BAMIDELE SIMEON v. THE STATE
(2014)LCN/7525(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of November, 2014
CA/AK/43MC/2013
RATIO
EVIDENCE: CONFESSION; WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
The trend that runs through the case is the confirmation of the trite position of the law that a confession of commission of a crime plays a major part in the determination of his guilt and a court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus. See: Okeke V State (2003) 15 NWLR (Pt. 842) 25. per. MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
BAMIDELE SIMEON Appellant(s)
AND
THE STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Honourable Justice D. I. Kolawole of the Ondo State High Court sitting at Akure Judicial Division on the 27th day of June 2012.
The case of the prosecution against the Appellant was that on or about the 26th day of April, 2009 at Oda Barracks in Akure, the Appellant killed one Godwin Ocheidu by hitting him with an axe. Both the Appellant and the deceased were policemen living at the Oda police station barracks before the Appellant got transferred to Abuja and left the Oda police station barracks before the Appellant got transferred to Abuja and left his wife behind in the barracks. The Appellant lodged a complaint in the night of 26th April 2009 at the Oda Division of the Nigeria Police Akure that he caught the deceased a police officer making love to his wife in his own apartment within the same police barracks where they both shared apartments. That the deceased died from the wound he sustained due to the attack on him by the Appellant.
The Appellant on the other hand said that when he returned to Akure very late at night at about 11.45 p.m on the day of the incident, he got to his house and met the front door fastened with a padlock. On moving to the backyard, he discovered that the backdoor was not locked. Curiously, he entered his house and moved towards the bedroom. On getting there, he discovered a man on top of his wife in his bedroom having sex. They separated as soon as they noticed his presence. He made efforts to grab the man without success, he hit the man in the chest but the man escaped. He raised alarm and the man jumped into the bush.
It was also the case of the defence that there were no eye witnesses to the event and that the only minute evidence connecting the Appellant to the act alleged is Exhibit C.
The Appellant denied in his evidence in court that he axed the person he found with his wife with anything at all. And, contends further that on the night of the attack on the man whom he met sleeping with his wife, he did not know that it was Godwin Ochiedu.
The prosecution called three (3) witnesses and tendered some Exhibits including two extra judicial statements of the Appellant Exhibits A and C. The Appellant did not call any witness but testified in his own defence.
At the close of evidence the learned trial judge relied on the Appellant’s extra judicial statements especially the confessional statement Exhibit C to find that the Appellant killed the deceased but considered that the defence of provocation availed the Appellant, found the Appellant guilty of manslaughter and sentenced him to six (6) years imprisonment.
Dissatisfied with the conviction and sentence, the Appellant filed a Notice of Appeal containing three (3) grounds of appeal in this court on 23/10/13.
Learned counsel for the Appellant nominated two (2) issues for determination as follows:
1. Whether in view of the evidence on the record the prosecution successfully proved the essential ingredients of the offence of manslaughter beyond reasonable doubt against the Appellant.
2. Did the learned trial judge evaluate or properly evaluate all the evidence before finding the Appellant guilty and if not, did not his failure to do so occasion a miscarriage of justice.
Learned Counsel for the Respondent adopted the two issues formulated by the Appellant.
On issue 1, learned counsel for the Appellant reminded us that the Appellant was charged with the offence of murder. He reiterated the ingredients of the offence of murder by reference to the provision of Section 316(1) and (2) of the Criminal Code and cases of Ochuko Tegwonor v The State (2008) 1 NWLR (Pt. 1069) 630; Ogba v State (1992) 2 NWLR (Pt. 222) 164; Nwaeze v The State (1996) 2 NWLR (Pt. 428) 1 and Giva v The State (1996) 4 NWLR (Pt. 443) 375.
Learned counsel submitted that although it is the law that evidence to be relied upon to establish a charge of murder may either be direct or circumstantial, such evidence must nevertheless establish the guilt of the accused beyond reasonable doubt. And, that as a general rule, the onus of proof on the prosecution in this regard does not shift.
He referred to the cases of Aruna v State (1990) 6 NWLR (Pt. 155) 125 and Ozaki v The State (1990) 1 NWLR (Pt. 124) 92.
Counsel submitted that the evidence on record in the instant case puts the facts of the deceased’s identity and death beyond controversy. However, that what was not established on the record was the actual cause of death.
Learned Counsel reviewed the evidence of PW1, PW2 and PW3 and submitted that the testimony of PW1, a police officer, cannot be relied on upon as a basis for the conviction of the Appellant because he said that he was not the one who investigated the case. And, also that PW1 even agreed during cross examination that anyone that jumped into the bush where the deceased died at night may be killed by dangerous animals and other things. This, he said, creates a doubt on what the cause of death could be and this doubt should have been resolved in favour of the Appellant.
Counsel also submitted that the autopsy report of PW2 is hearsay evidence because PW2, the Medical Doctor, admitted that “the probable date of death I stated in Exhibit B was arrived at through what I was told”. He referred to Section 38 of the Evidence Act 2011 and the cases of Okokon Omonga V The State (2006) 14 NWLR (Pt. 1000) 512; Lasun V Awoyemi (2009) 16 NWLR (Pt. 1168) 513.
Learned counsel submitted that it is evidence from the record that there was nothing before the court from which the time of death could be ascertained or inferred. The evidence of the prosecution showed that they did not know the time of death of the deceased and the killer of the deceased.
He argued that on the second element of the offence of murder, that the prosecution did not discharge the burden that it was the Appellant and no one else that killed the deceased. This, he said is because to establish a charge of manslaughter it must be proved not merely that the act of the accused could have caused the death of the deceased but that, in fact, it did.
It is the law, said counsel, that in seeking to rob the death of the deceased on the accused, the prosecution (in this case, the Respondent) must unequivocally establish an inextricable tie linking the accused in fact with the death of the deceased. That, by the provision of Section 135 of the Evidence Act 2011, the onus is on the prosecution to prove every material allegation in the charge beyond reasonable doubt.
He referred to the cases of Queen v Isa (1961) All NLR 668, (1961) 2 SCNLR 347 and R V. Owe (1961) All NLR 680 (1961) 2 SCNLR 354; Oforlete V The State (2000) 12 NWLPR (Pt. 681) 415, (2000) 3 NSCQR 243 at 265.
He submitted that it is trite that in seeking to pin the death of the deceased on the Appellant, the question for consideration is not who killed the deceased, but rather it is; What killed the deceased? That, there was no clear evidence from the record in the instant case, that the death of the deceased was a direct and not merely a remote result of the act of the Appellant.
Counsel submitted that the testimony of the PW1 is not credible enough to link the death of the deceased to the Appellant. And, that the testimony of PW3 that he found blood stain in the deceased’s room and not the room of the Appellant, the supposed scene of the crime, indicates that the deceased could have died of a different cause and that he was not the one that the Appellant attacked.
Counsel referred to the cases of R V Nwokocha (1949) 12 WACA 453, R V Owe (1961) 2 SCNLR 354 and Audu V State (2003) 7 NWLR (Pt. 820) 576 and argued that if there is the possibility showing that the deceased died from cause(s) other than the act of the Appellant, then the prosecution has not established the case against the Appellant.
He argued that neither a general intention nor any specific intention to kill was traced to the Appellant to warrant the killing of the deceased. He referred to the cases of Amaya V State (2001) 12 SC (Pt. 1) 1; Kwaku Mensah V R. (1946) A.C. 83, and Sharmpal Singh V R. (1962) AC 188.
He urged us to note the following facts about the admitted confessional statements.
1. The Appellant is a policeman of many years standing.
2. The Appellant is literate and as a policeman is trained to write down statements.
3. The statement was written for him by another policeman.
Furthermore, learned counsel identified the following reasons why the Appellant’s conviction could not stand:
(a) That there was no specific intent to kill the deceased that was traced to the Appellant.
(b) That the stabbling of the deceased in question was not done by the Appellant and no such thing was done with his consent.
(c) That there is no conclusive proof that the person that had confrontation with the Appellant was the same person that died;
(d) There was nothing in evidence that linked the Appellant with the death of the deceased.
(e) The purported confessional statement, despite the aspersion cast on its regularity and acceptability, did not prove an allegation of murder or manslaughter against the Appellant; and
(f) The weak evidence led by the prosecution witnesses was not such as to warrant the lower court to return a conviction.
Finally, on Issue 1, counsel submitted that the prosecution failed to prove the essential ingredients of the offence charged.
On issue 1 learned counsel for the Respondent also reiterated the ingredients of the offence of murder by reference to the case of Nkebibi V The State (2010) 5 NWLR (Pt. 1188) 471 at 495 – 496.
He submitted that the prosecution successfully proved the essential ingredients of the offence of manslaughter beyond reasonable doubt.
On the fact of the death of the deceased, Godwin Ocheidu, counsel referred to the evidence of PW1 and PW2 and submitted that apart from Exhibit B and the evidence of PW1 and PW2, the Appellant in his evidence and his statement conceded that he was informed that Godwin Ocheidu the person he found having sex with his wife died.
Learned counsel further submitted that the act of the Appellant of hitting the deceased with an axe led to the death of the deceased.
Here again, counsel referred to the evidence of PW2 and submitted that the medical report Exhibit B which was admitted without objection remained unchallenged and uncontroverted.
He submitted that though the Appellant only gave evidence that he wanted to grab the man having sex with his wife, but escaped. And, in fact denied that he hit the man with anything, his statement Exhibit C is to the contrary.
Counsel submitted that the learned trial judge was right to have placed much weight on exhibit C, having subjected it to the test in the case of Kanu V The King 14 WACA 30.
He argued that it is clear from the records that the death of the deceased was a direct and not merely a remote result of the Appellant’s act.
Finally on issue 1, counsel submitted relying on the case of Nworie Nwali V The State ACLR Vol. 9 377 at 386 that the act of the Appellant of hitting the deceased with an axe was intentional with knowledge that death or grievous bodily harm would be caused. And, that a man is deemed to have intended the consequences of his actions.
The core of the Appellant’s contention in issue 1 is that it was not proved that the deceased died through any of the action(s) of the Appellant and that if there is any possibility of any other cause(s) other than the act of the Appellant, the Appellant ought to be discharged
The answer to Appellant’s issue 1 would clearly be discovered from the synergy created by the evidence of PW1, PW2, Exhibits A and B and the confessional statement of the Appellant Exhibit C which taken together proved all the ingredients of the offence of murder.
For example, an extract from Exhibit C, the Appellant’s confessional statement is instructive. It states:
“I know one Godwin Ocheidu. He is a police officer who live in the next room to mine at Oda Police Barrack. On 26/4/2009, I returned came from Abuja at about 2230hrs and when I open my house door I met a man having sex with my wife. I grab the two of them but they started to struggle. I then pick up an axe from the back of the door to shook him at the back. I do not know how many times I shooked him with the axe. He ran out of my house and then jumped through the window of his inner room. It was then I know that its Godwin Ocheidu. I then shouted for help that I caught Godwin having sex with my wife. He then ran out and ran into the bush near the Barracks”.
It would be recalled that though retracted, Exhibit C was not impugned or ever objected to on any ground that it was not voluntarily made. Despite this, the learned trial judge carefully tested the reliability of the confessional statement by applying the six-way test laid down in cases such as Gabriel v The State (2010) 6 NWLR (Pt. 1190) 280; Yusufu V The State (1976) 6 SC 167; Kanu V The King 14 WACA 30 that the confession was possible and that the Appellant had every opportunity of committing the offence.
At pages 33 – 34 of the record, the learned trial judge had this to say:
“I will now test Exhibit C with the questions above. I believe there are facts outside Exhibit C that shows that the extracted pasts of Exhibit C are true. In Exhibit A which was admitted without any objection, a statement the accused made to PW1 in the morning of 27th April, 2009 and when it was not yet known that Godwin Ochiedu was dead, the accused conceded that he caught Godwin Ochiedu having sex with his wife in his apartment on the 26th April, 2009. He said that he hit Godwin Ochiedu and gripped him but he later escaped into the bush after he raised alarm. Exhibit B, the medical report showed that there was a stab wound on the left side of the chest of Godwin Ochiedu and that the probable date of death was 26th April 2009. Exhibits E and E1 which are the photographs of the room of the deceased Godwin Ochiedu show blood stains in the room and this agrees with the statement of the accused that Godwin Ochiedu jumped into his own room through the inner window when he escaped from the accused apartment but that the deceased had to run out from the room into the bush when the accused raised alarm that he caught him having sex with his wife. These facts to my mind show that there are facts outside Exhibit C that show that the extracted parts of Exhibit C were true —————”
Similarly, the learned trial judge was rightly convinced that the act(s) of the Appellant led to the death of the deceased. Listen to him at pages 34 – 35 of the record:
“The duty on the prosecution does not end by proving that the accused use an axe to hit the deceased. The prosecution must go on to show that it was the aftermath of the injury caused by the axe that led to the death of Godwin Ochiedu. Was this proved? The lifeless body of Godwin Ochiedu was discovered in a shrub as shown in Exhibit F and F1 in the morning hours of the 27th April 2009. He was attacked not earlier than 10p.m of the 26th April 2009. The medical report shows that death was due to a stab wound on the left side of the chest which resulted to damage to the lung and the heart tissues and there was massive bleeding into the thoracic cavity. Everything dove tails to the attack on Godwin Ochiedu by the accused using an axe as the source of the stab wound which is the cause of death of Godwin Ochiedu. I therefore believe that the prosecution has proved that Godwin Ochiedu died through the act of the accused which was the hitting of the deceased with an axe both at the back and chest regions of the body”.
In the instant case, the learned counsel for the Appellant was palpably wrong either to imagine that the fact of the death of the deceased Godwin Ochiedu was not proved or to assert that the prosecution did not prove that the act of the Appellant caused the death of the deceased.
Issue No. 1 is resolved against the Appellant.
On issue 2, learned counsel for the Appellant submitted that the learned trial judge based the conviction of the Appellant on speculations and possibilities for the following reasons.
(a) There was no basis for the learned trial judge to conclude that the person who had a brawl in the Appellant’s room is the same person as the deceased in this matter.
(b) There was no evidence that the Appellant was in the room of the deceased where blood stains were found, and whereas there was no blood stain in the Appellant’s room.
(c) The evidence of PW1 generally amounts to speculation, since he confirmed that he did not investigate the matter before coming to testify.
(d) The evidence of PW2 amounts to hearsay.
(e) The testimony of PW3 did not link the Appellant with the death of the deceased.
(f) The Appellant’s innocence was not appropriated because if he had killed the victim he would have run away
(g) The statement tendered against the Appellant, a literate policeman, which was written by PW3 does not accord with practical realities.
(h) The identities of the deceased and the person that slept with the Appellant’s wife were not reconciled.
Learned counsel referred to the cases of Iteshi Onwe V State (1975) (Reprint) 9 – 11 SC 14 at 19 and Akpabio V State (1994) 7 NWLR (Pt. 359) 635 and concluded on issue 2 that the improper evaluation of the evidence of witnesses by the learned trial judge is a substantial reason informing the wrongful conviction of the Appellant and that the misconception by the learned trial judge occasioned a miscarriage of justice to the Appellant.
Learned Counsel for the Respondent submitted on issue 2 that the learned trial judge based his judgment on credible evidence based on the following reasons:
a. That an intention to cause bodily harm is established if it is proved that the accused deliberately and intentionally did and knowing that it is highly probable that it would result in the death or cause grievous bodily harm to the victim even though he did not desire the result.
b. That from the above review of the totality of the evidence led at the trial court, the learned trial judge was right to hold that the prosecution has proved the case of manslaughter against the Appellant beyond reasonable doubt and that the learned trial judge was right to have found the Appellant guilty and accordingly sentenced him to six years imprisonment.
c. There was evidence for the learned trial judge to conclude that the person that had a brawl in the Appellant’s room is the same person as the deceased in this matter.
d. There is evidence from Exhibit C to show that the appellant “shooked” the deceased with the axe. The deceased ran out of the Appellant’s house and jumped through the window of his inner room to his own room.
e. There is available evidence that when the Appellant shouted for help that he caught Godwin having sex with his wife, the deceased then ran out and ran into the bush near the barracks.
f. The evidence of PW1, a station officer attached to Oda Police Station, Akure is not speculative since he only told the court the extent of his own investigation.
g. The evidence of PW2 is not hearsay. His evidence is credible to the extent that the court relied on it. He is the medical expert that performed the autopsy.
h. The testimony of PW3 linked the Appellant with the death of the deceased. He was the police officer who recorded the statement of the Appellant which was tendered as Exhibit C.
i. There is evidence from PW3 at page 15 that there were blood stains in the apartment of the deceased.
j. The statement admitted as Exhibit C was properly admitted having regard to the rules of admissibility.
k. The defence of provocation was well considered in favour of the Appellant which made the conviction to be based on manslaughter and not murder as charged.
In addition to the answers provided to the Appellant’s Issue 1 above, I had already given answers to Appellant’s issue 2 in my treatment of issue 1.
The trend that runs through the case is the confirmation of the trite position of the law that a confession of commission of a crime plays a major part in the determination of his guilt and a court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus. See: Okeke V State (2003) 15 NWLR (Pt. 842) 25.
Issue No. 2 is also resolved against the Appellant.
Having resolved the two (2) issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The judgment and conviction of D. I. Kolawole J. in Charge No. CA/AK/21C/2011 delivered on 27th day of June 2012 is hereby affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the statement, Exhibit “C” is confessional in character. It has been reproduced in the lead Judgment. It proves the identity of the culprit and his act on the victim.
The intention to kill or cause grievous injury can be inferred from the weapon – an axe used on the back and chest. The number of times it was inflicted could not be recounted by the Appellant. The victim was clearly identified and known by the Appellant as Godwin Ocheidu as charged.
I, therefore, concur with My Lord Mojeed Adekunle Owoade, JCA, that this appeal be dismissed and the conviction and sentence as passed at the trial court be affirmed. I so order.
JAMES SHEHU ABIRIYI, J.C.A.: When a confessional statement has been proved to have been made voluntarily and is direct and positive and is unequivocal, then it is an admission of guilt. It is sufficient to sustain a conviction regardless of whether the accused person resiles from it or not. However, it is the practice of the Courts in order to safeguard the right of the accused person to fair hearing, to consider other evidence outside the statement, no matter how slight, which makes the confessional probable. See Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 133.
Despite the confessional statement of the Appellant Exhibit C, the learned trial judge considered other evidence outside it which showed that the confession was probable.
I had the privilege of reading in advance the draft of the judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE JCA.
I am in total agreement with him this appeal lacks merit and should be dismissed. I accordingly dismiss it.
The conviction and sentence of the Appellant are also affirmed by me.
Appearances
Adekunle Ojo Esq.For Appellant
AND
Attorney General & Commissioner for Justice Ondo StateFor Respondent
