SOLOMON EJUKWA IJE v. THE STATE
(2013)LCN/6487(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of November, 2013
CA/C/152C/2012
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
SOLOMON EJUKWA IJE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
INGREDIENTS TO PROVE THE OFFENCE OF MURDER
As rightly stated by the Appellant’s counsel, for the prosecution to succeed in proof of murder, the prosecution must proof the following.
i. The death of the deceased; and
ii. The act or omission of the accused which caused the death; and
iii. That the act or omission of the accused stated in (1) above was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It is, however, not in doubt that the deceased is dead. The second ingredient,
“that the act or omission of the accused caused the death” PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT ONLY A VOLUNTARY STATEMENT CAN BE USED AGAINST AN ACCUSED PERSON
“No statement by an accused is admissible in evidence against him unless, it is shown by the prosecution that it was a voluntary statement” Saidu V. State (1982) NSCC Vol. 13 page 70.
It appears in this case, that the court relied solely on the confessional statement of the Appellant to convict him. It is true that there is no evidence stronger than a person’s own admission or confession. Such a confession is admissible in evidence if obtained voluntarily. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. Dibie vs. State (2007) 1 NWLR pt 1038 page 30, Nwaebonyi V. State (1994) 5 NWLR pt 343 page 130. The courts have held that
“A free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the court is satisfied with its truth. There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court”
Solola vs. State (2005) 11 NWLR pt 937 page 460, Nwaeze Vs. State (1996) 2 NWLR pt 428 page 1, Akinmoju V. The State (2000) 4 SC 1 page 64.
A Confessional Statement of an accused can sustain a conviction.
However, there is a duty placed on the court to test the truth or veracity of a confessional statement by looking at other pieces of evidence which would make the confessional statement credible. PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT THE AGE OF AN ACCUSED PERSON IS RELEVANT IN A MURDER TRIAL
In a murder trial, the age of the accused is relevant for purposes of sentencing. See: Uwa v. State [1965] ANLR 372; Odidika vs. State (1977) 2 S.C. (REPRINT) 11. It is the law that where the age of the accused person is material for the purpose of conviction or relevant in the determination of the nature of the sentence and evidence of such age is not conclusive, the trial Judge is obliged to make due inquiry as to the age of that person by taking evidence of such age. See: Oladimeji vs. State (1964) ANLR 123; Modupe vs. The State (1988) 4 N.W.L.R. (Pt. 87) 130 at page 142. PER OTISI, J.C.A.
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Ikom delivered on 2nd May 2012. The Appellant was convicted on a one count charge of the murder of one Joseph Banyio. He was convicted of the crime and sentenced to death contrary to S. 319 (1) of the Criminal Code, Cap. C16 Vol. 3 Laws of Cross River State 2004.
The facts of this case are as follows: The Appellant was charged on a one count charge of murdering the deceased Joseph Banyio by shooting him with a gun on 4th November, 2007 at Aleke Village in Boki Local Government Area.
At the trial, the prosecution called only one witness, the Investigative Police Officer and tendered eight exhibits. The Appellant made two confessional statements but only one was admitted after a trial within trial.
The Appellant gave evidence viva voce and called no other witness. After both parties closed their case, written addresses were ordered and adopted. The trial Judge thereafter delivered his considered judgment on 2nd May, 2012 convicting the Appellant as charged, and sentenced him to death.
Being dissatisfied, the Appellant filed a notice with six grounds of Appeal. The Appellant filed his Appellant’s brief on 17th August, 2012 and articulated two (2) issues for determination as follows:-
1. Whether the respondent proved the charge of murder against the appellant beyond reasonable doubt.
2. Whether in the circumstances of this case, the learned trial Court was right in failing to conduct an enquiry to ascertain the actual age of the Appellant.
Also filed was the Appellant’s reply brief on 19th March, 2013. The Respondent filed his Respondent’s brief on 28th February, 2013 but deemed properly filed and served on 19th March, 2013. Both counsel, on the day for hearing, adopted their respective briefs. The Appellant’s Counsel urged the court to allow the appeal whilst the Respondent’s counsel urged the court to dismiss this appeal.
ISSUE ONE
The learned counsel for the Appellant submitted that the prosecution did not prove the charge of murder against the Appellant beyond reasonable doubt. For the prosecution to succeed in proof of the offence of murder there must be proof beyond reasonable doubt of the following:-
i. The death of the deceased; and
ii. The act or omission of the accused which caused the death; and
iii. That the act or omission of the accused stated in (ii) above was intentional with knowledge that death or grievous bodily harm was its probable consequence.
Counsel referred the court to the following cases: Uguru V. State (2002) 9 NWLR (Part 771) Page 90 at 106 para F-G, Gira V. State (1996) 4 NWLR (part 443) page 375, Nwaeze vs. State (1996) 2 NWLR (part 428) page 1, Ogba vs. State (1992) 2 NWLR (part 222) page 164.
Counsel reiterated that the prosecution did not prove that the act or omission of the appellant caused the death of the deceased and that the said act was intentional. The onus of proving this was on the prosecution.
The Appellant’s counsel argued that the PW 1 was not at the scene of the crime and as such not an eyewitness to the circumstances leading to the death of the deceased. It could not be proved that the incident was not an accident. The prosecution could not also prove the age of the Appellant as at the time of the crime. On the contrary, the Appellant gave credible and unshaken evidence on oath that the deceased died accidentally when the gun belonging to the deceased father exploded and killed the deceased.
Counsel argued that the explosion which led to the death of the deceased was
(i) Not the act or omission of the accused
(ii) Not intentional, with knowledge that death or grievous bodily harm was its probable consequence.
The prosecution/Respondent did not lead any evidence to discredit the evidence of the Appellant. The Appellant had no malice aforethought. The only basis for the conviction was only the purported statement of the Appellant. A confessional statement is only relevant against the person who made it when such a confession is voluntary see S. 29(1) Evidence Act 2011, Oseni Vs. State (2012) 5 NWLR pt 1293 page 351, Alarape Vs. State (2001) 5 NWLR pt 705 page 79, Yesufu V. State (1976) NSCC page 307 See also S. 29(5) Evidence Act. The Appellant made two (2) purported Confessional Statements. The first was made in Okundi Police Station where the Appellant stated that he was threatened by the Police while the second statement was almost a replica of the first. However, the second one was accepted as the Appellant could not convince the court that he was tortured. Where a confessional statement was obtained under duress, such a confessional statement is not admissible in evidence. See George Vs. State (2009) 1 NWLR pt 11 22 page 325 See also:- Okereke Vs. State (1998) 3 NWLR (Part 540) Page 75 at 86-87 paras H-A., Okoro Vs. State (1998) 14 NWLR (part 584) page 181, The Queen V. Thomas (1958) N.S.C.C. page 22 at 25 paras 5-10, George Vs. State (supra).
Counsel also argued that, the evidence of the Appellant was so much at variance with the so called confessional statement that the learned trial Judge should have exercised caution. Where there is a doubt about the confessional statement, the trial Judge ought to look for evidence to ascertain whether it can convict on the remaining evidence. There was no legally admissible evidence before the trial court to establish two essential elements of the offence of murder. See Alabi Vs. State (1993) 7 NWLR pt 307 page 511 where the Supreme Court held per Onu JSC
“if there is failure to establish one element of an offence then there is failure to prove the case beyond reasonable doubt.”
Counsel, therefore, urged the court to rule in favour of the Appellant on this issue.
In reply, learned counsel to the Respondent, submitted that they proved all the ingredients of the crime. The Respondent proved that Joseph Banyio died as a result of gunshot wounds. Respondent also proved that the act of the Appellant was intentional as he was trying to prove his superiority over the deceased. This piece of evidence remained unchallenged. The grounds of appeal did not also challenge the ruling of the trial court in admitting the confessional statement exhibit 1. See State vs. Oladotun (2011) 6 NCC page 428 per Muktar JSC (as she then was) held that.
“…The position of the law as is settled in many authorities is that evidence adduced in court, that is relevant to the issue in controversy, and has neither been challenged nor successfully debunked becomes good and credible evidence, which ought to be relied upon by a learned trial judge”.
Learned Counsel submitted that though the Appellant retracted the confessional statement, a trial within trial was conducted. Exhibit 1 was thereafter admitted after the ruling by the trial Judge and acted on it. See Ubierho vs. State (2005) 1 NCC page 146 where Katsina-Alu JSC (as he then was held as follows)
“Now a confession is an admission made at anytime by a man charged with a crime stating or suggesting that he committed the crime it is now settled law that a man may be convicted solely on his confession. There is surely no law against it. It is however desirable to have some evidence of circumstance which make it probable that the confession was true … I dare say that there is nothing sacrosanct about a retraction of a confession. The law is that a man may be convicted on his own confession alone provided that there is anything outside it to show that it was true.
Counsel argued that Exhibit K (just like Exhibit 1 in the instant appeal) gave a detailed and graphic description of how the deceased was killed.
The account of those events could only be recounted by a person who was an active participant of what happened on the fateful day.
Counsel, therefore, urged the court to hold that the trial court right when it relied on the confessional statement of the Appellant convicting and sentencing him for the murder of Joseph Banyio.
As rightly stated by the Appellant’s counsel, for the prosecution to succeed in proof of murder, the prosecution must proof the following.
i. The death of the deceased; and
ii. The act or omission of the accused which caused the death; and
iii. That the act or omission of the accused stated in (1) above was intentional with knowledge that death or grievous bodily harm was its probable consequence.
It is, however, not in doubt that the deceased is dead. The second ingredient,
“that the act or omission of the accused caused the death”
The prosecution, through PW 1, stated that the Appellant shot the deceased. The confessional statement tendered as Exhibit 1, stated that the Appellant shot the deceased. The PW 1, the only prosecution witness, was not an eyewitness to this crime. There is no direct evidence as to what transpired between the deceased and the Appellant. The Investigative Police Officer (PW 1) who gave evidence for the prosecution said “There was no war at the scene” the PW 1- Investigative Police Officer went on to say
“I cannot authoritatively say this was an accident. I cannot say it was an accident” This is what the only Prosecution Witness said about the whole incident.
Can, it therefore, be said that the prosecution proved that the Appellant caused the death of the deceased.
The Appellant in his evidence in chief stated how the gun exploded and hit the deceased, killing him. The Appellant denied the confessional statement, Exhibit 1. He claimed it was obtained under duress. The Appellant also in his evidence stated how he was manhandled by the youths who immediately came to the scene. He was rescued by a man who accompanied him to the Chief’s house and thereafter to the Police Station in Okundi. There, the Appellant said he was beaten and threatened to make Exhibit 1. The Appellant also said that when he was transferred to Calabar Criminal Investigation Department he was threatened by the Investigative Police Officer to adopt his previous purported confessional statement which he did, even though there was an endorsement by a Superior Officer that the statement was not obtained under duress or threat.
“No statement by an accused is admissible in evidence against him unless, it is shown by the prosecution that it was a voluntary statement” Saidu V. State (1982) NSCC Vol. 13 page 70.
It appears in this case, that the court relied solely on the confessional statement of the Appellant to convict him. It is true that there is no evidence stronger than a person’s own admission or confession. Such a confession is admissible in evidence if obtained voluntarily. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. Dibie vs. State (2007) 1 NWLR pt 1038 page 30, Nwaebonyi V. State (1994) 5 NWLR pt 343 page 130. The courts have held that
“A free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the court is satisfied with its truth. There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before the court”
Solola vs. State (2005) 11 NWLR pt 937 page 460, Nwaeze Vs. State (1996) 2 NWLR pt 428 page 1, Akinmoju V. The State (2000) 4 SC 1 page 64.
A Confessional Statement of an accused can sustain a conviction.
However, there is a duty placed on the court to test the truth or veracity of a confessional statement by looking at other pieces of evidence which would make the confessional statement credible.
I have painstakingly gone through the evidence of PW1; there is no other independent evidence to help the court in testing the veracity of the confessional statement, Exhibit 1. The Appellant gave a different story, diametrically opposite to the confessional statement, Exhibit 1.
The prosecution totally relied on Exhibit 1 and failed to prove that it was the act or omission of the Appellant that caused the death of the deceased. The prosecution also failed to prove that the Appellant intentionally caused the death of the deceased.
The Appellant raised a defence of accident, that the gun exploded and hit the deceased thereby causing his death
“A court is under a duty to consider any defence open to an accused or raised by an accused before convicting on a particular charge.”
Ifejirika Vs. State (1999) 3 NWLR pt 593 page 59, Lado Vs. State (1999) 1 NWLR pt 619 page 369, Ihuebeka vs. The State (2000) 4 SC pt 1 page 203 at 231, Oforlete Vs. The State (2000) 7 SC pt 1 page 80 at 85, Arabi V. The State (2001) 12 WRN page 158.
S. 24 of the Criminal Code states
“A person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident.
Accident means an event without apparent cause, unexpected, unforeseen cause of events, unintentional act, chance, etc”
Agbo vs. State (2004) 7 NWLR pt 873 page 546, Onyia vs. State (2006) 11 NWLR pt 991 page 267.
Accident is an unforeseen event which actually occurs independently of the will of the accused. The Appellant in his evidence viva voce said that:
My uncle and the wife left the house. I now went to the kitchen to prepare food. As I was about entering the house, I saw Joseph with his father’s knife inside the scetbath. He tied it to his waist and with his father’s gun in his hand. I asked him what he was doing. He said he wants to go and look for the animal his father shot the last night. As I wanted to go out through the door I held the buth of the gun and asked him to give me. As I dragged it he held the barrel. The gun went and hit on the frame of the door and exploded.
Joseph fell down there and died. As I was shouting some boys came and saw Joseph on the ground with blood on his stomach.
They did not ask what happened. They started beating me.
There was no challenge to this piece of evidence by the prosecution in cross examination. It would, therefore, be taken that this evidence as to how the deceased came to his death stands. The prosecution was unable to prove that the death of the deceased was as a result of the intentional act of the Appellant. It was difficult to prove without an eye witness account of what happened. The prosecution could not even prove the charge by circumstantial evidence. The prosecution and the learned trial Judge just hung on the confessional statement. The trial Judge failed in his duty to test the truth of the confessional statement by examining it in the light of any other credible evidence before the court. Sola vs. State (2005) 11 NWLR pt 937 page 460, Nwaeze vs. State (1996) 2 NWLR pt 428 page 1, Akinmoju vs. The State (2000) 4SC pt 1 page 64.
The trial Judge conducted a trial within trial on the two purported confessional statements made by the Appellant. The first one made in Okundi was rejected as it was obtained under duress. It is on record, that the Appellant was beaten by a mob of youths in the village. The Appellant was rescued and taken to the Chief’s house. The Chief accompanied them to the village and dictated to the Investigative Police Officer what happened when he was not at the scene of the crime. With the presence of the Chief a person in authority and the waiting angry youths, no statement obtained can be voluntary.
This statement was repeated in Exhibit 1, Can this version of the confessional statement be said to be voluntary? A version of the same statement adjudged involuntary cannot be voluntary. Both statements ought to be rejected. When this Exhibit 1 is expunged, it being inadmissible, what is left from the case of the prosecution? Nothing.
In a criminal trial, the burden of proof lies, throughout, upon the prosecution to establish the guilt of the accused beyond reasonable doubt and it never shifts. Even where an accused in his statement to the Police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused. Ani vs. State (2003) 11 NWLR pt 830 page 142, Ifejiri v. State (supra), Igabele vs. State (2006) 6 NWLR pt 975 page 100.
I, therefore, hold that the prosecution has failed to prove the charge of murder against the Appellant. This issue, therefore, fails.
ISSUE TWO
In the light of my findings and conclusions in issue 1, this second issue has become academic. However, I intend to deliberate on it for avoidance of doubt and for the exposition of the law.
The learned Appellant’s counsel submitted that the trial Judge failed to conduct an enquiry to ascertain the actual age of the Appellant. See the cases of Guobadia vs. State (2004) 6 NWLR pt 869 page 360, Modupe vs. State (1988) 4 NWLR pt 87 page 130. See also S. 319(2) CC which rules out the death sentence on a minor of less than 17 years as at the time of the crime.
The evidence of age was inconclusive as the trial Judge relied on the age on the confessional statement. The Investigative Police Officer, PW1, could not say for certain the age of the Appellant. However, the Appellant said he was older then the deceased by one year and some months. The age of the deceased was put at 14 years from the autopsy report Exhibit 2 and 24 as well as from the statement of the complainant.
From the above, the trial Judge ought to have enquired more into the age of the Appellant as it was relevant to the sentencing of the Appellant see Modupe Vs. State (supra).
Counsel submitted that the law stipulated the four methods of establishing the age of a person brought before the Court. See Akpan vs. State (2000) 3 NWLR pt 649 as follows:
i. By production of a birth certificate
ii. By direct evidence as to the date of birth. This evidence should come from a parent or anybody in whose presence the person was born.
iii. By a certificate of a Medical Officer giving his opinion as to the age of the person.
iv. The age presumed or declared by the court to be of the appellant.
The learned trial Judge without further enquiry relied on the age in the purported confessional statement Exhibit 1. Counsel argued further that the law does not regard the age stated thereon as part of the statement of the Appellant. This is so because the age is stated before the cautionary words. See Modupe vs. State (supra) where Oputa JSC (as he then was) held explaining the position of the law thus:
“The Statement of the Appellant to the Police was tendered as Exhibit B. In Exhibit B at p. 152, the age of the Appellant was given as 20 years. Exhibit B was made on 21st January, 1983 a day after the alleged murder. But Exhibit B. is not a proof of the age of the Appellant as 20 years was written probably by the recording Police Office before the words of caution. That entry of the Appellant’s age as 20 years is not therefore part of the Statement of the Appellant. And it would have been wrong of the learned trial Judge to have used it to contradict the Appellant’s direct, Positive and uncontradicted oral evidence as to his age.”
Counsel further submitted that the learned trial Judge queried why the Appellant did not raise the issue of age during the trial within trial. Counsel, however, argued that there is no time limit for the enquiry under S. 208 of the CPA or S. 208 of the CPL as to the age of an accused. Olatawura JCA (as he then was) succinctly stated the position of the law in Okara Vs State (1990) 3 NWLR pt 140 page 536 thus:
“Whenever young persons are charged with murder, it is not out of place for the court to find out immediately after the plea the reliable age of the accused in that if found guilty the provision of Section 368 of the Criminal Procedure Law may pose a problem. I do not think that even at the time of address, and where the question of age is raised, unless the inquiry demanded by S. 208 of the Criminal Procedure Law has been complied with before the address, the court cannot at that stage of address order an inquiry. For the proper sentence cannot be recorded as it will be against the provision of S. 368 (3) of the Criminal Procedure Law which states:
“368(3) Where an offender who in the opinion of the court has not attained the age of seventeen years is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such offender to be detained during the Governor’s pleasure and if so order he shall be detained in accordance with the provisions of Part XLIV notwithstanding anything to the contrary in any written law”
Counsel, therefore, urged the court to resolve this issue in favour of the Appellant.
In reply, the learned counsel to the Respondent submitted that S. 319(2) of the CCL C16 Vol. 3 Laws of Cross River State 2004 mandates the trial Judge to conduct an enquiry to ascertain the actual age of the Appellant at the time he raised the issue during the Cross Examination of PW1. Counsel concedes the four methods of establishing the age of a person brought before the court where necessary. Counsel argued that there was no dispute as to the age of the Appellant as it was not challenged in the trial within trial to tender the confessional statements of the Appellant. Also no ground of appeal was filed challenging the ruling of the lower court on 24th February, 2011 admitting Exhibit 1.
Counsel submitted that the applicable criminal procedure rule is that Criminal Procedure Law Cap C 17 Vol. 3 Laws of Cross River State, 2004.
S. 203 provides that:
“Where a person is before any court and it appears to the court that such person is an infant, or a child, or a young person, or an adult, the court may make due inquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time, or at the time to which the inquiry may be adjourned but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of that person shall for the purpose of this law be deemed to be true age of that person”. (Underlining is mine for emphasis.)
Counsel argued that the enquiry into the determination of a person’s age is not mandatory but discretionary. He continued that the trial court did not conduct an inquiry to determine the age of the Appellant. That failure is not sufficient by virtue of the provisions of S. 203 of the Cross River State Criminal Procedure Law 2004 to invalidate the judgment of the Lower Court. Counsel, therefore, urged the court to resolve this issue in favour of the Respondent.
The question of AGE in a murder trial cannot be overemphasized or over looked. Under the Nigeria Legal System.
“Any person who commits the offence of murder shall be sentenced to death”
However, where the offender who in the opinion of the court has not attained the age of seventeen (17) years at the time of the offence was committed, is found guilty of a capital offence, sentence of death shall not be pronounced or recorded but in lieu thereof, the court shall order such person to be detained during the pleasure of the Governor. See Orisakwe vs. State (2004) 12 NWLR pt 887 page 258, Guobadia vs. State (2004) 6 NWLR pt 869 page 360″
In the instant case, the Appellant in his evidence viva voce said that he was just older than the decease by about one year and some months.
The age of the deceased was put at 14 years per the Post Mortem Report.
If this is so, the age of the Appellant would be 15 plus or less than 16 years.
The purported confessional statement Exhibit 1 put the age of the Appellant at 18. This already introduces a conflict as to the age of the Appellant.
This conflict has to be resolved by the trial court so as to determine what the sentence would be, if found guilty. See Okara vs. State (supra). It was held in this case that whenever a young person is charged with murder, it is not out of place for the court to find out immediately the reliable age of the accused. S. 208 of the Criminal Procedure Act authorizes the court to inquire into the age of the accused for purposes of sentencing.
See Uwa vs. Queen (1965) 1 ALL NLR page 356.
Okara V. State (supra) emphasized the need for the trial court to inquire into the age of the accused in a murder trial. In the present case, the trial court failed to inquire into the age of the Appellant. The trial court relied solely on the age in the purported confessional statement Exhibit 1, See Modupe vs. State (supra) where Oputa JSC (as he then was) stated clearly.
“The Statement of the Appellant to the Police was tendered as Exhibit B. In Exhibit B at p. 152, the age of the Appellant was given as 20 Years. Exhibit B was made on 21st January, 1983 a day after the alleged murder. But Exhibit B is not a proof of the age of the Appellant as 20 years was written probably by the recording Police Office the words of caution. That entry of the Appellant’s age as 20 years is not therefore part of the Statement of the Appellant. And it would have been wrong of the learned trial Judge to have used it to contradict the Appellant’s direct, Positive and uncontradicted oral evidence as to his age”
If the above is what the Law is, the trial Judge was, therefore, wrong in relying solely on the age of the Appellant on his confessional statement, Exhibit 1, to determine his age.
From the above, it is clear that the trial Judge failed to inquire into the age of the Appellant. This failure tainted the sentencing of the appellant; who claimed he was less than 17 years as of the time of the crime.
Failure to comply with S. 203 of the Cross River State Criminal procedure Law 2004 does not necessarily invalidate the conviction but it will definitely invalidate the sentencing.
The sentencing of the Appellant was wrong and, therefore, this issue is resolved in favour of the Appellant.
Both issues have been resolved in favour of the Appellant.
This appeal is allowed and the judgment of the trial court is set aside. The conviction and sentencing of the Appellant is also set aside.
MOHAMMED LAWAL GARBA, J.C.A: I have read a draft of the lead judgment delivered by my learned brother Uzo I. Ndukwe-Anyanwu, JCA in this appeal.
The two (2) issues submitted for decision in the appeal have been thoroughly and proficiently considered by His lordship and I completely agree with the views expressed and the conclusions on the issues. For the reasons set out in the lead judgment which I adopt, the appeal is allowed by me too in all the terms contained therein.
ONYEKACHI A. OTISI, J.C.A: I had the privilege of reading, in draft, the Judgment delivered by my learned Brother, Ndukwe-Anyanwu JCA.
The issues raised for determination have been exhaustively resolved; and, I agree with the Judgment.
In a murder trial, the age of the accused is relevant for purposes of sentencing. See: Uwa v. State [1965] ANLR 372; Odidika vs. State (1977) 2 S.C. (REPRINT) 11. It is the law that where the age of the accused person is material for the purpose of conviction or relevant in the determination of the nature of the sentence and evidence of such age is not conclusive, the trial Judge is obliged to make due inquiry as to the age of that person by taking evidence of such age. See: Oladimeji vs. State (1964) ANLR 123; Modupe vs. The State (1988) 4 N.W.L.R. (Pt. 87) 130 at page 142.
The need to resolve the issue of his age will not arise in cases where there is evidence before the trial Judge that an accused person was 17 years old at the time of commission of the offence. See; George vs. The State (1991) 1 N.W.L.R. (Pt. 214) 199: Guobadia vs. State (2004) 2 S-C. (PT. II) 1; Okoro v. State (1998) 4 NWLR (PT 544) 115. But, in this case, such conclusive evidence was not before the trial Judge. I also resolve this issue in favour of the Appellant.
The appeal is therefore meritorious: and is hereby allowed. I abide by the orders made in the lead judgment.
Appearances
S. O. Wogu Esq. with D. U. Wogu Esq.For Appellant
AND
E. Amajama Esq., Senior State Counsel 2, Ministry of Justice, CalabarFor Respondent
