AYODELE IKUMONIHAN v. THE STATE
(2013)LCN/6150(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2013
CA/B/168C1/09
RATIO
CRIMINAL LAW: PRESUMPTION OF INNOCENCE
It has become an elementary knowledge in our legal system that pursuant to section 36 (5) of the constitution of the Federal Republic of Nigeria, 1999 hereinafter to be referred to as the constitution that an accused is presumed innocent until he is proved guilty. This burden which rests squarely on the prosecution is to be discharged beyond reasonable doubt. See section 135 (1), (2) and (3) of the Evidence Act, 2011; and the cases of Esangbedo v. State (1989) 4 NWLR (Pt. 57) 83; Amadi vs. State (1993) S.C.N.J. 68; and Ukwunnenyi & Anor. v. The State (1989) 4 NWLR (Pt. 114) 131. Failure of the prosecution to discharge this burden will automatically lead to the discharge of the accused. Even where the accused in his statement to the police admits committing the offence, the prosecution is not relieved of the burden of proving the case beyond reasonable doubt. See Ameh vs. The State (1978) 6-7 SC. 27; and Aigbagbon v. State supra.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A
COURT: EVALUATION PF EVIDENCE IS THE JOB OF THE TRIAL COURT
Furthermore, it is trite that the evaluation of evidence before the court is the preserve of the trial court. Thus unless conclusion reached from the facts is perverse, the Appellate court will not substitute its own views for that of the trial court. The question in criminal cases is usually whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial court, that is the end of the matter, provided it is manifest on the record that the trial Judge has given due consideration to the evidence by and on behalf of the defence. Recourse is had to the authorites of Ben v. State (2005) 11 NWLR (pt. 936) 335 at 344-345 paras H-A; Yakubu v. FRN (2009) 14 NWLR (Pt. 1160) 151 CA; Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399 SC; and State vs. Onyeukwu (2004) 14 NWLR (pt.893) 340.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
AYODELE IKUMONIHAN Appellant(s)
AND
THE STATE Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A (Delivering the Leading Judgment): The appellant alongside 3 (three) other accused persons were on the 17th of February, 2004 charged by way of information before the High Court of Ondo State sitting at Okitipupa on a one court change of the murder of one Maria Joseph Erhiyore.
Statement of Offence
Murder: contrary to section 316 (6) and punishable under section 319 (1) of the criminal code cap. 30 vol. 11 Laws of Ondo State of Nigeria, 1978.
Particulars of Offence
Ayodele Ikuemonihan, Francis Omosaye, Oluwatimilehin Ifaramoye, Sunday John on or about the 2nd day of June, 1995 at Ode-Erinje in the Okitipupa Judicial Division murdered one Maria Joseph Erhiyore (f).
On their arraignment the 1st accused (herein the appellant), 3rd and the 4th accused persons each pleaded not guilty while the 2nd accused pleaded guilty to the charge. The case proceeded to trial in the course of which the prosecution called four (4) witnesses (PW1-PW4) while the appellant did not call any witness but testified on his own behalf. In all the prosecution tendered eight (8) exhibits marked A, A1, B-B1., C1-C2, D, D1, E and F-F5.
SUMMARY OF FACTS
The case for the prosecution at the trial was that on the 2nd of June, 1995 one Maria Joseph Erhiyore, a palm oil trader, left her house at Okitipupa with some empty palm oil kegs and the sum of N13, 500 to go to the village of Ode-Erinje to purchase palm oil. The appellant who was to supply her with palm oil was to meet with her at the Community Bank in Ode-Erinje. Unknown to the said Maria Joseph Erhiyore hereinafter referred to as the deceased, the appellant (Ayodele Ikumonihan) had pre-arranged with the other accused persons namely: Francis Omosaye (2nd accused person), Oluwatimilehin Ifaramoye (3rd accused) and Sunday John (4th accused) to dispossess her of her money without supplying her with palm oil. Upon the arrival of the deceased at the Community Bank where the appellant was waiting for her, he took her to the house of the 2nd accused where four accused persons pounced on the deceased, tied up her hands and mouth and throat with rope and pieces of cloth. The accused persons including the appellant then took turn in raping the deceased until she died in the process. Her sum of N13,500 was removed and shared amongst the four accused persons. The appellant got N4,000 as his share. The deceased was subsequently buried by them in a shallow pit toilet behind the house of the 2nd accused.
It was following a report by the husband of the deceased and a search conducted by the police, that the body of the deceased was later found and exhumed. The accused persons including the appellant were later arrested in connection with the case and apprehended before the trial court.
The appellant who did not call any witness but testified on his own behalf denied knowing anything about what happened at Erinje on 2nd June, 1995. He claimed that a town crier was the one who announced that a woman who came to purchase palm oil was missing. The town crier announced to the entire town that the king of the community had requested the presence of all at his palace.
Consequently the king directed that all and sundry should search for the deceased. The appellant said that he participated in the search party organized by the community.
On 20th June, 1995 he was arrested in connection with the death of the deceased. He denied involvement in the murder of the deceased and said that he was made to sign a statement under duress.
At the close of evidence from both sides and the filing and exchange of written addresses by counsel, the learned trial judge in a considered judgment delivered 29th September, 2006 found the appellant guilty of murder and convicted him accordingly.
On being dissatisfied with his conviction and sentence the appellant on 13th of May, 2010 filed an Amended Notice of Appeal dated 10th May, 2010 but deemed properly filed and served on 2nd February 2011 containing two grounds of appeal.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court.
At the hearing of the appeal on 4th February 2013 OLAKUNLE AGBEBI Esq. learned counsel for the appellant while relying on the Appellant’s Brief of Argument dated 8th March, 2011, filed 22nd March, 2011 but deemed properly filed on 3rd November, 2011 adopted same as their argument in the case. Learned counsel urged the court to allow the appeal and set aside the trial, conviction and sentence passed on the appellant.
In spite of service of Hearing Notice upon him, MR. TAIWO OLUBODUN learned counsel for the respondent was not present in court on the date of hearing of the appeal. Thus upon the oral application of the learned counsel for the appellant, the Respondent’s Brief of Argument dated 18th September, 2012, filed 19th September, 2012 and deemed properly filed 3rd December, 2012 was adopted as the respondent’s argument in this appeal pursuant to Order 18 Rule 9(4) of the Rules of this court.
The appellant formulated two issues for determination of the appeal and they are:
1. Whether the manner in which the learned trial Judge conducted the trial within trial before admitting Exhibits C-C1 did not occasion a miscarriage of justice thus rendering same defective? (Ground 1).
2. Whether admitting exhibits F-F5 in evidence and relying on same did not amount to an infringement on the appellant’s right to fair hearing and thus occasion a grave miscarriage of justice? (Ground 2).
On the part of the respondent he came up with his own two issues for determination and they read as follows:
1. Whether the court dispassionately considered the evidence before it in the trial-within-trial before admitting the confessional statement of the appellant and whether it could convict him solely on his admitted confessional statement.
2. Whether admitting Exhibit (F-F5) has led to any miscarriage of justice and/or has fundamentally affected the decision of the court.
I consider the issues as raised above by both counsel to be similar. I shall therefore determine the appeal based on issue (1) of the appellant’s brief save to add the second part of the respondent’s issue 1 which reads “…and whether it (meaning the court) could convict solely on his (appellant’s) admitted confessional statement; and then issue (2) as formulated by the respondent.
ISSUE 1
Whether the manner in which the learned trial Judge conducted the trial-within-trial did not occasion a miscarriage of justice thus rendering same defective and whether he could convict solely on the appellant’s admitted confessional statement?
In arguing this issue, the learned counsel for the appellant referred to section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 hereinafter referred to simply as the Constitution which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established and he referred to Idemudia v. the State (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; Esangbedo vs. The State (1989) 4 NWLR (Pt, 113) 57. Also referred to by the learned counsel is section 138(1), (2) and (3) of the Evidence Act Cap 112 which stipulates the standard of the burden of proof required in a criminal trial. The learned counsel further referred to Nwosu v. State (1998) 8 NWLR (Pt. 562) 433 at 444 para. B; and Aigbagbon vs. State (2000) 7 NWLR (Pt.666) 686 at 704 para. B. where the Supreme Court pronounced that:
“In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of that burden.”
Against this backdrop the learned counsel contended that at the trial of the case the prosecution did not adduce any other evidence whatsoever of any direct act of the appellant that caused the death of the deceased and that this was because there was none. He submitted that it is the law that the confession of a co accused person cannot be held to work against another accused person at the same trial. He referred to the case of Kasa v. State (1994) 6 SCNJ 1 and the provision of section 27 (3) of the Evidence Act and went on to say that the admission of guilt by the 2nd accused (Francis Omosaye) at the trial cannot be held against the appellant particularly as the prosecution failed to call the said 2nd accused as a witness in the case despite the fact that he was available to be called. He conceded that the prosecution need not call a host of witnesses but that they are required to call material witnesses. See Adepetu vs. State (1996) 6 NWLR (Pt.452) 90 as well as the case of State vs. Nnolim (1994) 5 NWLR (pt. 345) 394.
Appellant’s counsel noted that Francis Omosaye (2nd accused) having admitted committing the crime of murder and at page 41 lines 2-4 of the Record of Appeal, on allocutus said that he did not know what led him to kill. The entirety of the prosecution’s case against the appellant herein was therefore based on the alleged extra judicial confessional statement of the appellant – Exhibits C-C2; and that the judgment of the learned trial judge was in the same vein based largely on the extra judicial confessional statement of the appellant. The appellant, according to counsel never admitted to the offences charged neither did he adopt the extra judicial statement as his own rather he resiled from it. Further in his argument the learned counsel for the appellant submitted that the learned trial Judge wrongly admitted the alleged confessional statements (Exhibits C-C2) and that he did so when he exhibited transparent bias against the appellant. This submission according to counsel, is based on the statement made by the learned trial Judge as it appears at page 60 lines 7-12 of the Record of Appeal and it reads:
“I have listened to the evidence led in this trial within trial. It is pertinent to note that the 1st accused person has his signature in about seven places including the admission of confessional statement form. The 1st accused person who claimed he was forcefully made to sign the statements in the office of the Superior Police Officer fails to tell the court that he signed his seven signatures under the same circumstances he explained to Court.” (Emphasis theirs).
Counsel contended that the issue was never how many times the appellant was made to sign and in how many places. The issue was whether there was any form of duress applied on the appellant which made him sign. Counsel went on to submit that the issue was not whether there is similarity in the signatures appended to the statements; the issue is whether those statements or any of them was made on an occasion when duress or inducement of some form was applied on the appellant. He contended further that the statement made by the learned trial Judge as underlined above is clearly evident that he misconstrued the issue and thereby misdirected himself and also exhibited bias against the appellant by calling on him to prove his innocence.
Counsel also pointed out what the learned trial Judge ruled on the trial-within-trial contained at pace 60 lines 18-25 of the Record of Appeal which reads:
“On the mark alleged to be caused by the mouth of the gun on his chest, I am satisfied that the mark on the accused person shows no wound shape. The scare can be described as that of small healed bial (sic) on the body. If it is a scare of the round shape of the mouths of a gun, even if the gun is the smallest, it must show a round shape. And if the scare is as a result of an escalated wound caused by the pressure of the mouth of the gun on the chest as the accused person claimed, the scare would have been bigger than what the accused person showed to the Court.”
According to the learned counsel for the appellant there is no greater evidence of bias than this. The learned trial Judge is not a medical practitioner. Counsel queried how the trial court would know what type of scare the muzzle of a gun leaves when pressed to the human body. Is the court conversant with gun wounds? The court never said he had seen a gun wound in his life. How then did the court determine the matter without calling for medical examination of the scare to determine if it is similar to those caused by pressing the hot muzzle of a gun to the human body? Counsel queried further why the court had to determine that matter himself. Is it not the job of the prosecution to disprove any defence raised by the appellant? If the appellant alleged that the scare was caused by the muzzle of a gun pressed to his chest, is it not for the prosecution to call medical evidence to disprove same? What was the interest of the learned trial Judge in doing the job of the prosecution? Counsel referred to Morka vs. State (1998) 2 NWLR (PT. 537) 294 where this court held that:
“A trial court has no duty to offer any explanation on behalf of the prosecution as it is not its duty to bridge the yawning gaps in the case for the prosecution.”
To further underscore their case of bias counsel for the appellant referred to Nsofor vs. State (2004) 18 NWLR (Pt. 905) 292 where Aniagolu JSC held that:
“A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence in which the facts leading to his conviction are clearly found and deductions therefore carefully made. It cannot be allowed to stand if found upon scraggy reason or perfunctory performance. It is so in all cases and more so in criminal cases and particularly more so in capital offence.”
Following this the counsel submitted that the reasoning of the learned trial court which formed the basis for the admission of Exhibits C-C2 was scraggy and perfunctory and that in considering the evidence given at the trial-within-trial the learned trial Judge exhibited great bias towards the appellant. He urged this court to find and hold that Exhibits C-C2 were wrongly admitted in evidence in the circumstances. Counsel submitted that the transparent bias of the learned trial Judge was further exhibited at page 101 lines 13-18 of the Record of Appeal when, in the course of delivering his judgment he said:
“The Court overruled the Defence Counsel’s objection and admitted the statements of the 2nd accused persons (sic) at this stage on the ground that, though, no evidence was laid as to the whereabouts of the two Police Officers, it was obvious to the court that the only defence of the accused persons would only be on the voluntariness or otherwise of the statements.” (Emphasis supplied).
The appellant’s counsel urged further that the bias had operated in the mind of the learned trial Judge and he stepped in to counter any defence available to the appellant and the other accused persons at the trial and for this the appellant cannot be said to have had a fair trial in the circumstances. Counsel concluded with emphasis that this is a clear evidence of persecution and must not be allowed to stand and that from the written record, it would appear that the sentiment of bias coloured the learned trial Judge’s perception and his handling of the entire case. That short of the wrongly admitted extra judicial confessional statements (Exhibits C-C2), there is no other direct or circumstantial evidence adduced by the prosecution against the appellant. And that as earlier submitted by him the admission of the original 2nd accused (Francis Omosaye), cannot operate against the appellant particularly as the prosecution failed completely to call the said Francis Omosaye to give evidence and that none of the prosecution witnesses gave any evidence remotely connecting the appellant to the commission of the offence charged.
Having rounded up his submission by saying that there is no legally admissible evidence against the appellant which can sustain the conviction of the trial court, counsel opined that the same ought to be set aside. He finally urged us to resolve issue 1 in the appellant’s favour, allow this appeal, set aside the conviction and sentence passed on the appellant and in its place enter a verdict of discharged and acquitted.
On issue 1 which in recap is whether the manner in which the learned trial Judge conducted the trial-within-trial did not occasion a miscarriage of justice thus rendering same defective; the learned counsel for the respondent started by pointing out that every court is enjoined to be an unbiased umpire in resolving matters brought before it. The court through its ruling or judgment attempts to show how it has objectively and dispassionately reached its decision having heard the evidence led by all parties and watched their demeanour. He went on to say that a combined reading of the ruling of the trial court in the trial-within-trial contained at page 60 of the Record and the judgment of the trial court at page 105 of the record shows clearly that the trial court reached its decision in the trial-within-trial dispassionately, logically and in the time honoured equanimity entrusted on the courts below. Relying on the authority of this court in Ben v. State (2005) 11 NWLR (Pt. 936) 335 at 344-345 paras H-A learned counsel submitted that the evaluation placed before the court in the trial-within-trial, particularly the testimony of the appellant that he was wounded in the hand by the police and the decision reached by the trial court is not perverse but a decision reached after careful review and assessment of the evidence before the court.
Learned counsel also referred the court to pages 57 and 105 para. 4 line 7 of the record where the appellant claimed that he was tortured with the hot nozzle of a pistol placed at his right ribs by the Assistant Commissioner of police (ACP) which left a scar on his body-a scar which the court observed at the trial. Counsel further referred to the case of Joseph vs. State (2011) All FWLR (pt. 597) 1006 at 1014 B-C wherein the Supreme Court made a pronouncement on what should be the attitude of Appellate Court to findings of fact by the trial court based on evaluation of evidence and credibility of witnesses.
Regarding the appellant’s argument at page 8 para. 6.17 thereof where the learned trial court was accused of bias based on its ruling that it did not believe the evidence and testimony of the applicant at the trial-within-trial, the learned counsel for the respondent submitted that bias is a serious attack on the person and integrity of the Judge and a counsel who decides to attack a Judge on that must show concrete evidence in support of the charge. See Udo v. C.S.N.C. (2001) 14 NWLR (pt. 732) 116 at 15?-151 paras G-A.; and Abiola vs. FRN (1995) 7 NWLR (pt. 405) 1 at pages 23 para H; 15-16 para G-8. On this accusation the learned counsel for the respondent submitted that the evidence proferred by the counsel to the appellant in accusing the court below is tenuous and his conclusion conjectural as no right thinking person at the end of the trial would think that the trial court was biased.
Coming to the other angle of issue 1 which is whether a court of trial can safely convict on the confessional statement of the accused; learned counsel pointed out that where a court has ruled that a confession is free and voluntary then conviction can be based on it. He placed reliance on Kaza v. State (2008) 7 NWLR (Pt. 1085) 125 at 166 para. A; 194 para. A; 195 para. D; Ismail vs. State (2008) 15 NWLR (Pt. 1111) 593 at 621 paras. E-F; Igbinovia vs. State (1981) 2 SC. 5 at pg. 17-18; Lasisi vs. State (2011) All FWLR (pt. 601) 1410 at 1440-1441 paras. C-A; and Johnbull Ekwure vs. State (1999) 13 NWLR (Pt. 635) 456 at 470-471 paras H-B.
Learned counsel for the respondent’s final submission hereon is that the failure to call the original 2nd accused (Francis Omosaye as a witness is not fatal since the prosecution had other evidence i.e. the voluntary confession of the appellant (Exhibit C-C1) to fall back on.
RESOLUTION OF ISSUE 1
Now the learned counsel for the appellant under issue I has come to query the manner in which the learned trial court conducted the trial within trial and which manner he envisages to be defective thus occasioning a miscarriage of justice. It would appear here that the learned counsel is concerned about the way the hearing was conducted. We must state without much ado that going by the records before us we have nothing on the face of it to flaw or fault the manner or procedure in which the trial court conducted the trial-within-trial consequent upon which Exhibit C-C1 was admitted in evidence.
It has become an elementary knowledge in our legal system that pursuant to section 36 (5) of the constitution of the Federal Republic of Nigeria, 1999 hereinafter to be referred to as the constitution that an accused is presumed innocent until he is proved guilty. This burden which rests squarely on the prosecution is to be discharged beyond reasonable doubt. See section 135 (1), (2) and (3) of the Evidence Act, 2011; and the cases of Esangbedo v. State (1989) 4 NWLR (Pt. 57) 83; Amadi vs. State (1993) S.C.N.J. 68; and Ukwunnenyi & Anor. v. The State (1989) 4 NWLR (Pt. 114) 131. Failure of the prosecution to discharge this burden will automatically lead to the discharge of the accused. Even where the accused in his statement to the police admits committing the offence, the prosecution is not relieved of the burden of proving the case beyond reasonable doubt. See Ameh vs. The State (1978) 6-7 SC. 27; and Aigbagbon v. State supra.The instant appellant was charged along with three other accused persons for the murder of the deceased. At the trial the appellant denied guilt while the original 2nd accused (Francis Omosaye) pleaded guilty. As rightly submitted by the learned counsel for the appellant the admission of guilt by the said 2nd accused cannot be held against the appellant more so as the appellant did not adopt the statement as his own. Exhibit C-C1 was admitted as the confessional statement of the appellant in the trial-within-trial conducted by the trial Judge. Nevertheless, the learned counsel for the appellant in his argument made a heavy weather of bias against the learned trial Judge given his ruling as contained at page 60 lines 7-12.
Therein he held:
“I have carefully listened to the evidence led in this trial-within-trial, it is pertinent to note that the 1st accused person has his signature in about seven places including the admission of confessional statement form. The 1st Accused person who claimed he was forcefully made to sign the statements in the office of the Superior Police Officer fails to tell the court that he signed his seven signatures under the same circumstances he explained to the Court.” (Emphasis supplied).
We do not share the view of the appellant that the statement of the learned trial Judge as underlined above is evident that he misconstrued the issue and thereby misdirected himself and also exhibited bias against the said appellant. Also brought under attack by the appellant is the further ruling of the trial court to wit:
“On the mark alleged to be caused by pressing the mouth of the gun on his chest, I am satisfied that the mark on the Accused person shows no wound shape. The scar can be described as that of small healed bial (sic) (to read boil) on the body. If it is a scar of the round shape of the mouths of a gun, even if the gun is the smallest it must show a round shape. And if the scar is as a result of an escalated wound caused by the pressure of the mouth of the gun on the chest as the Accused person claimed, the scar would have been bigger than what the Accused person showed to the court.” (Emphasis mine).
The argument of appellant that the issue was never how many times or in how many places the appellant was made to sign or whether there is similarity in the signatures appended to the statement, does not hold water. Neither do we align with him in his argument as per whether the trial Judge is a medical practitioner to know what type of scar the muzzle of a gun leaves. Learned appellant’s counsel posed a whole lot of questions geared towards making a case of bias against the ruling of the trial Judge as reproduced above. Admittedly in the case of Morka v. State supra this court held that a trial court has no duty to offer any explanation on behalf of the prosecution as it is not its duty to bridge the yawning gaps in the case of the prosecution. This is because in that case, the prosecution failed to lead evidence as to the meaning of “particular project or service” as it relates to the con wherein it was used. Notwithstanding the absence of evidence thereon, the trial court resorted to the dictionary meaning of the words to find the appellants guilty. On the contrary in the instant appeal the appellant led evidence in the trial-within-trial that when he refused to sign the statement that he was beaten by the police and was wounded in the process in the hand which made him unable to sign the statement on his own for which the ACP ordered a policeman to hold his hand and ensure that he signed. To use the appellant’s exact words he said:
“After the shooting, he pressed the nossle at my right ribs and ordered me sign. I told him that I could not sign because of my wounded hand. He ordered a policeman to hold my hand to ensure that I signed. I signed through the assistance of the police.” (Emphasis mine).
The trial court observed the scar of the alleged nossle wound. See page 57 lines 15-19 of the Record.
As argued by the learned counsel for the respondent and which we so hold, for a person to have been assisted by another in signing his signature that signature or signatures would be nothing short of inconsistent. I also took a close look as did the trial Judge at all the signature of the appellant in the statement he made to the Police i.e. Exhibits C-C1 at page 150-155 of the record and they show such regularity, consistency and constancy that defeats the appellant’s claim that a policeman held his wounded hand to sign the signatures. Nothing can be so far from the truth as that claim. Without doubt the trial court was right in rejecting the claim of the appellant that he was forced to sign Exhibit C-C1. The trial court in my considered view showed due objectivity and dispassion in reaching its decision to admit Exhibit C-C1 as a confessional and voluntary statement of the appellant. We are satisfied that the admission thereof has not in any way occasioned a miscarriage of justice as to render same defective.
Furthermore, it is trite that the evaluation of evidence before the court is the preserve of the trial court. Thus unless conclusion reached from the facts is perverse, the Appellate court will not substitute its own views for that of the trial court. The question in criminal cases is usually whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial court, that is the end of the matter, provided it is manifest on the record that the trial Judge has given due consideration to the evidence by and on behalf of the defence. Recourse is had to the authorites of Ben v. State (2005) 11 NWLR (pt. 936) 335 at 344-345 paras H-A; Yakubu v. FRN (2009) 14 NWLR (Pt. 1160) 151 CA; Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399 SC; and State vs. Onyeukwu (2004) 14 NWLR (pt.893) 340.The appellant at page 57 of the record claimed that he was tortured with the hot nozzle of a gun placed at his right ribs by the Assistant commissioner of police (ACP) which left a scar on his body-“a scar which the court observed at the trial.” The court in its ruling held at page 60 lines 20-24 of the record that:
“The scar can be described as that of small healed bial (sic) (to read boil) on the body. If it is a scar of the round shape of the months (sic) of a gun, even if the gun is the smallest, it must show a round shape. And if the scar is as a result of an escalated wound caused by the pressure of the month (sic) of the gun on the chest as the Accused person claimed, the scar would have been bigger than what the accused person showed to the court.”
As is obvious in the foregoing, it is the trial court that is best placed to observe and weigh all the evidence placed before it first hand and also watch the demeanour of the witnesses. Thus any decision reached by the court having seen and observed such evidence put before it and having made a finding of fact out of it should be accorded such weight so long as such decision is not unreasonable or perverse. See Ben vs. State (supra); and Joseph vs. State (2011) All FWLR (pt. 597) 1006 at 1018 paras B-C where the Supreme Court on the issue of attitude of Appellate Court to findings of fact by the trial court based on evaluation of evidence and credibility of witnesses held that:
“The trial court receives all relevant evidence. That is perception. Thereafter the trial court should weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of facts involves both perception and evaluation. There, is a clear distinction between findings of fact based on credibility of witnesses and findings based on evaluation of evidence. In the latter case, the Court of Appeal is in as good position as the trial court to evaluate evidence but an Appeal Court must respect the opinion of the trial court who saw and heard the witnesses.” (Emphasis mine).
It is our humble view and in keeping with the foregoing principles that the evaluation of the evidence placed before the trial court in the trial-within-trial, particularly the testimony of the appellant that he was wounded in the hand by the Police and the decision reached by the trial court thereon is not perverse. Rather it is a decision reached after a careful review and assessment of material evidence placed before it. The duty of the court is to consider the charge and the evidence and make appropriate findings of facts and law. See Asanya vs. State (1991) 3 NWLR (Pt. 180) 422 SC.The findings of fact by the trial court that the appellant’s scar was not bigger than a healed boil after having observed the scar as presented to it by the appellant is reasonable and plausible. It is the opinion of the trial court who not only heard but saw with its eyes. This court is bound to respect it and it so respects it more so as we have seen nothing perverse about the finding. The trial court does not need to be a medical practitioner or any such expert to reach a decision based on what it saw. See also Lasisi v. State (2011) All FWLR (PT. 601) 1410 at 1454 paras G-H.
The learned appellant’s counsel at pages 8-12 paras. 6.16 to 6.29 of their brief mounted an attack of bias on the trial court based on its ruling that it did not believe the evidence and testimony of the applicant at the trial-within-trial, consequent upon which the trial court admitted the appellant’s confessional statement (Exhibit C-C1) in evidence.
As I have noted earlier in this judgment, bias is a serious allegation on the person and integrity of the Judge and a counsel who engages in that must support its case with hard facts. We rely on the authority of Udo vs. C.S.N.C. (2001) 14 NWLR (Pt. 732) 116 at 150-151 paras. G-A. and Abiola v. FRN (1995) 7 NWLR (pt. 405) 1, 23 para H; 15-16 para G-B where on consideration of likelihood of bias the Supreme Court per BELLO, CJN as he then was pronounced as follows:
“… In considering whether there was a real likelihood of bias, the court does not look at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if like minded persons would think that in the circumstances, there was a real likelihood of bias, on his part, then he should not sit. And if he does sit, his decision cannot stand.”
Given the circumstances of the admission of Exhibit C-C1 in evidence at the trial within-trial, we have seen nothing that would cause any right thinking person to come to the conclusion that the admission was based on bias. Thus, for the learned counsel for the appellant to submit that the reasoning of the learned trial court which formed the basis for the admission of Exhibits C-C1 was “scraggy and perfunctory” is to say the least detestable, unbecoming and unwarranted. This profession is one profession that abhors disrespect to the court under any guise. Counsel should learn to use more sober and temperate language in addressing the court. Be that as it may our holding is that Exhibit C-C1 was duly admitted in evidence at the trial-within-trial being the voluntary confessional statement of the appellant.
Now on the second leg of issue 1 which is whether a court of trial can convict on the confessional statement of the accused/appellant-it has been established in a long line of decisions that where a court has ruled that a confession is free and voluntary then conviction can be based on it. See also Alarape v. State (2001) 2 SC 114; Ikemson vs. State (1989) 3 NWLR (Pt. 110) 455; and Kaza v. State (2008) 7 NWLR (pt. 1085) 125 at 166 para A; 194, para A; 195 para D. once the confession is shown as in the instant case that it was made freely and voluntarily, be it judicial or extra judicial and it is direct positive and properly established it constitutes proof of guilt and it is enough to sustain a conviction so long as the court is satisfied as to its truth. Again for the confession to be relevant, it must establish the fact that constitutes one or all the elements of the crime to be proved and or identify the person or persons who committed the offence. Reliance is placed on Ismail v. State (2008) 15 NWLR (Pt. 111) 593 at 621 paras E-F; and Igbinovia v. State supra. In line with the foregoing decisions it is evident in Exhibit C-C1 being the voluntary and confessional statement of the appellant that the deceased Maria Joseph Erhiyore was on 2nd of June, 1995 lured by the appellant to the house of the original 2nd accused (Francis Omosaye) ostensibly to sell palm oil to her. It is also disclosed in Exhibit C-C1 that when they got to the house of the original 2nd accused and met him the appellant asked him to call two other friends of his by name Timehin and Sunday being the original 3rd and 4th accused persons respectively. Also contained in Exhibit C-C1 is the fact that when these named two persons came back with the 2nd accused they tied up the mouth, nose and neck of the deceased and took turns in raping her to the point that she died in the process. Thereafter and on realizing that she had given up the ghost they untied the wrapper on her waist and took the sum of N13,500 with which the deceased had made out to purchase palm oil. They left the house of the 2nd accused and came back later at night at about 9:15p.m. that same day to dispose of the body. They dumped the body in a pit toilet at the back of the house of the 2nd accused (Francis Omosaye).
It is pertinent to point out that there are set out tests to be applied in the evaluation of a confessional statement before the courts can conveniently convict on it. Such tests which can be found in the case of Johnbull Ekwure v. State (1999) 13 NWLR (Pt. 635) 456 at 470-471 paras H-B are:
1. Is there anything outside the confessional statement to show it is true?
2. Does the accused have the opportunity to commit the offence?
3. Is the accused person’s confession consistent with facts which have been ascertained and proved?
4. Is the confessional statement corroborated?Not only are we satisfied that Exhibit C-C1 discloses enough evidence to ground a conviction but that there are facts outside the exhibit which are corroborative of it thus pointing to the guilt of the appellant. Moreover the accused had ample opportunity to commit the offence having created the opportunity himself.
Either by itself or in conjunction with the test as set out above Exhibit C-C1 holds enough disclosure of the fact that the deceased died and that her death came about as a result of the dastardly act of the appellant and his accomplices, Exhibit C-C1 being unequivocal, positive and direct we hold that the court can conveniently convict the appellant solely on it. However in order to establish the truth and correctness of the said confessional statement courts still seek for some corroborative evidence outside the confession no matter how slight. In this regard and by way of establishing the correctness of the content of Exhibit C-C1 there is evidence that the deceased (Maria Joseph Erhiyore) died on 2nd June, 1995; that her body was found buried or dumped in a shallow pit toilet behind the house of the original 2nd accused (Francis Omosaye); that when the body was exhumed it had a piece of cloth tied firmly round her neck and mouth; and that she left her house on that fateful day with the sum of N13,500 to purchase palm oil at Erinje town etc.
Aside from the voluntary confession of the appellant, the prosecution in order to establish the death of the deceased tendered Exhibit A i.e. the Autopsy Report which exhibit was admitted in evidence without any objection whatsoever. See page 42 lines 21-23 of the record. Either of Exhibits A and F-F5 is conclusive evidence of the fact that the deceased died.
In the event of all that I have said above, it is undoubtedly established beyond reasonable doubt that the manner in which the learned trial Judge conducted the trial-within-trial consequent upon which he admitted Exhibit C-C1 did not in any way occasion a miscarriage of justice. The exhibit is not rendered defective and the court could convict the appellant solely on his admitted Exhibit C-C1.
Issue (1) as modified by the court is resolved in favour of the respondent.
ISSUE 2
Whether admitting Exhibits F-F5 in evidence and relying on same did not amount to an infringement on the appellant’s right to fair hearing and thus occasion a grave miscarriage of justice?
In arguing issue 2 the learned counsel for the appellant is contending that the learned trial judge erred in law when he admitted Exhibits F-F5 (photographs of the deceased) in evidence when same were not listed in the proofs of evidence nor was it tendered by the photographer who took them and same amounted to a breach of the fundamental rights of the appellant as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999. He relied on section 36 of the Constitution wherein it is provided that every one charged with an offence shall be informed in detail of the nature of the offence. He also cited the authority of Abacha v. State (2002) 11 NWLR (Part 779) 437 where the apex court held regarding the relationship of a trial on information and proof of evidence that:
“The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him”.
To further expatiate their case counsel said that in the judgment at page 96 particularly at page 121 lines 17-30 of the Record of Appeal, the learned trial Judge relied on Exhibits F-F5 in considering whether the prosecution at the trial had proved a case of murder against the appellant. This in the counsel’s view is an infringement of the rights of the appellant and same being constitutional in nature can be raised at any time. He therefore urged the court to find and hold that the photographs were wrongly admitted and the learned trial Judge ought not to have relied on same in his judgment as it was expressly prejudicial to the appellant and an infringement of his fundamental right to fair hearing. To reinforce their submission on issue 2, learned counsel sought to rely on the arguments earlier proffered by him in issue 1 particularly as it relates to bias exhibited by the learned trial Judge against the appellant upon which counsel surmised that the said appellant was denied fair hearing. Counsel urged us to hold that there was no fair hearing in the trial and to set aside the trial and conviction and sentence passed on the appellant.
In opposition on issue 2 the learned counsel for the respondent submitted that the proof of evidence at page 5 of the record shows clearly that the prosecution intended to present Lasco Photos of No. 7 Lisa Street Okitipupa as the 4th prosecution witness in order to tender the negatives and pictures as exhibits through him. Counsel reiterated that the basic statutory requirements of an information other than the proof of evidence to be adduced by the prosecution are provided in sections 151-180 and 337- 339 of the Criminal Procedure, Cap 31, Vol. 11 Laws of Ondo State, 1978. He said that all that is basically required is the clarity of the offences preferred against the accused person so that his plea thereto is not out of ignorance. He went further to submit that the information the appellant pleaded to enjoyed sufficient compliance and did not occasion a miscarriage of justice nor infringed the fair hearing provision. Counsel emphasized that the Information and Proof of Evidence as presented at pages 2-11 of the Record have not breached the rule of natural justice nor fair hearing and the reliance on Exhibits F1-F5 by the trial court is in consonance with the Constitution. He then urged us to hold that the argument of the learned counsel to the appellant is based on misconception of the law. In positing the question whether Exhibit F1-F5 fundamentally affected the decision of the trial court, counsel offered that Exhibits F1-F5 have corroborative effect on the decision of the trial court. That the court having properly admitted the confessional statement (Exhibit C-C1) of the appellant as being voluntary, Exhibits F1-F5 acted as corroborative evidence. And that since Exhibits F1-F5 are corroborative evidence of facts admitted in the confessional statement that they are relevant as they are tools used by the court in the bid to ascertain the validity of the confessional statement. Learned counsel referred once more to Lasisi vs. State (supra), Johnbull Ekwere v. State (supra); and Arogundade vs. State (2009) All FWLR (pt. 459) 409.
RESOLUTION OF ISSUE 2
Now the main contention of the appellant under issue 2 is that the learned trial Judge erred in law when he admitted Exhibits F-F5 (photographs of the deceased) in evidence when same were not listed in the proofs of evidence and that by so doing the appellant’s right to fair hearing was breached thus occasioning a grave miscarriage of justice.
Section 36 of the Constitution undoubtedly guarantees the appellant the right to fair hearing. This underscores the holding of the apex court in Abacha vs. The State (supra) regarding the relationship of a trial on information and proof of evidence that:
“The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him.”
The Supreme Court per Belgore JSC (as he then was) went further to say at pages 498-499 that:
“Every charge on an indictment must be clear so that the person to be tried will understand the complaint against him. In civil cases, the pleadings must be clear as to what the other party is to face at the trial. A fortiori, in criminal matters the accused must not be left in doubt as to what he is to face on trial, more so when criminal trial involves the liberty of the citizen being indicted. There is no need to speculate what is not on the face of the indictment.”
Again by virtue of the provisions of section 338 (1) of the Criminal procedure Laws of Ondo State:
(1) Where an information is exhibited to the High Court under the provisions of this Law-
(a) a description of the offence charged in such information or, where more than one offence is so charged, shall be set out in the information in a separate paragraph called a count;
(b) a count of an information shall commence with a statement of the offence charged, called the statement of offence;
(c) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by a written law, shall contain a reference to that written law;
(d) after the statement of offence, particulars of that offence shall be set out in ordinary language:
Provided that where any written law limits the particulars of an offence which are required to be given in an information nothing in this paragraph shall require any more particulars to be given than those so required;
(e) ….
It was in pursuance of the foregoing provisions that we took a close look at the information and the proof of evidence contained at pages 1-10 of the record. Notwithstanding that the pages particularly page 5 thereof have become slightly illegible due to photocopying, we were still able to see that the prosecution made it clear that it intended to invite as the 4th prosecution witness one Mesco photos of No. 7 Lisa street to take photograph of a deceased woman who was removed from a pit latrine and to tender the negatives and the pictures as exhibits. This in our humble view is enough notice to the appellant that he was going to be confronted at the trial with photographs of a deceased woman who was removed from a pit toilet. Moreover, there is nothing in the above reproduced law which is suggestive of the fact that items to be tendered as exhibits are to be specifically listed in an information. As rightly submitted by the learned counsel for the respondent all that is basically required is the clarity of the offences to be preferred against the accused person so that his plea thereto is not out of ignorance. We are obviously of the view that the law has not set out a clear or specific format to be followed in an information. It is when a law or statute has a laid down procedure for doing something that compliance with that procedure becomes a condition precedent for doing that thing. See Kayode & Anor. v. The State supra.
Regarding the admissibility of the photographs of the deceased marked Exhibits F-F5 which the appellants contend to have been wrongly admitted and relied upon by the learned trial Judge; the extract from the oral testimonies of the pw3 (Inspector Omojeje John) through whom the same was admitted in evidence contained on page 64 particularly at lines 1-13 of the Records needs to be brought into con. It reads:
“It was one Corporal Ogedengbe who brought the report and the accused persons to Akure from Okitipupa. I don’t know the whereabout of the said Ogedengbe I don’t know if he has retired from Police Force. Is a long time ago now. As part of the investigating team at Akure, I know the contents of the Report that was brought to Akure from Okitipupa.
Among other things in the file is a black and white photograph of the deceased and the negative, a Medical Report and a comprehensive report written from the Police at Okitipupa. I studied very well the case file from Okitipupa. The name of the photographer is one Mesco photos an Ibo man. He has no business address in the file. Mesco Photo has relocated to the Eastern part of Nigeria being an Ibo man. I have tried to locate him several time when I was served with the witness summons but all efforts proved abortive. These are the pictures and the negatives of the deceased in this case.”
Premised on the foregoing testimony of the PW3, the learned trial judge ruled as follows at pages 64 lines 23-31 and 65 lines 1-3:
“…it is my view that the photographs are being tendered to show that someone died or was killed particularly that the person killed, and which is the subject matter of this case actually died. There is nothing as (sic) the face of the photographs that show any of the accused persons as the killer of the deceased. I cannot therefore see how the admissibility of the photographs and the negatives will prejudice the case of the Accused persons, moreso when the witness had laid a foundation as why the photographer cannot be located. I hold the view that with the foundation laid by this witness who is one of the investigating police officers and other reasons stated above the interest of justice demands that the photographs and their negatives be admitted in evidence. The photographs and the negatives are admitted and marked Exhibits F-F5.”
Given the above extracts and taking cognizance of the provisions of section 91 of the Evidence Act being the Act that governed the trial in 2005, we are of the strong view that not only did the Act not make it mandatory that the maker or producer of a document is the only one through whom same can be admitted in evidence, but also that proper foundation was laid before the photographs were admitted by the trial court as Exhibits F-F5. Suffice it to say that the ruling of the trial court therein remains unassailable.
Our reaction on issue 2 is that Exhibits F-F5 were duly admitted and relied upon in evidence by the trial Judge. The said admission of and reliance upon them did not in any way amount to an infringement on the appellant’s right to fair hearing neither did it occasion a miscarriage of justice as is contended by the appellant. Issue 2 is therefore resolved in favour of the respondent.
Having found the admitted Exhibits C-C1 and F-F5 to be proper before the court it is now imperative for the court to determine their material import on the case of the prosecution vis-a-vis the burden of proof placed on the said prosecution.
With the finding of the trial court and which we so hold, that Exhibits C-C1 are the voluntary confessional statements of the appellant it follows that by virtue of section 27 of the Evidence Act, 2004, the said statements are relevant facts against him. As I noted earlier in this judgment, the court can convict on a confessional statement alone even where the accused resiles from it. See Sule vs. The State supra; Obidiozo & Ors. v. The State (1987) 1 NWLR (pt. 67) 748; and Ejinsima v. The State (1991) 6 NWLR (Pt. 200) 637. Further more in Olabode v. The State supra it was held that:
“… a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the court can convict.”
Having regard to the surrounding circumstances of the instant appeal we have come to the conclusion that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt. I therefore hold that the appeal lacks merit. It is hereby dismissed. The conviction and sentence of death imposed on the appellant by the High Court of Ondo State sitting at Okitipupa in suit No. HOK/1C/96 in the judgment delivered 29th day of September, 2006 are hereby upheld.
MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the benefit of reading in draft the judgment of my learned brother, Jombo-Ofo, JCA just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and should be dismissed.
I make these brief comments in support of the lead judgment and by way of emphasis.
The law is quite settled that a person accused of committing a crime may be convicted solely on his confessional statement provided the statement is positive, direct and unequivocal. See: Kanu V. The State (1991) 6 NWLR (200) 683; F.R.N. V. Iweka (2011) 11 – 12 SC (Pt. 1) 109; Queen V. Obiosa (1962) 1 ALL NLR 551. It was held in the case of F.R.N. V. Iweka (supra) that the duty of the prosecution to establish the guilt of the accused person beyond reasonable doubt would have been discharged where the accused person admits the commission of the offence through his voluntary confessional statement.
In the instant case it is argued on behalf of the appellant that his confessional statement, Exhibit C-C2 was obtained under duress and therefore inadmissible. The learned trial Judge examined the said statement and the administrative form signed in the presence of a superior police officer and found that the signature appended in about seven places appeared regular.
His Lordship also disbelieved the appellant’s claim that he was tortured by having the hot muzzle of a gun pressed onto his ribs before being forced to sign the statement. He showed the court a scar allegedly arising from the alleged torture.
Learned counsel for the appellant alleged that these findings showed bias by the learned trial Judge against the appellant.
As stated by my learned brother in the lead judgment, an allegation of bias against a Judge is very grave and must not be taken lightly. This is because it implies that the learned Judge has abdicated his exalted position as an impartial umpire. That he has stepped into the arena and inevitably become covered in the dust of conflict. It casts unsavoury aspersions on his moral character and integrity. See: Womiloju & Ors. V. Anibire (2010) 10 NWLR (1203) 545; Yakubu V. The State (2007) 9 NWLR (1038) 1.
In the instant case the observation of the learned trial Judge that the signatures of the appellant on Exhibits C – C2 appear regular cannot be faulted nor said to be as a result of bias of any sort. Having critically examined the said exhibits it is evident that in all the places where the appellant appended his signature, it is consistent and appears to have been appended by a steady hand. It is not consistent with the hand of the writer being held and forced to sign as alleged. There is no substance to the appellant’s claim that he was forced to sign and the learned trial Judge was entitled to so hold.
As regards the scar said to be the result of the hot muzzle of a gun being held against the appellant’s ribs, the learned trial Judge who had the opportunity of seeing the scar first hand was competent to reach certain conclusions based on what he saw. As rightly observed by His Lordship, common sense suggests that if the hot muzzle of a gun is pressed against a person’s ribs it would leave a circular impression. What was the purpose of showing the scar to the court if conclusions were not expected to be drawn therefrom? The nature of the injury sustained is within the appellant’s personal knowledge. If he was seriously relying in the injury as being caused in the manner he alleged, the onus was on him to produce medical evidence in support of his assertion.
In any event, I am of the considered view that even if that aspect of the finding was jettisoned, there was still sufficient material before the court upon which it based its findings that Exhibit C – C2 was voluntarily made.
I therefore agree with my learned brother in the lead judgment that there is no substance in this issue and it was correctly resolved against the appellant.
With regard to issue 2 and the contention that Exhibits F1 – F5 were wrongly admitted in evidence, the law is that a court can convict on a charge of murder even without the body of the deceased being recovered where the surrounding facts point irresistibly to the guilt of the accused. See: Akpa V. The State (2008) 14 NWLR (1106) 72; Ibo V. The State (1971) NMLR 245; The State V. Ifu (1964) 8 ENLR 28. I am of the view that the court would have reached the same conclusion even without Exhibits F – F5, as there was ample evidence outside the photographs that proved that the deceased died.
For these and the fuller reasons contained in the lead judgment, I also dismiss this appeal and uphold the conviction and sentence of death imposed upon the appellant by the trial court.
ALI ABUBAKAR B. GUMEL, J.C.A: I have had a preview of the lead judgment of my learned brother, Jombo-Ofo, JCA in this appeal. I fully agree with all the reasonings and conclusions set out therein. I adopt them as mine. I too would dismiss this appeal for totally being devoid of merit. I abide by all the consequential order of my learned brother.
Appearances
OLAKUNLE AGBEBI Esq.For Appellant
AND
For Respondent
