took them to Akawo, that is the name with which I know him………………………..”
This piece of evidence corroborated the evidence of PW3, Josiah Kalu that on the 30th December, 1980, appellant was seen in company of two women; walking along the road, each carrying a basin on her head while the appellant had a hammer B in his hand. The story of what happened to the women thereafter is contained in Appellant’s statement to the Police in Exhibits A and B. The relevant portions of Exhibits A and B are as follows:
“A”
“..On 30/12/80, Okoro came again to our house and I went out with him to his own house. In his room I saw two women. Okaro took me outside and said that he has brought the people. After looking at the women I became sorry for them. I asked Okoro, “How did you bring the women here” He said he told them to came and buy rice. Okoro asked me to give him five naira. I gave him five naira as he requested.
Okoro called the women out of the room and we set out and as we were going I was behind. On getting nearer the place he told me to go to the front and I obeyed. We were going inside the bush. While we were going Okoro had a hand bag with him. But I did not ask Okoro about the weapon we would use in killing the women because Okoro was in the BOFF. It was clear to me that we set out to kill the women. As we were still going, Okoro told me we have reached the place. I heard the women shouting. I began to run away. I did not beat anybody. It was Okoro who beat them. This incident happened on 30th December, 1980. It was in the night time I ran to my house……………………………”
Exhibit B made three days after contained a more detailed statement of the parties and their description, including the conspiracy and preparation to commit the offence from the 15th December, 1980. I reproduce the relevant portion of Exhibit B.
“B”
” …. On 30/12/80, they sent me to Afikpo to get some people. I left Akaeze at about 0800 hrs, for Afikpo. I went to a rice mill near Eke Afikpo and I got two women. One of them was called Eleje. That woman knew me very well and I knew her too. I asked them if they were prepared to buy some rice and they agreed to buy and we set out to buy the rice. When we got to Amasiri we stopped. I met my friends Court, Akawo and Nwali and showed them the two men.
We contributed money and bought two sledge hammers Akawo, Court and Nwali first moved down to the scene of this crime and waited, while I led the women to the scene. I was having one of the hammers while Akawo held the other. We reached Ndiagu Mgbede Akaeze Bush. When we got near a tree called Ukpukpa (Agbono tree), I told the women to wait for me to urinate or (pass urine) one of the women shouted, “Does it mean we are going to be killed It was about 7.30 p.m. then. At this juncture the following three men emerged. Akawo, Court and Nwali. I hit one of the women with the hammer I was holding and her basin fell down from her head. I ran away but after a while I came back to the scene. By that time they were no more. Before I came back to the scene my friends have recovered all the money they had on their waist. We counted the money and it was N730.00 (seven hundred and thirty Naira). As we were going back home we shared the money. They gave me N160.00 (One hundred and sixty naira). Then I returned to our house.”
Nothing can be clearer as to the evidence relating to the preparation and execution of the offence with which appellant was charged, than this voluntary account in Exhibit B.
The evidence of PW4 Ogwudu Ogbuu was as to the discovery of the body of the deceased, and PW2. as to the effort of Akaeze villagers to discover the culprit among them. It was in this circumstance appellant offered N250 to the villagers to cover up the offence. Appellant and the N250 were handed over to the Police at the Okposi Police Station. The learned trial Judge believed the evidence of the prosecution in their entirety and rejected the defence of the appellant. He concluded as follows-
“From his evidence on oath alone, I am in no doubt that the accused participated actively in the commission of the heinous crime, if at all he did not do it alone. In any case, I have no doubt in my mind that the accused committed the murder. The prosecution had indeed proved the guilt of the accused person beyond reasonable doubt and I find him guilty as charged.”
The Court of Appeal affirming the decision of the learned trial Judge, held that since there was no ground of appeal before the court relating to the voluntariness vel non of Exhibits A and B and no issue was formulated, it was not an issue before the Court. The Court of Appeal held that the learned trial Judge correctly treated Exhibits A, A1, B, B1 as confessional statements.
It was also held that there was on the evidence a clear intention to kill the women. In addition, the Court below relied on the evidence and applied section 8 of the Criminal Code on common intention to hold that even though appellant claimed not to have participated in killing the deceased, he agreed with his friends who he claimed did it. It therefore did not matter which of them beat the women which eventually resulted in their deaths. Alagba & ors. v. King (1950) 19 NLR.129 was cited and relied upon. I must point out that the appellant was charged with the murder of one woman and not two. The evidence admitted disclosed that the woman found dead and in respect of who accused was charged, was the one identified by PW5 as his wife. There was evidence in Exhibit B, that accused/appellant hit the deceased with the hammer he was holding and she died. There was therefore no doubting that accused/appellant caused the death of the deceased. See Bakuri v. State (1965) NMLR.163. Section 8 of the Criminal Code and Alagba v. R & ors. are therefore not applicable.
The Court of Appeal correctly rejected the case of Akpan Udo Uda Essien (1939) 5 WACA.70 relied upon as inapplicable. In that case appellant did not know the intention of the companions, and there was no common intention to kill the deceased.
The Court of Appeal also held that cause of death could be inferred from the circumstances surrounding death of the deceased. In the instant case the cause of death was the attack on the deceased by appellant with a hammer, and death occurring within 24 hours.
The Court of Appeal also held that the presence in Court of PW5 when the other witnesses for the prosecution were giving evidence did not vitiate the trial or his evidence. The breach of section 285(3) of the Criminal Procedure Law merely went to the weight to be attached to his evidence. The Court cited section 186(1) of the Evidence Act and Uwaezuoke v. C.O.P. (1949) 19 NLR.57.lt was pointed out that in the light of the evidence before the Court other than that of PW5, the evidence subsequently given after hearing other witnesses could not prejudice the trial of the appellant.
Appellant has further appealed to this Court. The original notice of appeal dated 18th day of December, 1990 contained an omnibus ground of appeal. On 30th April, 1992, Appellant sought and obtained leave of this Court to file and argue four additional grounds of appeal numbered 2 to 5. The grounds of appeal are as follows –
GROUNDS OF APPEAL
“2. That the Court of Appeal erred in law in considering Exhs. A, A1, B and B1 as absolving the prosecution from otherwise proving the Appellant guilty of the offence charged beyond all reasonable doubt.
Particulars”
There is evidence on record to show that the Court of Appeal regarded “Exhs. A, A1, B and B 1” per se as sufficient proof of the Appellant’s guilt.
3. The Court of Appeal was wrong in law in its interpretation of 5.285(3) of the Criminal Procedure Law.
Particulars
There is evidence on record to show that although the wordings of 5.285(3) of the Criminal Procedure Law (E.N. Laws of 1963) were clear and unequivocal and the Court instead of giving effect to its simple and natural meaning sought to interpret the same by reference to the interpretation of provision of S.186 of the Evidence Law in the Magistrates Court Case of Uwaezuoke -vs – Commissioner of Police 20 NLR.57 decided on appeal by a High Court contrary to the principles of law on the interpretation of statutes.
4. The Court of Appeal erred in law in its application of the principle of “Stare Decisis.”
Particulars
There is evidence on record to show that the Court of Appeal in its interpretation of S.285(3) of the Eastern Nigeria Criminal Procedure Law considered itself bound to follow the decision all appeal in the case of Uwaezuoke – vs – The Commissioner of Police 20 NLR.57 in respect of S.186 of the Evidence Law which at the time the case decided was designated “Supreme Court.”
5. The Court of Appeal erred in law in failing to advert its mind to the Fundamental right to fair hearing as provided for in S.33 of the 1979 Constitution of the Federal Republic of Nigeria.
Particulars
That the Court of Appeal as well as the trial court while conceding that the presence of PW5 in Court during the testimony of the material witnesses that testified before him constituted a breach of S.285(3) completely failed to advert its mind to cumulative effect of this procedural breach and the Appellant’s entrenched fundamental right to fair hearing under S.33 of the 1979 Constitution'”
Learned Counsel filed their briefs of argument which they adopted and relied upon in their argument before us. The three issues for determination formulated by learned Counsel to the Appellant and adopted by Respondent are as follows –
“0.1 can the conviction of the Appellant be said to have been reasonable, warrantable and justifiable having regard to the weight of evidence before the learned trial Judge with particular reference to the evaluation of the evidence of PW5”
0.2 Did the admissions in Exh. “A, “A1”, “B” relieve the prosecution of its duty to prove the case against the Appellant on its own beyond reasonable doubt”
0.3 Did the court interpret S.185(3) (sic)285 (3) C.P.O. correctly””
Learned Counsel to the Appellant dealing with the first issue in his brief of argument considered the evidence of PW5. in relation to the identity of the deceased, and the admissibility or not of the evidence of PW5. Mr. Akwiwu referred to the evidence of PW5 and the evaluation of the evidence by the learned trial Judge.
The learned trial Judge referred to the evaluation of the evidence of the witnesses in the case and said;-
“I am impressed by the evidence of the prosecution witnesses, particularly PW2, PW3, PW4, PW6, PW7 and PW8.
In their own judgment the Court of Appeal quoted the learned trial Judge as saying.
“The identity of the accused person at all times before and after the incident of the death of the deceased was not in dispute. I believe the evidence of PW5 Egwu Oko, that the accused followed his wife (now deceased) to his house hurrying her up to what appeared to be her last journey'”
Mr. Akwiwu submitted that there was no evidence that Appellant followed the deceased to the house of PW5, or that he hurried the deceased into following him in the presence of the PW5 or at all. It was therefore submitted that the Court of Appeal was wrong, having relied on the conclusion of the learned trial Judge reached without supporting evidence.
It was submitted that failure on the part of the learned trial Judge to accord any weight at all to the evidence of PW5, is to be ascribed not only to the unsatisfactory nature of the evidence, but also as a consequence of PW5 sitting in court when the other prosecution witnesses testified.
In reply to this submission learned Counsel to the Respondent submitted that the trial Judge gave adequate and judicious consideration to the evaluation of the evidence of all the prosecution witnesses including PW5. The trial Judge did not discredit any witness, and the weight placed on the evidence of PW5 was not higher than that placed on any other witness. The learned trial Judge believed the evidence of PW5. The Court of Appeal was quite correct to have accepted the finding of the learned trial Judge.
I think the Court of Appeal was right on the evidence before it to have affirmed the judgment of the trial Judge. I agree with the submission that the learned trial Judge gave adequate consideration to the evidence of PW5. The learned trial Judge believed the evidence of PW5, when he said,
“……I believe the evidence of PW5, Egwu Oko, that the accused followed his wife now deceased to his house hurrying her up to what appeared to be her last journey.”
The criticism by Mr. Akwiwu of this conclusion is based on the contention that there was no evidence in support of the view that accused following the deceased to the house of PW5, and hurrying her up. This does not seem to me a material part of the evidence that accused on his own admission also was found with the deceased, at least in the vicinity where her dead body was subsequently found. Whether they started from the house of PW5 or in a hurry seems to me irrelevant.
It is necessary to point out that whatever the contradictions in the evidence of PW5 and his statement to the Police was explained during cross-examination. His evidence in Court is a more detailed version of his statement to the Police. This satisfies the testing Agwu & ors. v. The State (1965) NMLR.18; Onubogu v. The State (1974)1 All NLR (pt.11)5.
The evidence sufficiently supports the conclusion of the learned trial Judge that appellant was associated with the movement and murder of the “deceased before and after the Murder.” Learned counsel to the Appellant is clearly in error for the criticism of the conclusion of the learned trial Judge. It seems to me very clear that the trial Judge convicted after a careful and detailed evaluation of the evidence before him. The first issue is accordingly resolved against the appellant.
I now turn to the second issue which concerns the question whether admission of Exhibits A, A1, B. B1 relieves the prosecution from proving the case against the appellant beyond reasonable doubt.
Mr. Akwiwu has submitted that the prosecution is not absolved from the onus of proving the case against the appellant merely because he has confessed to the commission of the offence. He cited and relied on Nwogu v. The State All NLR.213. Mr. Akwiwu has put forward a lot of arguments which lack legal basis. It is not correct to argue as he has done, that evidence of PW5 is inadmissible because of the breach of section 285(3) of the Criminal Procedure Law. This is because although S.285(3) is mandatory that before hearing evidence after a plea of not guilty, the court shall direct that all witnesses shall leave the court, the proviso to the section provides unequivocally as follows –
“Provided that the Judge or magistrate may in his discretion permit professional or technical witnesses to remain in court; Provided further that failure to comply with the provisions of the subsection shall not invalidate the proceedings.”
It is a well recognised principle of the interpretation of statutes that a proviso is an exception to the main rule. The object of a proviso in a statutory enactment is to qualify or cut down the enacting clause which precedes it. In reality it is used as all exception to the main rule – See Eme v. State (1964) 1 All NLR 416. Where the words of a section are capable of showing more than one meaning the proviso will show the proper meaning to be attached to it. See Anyah v. State (1965) NMLR 62. It is clear from the words italicised that breach of the section shall not invalidate the proceedings. This includes not only the entire proceedings, but also any of the steps in the proceedings. The evidence of PW5 is therefore not inadmissible. On the view adopted, the identification of the deceased by PW5 is admissible and the learned trial Judge was right to have acted on it.
Exhibits A, A1, B, B1 are confessions by the Appellant with respect to the offence with which he was charged. Section 27(1) of the Evidence Act provides
“(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
Where the confession is that the accused committed the crime charged, it is in the nature of a plea of guilty to such offence – See R v. Wilson (1959) 4 FSC.175; (1959) SCNLR 462 R v. Olagunju (1961) 1 All NLR 21: (1961) 1 SCNLR 32. A confession as was said in Edet Obosi v. The State (1965) NMLR.119, 122 is used to denote an admission of guilt.
A confession must be direct and positive, and not equivocal – See Afolabi v. C.O.P (1961) All NLR.654., (1961) 2 SCNLR 307 Jonah & ors. v. R (1934) 2 WACA.120. It is settled law that an essential ingredient in the offence charged cannot be cured by a confession – See Surujpaul v. R (1958) 3 All ER.300.
There was evidence in this case, of the death of the deceased, the cause of death, and the fact that appellant caused the death. In addition, the confessions in Exhibits “A”, “A1, “B”, “B1” were corroborated by evidence of PW2, PW5. PW8, witnesses outside the confession. See Queen v. Obiasa (1962) 1 All NLR.651, (1962) 2 SCNLR 402. These additional evidence made the confession probable and true. – See Udedibia v. State (1976) 11 SC.I33. It is well settled that an accused can be convicted on his confession alone if the court is satisfied that it is true – See Achabua v. State (1976) 12 SC.63.
In the instant case the truth of the confession was established by the corroborating evidence indicated above. The essential elements of the offence having been established, the prosecution has proved its case beyond reasonable doubt. This issue is also resolved against the Appellant. I now turn to the third issue on the interpretation of section 285(3) of the Criminal Procedure Law. I have already dealt with this issue in my consideration of the second issue. The trial Judge was correct in its interpretation of tile provisions of section 285(3) of the Criminal Procedure Law.
Mr. Akwiwu submitted that the Court was wrong in its interpretation of the section. He argued that the word “shall” in the section is peremptory and should be given its ordinary mandatory meaning. The expression he submitted, excludes the exercise of discretion on the part of the Judge.
It was also submitted that enactments regulating procedure are usually construed as imperative and should be so construed where the provision is for the benefit of the accused – See Onuoha v. C.O.P. (1959) 4 FSC.23, (1959) SCNLR 75.
Finally on this point learned Counsel submitted that the Court of Appeal was wrong to have relied on the authority of Uwaezuoke v. C.O.P. 19 NLR.57, a Court of inferior jurisdiction.
As I have said in this judgment, the combined effect of the provisions of section 285(3) of the Criminal Procedure Law, and section 186(1) of the Evidence Act is that it is mandatory to exclude all witnesses except professional and technical witnesses from the court, after a plea of not guilty and before hearing. But the breach of this section does not affect the validity of the proceedings. A correct construction of the sections is that evidence of a witness will not be rendered inadmissible merely because a witness, other than a professional or technical witness,  remained in court in breach of section 285(3) – See Falaju v. Amosu (1983) 2 FNR.375.(1983) 2 SCNLR 209. It is accepted that the effect of a breach of the provision lies in the weight to be attached to the evidence of such witness. The consideration may be otherwise where the witness would have had no source of knowing the facts to which he had testified except by being in Court while the other witnesses were testifying. -See Olawuyi & anor. v. Adeyemi & Anor. (1990) 4 NWLR (Pt.147) 746, at p.755. In such a circumstance the evidence should be excluded.
In my opinion, the effect of the proviso on the breach of the provision is that it is a mere irregularity which cannot invalidate the proceedings. The question of the admissibility of the evidence depends upon the nature of the evidence and the fact whether the source of the evidence was from the evidence of those witnesses who had testified when he was in court.
The Court of Appeal was right in its construction of the provisions of section 285(3) of the Criminal Procedure Law, and section 186(1) of the Evidence Act, when it held that a breach of the section will only affect the weight to be attached to the evidence.
Mr. Akwiwu has criticised the Court of Appeal for citing and relying on the case of Uwaezuoke v. C.O.P. 19 NLR.57 as authority for the construction. He argued that the decision being that of a High Court, could not bind the Court of Appeal, as the Court had assumed. I agree entirely with learned Counsel to the Respondent that the Court of Appeal did not suggest that it was bound by that case, and no issue of State decisis was involved in the proposition. The case was cited simply as authority for the proposition.
All the issues formulated having been resolved against the Appellant. The appeal fails and is accordingly dismissed. The judgment of the Court of Appeal dismissing the appeal of Appellant is hereby affirmed.
I have read the judgment of my learned brother Mohammed J.S.C. In this appeal, I agree with him that this appeal lacks merit and should be dismissed.

S. KAWU, J.S.C.: I have had the privilege of reading, in draft, the lead judgment of my learned brother. Mohammed, J.S.C. which has just been delivered, I agree with him entirely and will respectfully adopt his reasons for dismissing the appeal as mine. I dismiss the appeal and affirm the judgment of the Court of Appeal.

U. OMO, J.S.C.: The appellant was charged with, tried and convicted of the offence of murder (of one Ude Egwu Oko), contrary to section 319(1) of the Criminal Code, at the High Court of Imo State (Afikpo Judicial Division). His appeal to the Court of Appeal (Port Harcourt Division) against his conviction- and sentence of death was dismissed by that Court, which affirmed the decision of the trial court. It is against that decision that he has now appealed to this Court.
Three issues for determination were set out in his brief of argument filed in this Court as follows:-
“1. Can the conviction of the Appellant be said to be reasonable, warranted and justifiable having regard to the weight of evidence before the Learned Trial Judge with particular reference to the evaluation of the evidence of P.W.5.
2. Did the admissions of Exhibit “A”, “A1”, “”B”, and “”B1″ relieve the prosecution of its duty to prove the case against the Appellant on its own beyond reasonable doubt
3. Did the Court interpret S.185 (3) of the C.P.O, correctly”
The respondent in its brief adopted these same issues as those for determination. I will deal with them very briefly in view of my attitude to the lead Judgment just delivered.
The first issue deals with the weight of evidence before the trial Court. Not only did the Court have the testimony of PW.5 before it, but it also had other circumstantial evidence which taken together are more than sufficient in proof of the offence charged. Whilst nor relieved of its duty to prove the offence charged beyond reasonable doubt, the admissions in Exhibits A, A1. B and B1 have made it easier for the prosecution to prove its case. When they are considered along with the evidence of PW.5 and other circumstantial evidence led, the conclusion must be arrived at that the onus of proof required of the prosecution has been discharged. This disposes of Issue 2. There is no substance whatsoever in Issue 3. Failure to comply with section 185(3) of the Criminal Procedure Law of Eastern Nigeria 1963 is merely an irregularity vide Uwaezuoke vs. Commissioner of Police 20 N.L.R.57. The consequence of this, at the very worst, will be to diminish (in weight) whatever evidence is led in contravention thereof.
For these reasons and those set out in the judgment of my learned brother, Mohammed. J.S.C., here the issues raised were dealt with in greater detailed. I agree with the lead judgment that there is no merit in this appeal which is hereby dismissed. The judgment of the court below is also hereby confirmed.

E. O. OGWUEGBU, J.S.C.: In this appeal one original ground of appeal was filed with the notice of appeal and it reads:
“That the decision of the trial High Court Judge and those of the Court of Appeal Judges are unwarranted and cannot be supported in law having regard to the weight of evidence.”
With the leave of this court, four additional grounds were filed by the appellant.
Two issues were formulated by the appellant as arising for determination in the appeal:
“1. Can the conviction of the Appellant be said to have been reasonable, warranted and justifiable having regard to the weight of evidence before the learned trial Judge with particular reference to the evaluation of the evidence of PW.5
2. Did the admissions in Exh, “A”,”A1″, “B” and “B1″ relieve the prosecution of its duty to prove the case against the Appellant on its own beyond reasonable doubt”
The finding of the learned trial Judge on the evidence of P.W.5 is attacked by the learned appellant’s counsel on a number of grounds:
“1. The learned trial Judge believed the evidence of P.W5 that the appellant followed his wife (now deceased) to his house hurrying her up for what appeared at last to be her last journey.” It was submitted that this is not contained in the evidence of PW.5;
2. The learned Justices of the Court of Appeal relied on the finding of the learned trial Judge on this non-existent evidence; and
3. The learned trial Judge did not accord any weight to the evidence of PW.5 based on the unsatisfactory nature of his evidence-in-chief and under cross-examination coupled with the presence of P.W.5 in court when other prosecution witnesses testified in contravention of S.285(3) of the Criminal Procedure Law. Cap.31, Vol. 11, Laws of Eastern Nigeria, 1963 applicable in Imo State.
I intend only to comment on this first issue for determination. I disagree with the learned Counsel for the appellant where he submitted that the trial court did not accord any weight to the evidence of PW.5. This is not true. See page 38 from line 31 where the learned trial Judge said:
“I believe the evidence of PW.5, Egwu Oko, that the accused followed his wife now deceased, to his house hurrying her up for what appeared at last to be her last journey………………………”
What is important here is whether the appellant followed the deceased to her husband’s (PW.5) house before they set out for the journey which turned out to be her last. Whether the appellant hurried her or not did not add to or subtract from the evidence that PW.5 last saw his wife alive in his house with the appellant. This is the gist of his evidence on that point and the Court of Appeal was entitled to rely on it. It was a finding of fact made by the trial Judge based on the evidence before him.
The presence of the 5th prosecution witness in court when PW.1 to PW.4 testified is to be considered in the light of the provisions of S.285 of the Criminal Procedure Law. Laws of Eastern Nigeria and S.186 of the Evidence Act.
S.285(1) of the Criminal Procedure Law provides that:
“(1) At the commencement of the hearing, the court shall state or cause to be stated to the defendant the substance of the complaint, and shall ask him whether he is guilty or not guilty.
(3) If the defendant says that he is not guilty the court shall direct that all witnesses shall leave the court and upon such direction, the provisions of S.186 of the Criminal Procedure Act shall apply.
Provided that the Judge or Magistrate may in his discretion permit processional and technical witnesses to remain in court.
Provided further that failure to comply with the provisions of this subsection shall not invalidate the proceedings.”
S.186 of the Evidence Act now S.187 Cap.112 Laws of the Federation of Nigeria. 1990 provides:
“(1) On the application of either party, or of its own motion, the court may order witnesses on both sides to be kept out of court; but this provision does not extend to the parties themselves or to their respective legal advisers, although intended to be called as witnesses.”
Having regard to the above provisions of the law, did the presence of PW.5 when PW.1 to PW.4 testified invalidate the proceedings The defence failed to show that it was only by being in court when the other witnesses testified that the PW.5 knew the facts to which he testified. The witness offered reasonable explanation as to why he was in the court when the other prosecution witnesses testified. It was not also shown that the presence of PW.5 led to any miscarriage of justice or that, without his evidence the judgment would have gone the other way.
In the light of the foregoing, the proviso to S.285(3) of the Criminal Procedure Law is called in aid and the proceeding is therefore not invalidated as no injustice was occasioned by his presence. There was no infringement of S.33 of the Constitution of the Federal Republic of Nigeria, 1979 as amended.
Even if the evidence of PW.5 is excluded, the evidence against the appellant is overwhelming and there is sufficient evidence to ground his conviction.
I would like to make an observation on the manner ground one of the grounds of appeal was couched. A ground of appeal that the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence is not a ground of appeal in criminal cases which are usually not decided on the weight of evidence or balance of probabilities. The ground of appeal is incompetent and ought to have been struck out but for the serious nature of the charge. See Adio v. The State (1986) 2 N.W.L.R. (Pt.24) 581 at 583.
For the above reasons and the more detailed reasons contained in the judgment or my learned brother, Mohammed, J.S.C., I too dismiss the appeal as it lacks merit. The judgment of the Court of Appeal is affirmed by me.
Appeal dismissed.