RASAKI SAKA v. THE STATE
(2016)LCN/8477(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/AK/193C/2013
RATIO
CRIMINAL LAW: REQUIREMENTS FOR A VALID AND PROPER ARRAIGNMENT OF AN ACCUSED
Also, the requirements for a valid and proper arraignment of an accused person are contained in Section 215 of the Criminal Procedure Laws. They are (i) the person to be tried shall be placed before the Court unfettered.
(ii) the charge or information shall be read and explained to him to the satisfaction of the Court ——- and (iii) such person shall be called upon to plea instantly thereto.
It is trite law that failure to comply with any of these conditions will of necessity render the whole trial a nullity.
See Akpiri and Ewe V. The State (1992) NWLR 9 (pt. 246) 247; Sunday Kajubo v. The State (1988) 1 NSCC 475; Adakama Oko v. State (1991) 8 NWLR (Pt. 210) 424; Michael Alake & Anor V The State (1991) 7 NWLR (Pt. 205) 567. PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; CAN A CONFESSIONAL STATEMENT LEAD TO A CONVICTION
The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession.
See: Effiong v. State (1998) 8 NWLR (Pt. 562) 362; Ihuebeka v. State (2000) 4 SC (Pt. 1) 203; Idowu v. State (2000) 7 SC (Pt. 11) 50; Alarape V. The State (2001) 14 WRN 1. PER MOJEED ADEKUNLE OWOADE, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER MERE RETRACTION OF A CONFESSIONAL STATEMENT RENDERS IT INADMISSIBLE
Furthermore, and as it happened in the instant case, the mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt.
Silas Ipko v. The State (1996) 1 NWLR 59; Idowu v. The State (supra).
In Ejinima v. The State (199) 6 NWLR (pt.200) 627 at 655 the Supreme Court adopted the test laid down in R. V. Sykes (1913) 8 C.A.R 233 where a confession is retracted at trial:
(a) is there anything outside the confession to show it was true?
(b) is it corroborated?
(c) Are the statements made in it in fact true as far as they can be tested.
(d) Was the prisoner the person who had the opportunity of committing the murder?
(e) is his confession possible?
(f) is it consistent with other facts which have been ascertained and which have been proved?
In the Ejinima case (supra) the Court concluded that a confession does not become inadmissible merely because an accused person denies having made it but that it is desirable that, before conviction can properly be based on such a retracted confession, there must be some corroborative evidence outside the confession which would make it probable that the confession was true.
See also Otufale v State (1969) N.M.LR 261 at 261 – 266. PER MOJEED ADEKUNLE OWOADE, J.C.A.
CRIMINAL LAW: DEFENCE OF PROVOCATION; REQUIREMENTS FOR THE DEFENCE OF PROVOCATION TO AVAIL AN ACCUSED
Now, it is settled law that to avail an accused of the defence of provocation, the accused must have done the act for which he is charged.
(i) in the heat of passion.
(ii) the act must have been caused by sudden provocation.
(iii) the act must have been committed before there was time for passion to cool.
(iv) the mode of resentment must be proportimate to the provocation offered.
These requirements must co-exist before the defence of provocation must succeed.
Obaji v. The State (1965) All NLR 282; Stephen v. The State (1986) 5 NWLR (Pt. 46) 978; Oladipupo V. State (1993) 6 SCNJ 233 at 244. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
RASAKI SAKA 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 the Ondo State High Court delivered by Honourable Justice O. O. Akeredolu on the 8th of March, 2013.
On the 19th day of October, 2011, the Appellant was arraigned on a lone count charge of murder pursuant to Section 316 of the Criminal Code Cap.30 Vol. II Laws of Ondo State, 1978 (now vol. 1, Cap. 37 Laws of Ondo State, 2006)
The Appellant pleaded ‘not guilty’ to the offence contained in the charge.
The prosecution (Respondent) called three (3) witnesses, and the Appellant (defendant) testified in his own defence.
Exhibits P1 and P2 were tendered and admitted on behalf of the Respondent, none was tendered and admitted on behalf of the Appellant.
The case for the Respondent was that on or about the 19th day of March, 2008, the Appellant unlawfully killed one Felix Akinrinmola by stabbing him with a broken bottle.
The case of the Appellant was a denial of the accusation. He stated in his evidence on oath that he only threw a broken bottle out of his window into a nearby bush. He
however, admitted stabbing the deceased with a broken bottle in his extra-judicial statement.
At the close of evidence and addresses by Counsel, the learned trial Judge in a judgment delivered on the 8th day of March, 2013 found the Appellant guilty of murder and sentenced him accordingly.
Dissatisfied with the judgment, the Appellant at first filed a Notice of Appeal dated 4/4/2013 on 5/4/2013 containing a lone ground of appeal.
Subsequently, and pursuant to the order of this Court made on the 16th day of may 2014, the Appellant filed an Amended Notice of Appeal dated 20/5/2014 on 27/5/2014 containing five (5) grounds of appeal.
Appellant’s brief of argument dated 16/6/2014 was filed on the same day.
Respondent’s brief of argument dated 14//11/2014 and filed on the same day was deemed filed on 9/2/2016.
Learned Counsel for the Appellant nominated three (3) issues for determination. They are:-
1. Whether the arraignment of the Appellant at the trial Court was proper in law (Ground 1).
2. Whether the Appellant has not been denied fair hearing when the trial Court conducted his trial without an
interpreter and therefore convicted and sentenced him for murder (Ground 2).
3. Whether the prosecution proved the offence of murder against the Appellant beyond reasonable doubt. (Grounds 3 and 4)
Learned Counsel for the Respondent formulated the following related three (3) issues for determination.
i. Whether the voluntary confessional statement of the Appellant and the compelling evidence borne out by the record were not sufficient to prove the offence of murder beyond reasonable doubt. (Grounds 3 and 5).
ii. Whether the Appellant was denied fair hearing and proper arraignment in view of the fact that he was not provided an interpreter for which there was no justification. (Grounds 1 and 2).
iii. Whether the defence of provocation enured in favour of the Appellant in the circumstances of this case. (Ground 4)
Learned Counsel for the Appellant argued grounds 1 and 2 together. He submitted that it is crystal clear from the record of the trial Court that the Appellant opted to be tried in Yoruba language, which therefore
necessitated the need for the trial Court to engage the services of an interpreter.
That on page 12 of the record, the plea of the Appellant was taken in Yoruba language, while the charge was read to him in English language.
He stressed that while all the prosecution witnesses gave their testimonies in English language, no provision was made to interpret the proceedings to the Appellant in the language he understands, that is, Yoruba. He submitted that this constitutes a gross unpardonable and inexcusable violation of the Appellant’s constitutional right to an interpreter.
He referred to the provision of Section 36 (6) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and submitted that the Appellant’s constitutional right to an interpreter is a right that is sacrosanct and cannot be waived by his Counsel. The purport of the constitutional provision, said Counsel, is to guarantee the Appellant’s right to fair trial.
On this, he referred to the case of Madu V State (1997) 1 NWLR (Pt.482) 386 at 408.
?He submitted that a careful perusal of the record would reveal that there is nowhere in the record
where it can be shown that the services of an interpreter was engaged. It is not enough to state in the record that the plea was interpreted to the accused, as it was done in this case by the trial Court, the record must reflect that accused was provided with the assistance of an interpreter at the trial of his offence.
He argued that it is trite law, that a strict compliance with a mandatory statutory requirement relating to procedure in criminal trial is a prerequisite of a valid trial. He referred to the cases of Kajubo V. The State (1988) 1 NWLR (Pt. 73) 721 at 732 and Josiah V The State (1985 1 S.C. 406 at 416 where the Supreme Court held that where a trial Court proceeded to try the accused without strictly complying with the provision of Section 215 of the Criminal Procedure Law and Section 36 (6) (e) of the 1999 Constitution, the trial would be declared a nullity by the Appellate Court.
He noted that all the trial Court had on its record is as follows:-
“The charge is read to the accused person in English language and explained to him in Yoruba language to the satisfaction of the Court.”
?Counsel
submitted that the above procedure as adopted by the trial Court does not satisfy the mandatory requirement of Section 215 of the Criminal Procedure Laws, Laws of Ondo State. After referring on the point to the case of Tobby v. The State (2001) 10 NWLR (Pt. 720) 23, (2001) 4 SCNJ 256 at 362, Appellant’s Counsel further submitted that the fact that the Appellant was duly represented by a Counsel would still not in law excuse the mandatory compliance with the provision of Section 36 (6) (e) and Section 215 (supra).
The law, he said is trite that constitutional right is personal and cannot be waived by proxy. He referred to the case of Nwachukwu V The State (2007) 17 NWLR (Pt. 1062) 31 at 58 and submitted that in this case, the constitutional right which is in issue belongs to the Appellant and cannot be waived by the Appellant’s Counsel.
He concluded on issue 1 and 2 that the arraignment of the Appellant on 19th day of October 2011 before the trial Court was in clear contravention of the provision of Section 36 (6) (e) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Ondo State and urged us to
acquit and discharge the Appellant.
Respondent’s response to Appellant’s issue 1 and 2 would be found in its treatment of issue 2. Learned Counsel for the Respondent submitted that the Appellant was never denied fair hearing. That on the 19th day of October, 2011 when the Appellant was arraigned, he was placed before the Court unfettered and the charge read over and explained to him to the satisfaction of the Court as provided by Section 215 of the Criminal Procedure Laws, vol. 2 Cap. 38 Laws of Ondo State, 2006.
He submitted that on page 12 of the Record of Appeal, excerpts of record from the arraignment proceedings is as follows:-
“… The charge is read to the accused person in English language and explained to him in Yoruba language to the satisfaction of the Court. Accused pleads not guilty to the charge. PW1 sworn on the Bible and elects to give evidence in English language.”
Respondent’s Counsel referred to the provision of Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria (as amended) and argued that going by the letters and spirit of the provisions, it is only an accused person who informs
the Court that he (or she) does not understand the language of the trial Court that is entitled to an interpreter. That in the instant case, neither the Appellant nor his Counsel gave the slightest hint that he could not understand the language of the Court throughout the trial. He referred to the case of Shell Petroleum V. Edumkwe & Ors (2009) 10 SCM, 150 at 157 and submitted that the Appellant cannot now complain on appeal. The Appellant said Counsel attended primary School and signed his confessional statement furthermore, that at page 23, lines 1 – 3 of the Record of Appeal, the Appellant in his defence during trial testified thus:-
“… I was in Court when PW1 gave evidence that I chase them with broken bottle. I was not in a position to challenge him. The evidence is a lie because there was misunderstanding between us prior to the incident.”
This piece of evidence said Counsel shows clearly that the Appellant understood the language of the Court and the language of the prosecution witnesses. The fact that he opted to speak in Yoruba language could not be taken to be lack of understanding of the English
language.
Counsel submitted further that the fact that Appellant’s evidence on pages 21 – 23 of the Record is not incriminating is sufficient to make a reasonable man infer that the Appellant considerably understood the language of the trial Court. Respondent’s Counsel referred to the case of Lufadeju & Another v. Evangelist Bayo Johnson (2009) ACLR 190 at page 218 for the view that arraignment involves two things, the reading of the charge and the plea from the accused. He argued that since the two fundamental requirements of arraignment were met, the Appellant was properly arraigned. He urged us to resolve the issues in favour of the Respondent.
RESOLUTION OF ISSUE ONE AND TWO.
The main ground of the Appellant under his issues one and two is that there was no provision for an interpreter for the Appellant on arraignment and also?throughout the proceedings in the trial Court. This according to the Appellant is a breach of the provision of Section 36 (6) (e) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Ondo State, the Appellant having opted to speak in Yoruba language.
?The
Respondent on the other hand insisted that it behoves on the Appellant and/or Counsel to inform the Court that he does not understand the language of the Court before the duty arises under the provision of Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows:-
“Every person who is charged with a criminal offence shall be entitled to have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
Also, the requirements for a valid and proper arraignment of an accused person are contained in Section 215 of the Criminal Procedure Laws. They are (i) the person to be tried shall be placed before the Court unfettered.
(ii) the charge or information shall be read and explained to him to the satisfaction of the Court ——- and (iii) such person shall be called upon to plea instantly thereto.
?It is trite law that failure to comply with any of these conditions will of necessity render the whole trial a nullity.
See Akpiri and Ewe V. The State (1992) NWLR 9 (pt. 246)
247; Sunday Kajubo v. The State (1988) 1 NSCC 475; Adakama Oko v. State (1991) 8 NWLR (Pt. 210) 424; Michael Alake & Anor V The State (1991) 7 NWLR (Pt. 205) 567.
However in the instant case, the record of arraignment could be found on page 12 of the Record of Appeal as follows:-
“Accused is present.
Mrs. G. A. Olowoporoku DDPP appears for the State with her Miss Peace Agbede A.C.L.O
O. O. Onipe appears for the accused person.
The charge is read to the accused person in English Language and explained to him in Yoruba language to the satisfaction of the Court.
Accused pleads not to (sic) guilty to the charge.”
There are three important things to note from the record of arraignment in the instant case. The first is that the arraignment is in compliance with the provision of Section 215 of the Criminal Procedure Law. The accused (Appellant) was represented by Counsel. The third is that neither the Appellant nor his Counsel raised any question as to a possible lack of understanding of the language of the Court by the accused
Appellant.
The provision of Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) requires that there shall be adequate interpretation to an accused person of anything said in the course of trial or proceedings in a language which he does not understand. However, where an accused is represented by Counsel, and no objection is raised at the trial Court as to failure to provide an interpreter, this will not result in vitiating the trial, or the judgment of the trial Court. It will be a different thing when there is no Counsel representing the accused person and where such failure has led to a miscarriage of justice, and prejudiced the accused person as a result.
See Udosen v State (2007) 4 NWLR (pt. 1023) 125.
?In the instant case, the arraignment of the Appellant on 19th October, 2011 before the trial Court was not in contravention of the provision of Section 36 (6) (e) of the 1999 Constitution and Section 215 of the Criminal Procedure Law of Ondo State.
Issues One and Two are resolved against the Appellant.
Learned Counsel for the Appellant reminded us on Issue Three that the burden of
proof in criminal cases is squarely rested on the prosecution and the prosecution is duty bound to discharge same.
He submitted that it is also the law that the guilt of an accused person may be proved by any of the following:-
(a) Confessional statement (b) Circumstantial evidence and (c) Evidence of eye -witness.
On this, he referred to the cases of Igele v The State (2007) 1 JNSC 542 at 557; Emeka v State (2001) 14 NWLR (pt. 734) 668 at 683.
He submitted that the trial Court relied heavily on Exhibit P1 to convict the Appellant for the offence of murder. That at page 48 of the record, the learned trial Judge found:-
“Exhibit P read together with oral and documentary evidence of prosecution witnesses which I have reviewed and need not be flogged, the death of the deceased was caused by the accused who stabbed him with broken bottle.”
He submitted that the above finding of the trial Court is perverse in the circumstance, given the type of evidence before the Court and the fact that Exhibit P1 was retracted confession, which for the Court to rely on same, the Court needed to
determine the?truth of same from evidence outside the confession.
He argued that rather than test the truth of the confession, the Court put the burden on the Appellant to explain inconsistency between Exhibit P1 and his oral/judicial evidence at page 49 of the record thus:-
“The accused did not give any explanation for the inconsistency between his extra-judicial statement and his oral evidence.”
Appellant’s Counsel referred to the cases of Omoju v F.R.N (2008) All FWLR (Pt. 415) 1656 at 1677 and Ali v. State (1988) 1 NWLR (Pt.68) 1 at 19 and submitted that for a confessional statement to be acted upon, steps must be taken to determine the truth of its content.
He further submitted that the evidence of PW1 (Thomas Eyah) put side by side the Exhibit P1, will render Exhibit P1?improbable. That PW1 stated at page 13 of the record thus:-
“He began to pursue us. Myself, Sunday Orogun and Felix began to run. Why I know he caught up with Felix is that Felix was shouting. I looked back Felix had fallen down. From there I?went to the house of Kabiyesi to report that Rasaki had wounded Felix …
At the Police station, I confirmed that it was Rasaki that stab Felix.”
Counsel submitted that the above evidence of PW1 shows he did not know what happened to the deceased until he (PW1) got to the Police Station.
Again, said Counsel, at page 47 of the record, the trial Court posited:-
“With or without Exhibit P2,?the cause of death of the deceased is ascertainable from the evidence of PW1, PW2 and Exhibit P1.”
Yet, said Counsel, there is nowhere on record where PW1 said it was the Appellant that stabbed the deceased person. The trial Court however treated PW1 as an eye witness whose evidence was used to ascertain the death of the deceased caused by the stab from the Appellant.
He submitted with respect to Exhibit P2 and PW2’s evidence, the trial Court found outside the evidence before it that the broken bottle is a sharp object when in fact no witness gave such evidence to the Court.
Counsel referred to the cases of Udosen V State (2007) 4 NWLR (Pt. 1023) 125 at 161 and Mancini V DPP (1943) 23cr. App. Rep.65 at 77 asserted that the conclusion from the trial judge was without
factual evidential foundation and submitted that the prosecution has failed to prove the guilt of the Appellant beyond reasonable doubt.
On another wicket, Appellant’s counsel referred to the cases of Nwankwoala V. The State (2006) All FWLR (Pt. 339) 810 at 818; Adebayo V The Republic (1967) NMLR P. 391; Ahmed V. The State (1999) 7 NWLR (Pt. 612) 614 and submitted that the Court is bound to consider not only those defences specifically raised by the accused person but also all such evidence and defences which avail him.
That in this case, it is the evidence of PW2 that the act of the Appellant that purportedly led to the death of the deceased person was not deliberate. That at page 16 of the record, PW2 testified as follows:-
“From my investigation, it was not a deliberate act of the accused. I don’t know whether he was provoked.
From my investigation, the accused stabbed the deceased out of annoyance.”
Counsel submitted that the above piece is in support of a defence of provocation. However, that the trial Court while he was considering the defence of provocation, failed to consider
the above evidence from the PW2. The Court only considered Exhibit P1 (the confessional statement) when it was giving consideration to the defence of provocation.
The Court, said counsel, found that the Appellant said he became infuriated by the fact the deceased asked him whether he is a mad person.
And the Judge held that the mode of resentment was disproportionate to the provocation offered and that the Appellant was already armed with a broken bottle as at the time he said the deceased made the remark and therefore the defence of provocation fails.
Counsel submitted that the trial judge failed to consider the entire evidence before him in his effort to determine whether the defence of provocation avails the Appellant and that the failure occassioned a miscarriage of justice.
He referred us to the case of Namsoh v. The State (1993) 5 NWLR (Pt. 292) 129 at 143 and urged us to consider the defence of provocation for the Appellant.
Respondent’s reaction to Appellant’s Issue 3 would be found in its treatment of Issues 1 and 3.
Learned Counsel for the Respondent reiterated the ingredients of the offence of murder
through the cases of Ogunburu V. The State (2000) FWLR (Pt. 37) 1097; Okeke v. The State (1999) 2 NWLR (Pt. 590) 246 at 273.
He submitted that going by the evidence of the prosecution witnesses, particularly PW2 and PW3, it is clear that one Felix Akinrinmola died. The medical report (Exhibit P2) and the evidence of PW3 also established the death and the cause of death of the deceased.
Respondent’s Counsel referred to the evidence of PW2 who identified the deceased to the doctor who performed post mortem examination and quoted copiously from the evidence of PW2 and PW3.
He argued that the evidence of PW2 and PW3 corroborated the unequivocal statement of the Appellant (Exhibit P1) to establish that the act of the Appellant caused the death of the deceased.
He submitted that the fact that the deceased died immediately after he was stabbed was sufficient to infer that he died from the wound inflicted.
The medical report – Exhibit P3, he said is surplus to the requirement.
On this, Counsel referred to the cases of Numo-Mallam Ali V. The State (1988) NWLR (Pt. 68) 9 and Amayo v. The State (2008) 6 ACLR 416 at
433.
Respondent’s Counsel submitted further that the evidence of PW1, Thomas Eya, who was among the three persons hotly pursued by the Appellant while armed with a broken bottle is a compelling and irresistible direct evidence.
He submitted that the evidence of PW1 at page 13 of the Record, almost with mathematical accuracy established that no one could have stabbed the deceased at that moment other than the Appellant who was rigorously pursuing him armed with a bottle. Counsel recalled that Exhibit P1 was tendered and admitted without objection and that the Appellant admitted therein that he stabbed the deceased with a broken bottle.
He added that by the evidence of PW3 (the pathologist) on page 17 of the Record that the deceased was stabbed in the chest, it can be rightly inferred that the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
After referring to the cases of Orisakwe V. The State (2004) 12 NWLR (Pt. 887) 34 and State V Usman (2007) 5 ACLR 34 at 41 – 42.
Respondent’s Counsel submitted that it is a settled principle of law
that a man intends natural consequences of his act and the Court may presume same pursuant to Section 145 (1) of the Evidence Act Cap. E14 2011. He referred to the cases of Nyambus Kpata V. The State (1977) 1 F.C.A. 259; Ehiot V. The State (1993) 4 NWLR (Pt. 290) 644 at 663 ? 664 to the effect that intention to kill can be ascertained or inferred from the nature of instrument and the wound inflicted.
The Respondent submitted further that the defence of provocation could not avail the Appellant in the circumstances of the case.
Learned Counsel for the Respondent submitted that provocation is some act or series of act done by the deceased to the accused, which could cause any reasonable person and actually cause the accused a sudden and temporary loss of self control. That in addition to acting in the heat of passion and before there is time for passion to cool, the Appellant must also establish that the mode of resentment was proportionate to the provocation offered.
?He referred to the cases of Amala V, The State (2004) 12 NWLR (Pt.888) 520; Ayo V. The State (2008) 6 ACLR 220 at 247 and Oladipupo V. The State (1993) 6 SLNJ 233 at
244.
Counsel then demonstrated the events through the evidence of PW1 on page 12 of the Record. That on the fateful day, he, the deceased and another, were going to the Appellant’s house to implore him (Appellant) to forgive his wife. That as they approached the Appellant’s house, he (Appellant) broke a bottle of Gulder and was shouting that whoever was coming to see him should go back. Thereafter, the Appellant started pursuing them until when PW1 looked back and found out that the deceased lay on the ground wounded.
Respondent’s Counsel submitted that the only substantial addition to the evidence of PW1 in Appellant’s Exhibit P1?was the fact that the deceased asked whether the Appellant was mad which provoked him. This fact, Counsel said could not have provoked a reasonable man in the “shoes” of the Appellant and that in any event, apart from not offering credible evidence in support of the defence of provocation, provocation as a defence would not in law avail an accused person who denied the act of killing as the Appellant in the instant case.
He urged us to resolve the issue against the Appellant.
?RESOLUTION OF ISSUE?THREE
There are two main complains in Appellant’s issue Three. The first is the allegation that the trial Court relied on the retracted confession of the Appellant without any proof that the confessional statement Exhibit P1 was subjected to any test for its truth. Allied to this is the allegation of improper evaluation of evidence in coming to a conclusion on the guilt of the Appellant. The second complain is that the trial Judge failed to consider the entire evidence before him in his effort to determine whether the defence of provocation avails the Appellant and thereby occassioned a miscarriage of justice.
In the first place, the Appellant’s confessional statement Exhibit P1 is unequivocal as to the fact that the Appellant stabbed the deceased with a broken bottle. Secondly, the evidence of the prosecution witnesses PW1, PW2 and PW3 corroborate not only the fact of death, the cause of death but together point to the Appellant as the person who caused the death of the deceased,
?Of particular relevance is the evidence of PW1 who witnessed the penultimate incidents leading to the wounding and then death of the deceased. It is of great
significance to the identification process of the Appellant as the assailant of the deceased that the deceased died very soon after the observations, eye witness account of how the Appellant pursued them to the fall of the deceased by PW1.
The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession.
See: Effiong v. State (1998) 8 NWLR (Pt. 562) 362; Ihuebeka v. State (2000) 4 SC (Pt. 1) 203; Idowu v. State (2000) 7 SC (Pt. 11) 50; Alarape V. The State (2001) 14 WRN 1.
Furthermore, and as it happened in the instant case, the mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt.
Silas Ipko v. The State (1996) 1 NWLR 59; Idowu v. The State (supra).
In Ejinima v. The State (199) 6 NWLR (pt.200) 627 at 655 the Supreme Court adopted the test laid down in R. V. Sykes (1913) 8
C.A.R 233 where a confession is retracted at trial:
(a) is there anything outside the confession to show it was true?
(b) is it corroborated?
(c) Are the statements made in it in fact true as far as they can be tested.
(d) Was the prisoner the person who had the opportunity of committing the murder?
(e) is his confession possible?
(f) is it consistent with other facts which have been ascertained and which have been proved?
In the Ejinima case (supra) the Court concluded that a confession does not become inadmissible merely because an accused person denies having made it but that it is desirable that, before conviction can properly be based on such a retracted confession, there must be some corroborative evidence outside the confession which would make it probable that the confession was true.
See also Otufale v State (1969) N.M.LR 261 at 261 – 266.
In the instant case, it is beyond question that the facts and circumstances on record including the evidence of PW1, PW2 and PW3 not only fix
the Appellant as the assailant of the deceased to the exclusion of any other person but also indicate that the Appellant extra-judicial statement Exhibit P1 even though retracted at trial, was corroborated, true as far as can be tested with other facts, possible and consistent with other facts which have been ascertained and proved in accordance with the principles laid down in R. V. Sykes (1913) 8 C.A.R 233.
On defences, a careful perusal of the record shows that the learned trial Judge carefully considered all the defences that are available to the Appellant from the evidence on record including the defence of provocation.
Now, it is settled law that to avail an accused of the defence of provocation, the accused must have done the act for which he is charged.
(i) in the heat of passion.
(ii) the act must have been caused by sudden provocation.
(iii) the act must have been committed before there was time for passion to cool.
(iv) the mode of resentment must be proportimate to the provocation offered.
These requirements must co-exist before
the defence of provocation must succeed.
Obaji v. The State (1965) All NLR 282; Stephen v. The State (1986) 5 NWLR (Pt. 46) 978; Oladipupo V. State (1993) 6 SCNJ 233 at 244.
In the instant case, the Appellant denied the allegation of murder in his oral evidence. The evidence of PW2 showed that he killed the deceased out of annoyance. Exhibit P1 revealed that the Appellant stabbed the deceased because the deceased asked whether he is a mad man.
Assuming without holding that words uttered by the deceased to the Appellant could cause a reasonable man to be provoked and did in fact cause the Appellant to be provoked, the learned trial Judge was right to have held that the mode of resentment was not proportionate to the provocation offered – if any.
In his judgment, at page 50 of the Record, the learned trial Judge held appropriately as follows:
“…Not only is the mode of resentment disproportionate to the provocation offered, the accused was already armed with a broken bottle at the time he said the deceased made the remark. The defence of provocation fails…”
In the light of the above, the
learned trial Judge was right not only to have relied on Exhibit P1?the Appellant’s confessional statement in his judgment but also to have rejected the defence of provocation raised by the Appellant in Exhibit P1.
Issue Three is resolved against the Appellant.
Having resolved the three issues in this appeal against the Appellant, the appeal lacks merit and it is accordingly dismissed.
The judgment, conviction and sentence of the Appellant by the Hon. Justice O.O. Akeredolu on 8/2/2013 in Charge No. HOD/7C/2010 is hereby affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the draft of judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA. He has dealt exhaustively with all the issues for determination. I have nothing more to add.
The Appellant was properly arraigned before the lower Court and his right to an interpreter was not violated.?The defence of provocation was not available to him. ?There was evidence outside the appellant’s confessional statement which
made it probable that the confession was true.
For the reasons contained in the lead judgment, I too dismiss the appeal.
The conviction and sentence of the Appellant by the lower Court are affirmed by me.
Appearances
For Appellant
AND
For Respondent
