ADENIYI v. STATE (2020)

ADENIYI v. STATE

(2020)LCN/14237(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, May 14, 2020

CA/IB/239C/2016

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Nonyerem Okoronkwo Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

SEYI ADENIYI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE STANDARD OF PROOF IN CRIMINAL PROSECUTIONS

In Criminal Prosecutions, it is trite law that the standard of proof required is that of proof beyond reasonable doubt under SECTION 135 (1) OF THE EVIDENCE ACT 2011.
The Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with. See the following cases:- DIBIE VS STATE (2004) 14 NWLR PART 893 PAGES 284 TO 285. PER BADA, J.C.A.

PROOF OF GUILT OF AN ACCUSED PERSON IN CRIMINAL PROSECUTION

It is trite law that the guilt of an accused person can be proved through any of the following methods:-
(a) Through Confessional Statement of the accused.
(b) Through direct evidence or the testimony of eye witnesses. See the following cases:- IGABELE VS STATE (2006) 2 SC PART II PAGE 61; EMEKA VS STATE (2001) 14 NWLR PART 734 PAGE 666.
(c) Through circumstantial evidence. See: ITU VS STATE (SUPRA). PER BADA, J.C.A.

THE CRIMINAL OFFENCE OF CONSPIRACY AND THE INGREDIENS OF CONSPIRACY

The ingredients of the offence of conspiracy are:
(i) There must be an agreement between two or more persons.
(ii) The two or more persons must agree to do an unlawful act by illegal means. The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain Criminal Act of the parties concerned. PER BADA, J.C.A.

WHETHER NOT AN EXTRA-JUDICIAL CONFESSION MADE VOLUNTARILY CAN BE A GROUND FOR CONVICTION REGARDLESS OF THE FACT THAT THE MAKER RETRACTED AT THE TRIALIN HIS EVIDENCE ON OATH

It has been settled by plethora of decided cases that where an extra-judicial confession has been proved to have been made voluntarily and it is found positive and unequivocal and amounts to an admission of guilt such confession will suffice to ground a finding of guilt, regardless of the fact that the maker has retracted at the trial in his evidence on oath in Court.
See – EGBOGHONOME VS. THE STATE (1993) 7 NWLR PART 306 PAGE 383. PER BADA, J.C.A.

INGREDIENTS FOR THE PROOF OF THE OFFENCE OF MURDER

The ingredients of the offence of murder are as follows:-
(i) That the death of the deceased occurred
(ii) That the death of the deceased was caused by the accused i.e. the Appellant in this case
(iii) That it was the act or omission of the accused/Appellant that caused the death of the deceased and that such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence.
The ingredients mentioned above must co-exist if any of them is missing, then the offence of murder cannot be said to have been proved hence, the Prosecution cannot obtain conviction of murder against an accused person and the Court must exonerate the accused and acquit him of the offence of murder.
The prosecution has the burden of proving the aforementioned ingredients beyond reasonable doubt. PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of Ogun State High Court, Ilaro Division in Charge NO. HCL/1C/2005 BETWEEN: THE STATE VS SEYI ADENIYI & 3 OTHERS delivered on the 17th day of July, 2008.

Briefly the facts of the case are that the Appellant i.e. the first accused before the lower Court and three others namely:- Akitikori James, Omoniyi Babatunde and Kehinde were on 11/10/2005 arraigned before the Ogun State High Court, Ilaro Judicial Division on two counts charge of Conspiracy to Murder and Murder contrary to Section 324 and 316 (1) of the Criminal Code Laws Cap 29, Laws of Ogun State 1978.

The Appellant and the other co-accused persons pleaded not guilty to the charge and the matter went to trial. The prosecution called witnesses and tendered in evidence 11 Exhibits, 9 of which were admitted as Exhibits A to K while 2 were rejected.
Exhibits “A” and “A1” -statements of the 2nd accused person (Yoruba and English versions) made at SCID, Eleweran.
Exhibits “E” – Statement of the 4th accused person made at the SCID

Eleweran.
Exhibit “F” – Additional Statement of 1st accused person/Appellant made at SCID.
Exhibit “G” – Post mortem examination report.
Exhibit “H” – Statement of the 1st accused person/Appellant made at Owode Police Station.
Exhibit “K” – Statement of the 1st accused/Appellant made at SCID Eleweran.

At the conclusion of the Prosecution’s case, the Appellant i.e. 1st Accused at the lower Court and the other co-accused persons entered their defence and they did not call any other witness.

On 17/7/2008, the learned trial Judge delivered Judgment in which the 1st accused/Appellant the 2nd and 4th accused persons were found guilty as charged on both counts and were sentenced to death by hanging while the 3rd accused person was discharged and acquitted.

The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The issues are reproduce as follows:-
“(a) Whether having regard to the evidence before the lower Court, the learned

trial Judge was right to have held that the Prosecution has discharged the burden placed on it to prove the ingredients of the offence of Conspiracy beyond reasonable doubt. (Distilled from ground 1)
(b) Whether the trial Judge was right in law to have convicted and sentenced the Appellant to death for murder despite the apparent failure of the Prosecution to prove the guilt of the Appellant beyond reasonable doubt. (Distilled from grounds 2 and 3)”

On the other hand, the learned Counsel for the Respondent formulated a sole issue for the determination of this appeal. The said sole issue is also reproduced as follows:-
“Whether the learned trial Court was right in upholding that the Prosecution has proved the offences of conspiracy to commit murder and murder while relying on the Confessional Statement of the Appellant in convicting him having been corroborated by circumstantial evidence of the Doctrine of “last seen.” (Distilled from grounds 1, 2 and 3).

At the hearing of this appeal on the 9th day of March, 2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High

Court delivered on 17/7/2008. The notice of appeal was filed on 13/5/2016 pursuant to the order of this Court made on 9/5/2016. The record of appeal was transmitted on 1/7/2016. There is also a supplementary record of appeal filed on 3/3/2020 which was deemed as properly filed and served on 9/3/2020. The Appellant’s brief was filed on 8/11/2018 and deemed as properly filed and served on 21/5/2019.

The learned Counsel for the Appellant adopted and relied on the said appellant’s brief of argument as his argument in urging that this appeal be allowed.

The learned Counsel for the Respondent also referred to the Respondent’s brief filed on 26/3/2019 and deemed as properly filed on 21/5/2019.
She adopted and relied on the said Respondent’s brief in urging that this appeal be dismissed.

I have carefully gone through the issues formulated for the determination of this appeal by Counsel for both parties.
I am of the view that the issue formulated for the determination of this appeal by learned Counsel for the Respondent encapsulates the issues formulated on behalf of the Appellant for the determination of the appeal.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I will therefore rely on the issue formulated for the determination of this appeal on behalf of the Respondent.

ISSUE FORMULATED FOR THE DETERMINATION OF THIS APPEAL
“Whether the learned trial Court was right in upholding that the Prosecution has proved the offences of conspiracy to commit murder and murder while relying on the Confessional Statement of the Appellant in convicting him having been corroborated by circumstantial evidence of the doctrine of “last seen.” (Distilled from grounds 1, 2 & 3).”

The learned Counsel for the Appellant submitted that conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by illegal or unlawful means. He relied on the following cases:-
– OGOGOVIE VS STATE (2016) 12 NWLR PART 1527 PAGE 468 AT 493 PARAGRAPHS E-F.
– OYAKHERE VS STATE (2005) 15 NWLR PART 947 PAGE 159 AT 160.
– CHIANUGO VS THE STATE (2002) 2 NWLR PART 750 PAGE 225 AT 236.

It was submitted further that in a charge of conspiracy, the Prosecution has the burden to prove the inchoate and rudimentary nature of the crime as well as meeting of at least

two minds with a common intention to commit a particular offence or offences. He relied on the following cases:
– MULCAHY VS R. (1868) 3 H. L.AT PAGE 317.
– YAKUBU VS STATE (2012) 12 NWLR PART 1313 PAGE 131 AT 142-143 PARAGRAPHS H – C.

It was also submitted on behalf of the Appellant that since conspiracy is a matter of inference which is often derived from the facts of a particular case as presented by the Prosecution that the Court ought to consider what evidence was led and draw the necessary inference therefrom.
He relied on the following cases:-
– ODUNEYE VS THE STATE (2001) 2 NWLR PART 697 PAGE 311 AT 324-325
– BENSON OBIAKOR VS STATE (2002) 6 SCNJ PAGE 193.
– NJOVENS VS THE STATE (1973) 8 N.S.C.C PAGE 257 AT 280.

The learned Counsel for the Appellant contended that from the evidence of the defence witnesses, no link was established between the Appellant and the other accused persons. He went further that the learned trial Judge relied heavily on Confessional Statement in convicting the Appellant for conspiracy.

He submitted that before a conviction can be properly founded on a retracted Confessional

Statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. The surrounding circumstantial evidence must be unequivocal and compelling to lead to only one conclusion that the accused is guilty.
He relied on the following cases:-
– FATAI BUSARI VS THE STATE (2015) LPELR – 24279 (SC)
– ONYENYE VS STATE (2012) 15 NWLR PART 1324 PAGE 586 AT 619 PARAGRAPHS A-C.
– ALARAPE VS STATE (2001) 5 NWLR PART 705 PAGE 79 AT 98-99 PARAGRAPHS F-B.
– ABIODUN VS FRN (2016) 17 NWLR PART 1542 PAGE 462 AT 513 PARAGRAPHS E-H.
– OSENI VS STATE (2012) 5 NWLR PART 1293 PAGE 351 AT 374 PARAGRAPHS C-F PAGE 387 PARAGRAPHS C-F.
– STATE VS OKPALA (2012) 3 NWLR PART 1287 PAGE 388 AT 401 PARAGRAPHS B-C.

He also contended that there was no evidence outside the said Confessional Statement to corroborate the facts contained therein and relied upon by the learned trial Judge in finding that there was conspiracy.

It was submitted on behalf of the Appellant that from the totality of evidence before the Court there is no link or any inference that the Appellant conspired with the

co-accused persons and the Prosecution has failed to prove beyond reasonable doubt, that the Appellant conspired with any person at all to murder the deceased.

On the issue of Murder, the learned Counsel for the Appellant submitted that the burden is always on the Prosecution to prove the guilt of the accused person beyond reasonable doubt, and this the Prosecution failed to do.
He relied on the following cases:-
– ABIODUN VS FRN (SUPRA) AT 497 PARAGRAPHS A-C.
– STATE VS OKPALA (SUPRA) AT PAGE 400 PARAGRAPHS H-A.
– IGABELE VS STATE (2006) 6 NWLR PART 975 PAGE 100.
– SECTION 135 OF THE EVIDENCE ACT 2011.

It was submitted on behalf of the Appellant that the findings of the lower Court which convicted the Appellant for murder cannot be supported having regard to the evidence adduced by the Prosecution.

He stated that in a charge of murder, the following ingredients are essential elements that the Prosecution must prove beyond reasonable doubt.
(a) That the deceased died.
(b) That it was the unlawful act or omission of the accused person that caused the death of the deceased.
(c) That the act or omission of

the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence.

It was submitted on behalf of the Appellant that the three conditions must co-exist and where one of them is absent or tainted with doubt, the charge is said not to be proved.
He relied on the following cases:-
– IGABELE VS STATE (SUPRA) AT PAGES 116-117 PARAGRAPHS D-H.
– UGURU VS STATE (2002) 9 NWLR PART 771 PAGE 90 AT 106 PARAGRAPHS F-G
– OBADE VS STATE (1991) 6 NWLR PART 198 PAGE 435 AT 465.

It was contended on behalf of the Appellant that it is not in dispute that the deceased died on 8/3/2004. But with regard to the second and third ingredients, learned Counsel contended that the Prosecution failed to prove that the Appellant carried out an act or made an omission with the intention of causing grievous bodily harm and that the said act or omission caused the death of the deceased. It was also contented that the lower Court relied on the Confessional Statement of the accused persons as well as circumstantial evidence of PW1 and PW2 in finding the Appellant guilty.

Learned Counsel for the Appellant also argued that reliance on the testimonies of PW1 and PW2 in linking the Appellant to the death of the deceased as their evidence that the Appellant was the last person seen with the deceased was at best hearsay. He relied on the following cases:-
– OSHO VS STATE (2012) 8 NWLR PART 1302 PAGE 243 AT 288 PARAGRAPHS G-H, PAGE 289 PARAGRAPHS A-B PAGE 290-291 PARAGRAPHS G-F.
– NWAEZE VS STATE (1996) 2 NWLR PART 428 PAGE 1.

He also submitted that the lower Court ought to have discarded the evidence of PW1 and PW2 as inadmissible as their testimonies are hearsay evidence. He submitted further that the people who lived with the deceased and the Appellant, who were interrogated by the Police and who claimed that the Appellant was the last person seen with the deceased are vital witnesses and ought to have been called to testify as to the last person with the deceased and failure to call them is fatal to the Prosecution’s case.

He submitted that the evidence before the lower Court as regards doctrine of last seen are at best hearsay and inadmissible and cannot be relied upon.

Further on the second and third

ingredients of the offence of murder, the learned Counsel for the Appellant submitted that the Prosecution failed to adduce before the lower Court a causal link between the act or omission of the Appellant and the death of the deceased. He relied on the case of – MAREN VS STATE (2010) 3 NWLR PART 1181 PAGE 254

It was also submitted further that proof of the cause of death has to be by medical evidence or other acceptable cogent evidence. He went further that the learned trial Judge’s reliance on the said Confessional Statement as proof of cause of death is improper and has occasioned a grave miscarriage of justice to the Appellant. Learned Counsel also stated that a Post Mortem Report (Medical Report) wrought with technical medical terms was placed before the trial Court without calling a Medical Doctor to shed light on it.

It was submitted further on behalf of the Appellant that where corroborative evidence does not show beyond reasonable doubt that the accused is guilty, he should be given benefit of doubt. It was also contended that there is no corroborative evidence to support the alleged confession of the Appellant, and therefore

that the Appellant ought to be discharged and acquitted. He relied on the following cases:-
– ISIEKWE VS STATE (1999) 9 NWLR PART 617 PAGE 43 AT 63 PARAGRAPHS E-F
– OFORLETE VS STATE (2000) 12 NWLR PART 681 PAGE 415.

The learned Counsel for the Respondent in his submission in response to the Appellant’s Counsel’s submission referred to Black’s Law Dictionary 7th Edition which defined Conspiracy as an agreement between two or more persons to commit an unlawful act, a combination for unlawful purpose.

He stated that the Appellant made a Confessional Statement where he confessed to conspiring with others to murder the deceased. The learned Counsel relied on the following cases:-
– UPAHAR VS STATE (2003) 6 NWLR PAGE 230 AT 239.
– AKPA VS STATE (2008) 8 SCM PAGE 68 AT 70.

On the offence of murder, the learned Counsel for the Respondent stated that the ingredients of murder are:
(a) The death of a human being.
(b) That it was caused by the act of the accused/Appellant.
(c) That the act or acts of the accused was done with the intention of causing death.
(d) That the accused knew that death

would be the probable consequence of his act or acts.

On the offence of murder, the learned Counsel for the Respondent referred to the case of – OMINI VS STATE (1999) 9 SC PAGE 1 AT 11.

On the first ingredient of the offence of murder, learned Counsel for the Respondent referred to Exhibit G i.e. the Post Mortem examination report and the evidence of PW2. He contended that Exhibit “G” and the evidence of PW2 established that the deceased died. Concerning the other ingredients he referred to Exhibit “G” along with the evidence of PW1, PW2 and the Confessional Statement of the Appellant.

Learned Counsel for the Respondent stated that in Exhibit “F” and “K” that the Appellant narrated the role he played in the murder of the deceased.

He submitted that in view of the foregoing, the Respondent has established the murder of the deceased by the Appellant and his co-accused. He relied on the following cases:-
– OGBU VS STATE (2007) 4 SCM PAGE 169 AT 173.
– ONWUMERE VS STATE (1991) 5 SCNJ PART 1 PAGE 150.

Concerning Exhibit “H” i.e. statement of the Appellant made at

Owode Idiroko Police station which was admitted in evidence after a trial within trial was conducted. It was submitted on behalf of the Respondent that retraction of a Confessional Statement will not adversely affect the same once the Court is satisfied as to its truth, and the Court can rely on it. He relied on the following cases:-
– NWACHUKWU VS STATE (2007) 12 SCM PART 2 PAGE 447 AT 454.
– OSENI VS STATE (2012) 4 SCM PAGE 150 AT 153 AT PAGE 156 PARAGRAPHS B-E.

The learned Counsel for the Respondent finally submitted that the learned trial Judge was right when he relied on the evidence of the Prosecution witnesses and the Exhibits in convicting the Appellant. He urged that the appeal be dismissed.

RESOLUTION
In Criminal Prosecutions, it is trite law that the standard of proof required is that of proof beyond reasonable doubt under SECTION 135 (1) OF THE EVIDENCE ACT 2011.
The Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with. See the following cases:- DIBIE VS STATE (2004) 14 NWLR PART 893 PAGES 284 TO 285.

– ITU VS STATE (2016) 6 NWLR PART 1506 PAGE 443.

The Appellant in this case was convicted of the offence of conspiracy to commit murder and murder.

Conspiracy has been held in plethora of cases to be an agreement by two or more persons to do an unlawful act or do a lawful act by unlawful means. The two or more persons must be found to have combined in order to secure a conviction. See the following cases:-
– YAKUBU VS STATE (2014) 8 NWLR PART 1408 PAGE 111.
– GARBA VS C.O.P (2007) 16 NWLR PART 1060 PAGE 378 AT 400.
The ingredients of the offence of conspiracy are:
(i) There must be an agreement between two or more persons.
(ii) The two or more persons must agree to do an unlawful act by illegal means.

The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain Criminal Act of the parties concerned.

In this appeal under consideration, the learned Counsel for the Appellant submitted that, from the totality of evidence adduced in support of the charge, the Prosecution led no material and credible evidence to establish that there was an agreement between the Appellant and the other accused persons or anyone for that matter to infer the offence of Conspiracy.

Whereas the learned Counsel for the Respondent relied on the testimonies of Prosecution witnesses and the Confessional Statement of the Appellant in coming to the conclusion that the offences of Conspiracy to murder and murder were proved beyond reasonable doubt.

In Exhibit “K” (i.e. statement made at SCID, Eleweran) the Appellant (i.e. the 1st Accused at the lower Court) stated among others as follows:-
“When I got to the village I reminded them of — Segun’s discussion with Kolade but they did not comply

instead they were pushing me here and there. Then I started to buy a cutlass and started doing daily labour work for a living. Late last year around December, 2003 some members of our family like Akiti Kori, (2) Baba dorcas and other some of our families which I can identify but their names yet unknown came to me when I was working for one of my customer’s and started telling me that my late father have many lands and landed property, instead of me to go and have them so that I will be rich if I used them I am here doing daily labour job. I then answered them that I will managed this job yet, then Akiti kori now said I should follow him to owo village along Idiroko express road so that my father’s families there will tell me more about my father’s properties. On that same day I followed him there that was one Sunday morning. We met some elders there which I do not know them, they ask me whether I know them I replied No, then they brought out my father’s picture for me to see and they said that they are my father’s brothers. They told me that I should follow Akitikori.”

Also Exhibit “H” statement made by 1st

Accused/Appellant at Owode police station stated among others as follows:-
“…After sometime, other members of our family from outside come call me and told me that why should I suffer myself by doing petty labourer for N50 or N100 Naira daily that after all, my father has land that I can sell to make me such. One day, one man who is our family member called Akitikori who is at Alakara area of Oke Odan just called me and told me that I should follow him to Owo Village for him to show me some of our family members and I followed him that very day. When we got to Owo, he took me to some elders and the elders asked to whether I know them and I said no, they said that they are my father’s family. One of the elders asked one of the elders to go and bring some pictures. They showed me my father’s picture for me to know real that they are father member to my father. So the elders directed that I should follow Akirlkori back to our village Ibasa that Akilikori will show me all the land that belong to my father both the one the other family have sold. So that I should be able to scatter everything that the other family people might

have put on the land including the road created for tokunbo motors by the other family. I told the elders at Owo that I am too small to do all these kind of things that I am also small to drag land matter. So Akitikori come suggest to the elders that the oldest woman in Ibasa Village now is the person that they see as an obstacle to their getting the land from the other family, he said that if the woman is no more, they will easily get the land because it is the woman that knows the history of the land. Akilikori come tell the elders that they should look for money for me to go back to Lagos since I cannot carry out their instructions. After, I came back to Ibasa Village after sometime, Akitikori, Baba Dorcas, Madam Joke and Mr. Kondo called me and told me that they should either give me money or I should find money to go Lagos so that they will have chance to do what every they want to do about the land matter. After that I continue to live in the Village with the family members. According to our tradition we can marry wife within our family. So I come give belle to the daughter of my father brother. The girl name is Lara. But the family of Lara don’t

want me to marry her. On Monday 8/3/02 around 10 o’clock in the morning, I was the only person with the old mama when other people have gone out. I was with the old mama and I gave her food and I went to river. Mama did not complain of any sickness that very day. When I returned from river around 10 o’clock in the morning I met the old mama on the floor of the veranda of the house and she was shaking. I griped her and I begin to shout Iya! Iya! Iya!! I then took her to inside her room and as I continue to shout and call her, she gave up, I then run to the second Ibasa village to call Baba Dorcas. I met Baba Dorcas and I told him that iya is already dead. Baba Dorcas answered me after all they have been eating everything alone- I then asked Baba Dorcas whether I should go and tell the rest people at the other house but Baba Dorcas told me that I should not tell anybody at all that I should find my way. When I begin to go, Baba Dorcas called me back that I should not go back to the house where mama died. I told him that I will go there because I don’t know what people will talk about the death of the mama. Akitikori and Kondo are the two men

that beat the old woman to death with sticks. They have been planning to kill the woman before because they said that it is only the woman that knows the history of the land that they are dragging. When I was coming from the river, I saw Akitikori going through one road at the back of the house with Igbadi in his hand: I also saw kondo with cater pot on his neck following Akitikori behind. Before I went to river that very morning, madam Joke who has been planning together with Akitikori and Kondo and Baba Drcas eliminate the old woman come ask me where I am going and I told her that I am going to river.” Dated 9/3/04.

Furthermore the additional statement Exhibit “F” made by the 1st Accused Appellant states among others as follows:-
“In addition to my early statement I have to confess that I am among the people that kill mama Hunpotan. We are four that killed mama. Myself, Kehinde Kondo, Omoniyi Babatunde and Akitikori and at Kuku. We took the decision on Sunday 7/3/2004 when we gathered at a bar at Ibasa. We have been planning how to kill mama Humpotan for a long time because she was the one who knows the story and the secret

about our fathers land and she prevented us from selling the land. On the 8/3/2004, myself, Kehinde Kondo and Omoniyi Babatunde went inside, Akitikori held a stick while Knodo was carrying a catapult. I held mama on the ground while Akitikori use stick to hit her on the head. Kondo was using his leg to press her down. When we finish I went to Ibasa nla to meet Omoniyi Babatunde to inform him that mama had died. Kuku was standing outside when we kill mama Hunpotan. He knows about the plan to kill mama. I know that what we did is not good. I ask for forgiveness from God. I have never kill any human being before this time, this is my first time to kill. I was shocked when she died. It was the work of devil.” Dated 31/3/2004

The lower Court after considering all the evidence before it, held among others at page 81 of the record of appeal as follows:-
“I have perused the confessional statements of the accused persons in which all the accused persons in their respective statements admitted knowing each other, being the same family and planned to kill the deceased because of family land…”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Court also held further that:-
“…On this I say that the elements of the offence of conspiracy will be assimilated in a confessional statement…”

In AKPA VS. STATE (2008) 14 NWLR PART 1100 PAGE 72, (2008) 8 SCM 68 AT 70.
It was held that:-
“It is settled law that what is admitted needs no further proof. See the cases of – OGWUNNUBA VS. THE STATE (1993) 5 NWLR PART 291 PAGE 660 AT 671.
IBEH VS. THE STATE (1997) 1 SCNJ PAGE 256.”

It is clear from the foregoing that the lower Court relied on the Appellants confessional statements having been satisfied that it was possible and was made by the Appellant voluntarily. Notwithstanding the retraction by the Appellant, the lower Court was satisfied when other pieces of evidence were considered that the confession was proved.
It has been settled by plethora of decided cases that where an extra-judicial confession has been proved to have been made voluntarily and it is found positive and unequivocal and amounts to an admission of guilt,

such confession will suffice to ground a finding of guilt, regardless of the fact that the maker has retracted at the trial in his evidence on oath in Court.
See – EGBOGHONOME VS. THE STATE (1993) 7 NWLR PART 306 PAGE 383.

In view of the foregoing, the lower Court was therefore right to have relied upon the Appellant’s confessional statement in convicting him for conspiracy.

On the issue of murder.
The Appellant was convicted of murder which is a capital offence. He was sentenced to death.
The ingredients of the offence of murder are as follows:-
(i) That the death of the deceased occurred
(ii) That the death of the deceased was caused by the accused i.e. the Appellant in this case
(iii) That it was the act or omission of the accused/Appellant that caused the death of the deceased and that such act or omission was intentional or with the knowledge that death or grievous bodily harm was the probable result or consequence.
The ingredients mentioned above must co-exist if any of them is missing, then the offence of murder cannot be said to have been proved hence, the Prosecution cannot obtain conviction of

murder against an accused person and the Court must exonerate the accused and acquit him of the offence of murder.
The prosecution has the burden of proving the aforementioned ingredients beyond reasonable doubt.
See the following cases:-
– GIRA VS. STATE (1996) 2 NWLR PART 464 PAGE 375.
– NWAEZE VS. STATE (1996) 3 NWLR PART 222 PAGE 164.
– IGABELE VS. STATE (2006) 6 NWLR PART 975 PAGE 100.
– OMINI VS. STATE (1999) 9 S.C. PAGE 1 AT 11.

The learned Counsel for the Appellant submitted that the prosecution did not discharge the burden placed on it by law against the Appellant for the offence for which he was charged and convicted.

The learned Counsel for the Respondent in his own case is of the view that the prosecution has proved the offence of murder against the Appellant beyond reasonable doubt.

In respect of the first ingredient of the offence of murder, it is not in doubt that the deceased Hunpotan Idowu died on 8/3/2004. It was pointed out by the learned Counsel to both parties in their addresses that the deceased died. See page 78 lines 22 – 23 of the record of appeal, where the learned trial

Judge referred to the submissions of Counsel.

The fact that the deceased is dead is supported by Exhibit ”G”, the post mortem examination report and also the evidence of PW2.

On the second and third ingredients of murder, the following are relevant:-
– Exhibit G – The post mortem examination report.
– The confessional statement of the Appellant, Exhibits “F” and “K” part of which were set out earlier in this Judgment.

The Appellant narrated the role he played in the murder of the deceased. The evidence of PW1 and PW2 part of which is hereby reproduced – as follows:
“PW1…
My name is Micheal Kolade Idowu, I knew Hunpotan Idowu. She was my mother, she is dead. I know the accused persons. The 1st accused is my cousin while the others are members of my family.
On 8/3/04 I was at home in lagos when a message was sent to me that my mother had been murdered and that I should come to the village at Ibasa village via Oke-Odan. I immediately left for home,

on my way I stopped at owode police station where I reported what I was told. Two Policemen were detailed to follow me, and they took a photographer along.
On getting to my mother’s house at Ibasa village, we met her corpse. Her Head was swollen as if she was beaten and blood was goosing out of her nose and mouth. Her throat was sore and she was bleeding from the sore. Also part of her head was broken. The D.C.O. then instructed the photographer to take photographs of the corpse.
The policemen inspecting the Surroundings, there they saw half burnt mat and clothes. I was instructed to put some of the half burnt mat and clothes in a nylon bag and I did.
The Police interrogated people around the house, they got information that 1st accused person was the only one in the house with mama when the incident happened. The Police enquired for Seyi, 1st accused but was told that he had gone to town with his friends. The Police then said we should leave the Village hoping we would meet the 1st accused on the way. Fortunately we met him on the way with about three other boys.
The Police then invited him into the vehicle.

On getting to Oke-Odan town the Police instructed me to go with a policeman to bring my mother’s corpse to the police station and I did. Then we were instructed to take the corpse to General Hospital, Ilaro for autopsy. The Police identified the corpse in my presence. I identified the corpse to the police. The police and I then returned to the police station, then the corpse was returned to me for burial; with an instruction to report at the police station on the following day.” (See pages 15 – 16 ofthe record of appeal).
“PW2…
My name is Raimat Yusuf, I live at Yusuf house, Isale-Odo Area, Ajilete. I am a trader.
I know the deceased and the accused persons. They are members of my mother’s family.
On 8/3/04 my mother instructed me to take food to her mother – the deceased from Ajilete to Ibasa Village. I did, I met her sitting and 1st accused lying down on a mat. I left immediately and went to Sabo market. On returning home I was informed that the 1st accused went to inform my mother that

something was wrong with her mother. I immediately left for Ibasa but I did not meet my mother. I was informed she has left for Lagos to call her brother. I entered the house met the deceased on the floor, I carried her head and observed that she was bleeding from the nose and mouth, her throat was sore and her head swollen and dented. There were nail scratches on her neck.
I went to the back yard there I saw her mat and clothes burnt. Not long after, PW1, my mother and police arrived. The photograph of the corpse was taken.
I met the 1st accused and other people when I went back the second time.
The corpse was taken to the hospital and 1st Accused arrested. I made a statement to the police.
XX-Exam. By Ogah Esq: The deceased was my grand-mother. My mother saw the corpse before me. I do not know if my mother made statement to the police.
My grand-mother never drank local gin. I did not know her age. She had good eye sight. I did not see the 1st accused person killing my grand-mother. 1st accused lived with the deceased for almost one year before her death.
The deceased’s house was only one in that area.
The accused

was arrested at Oke-Odan.
He was walking with my senior brother when he was arrested. 1st accused informed my mother of my grandmother’s death.
XX-Exam. By Chief Ogunleye: The deceased used to stay at home. She used to see clearly, infact she used to go to the stream on her own. She was not going out because the place is far from town.
I know that she was beaten to death because of the marks I saw on her, but I do not know who killed her.
Re-Exam: NIL. (See pages 17 – 18 of the record of appeal).

The evidence of PW1 and PW2 set out above corroborated the confessional statements of the Appellant.
The said evidence established the murder of the deceased by the Appellant and his co-accused persons.
See – OMINI VS. STATE (Supra).
It is trite law that a trial Court can rely solely on confessional statement of an accused person to convict him. See the case of – AKPA VS. STATE (SUPRA).
As could be seen from the Record of Appeal on page 29 there was no objection raised to the admission of Exhibit ”F” i.e. the Additional statement of the Appellant made at the SCID. Exhibit “F”

which is a confessional statement is an admission and what is admitted needs no further proof.
As for Exhibit “H” which is also the statement of the appellant made at the Owode Idiroko police station, the learned Counsel for the Appellant objected to the admissibility of the statement on the ground that it was not made voluntarily.
See page 32 of the Record of Appeal.
As a result, a trial within trial was conducted where the Prosecution and the defence gave evidence before the lower Court admitted the statement as Exhibit ”H” after being satisfied as to its truth.
I am therefore of the view that the retraction of the confessional statement notwithstanding, it will not adversely affect the said statement and the Court can rely on it solely.
See – NWACHUKWU VS. STATE (2007) 17 NWLR PART 1062 PAGE 31.
– SALAWU VS THE STATE (1971) NMLR PAGE 249.
– ONYEJEKWE VS. THE STATE (1992) 4 SCNJ PAGE 1 AT 8, (1992) 3 NWLR PART 230 PAGE 444.
– BATURE VS. THE STATE (1994) 1 SCNJ PAGE 19 AT 29.
In this appeal, a careful reading of the Judgment of the lower Court would reveal that when admitting

the statement of the Appellant, the Court had complied with the provision of the law as laid down in the case of:- OSENI VS. STATE (2012) 5 NWLR PART 1293 PAGE 351, where it was stated that the question a Judge must ask himself on the weight to be attached to a confessional statement are:-
(1) Is there anything outside the confession to show that it is true.
(2) Is it corroborated.
(3) Are the relevant statements made in it of facts, true as far as they can be tested
(4) Was the prisoner one who had the opportunity of committing murder
(5) Is this confession possible
(6) Is it consistent with other facts which has been ascertained and have been proved.
In view of the foregoing, I am of the view that a confessional statement is the best evidence in criminal procedure and once same is admitted in evidence, it becomes part of the Prosecution’s case which the trial Judge is bound to consider as done in this case. See – NWACHUKWU VS. THE STATE (SUPRA).
As I stated earlier in this Judgment a confession of guilt by an accused person is sufficient to warrant conviction without corroborative evidence, if it is direct,

positive, duly made and satisfactorily proved.
It is desirable however to have outside the confession some evidence of circumstances no matter how slight, which makes it probable that the confession is possible.
It is trite law that corroborative evidence may be direct or circumstantial, corroboration needs not be direct evidence that the accused committed the offence. See – DAGAYYA VS. THE STATE (2006) 2 SCM PAGE 33 AT 67.

In this appeal, I am of the view that the confessional statement of the Appellant has been sufficiently corroborated by the strong circumstantial evidence of the last seen stated in the evidence of PW2 during trial.

In ARCHIBONG VS. STATE (2006) 14 NWLR PART 1000 PAGE 349, it was held among others that:-
“The law presumes that the person last seen with the deceased bears full responsibility for his or her death if it turns out that the person last seen with him is dead.
See the cases of:- GABRIEL VS THE STATE (1989) 12 SCNJ PAGE 33, (1989) 5 NWLR PART 22 PAGE 457.
IGHO VS. THE STATE 1978 3 S.C PAGE 87.
NWAEZE VS. THE STATE (1996) 2 SCNJ PAGE 47 AT 61 – 62, (1996) 2 NWLR PART 428 PAGE 1.”

In the instant appeal, the evidence of PW2 which serves as a corroborative fact outside the confessional statement upon which the Court convicted the Appellant shows that the PW2 stated unequivocally in her evidence that she met the Appellant with the deceased when she took some food to the deceased, page 17 of the record of Appeal showed that the Pw2 testified as follows:-
“…on 8/3/2004 my mother instructed me to take food to her mother the deceased from Ajilete to Ibasa Village. I did, I met her sitting and 1st accused lying down on a mat. I left immediately and went to Sabo market. On returning home I was informed that the 1st accused went to inform my mother that something was wrong with her mother, I was informed she has left for Lagos to call her brother. I entered the house, met the deceased on the floor, I carried her head and observed that she was bleeding from the nose and mouth, her throat was sore and her head swollen and dented. There were nail scratches on her neck… I met the 1st accused and other people when I went back the second time.”

The evidence of the PW2 was not discredited

under cross examination during the trial at the lower Court.

A careful reading of the statement made by the Appellant i.e Exhibits “F”, “H” and “K” admitted being the last person seen by PW2 with the deceased. The Appellant had opportunity to commit the crime and only him was in the best position to narrate the role he played in the murder of the deceased which he unequivocally stated in his confessional statement Exhibit “F”, “H” and “K”. Contrary to the submission of learned Counsel for the Appellant that the evidence of PW2 is hearsay evidence. I am of the view that PW2’s evidence set out above does not fall into hearsay evidence.

The learned Counsel for the Appellant submitted that the evidence brought before the lower Court is full of contradictions/inconsistencies.

In the instant case, the Prosecution proved its case with credible and unchallenged evidence, therefore I am of the view that the contradictions, inconsistencies and discrepancy referred to by Counsel for the Appellant is not material and it will not affect the substance of the instant case.

See the following cases:-
– EBEINWE VS. THE STATE (2011) 7 NWLR PART 1246 PAGE 402.
– NDUKWE VS.STATE (2009) 7 NWLR PART 1139 PAGE 43.
– ATTAH VS. STATE (2010) 5 SCM PAGE 57 AT 60.
– SULE VS. STATE (2009) 8 SCM PAGE 113.

The learned Counsel for the Appellant contended that some witnesses who ought to have been called were not called to testify before the lower Court. But I am of the view that there is no obligation on the Prosecution to call a host of witnesses in a criminal trial, what matters is not the number of witnesses called by the Prosecution but the quality of the evidence adduced by the witnesses. If the Appellant is of the view that the Prosecution failed to call a particular witness, the law allows the Appellant to have called those witnesses.
See OLAYINKA VS. THE STATE (2007) NWLR PART 1040 PAGE 561 AT 567 PARAGRAPHS D-E AND PAGE 584 PARAGRAPHS A-B.
– AFOLALU VS. STATE (2010) 16 NWLR PART 1220 PAGE 584.

Consequent upon the foregoing, I am of the view that the three ingredients of the offence of murder were proved by the Prosecution beyond reasonable doubt against the Appellant.

Therefore the lone issue in this appeal is hereby resolved in favour of the Respondent and against the Appellant.
This appeal therefore lacks merit and it is hereby dismissed.
The Judgment of the lower Court in Charge No.HCL/IC/2005: STATE VS. SEYI ADENIYI and 3 others delivered on the 17th day of July 2008 is hereby affirmed.
Appeal Dismissed.

NONYEREM OKORONKWO, J.C.A.: To prove a Criminal charge entails that all requisite elements or ingredients of the offence must be proved.

My lord Bada JCA in this appeal was satisfied that all such elements were proved in this appeal thus justifying the conviction and rendering the appeal pointless. I agree.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother OLUKAYODE BADA JCA. His Lordship has dealt with all the issues raised in this appeal and I agree with him that this appeal is devoid of merit and should be dismissed.

It is the well settled position of the law that proof of the guilt of an accused person beyond reasonable doubt is on the prosecution and the burden never shifts. It is also settled that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It also does not mean the prosecution should prove the guilt of the accused person with mathematical exactitude. A charge is proved beyond reasonable doubt when the facts and circumstances of the case and quality of the

evidence are compelling and reliable to establish the guilt of the accused person.
Once the evidence adduced is strong enough as to leave only a remote possibility in favour of the accused, the guilt of the Accused person will be held to have been established. See DAHIRU VS STATE (2018) 14 NWLR (Pt.1621); EWUGBA VS STATE (2018) 7 NWLR (PT.1618) 262; STATE VS OBOBOLO (2018) 4 NWLR (PT. 1610) 399 and ADEPOJU VS THE STATE (2018) 15 NWLR (PT.1641) 103 at 121-122 para H-D.

A careful perusal of the extra judicial statements made by Appellant that is Exhibit K, H and F shows the deceased Idowu Hunpotun is dead. There is also evidence that the act of the Appellant and his Co-convicts caused the death of the deceased. There is evidence that the Appellant held the deceased down while she was pummeled with sticks by the co-convicts. This act of the Appellant was intentional with knowledge that death or grievous bodily harm was a possible consequence.

I am of the view that there was credible evidence on record that the Appellant and the other convicts conspired to kill and killed the deceased because of family land. The Respondent undoubtedly discharged the burden on it to prove

the Appellants guilt beyond reasonable doubt.

It is for the above and the more elaborate reasons given in the lead judgment that I also find this appeal unmeritorious and it is dismissed by me

Appearances:

D. AWOSIKA For Appellant(s)

MRS. F. E. BOLARINWA-ADEBOWALE (Chief State Counsel, Ogun State Ministry Of Justice) For Respondent(s)