DARE JIMOH & ANOR V. THE STATE
(2011)LCN/4426(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of March, 2011
CA/I/64/2005
RATIO
TRIAL WITHIN TRIAL: CIRCUMSTANCES WHERE THE WILL CONDUCT A TRIAL WITHIN TRIAL
…I had stated in ADELARIN LATEEF & ORS V. FED. REPUBLIC OF NIGERIA (2010) 37 WRN 85 at 107 paras 25-45 as follows “It does happen sometimes that an accused person facing a criminal trial in Court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person. It becomes at this stage necessary for the Court to temporarily halt the main trial upon which the accused person is facing trial and conducts a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. It takes the form of a normal trial as witnesses are called to give evidence and are subject to cross-examination by the other side. The Court proceeds to write a ruling either admitting the statement of the accused or rejecting same after which the normal trial temporarily suspended continues.” PER STANLEY SHENKO ALAGOA, J.C.A.
CONFESSIONAL STATEMENT: MEANING OF “CONFESSIONAL STATEMENTS”
A Confessional Statement is a statement or assertion in writing voluntarily made usually by an accused person admitting that he/she either alone or in concert or in collaboration or collusion with other persons apprehended or still at large took part in or aided and abetted the commission of a crime. PER STANLEY SHENKO ALAGOA, J.C.A.
CONFESSIONAL STATEMENT :THE TESTS TO WHICH CONFESSIONAL STATEMENTS ARE SUBJECTED TO, TO DETERMINE THEIR VERACITY OR OTHERWISE BEFORE ANY EVIDENTIAL WEIGHT CAN BE ATTACHED TO THEM
Quite apart from the conduct of a trial within trial by a Court to determine the veracity of a confessional statement allegedly made by an accused person to the commission of a crime the Courts have fashioned out six tests to which such confessional statements are subjected to determine their veracity or otherwise before any evidential weight can be attached to them. The six tests are as follows – 1. Is there anything outside the confessional statement to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts true as they can be tested? 4. Was the prisoner one who had the opportunity of committing the crime? 5. is his/her confession possible? 6. Is the confession consistent with other facts which have been ascertained and have been proved? See the following cases where these tests have been highlighted in some greater detail – DAWA V. THE STATE (1980) 8-11 SC 236; R. V.SYKES (1913) 8 CR. App. REPORTS 223; R. V. OBISIA (1962) 2 SCNLR 402; (1962)1 All NLR 651; KANU v. R. (1952) 14 WACA 30; AFOLABI V. STATE (2010) 19 WRN 117 at 129; OKE UTUYORUME V. THE STATE (2010) 43 WRN 162 at 187; NSOFOR V. STATE (2005) 4 WRN 29; 18 NWLR (PART 905) 292 at 310-311; LUKMON OSETOLA & ANOR V. THE STATE (2010) 35 WRN 177 at 182. PER STANLEY SHENKO ALAGOA, J.C.A.
IDENTIFICATION PARADE: WHETHER IT IS EVERY INSTANCE WHEN PERSONS SUSPECTED OF HAVING COMMITTED A CRIME ARE PARADED FOR IDENTIFICATION
As to identification of an accused, it must be stated that it is not in every instance when persons suspected of having committed a crime are paraded for identification. In UKPABI V. THE STATE (2004) 34 WRN 133; (2004) 7 SC 189 at 199-200 the Supreme Court had this to say, “Where a trial court is faced with identification evidence it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Identification parade is not a sine qua non to conviction.” (Underlining mine) In this particular case now being considered Adedayo Odukoya who himself took part in the crime took the police not just to the house but to the very room of the 2nd Appellant his fellow partner in crime. An identification parade was never necessary. See also IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455; (1989) 6 SCNJ 54; ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129; (1991) 4 NWLR (PART 186) 399; IBE V. THE STATE (1992) 5 NWLR (PART 244) 642; (1992) 5 SCNJ (PART 11) 172; THE STATE V. ATGBANGBEE (1988) 3 NWLR (PART 84) 549; (1988) 7 SCNJ 128; (1988) 2 NSCC 192. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
1. DARE JIMOH
2. HAKEEM FATAI Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the conviction and sentence of the Appellants to death on a two count charge of Conspiracy to Commit Murder and Murder by an Ijebu Ode High Court presided over by Osidipe J. in suit No. HCJ/8C/2000 delivered on the 15th October 2003. The Charge is as follows –
COUNT ONE
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT MURDER contrary to and punishable under section 324 of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.
PARTICULARS OF OFFENCE
DARE JIMOH ‘m’, AKEEM FATAI ‘m’ on or about the 27th day of October 1999 at No. 4 Madasa Lane, Off Odutola Street, Ijebu-Ode, in the Ijebu-Ode Judicial Division conspired together to commit the offence of murder contrary to Section 324 of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.
COUNT TWO
MURDER contrary to and punishable under Section 319(1) of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.
PARTICULARS OF OFFENCE
DARE JIMOH ‘m’, AKEEM FATAI ‘m’ on or about the 27th day of October 1999 at No. 4 Madasa Lane, Off Odutola Street, in the Ijebu-Ode Judicial Division unlawfully killed one Kemi David ‘f’ and thereby committed an offence contrary to Section 319(1) of the Criminal Code Cap 29 Laws of Ogun State of Nigeria 1978.
They pleaded not guilty to the charge. The prosecution called a total of six witnesses and relied on a number of exhibits while the Appellants gave evidence for them and called no witnesses. The case for the prosecution is that the residence of the deceased one Kemi David was attacked by some persons who robbed, raped and slaughtered her with a knife in their possession on or about the 27th October 2009 at Madasa Lane, Ijebu-Ode as her siblings had gone out on a night vigil. Following an alarm that thieves had raided the area in which the deceased lived, a neighbourhood vigilante group came out in search of the miscreants. PW1, a civil servant by name Olasunbo Keshiro had in the process seen one Adedayo Odukoya hiding in a banana farm with his hand stained in blood. He took him to the vigilante group who took him to the police where he confessed to having robbed, raped and murdered the deceased Kemi David. He, Adedayo Odukoya said he was not alone in the perpetration of these dastardly acts and named and took the police to the houses of the Appellants where they were also arrested by the police. Later Adedayo Odukoya died in custody from gunshot wounds he allegedly sustained while trying to escape from police custody. The Appellants were thereafter arraigned, tried, convicted and sentenced to death by hanging. It is against this judgment that the Appellants have appealed.
The Appellants filed two separate Notices of Appeal and two separate Briefs of Arguments while the Respondent’s Brief of Argument ‘takes care of the issue raised in both Briefs of Arguments of the Appellants.
The Appeal came up for hearing on the 17th January 2011. The records of the Court for that day showed that neither the 2nd Appellant nor his Counsel was present in Court though there was proof that hearing Notice for that day (17th January 2011) had been served on the 2nd Appellant through his Counsel, Joseph Wobike on the 4th November 2010. This Court also noted that the 2nd Appellant had filed his Brief of Argument. The said Brief of Argument of the 2nd Appellant is dated the 22nd July 2005 and was filed on the 29th July 2005. This Court having dug into its record and discovered that all the parties had filed their respective Briefs of Argument invoked the provisions of Order 17 Rule 9(a) of the Court of Appeal Rules 2007 to hear the Appeal. The said Order 17 Rule 9(4) of the Court of Appeal Rules 2007 provides as follows;
“When an appeal is called and the parties have been duly served with the Notice of hearing but if any party or any legal practitioner appearing for him does not appear to present oral argument even though Briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been argued”.
Not only were Counsel for the 1st Appellant and for the Respondent present in court on the day fixed for the hearing of the appeal, (i.e. 17th January 2011) having heeded to service of the hearing Notices on them, the respective briefs of the 1st Appellant and Respondent had been filed. I have dealt at some appreciable length with the purport of Order 17 Rule 9(a) of the Court of Appeal Rules 2007 in AWOSIKA V. THE STATE (2010) 8 NWLR P4RT 1198 page 49 AT 64-65; (2010) 18 WRN 149 at 166-167.
Counsel for the 1st Appellant S. O. Bashorun referred to the Brief of Argument of the 1st Appellant dated the 2nd August 2005 and filed on the 10th August 2005 as well as the 1st Appellant’s Reply Brief of Argument dated the 15th June 2007 and filed same day but deemed properly filed on the 30th October 2007. He adopted and relied on both briefs and urged this Court to allow the 1st Appellant’s appeal. It was at this stage of the proceedings that Mrs. B. T. Ogunjide appeared in Court and announced her appearance for the 2nd Appellant. She adopted and relied on the 2nd Appellant’s brief of Argument dated the 22nd July 2005 and filed on the 29th July 2005 and urged this Court to allow the appeal of the 2nd Appellant. Mrs. Y. Oresanya Director of Commercial Services Oyo State Ministry of Justice, also adopted and relied on the Respondent’s Brief of Argument dated the 14th July 2006 and filed on the 14th August 2006 but deemed properly filed on the 2nd May 2007 and urged this Court to dismiss the appeals of the Appellants and affirm the judgment of the trial High Court.
1st Appellant’s Amended Grounds of Appeal which are contained at page 14 of his Brief of Argument are as follows –
1. The learned trial Judge erred in law when he admitted Exhibit ‘2’ Two (Statement of First Accused person) despite objection as to its voluntariness without a “trial within trial” and thereby came to a wrong conclusion, which had occasioned a gross miscarriage of justice.
2. The learned trial Judge employed double standard in the trial of the Appellant for no just cause compared with the trial of the second Accused person in the lower Court and thereby occasioned a gross miscarriage of justice.
PARTICULARS
The Appellant raised objection as to the voluntariness of the Appellant’s statement (EXHIBIT TWO) but the Court admitted same without a “trial within trial” to similar objection raised for the second Accused Person.
3. The learned trial Judge erred in law by placing reliance on Exhibit ‘6’ SIX which was not relied upon by the PROSECUTION and the FIRST ACCUSED person and thereby occasioned a gross miscarriage of justice.
4. The Judgment of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced.
From these amended grounds of appeal the 1st Appellant at page 2 of his Brief of Argument distilled the following three issues for the determination of this Court –
1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE ADMITTED EXHIBIT 2 (STATEMENT OF THE FIRST ACCUSED NOW APPELLANT) DESPITE THE OBJECTION TO SAME WITHOUT “TRIAL WITHIN TRIAL”.
2. WHETHER THE TRIAL OF THE APPELLANT WAS FAIR COMPARED WITH THAT OF THE SECOND ACCUSED.
3. WHETHER ‘EXHIBIT SIX” FORMED PART OF THE CASE AGAINST THE APPELLANT IN THE LOWER COURT AND WHETHER THE JUDGMENT WAS REASONABLE IN THE CIRCUMSTANCES OF THE CASE AGAINST THE APPELLANT AS BORNE OUT BY THE PRINTED RECORDS.
(Underlining is that of 1st Appellant.)
The 2nd Appellant formulated the following three issues at page 4 of his Brief of Argument –
1. Whether the trial Court’s admission and reliance on Exhibit 7A (being the purported confessional statement of the 2nd Appellant) was justified having regard to the other pieces of evidence before the Court.
2. Whether there were indeed material discrepancies in the identification of the 2nd Appellant which rendered his conviction and sentence unjustified in law.
3. Whether the prosecution proved the guilt of the 2nd Appellant.
The Respondent in response to the issues formulated by the 1st & 2nd Appellants in their respective Briefs of Argument formulated the following four issues for the determination of this Court at pages 2 and 3 of the Respondents’ Brief of Argument –
(i) Whether from the totality of the evidence adduced at the trial, the prosecution has proved the charge against the Appellants beyond reasonable doubt in accordance with section 138 of the Evidence Act (Cap E14) Laws of the Federation of Nigeria 2004.
(ii) Whether the learned trial Judge was right to have admitted exhibit 2 (Statement of the 1st Appellant) despite the objection to same without a trial within trial.
(iii) Whether the learned trial Judge was right to have relied on exhibit 7A (Confessional statement of the 2nd Appellant).
(iv) Whether there are material discrepancies in the identification of the 2nd Appellant.
After a careful consideration of all the issues formulated by the parties, the following are the real issues for determination in this appeal –
1. Whether the learned trial Judge’s admission of exhibit 2 (statement of the 1st Appellant) despite objection to same without a trial within trial occasioned a miscarriage of justice.
2. Whether the learned trial Judge was right to have relied on exhibit 7A (confessional statement of the 2nd Appellant).
3. Whether there are material discrepancies in the identification of the 2nd Appellant.
4. Whether from the totality of the evidence adduced at the trial the prosecution proved its case against the Appellants beyond reasonable doubt.
I shall now proceed to deal with the issues seriatim. Was the trial Judge right to have gone on to admit the statement of the 1st Appellant even though objection was taken to its admissibility by Counsel in the absence of a trial within trial and if so, did the admission occasion a miscarriage of justice? 1st Appellant’s Counsel submitted on this issue that exhibit 2 which is said to be the confessional statement made by the 1st Appellant to PW5 Isaac Udokun was not the making of the 1st Appellant, the said statement having been signed by the 1st Appellant under threat, duress and great force. Counsel went on to submit that the law is trite that only voluntary confessions are relevant and admissible. Counsel went further to submit that when the issue of threat, duress and great force accompanied the objection to the admissibility of the statement then the issue of voluntariness has been raised.
Learned Counsel for the Respondent has submitted that the 1st Appellant did not deny making the statement but claimed that he was forced to sign it. It was further submitted by Counsel for the Respondent that a trial within trial can only be conducted where an accused person alleges that he made the statement under any inducement, threat or promise. Reference was made to section 28 of the Evidence Act Laws of the Federation of Nigeria 2004 and to the cases of MADJEMU V. THE STATE (2001) 9 NWLR (PART 718) 349 and NSOFOR V. THE STATE (2002) 10 NWLR (PART 775) 274 at 289. Counsel submitted that the learned trial Judge was right to have held as follows,
“I see the objection of the 1st accused as being that he did not make the statement to be tendered but was forced to sign it. If he had said that it was made under torture that would have gone to voluntariness.”
Counsel however submitted that if the learned trial Judge went in to admit the document (Exhibit 2) without conducting a trial within trial when he could have so done which is not conceded, that in itself is not enough to vitiate the judgment as it is not every error or mistake on the part of a lower trial Court that vitiates that lower Court’s judgment. Such error or mistake as to vitiate a judgment must be so fundamental as to occasion a miscarriage of justice. Reliance was placed on the case of THE STATE V. OGBUBUNJO & ANOR (2005) 5 NSCOR 27 at 47-48; AREMU V. THE STATE (1991) 7 NWLR (PART 2011) at 19.
In reply 1st Appellant’s Counsel at page 1 of the Reply Brief of Argument of the 1st Appellant submitted that the principle of fair hearing demands that not only should a party be given opportunity to be heard as to any complaint raised by him especially when –
(a) This is a criminal matter and,
(b) This is a matter relating to capital offence where death and nothing but death is the end result.
Reference was made to the following cases – UDO V. STATE (1988) 3 NWLR (PART 82) 316, 319 (6); AKINFE V. STATE (1988) 3 NWLR (PART 85) 729, 731 (1) 732(5), 736 (31); ATANO V. AG BENDEL (1988) 2 NWLR (PART 75) 201. 204 (3). Counsel submitted that the trial of the 1st Appellant was far from being fair.
It is necessary to go into the records of the Court for the 21st day of June 2001. Reference is here made to pages 43-44 of the Record of appeal –
PW5 Isaac Udokwu –
This is the statement made by the 1st accused –
Tendered – Chief Mamora objects and says that though signed by the 1st accused it was not his making. He signed under threat and duress and great force. Mr. Olukoya says objection is based upon signature and not making of the statement. Signature goes to weight and not admissibility. The voluntariness is not in issue. Chief Mamora says since duress is raised in signing the statement it goes to making.
RULING
In this case the 1st accused alleged his signature was obtained by force to the statement and by threat. When a statement is tendered for admission it would not be admitted unless it was voluntarily made. This is section 27 Evidence Act. Thus admissibility arises when voluntariness is in issue. See ONABAJO (sic) (1936) 3 WACA 43 and OTUALA V. THE STATE (1991) 2 NWLR (175) 509; OSINEYE & ORS V. THE STATE (1999) 4 SC (1) 30 at 45-46. Therefore when the question is whether or not a statement was made, the law is that it should be admitted in evidence and the issue as voluntaries (sic) does not arise. At the end of the case a decision as to whether or not it was made would then be decided. Denial of making a statement voluntarily is different from being forced to sign a statement. See the objection of the 1st accused as being that he did not make the statement to be tendered but was forced to sign it. If he had said that it was made under torture that would have gone to voluntariness. In view of the above and on the authority of OGUNYE & ORS V. THE STATE (supra) at 45, I would admit this statement in evidence and while writing judgment a decision as to whether or not the statement was ever made would then be amend (sic) at. Statement is therefore admitted in evidence and marked Exhibit ‘2.’”
The learned trial Judge’s statement in his ruling that “Denial of making a statement voluntarily is different from being forced to sign a statement. I see the objection of the 1st accused as being that he did not make the statement to be tendered but was forced to sign it. If he had said that it was made under torture that would have gone to voluntariness” is mere semantics or even a pun. The point in issue at the time the 1st Appellant’s statement which came to be admitted as Exhibit 2 was tendered was whether it could have been voluntarily made. There is no doubt that the learned trial Judge was labouring under some doubt as to the voluntariness of the said statement. A necessary next step would have been for the learned trial Judge to proceed with a trial within trial to determine whether the 1st Appellant’s statement was voluntarily made or not. Of the meaning and nature of a trial within trial I had stated in ADELARIN LATEEF & ORS V. FED. REPUBLIC OF NIGERIA (2010) 37 WRN 85 at 107 paras 25-45 as follows
“It does happen sometimes that an accused person facing a criminal trial in Court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person. It becomes at this stage necessary for the Court to temporarily halt the main trial upon which the accused person is facing trial and conducts a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. It takes the form of a normal trial as witnesses are called to give evidence and are subject to cross-examination by the other side. The Court proceeds to write a ruling either admitting the statement of the accused or rejecting same after which the normal trial temporarily suspended continues.”
The learned trial Judge failed to avail himself of this procedure and went on to state in his ruling at page 44 of the Record of Appeal that,
“I would admit this statement in evidence and while writing judgment a decision as to whether or not the statement was ever made would then be made. Statement is therefore admitted in evidence and marked exhibit 2.”
It is not whether the statement credited to the 1st Appellant was ever made that should have concerned the learned trial Judge but whether it was voluntarily made or not.
Such a decision need not have waited until the learned trial Judge is writing his judgment but ought to be given in a ruling after the conduct of a trial within trial. Having so admitted the 1st Appellant’s statement without the conduct of a trial within trial the next crucial question is whether the admission occasioned a miscarriage of justice. I daresay that the admission of an accused person’s alleged confessional statement without the conduct of a trial within trial is not in itself conclusive proof that the accused person committed the crime for which he stands accused. What has increasingly gained ground in our Courts is for the alleged confessional statement to be subjected to other tests or criteria before the learned trial Judge can act on them. These tests will be exhaustively discussed later on in this write-up. It is when the trial Judge fails to subject such alleged confessional statements to these tests and proceeds to act on the confessional statements to convict the accused that the question of miscarriage of justice can be said to have arisen.
Issue 2 is whether the learned trial Judge was right to have relied on Exhibit 7A (confessional statement of the 2nd Appellant).
2nd Appellant submitted that it was wrong for the learned trial Judge to have placed Exhibit 7A alongside Exhibit 6 for consideration when Exhibit 6 is the purported confessional statement of Adebayo Odukoya who was neither an accused in the court below nor a witness in the case. Counsel contended that the admission and reliance on Exhibit 7A as a confessional statement was in itself wrong being the product of threat and as such unreliable. Reliance was placed on section 29 Evidence Act 1990 and GBADAMOSI V. THE STATE (1992) 1 3 NSCC 439. Reference was made to how the 2nd Appellant was beaten while making his statement which was attested to by the 1st Appellant.
Counsel therefore submitted that Exhibit 7A was not a confessional statement within the meaning of sections 27 and 28 of the Evidence Act as the purported confessional statement was clearly involuntary. 2nd Appellant’s Counsel also referred to contradictory statements in the alleged confessional statements in Exhibit 7A and Exhibit 2 which though weighty were not carefully evaluated by the learned trial Judge. For example while it was stated in Exhibit 7A that the 2nd Appellant allegedly slaughtered the deceased Kemi David with a knife, the 1st Appellant stated in Exhibit 2, that it was the late Adedayo odukoya who used his knife to slaughter Kemi David. It was canvassed for the 2nd Appellant that the position of the law is that it is only when the purported confessional statement is specific as to who committed the offence that a confessional statement may be relevant. Reliance was placed on THE STATE V. ENABOSI (1996) 2 All NLR 116; R. V. ESSIEN (1939) 5 WACA 70. In the absence of such specificity as to who killed the deceased, Exhibit 7A is not sufficient to ground the conviction of the 2nd Appellant for the murder of late Kemi David.
Learned Counsel further submitted that the learned trial Judge in holding that Exhibit 7A was voluntarily made only relied on extraneous matters without properly directing himself to the fact that both the 1st and 2nd Appellants stated that the said Exhibit 74 was obtained under torture. Counsel for the 2nd Appellant went on to say that the 2nd Appellant being aware of the death of Adebayo Odukoya in the hands of the police while being interrogated did not want the same fate to befall him, hence his purported confessional statement. It was Counsel’s argument that the learned trial Judge in the course of the trial within trial failed to take into consideration the fact that it is the duty of the prosecution and not the defence to prove that Exhibit 7A was voluntarily made and the Court proceeded on a wrong premise by placing that burden on the defence. Reliance was placed on AKANBI V. ATT. GEN. OF WESTERN NIGERIA (1966) 1 All NLR 47 where according to Counsel the Supreme Court held that it was the duty of the prosecution to prove that a confessional statement of an accused is voluntary and that if the trial High Court had properly guided itself on that, it would have come to the inevitable conclusion that Exhibit 74 was not voluntarily made and which finding could have affected the course of the entire trial in the 2nd Appellant’s favour and having so admitted Exhibit 7A in the trial within trial the Court should not have placed any reliance on it as it did not pass the test of the law, Counsel further submitted. Learned Counsel for the Respondent has submitted that a confessional statement so long as it is free and voluntary, direct, positive and properly proved is enough to sustain a conviction and that so long as the Court is satisfied of its truth after subjecting the said confessional statement to some test, the said confessional statement alone is sufficient to ground a conviction with corroboration. Reliance was placed on ALARAPE V. THE STATE (2001) FWLR PART 41 page 1872 at 1893. Learned Counsel submitted that the tests for the determination of the veracity of the confessional statement as enunciated in IKPASA V. AG BENDEL STATE (1981) 9 SC 7; ALARAPE V. THE STATE (supra) at pages 1893-1894 had been gone into by the learned trial Judge who was satisfied of its voluntariness and veracity. These according to Counsel include the 2nd Appellant’s confession in Exhibit 7A that he used a knife to cut the deceased throat which caused her death which statement was corroborated by the evidence of PW2 and PW3; the confession by the 2nd Appellant in Exhibit 7A that one Adebayo Odukoya led the police to his (2nd Appellant) house where he (2nd Appellant) was arrested which evidence was corroborated by PW5; the statement in Exhibit 7A that the 2nd Appellant and his co-gangsters which included the 1st Appellant stole N15,000.00, an iron, soap, clock etc. from the house of the deceased Kemi David and that 1st & 2nd Appellants escaped while Adebayo Odukoya was arrested was corroborated by the evidence of PW3, Counsel therefore submitted that the learned trial Judge was not only right in admitting Exhibit 7A but in acting on it.
I wish for a start to make references to paragraphs 4.06 at pages 5 and 6 and 4.12 at page 7 of the 2nd Appellant’s Brief of Argument.
4.06 – Although the trial Judge ruled in the trial within trial that Exhibit 7A was admissible, he ought not to have placed any reliance on the said confessional statement because it did not pass the test of the law.
4.12 – During the trial within trial, the Judge did not advert his mind to the law that it is the Prosecution that ought to prove that Exhibit 7A was voluntary. All through the trial the Judge dealt with the issue of the involuntariness of Exhibit 7A as if the duty to prove that the statement was involuntary was that of the 2nd Appellant.”
(Underlining mine.)
It will be seen especially from these paragraphs and the entirety of the arguments put forward by the 2nd Appellant that much of the 2nd Appellant’s grouse is not on the procedure relied upon by the learned trial Judge in the conduct of the trial within trial but that the learned trial Judge went on to admit Exhibit 7A after the trial within trial as voluntarily made by the 2nd Appellant and further went on to place reliance on the said Exhibit 7A in convicting the 2nd Appellant when Exhibit 74 did not pass the test of the law as a confessional statement properly so called. I do not also find any fault with the procedure adopted by the court below in the conduct of the trial within trial. The learned trial Judge went on to admit Exhibit 7A as being confessional of the role played by the 2nd Appellant and his alleged collaborators in the murder of the deceased Kemi David. The issue here is whether he could have been right in arriving at this finding. What is a Confessional Statement in the first place? A Confessional Statement is a statement or assertion in writing voluntarily made usually by an accused person admitting that he/she either alone or in concert or in collaboration or collusion with other persons apprehended or still at large took part in or aided and abetted the commission of a crime.
That is the purport of sections 27 & 28 of the Evidence Act referred to by the Appellant in paragraph 4.08 at page 6 of the Appellant’s Brief of Argument. Quite apart from the conduct of a trial within trial by a Court to determine the veracity of a confessional statement allegedly made by an accused person to the commission of a crime the Courts have fashioned out six tests to which such confessional statements are subjected to determine their veracity or otherwise before any evidential weight can be attached to them. The six tests are as follows –
1. Is there anything outside the confessional statement to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts true as they can be tested?
4. Was the prisoner one who had the opportunity of committing the crime?
5. is his/her confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
See the following cases where these tests have been highlighted in some greater detail –
DAWA V. THE STATE (1980) 8-11 SC 236; R. V.SYKES (1913) 8 CR. App. REPORTS 223; R. V. OBISIA (1962) 2 SCNLR 402; (1962)1 All NLR 651;
KANU v. R. (1952) 14 WACA 30; AFOLABI V. STATE (2010) 19 WRN 117 at 129; OKE UTUYORUME V. THE STATE (2010) 43 WRN 162 at 187; NSOFOR V. STATE (2005) 4 WRN 29; 18 NWLR (PART 905) 292 at 310-311; LUKMON OSETOLA & ANOR V. THE STATE (2010) 35 WRN 177 at 182.
This is a case in which there was no direct eye witness to the murder of the deceased Kemi David, but the alleged confessional statement of the Appellants. We are here concerned with the alleged confessional statement of the 2nd Appellant. The question now is whether apart from the trial within trial which the learned trial Judge conducted in an attempt to determine the veracity of the alleged confessional statement made by 2nd Appellant, did the learned trial Judge resort to these six tests as well and if so how well? In other words, did the court below test the truth of the confessional statement in Exhibit 7A in the light of the six tests enunciated above before acting on it? It should perhaps be stated for the avoidance of doubt that these six tests need not be itemized by the learned trial Judge in coming to a conclusion one way or the other. It is only necessary that he bears them in mind in evaluating the evidence given. It is necessary at this stage to delve into the confessional statement of the 2nd Appellant – Exhibit 7A. He said he knew Adedayo Odukoya and the 1st Appellant Dare Jimoh as both of them lived at Ijebu Ode. On the 28th October 1999 at about 10 p.m., Adedayo Odukoya, Dare Jimoh and himself were harboured by one Kazeem Adeyemi until 2 a.m. or thereabout when they left for the house of the deceased Kemi David whom they in turn gang raped before stealing the sum of N15,000.00 and other items like iron, soap and clock etc. Realizing that she could recognize them, he used his knife and slaughtered her. He and the 1st Appellant Dare Jimoh were able to escape from the scene while Adedayo Odukoya was apprehended by a neighbourhood vigilante outfit. Adedayo Odukoya also had a knife and pinches. On the 30th October 1999 at about 5 a.m. he was in his room sleeping when Adedayo Odukoya brought some policemen who arrested him.
We shall now proceed to examine Exhibit 2 the confessional statement of the 1st Appellant Dare Jimoh who has now been implicated by Exhibit 7A. He said he knew both the 2nd Appellant and Adedayo Odukoya. Adedayo Odukoya told the 1st & 2nd Appellants that there was a house where they could get some money and that a ceremony in the nature of a vigil or wake-keep was to take place in that neighbourhood. One Kazeem Adeyemi harboured the three of them i.e. 1st & 2nd Appellants and Adedayo Odukoya in his house on the day of the incident until about 2 a.m. when they left for the house of the deceased Kemi David. Adedayo Odukoya asked him to remain outside to ensure that nobody was approaching while the 2nd Appellant and Adedayo Odukoya who had a pinch hammer damaged the door of the deceased’s house and gained entry. He then joined them upstairs. They gang-raped the deceased before killing her. After he had had his own turn in sexually assaulting the deceased, he was asked to go downstairs to ensure that nobody was watching. As he was waiting downstairs, Adedayo Odukoya came down with a bag containing N15,000.00 and other properties. Adedayo Odukoya used his knife and slaughtered the deceased fearing that she had recognised them. He and the 2nd Appellant escaped from the scene while Adedayo Odukoya was arrested with the stolen items by a neighbourhood vigilante outfit.
A brief reference must now be made to Exhibit 6 which is the statement of Adedayo Odukoya tendered through the 2nd Appellant. Adedayo Odukoya was never charged before the court and as such was never a co-accused but it is the Evidence of PW5 which is uncontradicted that Adedayo Odukoya took the police to the houses of the 1st and 2nd Appellants where they were arrested. Adedayo Odukoya had informed the police that the 1st & 2nd Appellants were his partners in crime. As has been seen the confessional statements in Exhibits 7A, 2 and 6 are not contradictory but rather complementary of one another. They tell a consistent, harmonious story of how the 1st & 2nd Appellants and one Adedayo Odukoya on the day of the incident, passed the night in the house of one Kazeem Adeyemi from where at about 2 a.m. they proceeded to the house of the deceased Kemi David whom they gang-raped and later killed having entertained the fear that they could be recognised by the deceased, They stole the sum of N15,000.00 and some household items, 1st & 2nd Appellants escaped from the scene while Adedayo Odukoya was apprehended with the recovered stolen items by a neighbourhood vigilante outfit and handed over to the police.
Adedayo Odukoya led the police to arrest the 1st & 2nd Appellants in their respective houses. In Exhibit 7A the 2nd Appellant confessed that he used a knife to cut the deceased Kemi David’s throat. That the deceased’s throat was slashed with a knife was corroborated by PW2 Titilope David, a student of the Ibadan Polytechnic at the time and younger sister of the deceased and PW3 Samuel Oluwalase David a pastor of C.A.C. Oke Iyanu, Osinubi Street, Ijebu Ode at the time and elder brother of the deceased Kemi David. They both said they saw the knife that was used in the dastardly act. In their respective statements 1st & 2nd Appellants admitted that all three of them raped the deceased and also stole the sum of N15,000.00. The loss of the sum of N15,000.00 traceable to the Appellants was corroborated by PW3 who said the money belonged to him. PW3 Samuel Oluwalase David and elder brother of deceased Kemi David said,
“We later saw a bag containing stolen items beside our neighbour’s house. I saw a man arrested in connection with the incident but is not among the accused persons. Inside the bag recovered was my N15,000.25k which belonged to me.”
PW3 could only be referring to Adedayo Odukoya who in Exhibit 2 was said to have come downstairs in the deceased’s house with a bag containing N15,000.00 and other stolen items and who not being able to make good his escape was apprehended by the vigilante group and handed over to the police with the stolen items.
Counsel for the Respondent has stated in paragraph 6.08 at page 10 of the Respondent’s Brief of Argument that in answering the six questions to determine the veracity of Exhibit 7A the learned trial Judge considered the evidence of PW1, PW2, and PW3 & PW5. The learned trial Judge did more than that. He considered Exhibits 2 and 6 as well and clearly determined areas of consistency. Exhibit 74 was to my mind not only properly admitted but also properly acted upon by the learned trial Judge. This issue is therefore resolved in favour of the Respondent against the Appellants.
The 3rd issue is whether there are material discrepancies in the identification of the 2nd Appellant.
It has been submitted on behalf of the 2nd Appellant that prosecution’s case was fraught with material discrepancy as to the actual name of the 2nd Appellant. It was argued that when the 2nd Appellant was arrested he denied knowing Adedayo Odukoya and being Akeem Ajayi. It was submitted that the police ought to have conducted an identification parade to confirm if it was the 2nd Appellant that the said Adedayo Odukoya was referring to since Exhibit 6 did not refer to the 2nd Appellant by his name. It was further submitted that the discrepancies between Exhibit 6 and the 2nd Appellant in Court created a huge doubt which an identification parade could have resolved. It was submitted that by not calling for an identification parade to clear the ambiguity and discrepancy surrounding “Akeem Ajayi” and “Akeem Fatai” the prosecution failed woefully to prove the guilt of the 2nd Appellant Exhibit 7A notwithstanding. Reliance was placed on the following cases- SAMUEL BOZIN V. THE STATE (1985) 7SC 450 at 467-468; OTTI V. THE STATE (1993) 5 SCNJ 143 at 147; UKPABI V. THE STATE (2004) ALL FWLR (PART 218) Page 814 at 820-821. Learned Counsel for the Respondent submitted that throughout the trial the identity of the 2nd Appellant was not in doubt and that there is no discrepancy in the identification of the 2nd Appellant.
Respondent’s Counsel submitted that when Adedayo Odukoya was arrested he gave the names of members of his gang as Dare Durojaiye and Akeem Ajayi. Counsel further submitted that it was PW5 that took the police to the house of 2nd Appellant where he was arrested. Late Adedayo Odukoya identified the 2nd Appellant to the police who arrested him. Counsel submitted that an identification parade was not necessary in the circumstances of this case. Reference was made to the following cases – OKOSI V. THE STATE (1989) 1 NWLR PART 1001; ANYANWU V. THE STATE (1986) 5 NWLR (PART 43) 62; ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511.
For a proper appraisal of this issue we shall have to go into the records of the Court on the 4th September 2002 and the cross-examination of PW5 Isaac Udoku at page 64 of the Record of Appeal. Under cross-examination by Mr. Bello, PW5 had stated as follows –
“It was late Adedayo that took us to 2nd accused house where he was arrested. Late Adedayo identified 2nd accused to us before he was arrested. The 2nd accused when he was arrested never gave his name but he called himself Akeem Fatai when his statement Exhibit 7 was being recorded. It was Adedayo that took us to the room of 2nd accused at Ijebu Ode and it was not his people that called him for us.”
This piece of evidence is quite instructive. It is perhaps also necessary to state that under the same cross-examination of PW5 by Mr. Bello, he (PW5) had stated that the ingredient of this crime was gathered from late Adedayo’s statement in Exhibit 6. It is clear that late Adedayo Odukoya knew his partners in crime. He did not only know where the 2nd Appellant lived right down to 2nd Appellant’s room but positively identified him to the team of policemen to which PW5 belonged namely the investigating team led by Inspector Johnson Adebayo which also comprised Inspector Olaniyi, Sergeant Julius Aibangbe and PW5 Isaac Udoku. (See page 64 of the Record of Appeal). It would not have mattered if the 2nd Appellant chose to introduce himself as John Thomas. What mattered was that he was positively identified by Adedayo Odukoya as one of the two who in company of Adebayo Odukoya raped and then killed the deceased Kemi David. The confessional statement of the 2nd Appellant Exhibit 7A refers in detail to the role played by Adedayo Odukoya himself in the slaughtering of Kemi David. Exhibit 7 leaves no one in doubt that Odukoya was something of a leader in the notorious gang of three who murdered Kemi David. 2nd Appellant himself stated in Exhibit 7 how he and the 1st Appellant escaped from the scene of crime while Adedayo Odukoya fell into the hands of a vigilante group who handed him along with the loot on him to the police. The question of identity of the 2nd Appellant was therefore never an issue. As to identification of an accused, it must be stated that it is not in every instance when persons suspected of having committed a crime are paraded for identification. In UKPABI V. THE STATE (2004) 34 WRN 133; (2004) 7 SC 189 at 199-200 the Supreme Court had this to say,
“Where a trial court is faced with identification evidence it should be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. Identification parade is not a sine qua non to conviction.”
(Underlining mine)
In this particular case now being considered Adedayo Odukoya who himself took part in the crime took the police not just to the house but to the very room of the 2nd Appellant his fellow partner in crime. An identification parade was never necessary. See also IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455; (1989) 6 SCNJ 54; ABUBAKAR IBRAHIM V. THE STATE (1991) 5 SCNJ 129; (1991) 4 NWLR (PART 186) 399; IBE V. THE STATE (1992) 5 NWLR (PART 244) 642; (1992) 5 SCNJ (PART 11) 172; THE STATE V. ATGBANGBEE (1988) 3 NWLR (PART 84) 549; (1988) 7 SCNJ 128; (1988) 2 NSCC 192.
In his judgment at page 102 of the Record of Appeal, the learned trial Judge had said thus,
“The 2nd accused actually raised the defence of mistaken identity as he said his name is Akeem Fatai and not Akeem Ajayi as mentioned in Exhibit ‘6”. The fact remains that it was Adedayo Odukoya that mentioned the name Akeem at Ijebu Ode police station according to Exhibit ‘1’. Further it was the same Adedayo that took police to 2nd accused as Akeem and took police to the Akeem he knew. The mere fact that 2nd accused called himself Akeem Fatai does not say that he is not the Akeem Adedayo mentioned. Since Adedayo actually took police to Akeem who was arrested the 2nd accused is entitled to call himself Akeem Fatai but he is actually the Akeem that the said Adedayo, mentioned. There is no ‘mistaken identity.”
I agree entirely with the learned trial Judge that the issue of mistaken identity does not arise as I had earlier stated in this write-up. This issue is therefore resolved in favour of the Respondent against the Appellants.
Issue 4 is whether from the totality of the Evidence adduced at the trial the prosecution proved its case against the Appellants beyond reasonable doubt.
That the prosecution must prove its case beyond reasonable doubt is provided for by section 138(1) of the Evidence Act Laws of the Federation of Nigeria 2004 and until that burden is discharged it does not shift and in the Nigerian Criminal Jurisprudence an accused person is presumed innocent until proved guilty. There is a plethora of case law on this subject matter the list of which is in exhaustive. See however the following – IDEMUDIA V. THE STATE (1999) 7 NWLR (PART 610) 202 at 205; (1999) 5 SCNJ 47; (2001) FWLR (PART 55) 549; AIGBADON V. THE STATE (2000) 7 NWLR (PART 666) 686 at 754; (2000) 7 LRCN 820; (2001) 2 ACLR 60; NWOSU V. THE STATE (1998) 8 NWLR (PART 562) 433 at 444; TANKO V. STATE (2008) 31WRN 117; (2008) 15 NWLR (PART 1114) 597 at 536; NWEKE v. STATE (2001) 15 WRN 96; (2001) 4 NWLR (PART 704) 588; OWE V. QUEEN (1951) 2 SCNLR 354.
On a charge for murder the ingredients that must be proved beyond reasonable doubt by the prosecution are –
1. That the deceased died.
2. That it was the act of the accused that caused the death of the deceased.
3. That the act of the accused which caused the death of the deceased was intentional and it was with the knowledge that it would result in death or grievous bodily harm would be the probable consequence of the act of the accused.
See OGBA V. STATE (1992) 2 NWLR (PART 222) 164; (1992) 23 NSCC (PART 1) 203; DANIELS V. STATE (1991) 8 NWLR (PART 212) 715; NWOSU V. THE STATE (1986) 4 NWLR (PART 35) 348; ABOGEDE V. STATE (1996) 5 NWLR (PART 448) 270; (1995) 4 SCNJ 223; NDUKWE V. STATE (2009) 2 SCM 147 at 167.
How far has the prosecution discharged this onerous burden? There is no iota of doubt that the deceased Kemi David died because her body was seen not only by her siblings but by other persons. The evidence on this is exhaustive as had earlier been seen. That it was the act of the Appellants that caused the death of the deceased is also not in doubt as enormous evidence and the Appellants’ confessional statements Exhibits 2 and 7A attest to. The weapon of death – a knife used by the Appellants in slaughtering the deceased Kemi David was recovered. That the Appellants knew that death would result from their act of using a knife in slashing the throat of the deceased is unquestionable. It is instructive to say that ample evidence on these had been assembled and evaluated and need no further highlighting. The Appellants’ confessional statements Exhibits 2 and 7A were subjected to the six tests earlier highlighted to determine their veracity and there is no doubt as the learned trial Judge found that the statements of the Appellants were made by them voluntarily.
At this juncture a word or two must be said about the confessional statement of the 1st Appellant which was admitted as Exhibit 2 by the trial Judge. Much hue and cry has been made over the fact that the learned trial Judge despite objection that it was not made voluntarily went on to admit the statement without conducting a trial within trial. Be that as it may, there is no doubt that Exhibits 2 and 7A (confessional statement of the 2nd Appellant) as well as Exhibit 6 tell a consistent, harmonious story of the 1st and 2nd Appellants’ involvement in the death of Kemi David. Let me say for the umpteenth time that the confessional statements were subjected to the six tests earlier dealt with which would leave no one in doubt not least of which was the trial Judge as to their veracity and voluntariness. I therefore have no doubt in my mind that the prosecution established all the ingredients of the murder of Kemi David against the 1st & 2nd Appellants beyond reasonable doubt.
We shall now consider the question of Conspiracy. Did the 1st & 2nd Appellants conspire to murder the deceased Kemi David? What in essence is Conspiracy? It must first be stated and done with that Conspiracy is a distinct and separate offence from whatever other offence it is lumped together with. Conspiracy has been held in a number of decided authorities to mean a meeting of the minds of the Conspirators. It consists of the intention of two or more persons to do an unlawful act or to do a lawful act by unlawful means and conviction for conspiracy is usually based on circumstantial evidence. See ODUNEYE V. STATE (2001) 13 WRN 88; (2001) 2 NWLR (PART 697) 311 at 324; ERIM V. THE STATE (1994) 5 NWLR (PART 346) at 535; PATRICK NJOVENS V. STATE (1973) 5 SC 17; (1973) 1 NMLR 331; UPAHAR V. STATE (2003) 6 NWLR (PART 816) 230.
Blacks Law dictionary 8th Edition at page 329 defines Conspiracy as –
“An agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective.”
From the totality of the evidence assembled and the evaluation of same is there any doubt that there was indeed a meeting of the minds of the 1st and 2nd Appellants manifested by the overt act of killing the deceased? I have no doubt in my mind that the 1st & 2nd Appellants intended to kill Kemi David, and I find the offence of Conspiracy to murder Kemi David against the 1st & 2nd Appellants proved beyond reasonable doubt. I do not consider the finding of the trial High Court perverse and therefore will not disturb the said finding which was well considered and I therefore dismiss the appeal as lacking in merit.
Consequently, the judgment of Osidipe J. of the Ijebu Ode High Court in Charge No. HCJ/8C/2000 delivered on the 15th October 2003 is hereby affirmed by me.
SIDI DAUDA BAGE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, S.S. ALAGOA J.C.A. His Lordship has dealt with the issues raised exhaustively and there is nothing more to add.
I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed. I dismiss same and abide by the consequential orders made in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Alagoa, J.C.A., afforded me the opportunity of reading in draft the judgment prepared by him which accords with my reasoning. I adopt same as mine with the following few words.
It was contended before us that 1st appellant was not given a fair trial by the court below, on the ground that he was denied a trial within-trial to test the voluntariness of his confession statement to the police in Exhibit 2 before it was admitted in evidence in the court below as was the case with the 2nd appellant.
It is true appellant contested the voluntariness of his statement to the police. A trial-within-trial to determine the voluntariness of the statement should have been undertaken by the court below before deciding whether or not to admit the statement in evidence as an Exhibit.
There are some cases decided by the then West African Court of Appeal, where the issue of voluntariness of a confession was not decided at a trial within trial, but the confession was admitted in evidence notwithstanding the absence of a trial within trial as in the instant case; yet the defunct West African Court of Appeal (WACA) held that it was a procedural irregularity which could not affect the cases except appellants had shown miscarriage of justice was caused by the irregularity in the procedure of admitting the statements.
First in line of the W.A.C.A cases is Rex v. Onabanio (1935) 3 WACA 43 at 45, where Kingdon, C.J., delivering the judgment of the Court held inter-alia that;
“There can be no doubt that, when the question of the admissibility of the statement was raised, the trial Judge should have then, after hearing evidence from both sides upon the point, if tendered, ruled on the admissibility of the statement.
This court has therefore to consider whether the appeal should be allowed on account of that irregularity…………..
It cannot be doubted that if counsel for appellant in the court below had suggested that he would like to reopen the defence his request would have been granted. In all the circumstances this court is of the opinion that the appellant has suffered no prejudice and that the appeal should not be allowed on the ground of the irregularity in postponing decision until the appellant had given his version of what had occurred to induce him to sign the statement.”
Second in line is the case of Rex v. Bana Kassi and others (1939) 5 WACA 154 at 155-156 which held as follows:
“…… before leaving this case we desire to comment on what appears to us to be an incorrect and unusual procedure adopted by the court below in regard to the admissions of certain exhibits, written records of statements alleged to have been made by the accused. These statements were tendered in the course of the Crown Case and counsel for the accused objected to their being received in evidence on the grounds that they had been made under duress or induced by promises…
If on the tendering of any evidence an objection is taken which raises an issue of fact the correct procedure is for the court to resolve that issue of fact before deciding whether the evidence should be admitted or not, Where the evidence is tendered by the prosecution the issue of fact should be resolved and a final ruling given as to the admissibility of the evidence before the close of the Crown Case. (See R. V. Onabanjo 3 W.A.C.A P.43).
In the circumstances of this case we are of the opinion that the appellants were not as it happened prejudiced by the procedure followed and it is not therefore in this case a ground for quashing the conviction.”
Here the 1st appellant alleged the said irregularity of admitting his confession statement without holding a trial within trial, but he did not establish the miscarriage of justice or prejudice he suffered from the procedural irregularity. On the contrary, there is material in the compiled record showing in appellant’s learned counsel in the court below, Chief Mamora, cross-examined the P.W.5, the police man that recorded 1st appellant’s confession statement, on the recording of the statement. Also, the superior police officer, the P.W.6, who participated in the activity respecting the recording of 1st appellant’s statement, was cross-examined by 1st appellant’s learned counsel in the court below in respect of the statement. This was what the P.W.6 stated:
“On 30/10/99 I was the O/C Robbery Eleweran. On that day the accused persons were brought before me by P.W.5. I read their statements to them in English Language while inspector Olaniyi interpreted it to them in Yoruba Language; they agreed that they made the statement voluntarily without fear, favour, promise, intimidating or duress. I then endorsed their statement as confessional in red ink.
These are the statements – Exhibit ‘2’ and ‘7’ identified. I also endorsed necessary forms which were signed by the interpreter – These are the forms -Exhibits ‘B’ and ‘9’ identified.”
1st appellant’s learned counsel in the court below was recorded thus:
“CROSS-EXAMINED BY CHIEF MAMORA:
I did not see any Yoruba statement made of 1st accused and to my knowledge there was none.”
The P.W.5 and the P.W.6 were the only principal witnesses that had something to do with whether the statement of 1st appellant to the police, Exhibit 2, was voluntarily made. 1st appellant had the opportunity through his learned counsel in the court below to cross-examine the P.W.5 and the P.W.6 on the voluntariness of Exhibit 2. 1st appellant was, accordingly, afforded a fair hearing in respect of the voluntariness or otherwise of the statement before he entered in his defence, in my view.
1st appellant’s defence dwelt somewhat heavily on the involuntariness of the confession statement in Exhibit 2. His comrade in crime, the 2nd appellant, was, also, asked some questions in cross-examination by 1st appellant’s learned counsel in the court below on the involuntariness of the statement in Exhibit 2. 1st appellant’s learned counsel’s final submissions in the court below hinged inter-alia on the inadmissibility of the confession statement in Exhibit 2, which he urged the court below to expunge on the premise that it was admitted in evidence without holding a trial-within-trial by the court below.
The court below considered the evidence and the submissions of 1st appellant’s learned counsel on the confession statement in Exhibit 2 in judgment before it held in conclusion that:
“With all these facts that are in evidence before this court being contained in Exhibits ‘2’, I hold that the 1st accused actually made Exhibit ‘2’ to the police and that it was voluntarily made. The P.W.5 recorded the statement which was interpreted by P.W.3 while P.W.6 endorsed it. The statement Exhibit ‘2’ can therefore not be expunged from the record.”
It is clear, in my view, that from the above stated state of affairs, 1st appellant was afforded a fair hearing in relation to the admission in evidence of Exhibit 2, his statement to the police. No substantial miscarriage of justice or prejudice affecting 1st appellant’s case in respect of the admission in evidence of his statement to the police in Exhibit 2 was also shown to have been actually occasioned by the admission in evidence of the said statement without the court below holding a trial within trial. The appeal cannot, therefore, be allowed on the said procedural irregularity, in my view – see the proviso to section 19(1) of the court of Appeal Act, 2004.
1st appellant acted in concert with the 2nd appellant and their other deceased comrade – in – crime on the criminal enterprise that led to the murder of the deceased. In short, he stood sentry and provided cover for the others to slaughter the deceased. Therefore the act of one or any of the trio was the act of all of them, holding them corporately criminally liable for the outcome of their criminal enterprise – the murder of the deceased. In other words, it did not matter which of them did what – see Sunday Kala Alagba and others v. The King 19 N.L.R. 128.
Having engaged themselves in a conspiracy to commit the criminal acts in question, the confession statements of each of them – 1st and 2nd appellants only- can be used against the other – see Ibrahim v. The State (2011) 1 NWLR (Pt. 1227) page 1 at page 34. The appellants as comrades-in-crime acted in concert on 27.10.1999, by crashing into the residence of one Kemi David at No.4 Madasa Lane, off Odutola Street, Ijebu-Ode in Ogun State of Nigeria, where they gang – ravished or raped her, robbed her of several belongings and killed her in cold blood by slitting her throat. Her untimely death by the chilling murderous act of the appellants left behind two of her siblings.
The court below tested the confession statements of 1st and 2nd appellants and found them positive, reliable and consistent with the surrounding facts and circumstances of the case following the test for confessions laid down by R. V. Sykes B C. A. R. 233. The conviction of both appellants based solely on their respective confession statements was, in my view, correct- see R. V. Ajayi Omokaro (1941) 7 WACA 146, and Basil Akpa v. The State (20O8) 4 SCNJ 250.
On the whole, I too see no merit in the appeal. I hereby dismiss it. And in dismissing the appeal, I re-echo the words of Muhammad, J.S.C., in Afolalu v. The State (2010) 15 NWLR (pt. 1220) 584 at 611-612 thus:
“Just before I drop my pen, permit me my Lords to express my fear and sympathy for our younger ones both males and females. The females are always prone to sexual abuse even by armed robbers. Imagine how PW1, 19 years old girl, was raped according to her evidence by the three armed robbers with the appellant taking the pride of place as the 1st to violate her womanhood. This act is quite despicable and traumatic to such a young girl. The gravity of this offence alone is enough to send the appellant to the stiffest punishment provided for the offence. It inflicts terror, trauma, demoralization and sickness to the victim which has no compensation, even if it were to be so. On the prevalence of armed robbery in our society, I fully endorse the observation made by the learned trial judge when he said:
The menace of armed robbery is not decreasing in our society. It is worrisome. It is unsettling, the punishment for the offence of this nature, in our lands have not changed. A signal must be sent to youngsters who can think of nothing productive to do than to terrorize and rob citizens living in their homes peacefully. The land must be purged of this evil.”
I agree. It must also send same signal to all those likeminded people’s males or females, citizens of this country or foreigners whose means of livelihood is hinged on the evil practice of intimidating, terrorizing, maiming, abducting or depriving innocent people of their health or wealth, property or personality or even life. These are priceless commodities and no one should be allowed to tamper with them in an illegal, nay; crude manner. Once the perpetrators are caught and condemned, the law must take its own course.”
The conviction and sentence of the appellants by the court below are, accordingly, affirmed.
Appearances
1. S. O. Bashorun Esq.
2. Mrs. B. T. OgunjideFor Appellant
AND
Mrs. Y. Oresanya, Director of Commercial Services Oyo State Ministry of JusticeFor Respondent
