BABAJIDE v. STATE (2020)

BABAJIDE v. STATE

(2020)LCN/14345(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/IB/87C/2017

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

SEGUN BABAJIDE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE RETRACTION OF A CONFESSIONAL STATEMENT AFFECTS ITS ADMISSIBILITY

As rightly submitted by the States’ Counsel and held by the lower Court, the retraction in evidence of a statement does not affect its admissibility. Once properly proved it can be relied upon to convict the accused. The Court should however ask itself the following questions:
1. Whether there is anything outside the confessional statement of facts which make it most likely or true
2. Whether it is corroborated in any way;
3. Whether the relevant statements of facts made in it are most likely true as far as they can be tested;
4. Whether the accused person had the opportunity of committing the offence;
5. Whether the confession is possible;
6. Whether the alleged confession is consistent with other facts that have been ascertained and established. Applying these tests to the facts of the case, the lower Court held, with regard to the 1st test:
“There is evidence that 1st accused knew the deceased before his death. In fact they were neighbours living in the same house. There is also the evidence of the 1st accused that he took the deceased to the hospital and in fact paid the hospital bill….” PER ADEFOPE-OKOJIE, J.C.A.

DEFINITION OF THE OFFENCE OF MURDER

Section 316 of the Criminal Code Law, Laws of Ogun State 2004, defines murder as follows:
“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say-
(1) If the offender intends to cause the death of the person killed, or that of some other person;
(2) If the offender intends to do to the person killed or to some other person some grievous harm;
(3) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life;
(4) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(6) If death is caused by willfully stopping the breath of any person for either of such purposes, is guilty of murder.
In the notes, it is stated:
“In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case it is immaterial that the offender did not intend to hurt any person.
In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Abeokuta Judicial Division, delivered by Hon. Justice M. A. Dipeolu (as she then was), on the 14th day of November 2014, convicting the Appellant along with the 1st Accused Nurudeen Jinad on a charge of conspiracy to commit murder and murder of the deceased, Saburi Ishola. They were both sentenced to death by hanging. Aggrieved, the Appellant appealed against his conviction and sentence, with leave of this Court granted on 21/2/17, by Notice of Appeal filed on 24/2/17.

Both the Appellant and the Respondent, also by leave of the Court, filed their Appellant’s and Respondent’s Briefs on 8/11/18 and 1/2/19, deemed as properly filed on 22/11/18 and 27/1/2020 respectively.

In the Appellant’s Brief of Arguments settled by D.A. Awosika Esq., two issues were formulated for the Court’s determination, namely:
1. Having regard to the totality of evidence adduced by the prosecution, whether the prosecution proved beyond reasonable doubts the material ingredients of the offence of

murder against the Appellant.
2. Having regard to evidence adduced before the lower Court, whether a case of conspiracy was made out and proved beyond reasonable doubts against the Appellant.

The sole issue formulated in the Respondent’s Brief of Arguments by F.E. Bolarinwa-Adebowale (Mrs), Assistant Chief State Counsel, Ministry of Justice, Ogun State, is the following:
Whether from the quality of evidence adduced at the trial, the prosecution proved the offence of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt.

THE FACTS
The facts as presented by the prosecution, through Azeez Olasupo (PW7) is that he and the 1st accused live in the same house. On 16/11/12 at about 7.30pm PW7 and the deceased, Saburi Ishola, together with one Gbemi went into the room of the 1st accused to watch the television. They met two people sleeping, one of whom was the Appellant. After about an hour, they left the room to go to Itoku. While at Itoku, the 1st accused, the Appellant and four other friends came on three motorcycles and ordered PW7, Gbemi and the deceased, who is the brother in law of PW7, to follow them

back. On returning to their house at Ago Oba, Abeokuta, the 1st accused, the Appellant and others asked them to kneel down and started to beat them for stealing the Appellant’s handset. They were severely beaten with planks, sticks and matchets. The Appellant, beat the deceased on the head with a plank, while one Taiye Orobiyi hit him on the head with a bottle. By the account of PW1,the deceased was brought to his clinic by the 1st accused and others now at large, where the deceased eventually died on 17/12/11. PW7 reported the matter to the Police. The 1st accused and the Appellant were subsequently arrested while the others could not be located.

Following the apprehension of the Appellant and the 1st accused, their statements were taken.

I shall adopt as the issue for determination that raised by the Respondent as it encompasses the issues formulated by the Appellant, namely:
Whether from the quality of evidence adduced at the trial, the prosecution proved the offence of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt.

The Appellant’s Counsel submits that the lower Court was in grave error

in sentencing the Appellant when the offence against him was not proved beyond reasonable doubt as the prosecution failed to lead credible evidence to prove that it was the consequence of or the result of the alleged act of the Appellant that caused the death of the deceased. He cited the methods laid down by law for proof of the guilt of an accused person and of the conditions for a finding of guilt of murder, submitting that the prosecution was deficient in them. He pointed out that PW7 at “high points” of the major actions on the day in question was blindfolded, thus creating a gap in the evidence presented by the prosecution. He also submitted that there were irreconcilable differences in the circumstances surrounding the facts responsible for the death of the deceased. He impugned the evidence of the medical doctor (PW5), alleging that the doctor saw a scar on the head of the deceased, separate from the one on the side the injury was inflicted, with no nexus given. There was a dissonance, he argued, between the evidence of PW5 and PW7. He submitted that the hospital that the deceased was first taken to was unlicensed, with no qualified medical

personnel. There was thus no medical evidence, with exactitude, on the cause of death or that it was the intentional act of the Appellant that caused it. He cited the cases of Oforlete v State (2003) FWLR Part 12 Page 208 at 269, Adava v State (2006) 9 NWLR Part 984 Page 152 at 167, Audu v State (2003) 7 NWLR Part 820 Page 576, Ariche v State (1993) 6 NWLR Part 302 Page 752.

Agreeing that a Court can convict an accused solely on a confessional statement found to be direct, positive, unequivocal and voluntarily made, he submitted that it must have passed the six way truth test, citing the case of R v Sykes (1913) 1 CAR 233 cited in Tajudeen Fabiyi v State (2015) LPELR-24834(SC) and Olanipekun v State (2016) LPELR-40440(SC). There was however nothing outside the confession to suggest that the confessional statement was true, possible or consistent with the ascertained facts. Pointing to specifics, he submitted that the confessional statement was that one Taiye Orobiyi broke the bottle on the head of the deceased, arguing that PW7 did not notice that there was any injury on the head of the deceased. There was no causal link, he argued, between the act of the Appellant and the death of the deceased.

Counsel classified PW7 as a tainted witness, as the deceased was his brother-in-law and living with him at the time of his death. His evidence must thus be admitted with extreme caution, after a warning by the trial Judge. Conceding that there is nothing that prohibits blood relations of a victim from testifying for the prosecution where they witnessed a crime, the Court must be conscious of the interest that the witness has to serve, he argued.

On the offence of conspiracy, he submitted that the set of facts alleging conspiracy are so intricately interwoven that it is not possible to sever the proof of conspiracy from that of murder, with no evidence given of conspiracy between the parties. The Court merely relied on the same set of facts in proof of murder and conspiracy. He cited Sule v State (2009) 17 NWLR Part 1169 Page 33.

The Assistant Chief State Counsel, in response, agreeing that the prosecution in a trial is required to prove its case beyond reasonable doubt, agreed that in a charge of murder, the prosecution must not only prove the death of the victim but that the death resulted from the

act of the Appellant and was intentional. He cited Abirifon v State (2013) 9 SCM Page 1 at 5, Njokwu v State (2013) 2 SCM at 177 and Edoho v State (2010) 6 SCM Page 52. Referring to the evidence before the Court, she submitted that all these conditions were satisfied. She submitted further that the intention of the Appellant and the 1st accused can be inferred from the instrument used , being a plank and a bottle, citing the case of Nwokearu v State (2013) 9 SCM Page 124 and Eden v State (1994) 8 NWLR Part 365 Page 719, Michael v State (2008) 10 SCM Page 83 at 85.

Also citing the case of Oduneye v State (2001) 5 NSCQR Page 1, the State Counsel submitted that where more than one person is accused of a joint crime, it is enough to prove that all participated in the crime. The actual role played by each accused person is immaterial. She cited the case of Osung v State (2012) 11 SCM Page 176 where the Court held that an accused person charged with armed robbery who was not personally armed is culpable if he was in the company of a person so armed.

Responding to the submission of the Appellant’s Counsel that it was the treatment of the deceased in the

hospital that led to his death, submitted that the act of beating the deceased to a state of coma by the Appellant was the cause of his death and not whether there was any deficiency in the treatment of the deceased.

In deciding whether the offence of murder has been made out, the following are the requirements:
1. That the deceased died;
2. That the death was caused by the accused; and
3. That the act of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence.
All three ingredients must be proved, I hold. See Igba v State (2018) 6 NWLR Part 1614 Page 44 at 67 Para D-E per Peter-Odili JSC.See also Njokwu v State (2013) 2 NWLR Part 1339 Page 548, Edoho v State (2010) 14 NWLR Part 1214 Page 651.

It is settled law that the guilt of the accused can be proved in the following ways:
1. Direct evidence i.e. the testimony of an eye witness;
2. The confession of the accused;
3. Circumstantial evidence which points unequivocally that it was the accused and no other person that committed the offence. See Emeka v State (2001) 14 NWLR Part 734 Page

668 at 683.

In finding the Appellant guilty of the offences charged, the lower Court placed much reliance on the testimony of PW7 and the confessional statements of the accused persons. The Appellant has however contended that PW7 was blindfolded and could not have seen what was happening.

I shall accordingly set out excerpts of the evidence of PW7 at Page 67-70 of the Record, as follows:
“…On getting home we were taken upstairs. There the 2nd accused person informed us that his phone was missing. He threatened to cause trouble if he did not find his phone. I answered that I did not take his phone, so also did Gbemi and Saburi. The 1st accused then asked us if we thought they were joking with us. He then left and returned with big sticks.
We were in a place like a parlour upstairs in our house. We were asked to kneel down. Meanwhile their other friends drinking downstairs joined us upstairs. The 1st accused peeped through the window and asked for a cutlass. One man called Sherif brought a cutlass. The accused persons and their cohorts were all armed. Some held sticks, some held bottles and cutlass. They started hitting us on

the head with the sticks and cutlass. The 2nd accused known as Otunba hit Saburi on the head with a plank. We were thoroughly beaten so much so that we could not walk unaided. The 1s accused person too hit Saburi and Gbemi and myself on the head. We fell on the floor and could not walk.
Sheriff did not do anything. He only brought a cutlass and left. When he saw that the accused persons and others wanted to use the cutlass on us.
I have heard of Taye Orobiyi. I know him. He was the one that hit Saburi on the head with a bottle. When they were beating us one of their friends came in. When he saw our condition, he cautioned them. He also advised them to find out from one of their friends that came to the house if he took the phone.
After that the accused persons and others blind folded us. They left two of them to guard us while the other left. On their return they removed the blind fold and I observed that Saburi was not there with us anymore. I was too week and tired to ask of Saburi. I crawled to my door mouth and slept off. At about 9:30pm I was woken by one Sodiq who informed me that Saburi had been taken to the hospital and we should go

there. He told me that the 1st accused took Saburi to the hospital. I followed him there. It was Timileyin Clinic. I saw Saburi on admission. He was receiving drips and could not talk. The nurse on duty told me to sit watching over Saburi and I did. At about 1:00am Saburi started gasping for breath. I informed the nurses who tried to treat him but he eventually gave up. He died within twenty minutes. I do not know where the accused persons were during this period.”

Under cross examination, he stated:
“We were not blindfolded when we were being beaten. We were blindfolded when they wanted to go out to verify if their friend who came to the house took the phone.”
He also reiterated that “the two accused persons hit Saburi on the head with planks while Taye hit him on the head with a bottle of beer. Saburi fell on the floor as a result of the beating.”

From the evidence of PW7 above, it is clear that the Appellant, who was the 2nd accused at the lower Court, also known as “Otunba”, participated in the attack by hitting the deceased on the head with the plank and that Taye Orobiyi hit him on the head

with a bottle.

It is also clear from the evidence above that these attacks witnessed by PW7 were before they were blindfolded. The Appellant’s Counsel is thus in error in his submission that PW7 by his evidence could not have witnessed the attack because he was blindfolded.

The Appellant’s Counsel has again impugned the evidence of PW1, arguing that it was his negligence that caused the death of the deceased. He also impugned the evidence of PW5 as to the cause of the death of the deceased.

The evidence of PW1, Martin Idogbe, is that he is a nurse at Timilehin Clinic Maternity Home. The deceased was brought in unconscious to their hospital by about seven men who alleged that the deceased had been ill for three days and had been unable to eat, as a result of which he collapsed suddenly. When he observed that the clothes on the body of the victim was wet, the 1st accused, who introduced himself as the senior brother of the deceased responded that they poured water on him and gave him milk to drink. He admitted the patient and commenced treatment. Later in the night he observed that the patient had died. Under cross examination, he

stated that he was a registered nurse and not a medical doctor. He had been operating the home since 1977. He stated that no medical doctor attended to the patient before he died.
PW5, Oluwaseyi Farombi, the medical doctor, stated, at Page 42 of the Record:
“The corpse was that of a young teenager who had died over 48 hours before I saw it. I examined the corpse. I saw blood stain on the middle of the head. That gave me an inclination that there was a head injury. I asked the attendant to turn the corpse. He did. I then saw a deep cut at the back of the dead. It was a very deep cut. The blood was stale and there were clots. I observed fracture of the skull one could see the skull which was bloated. There was engorgement on that part of the head that is not far from the spinal cord and cerebella region. Such engorgement would easily lead to death. I also saw some nerves on the left side that were cut. The injury to the head caused a raised intra cerium pressure, as a result of which blood flow to the brain is cut off, the result is death.
It is a kind of injury that if not managed by an expert could cause death within a short

while.”

There was a suggestion by the Appellant’s Counsel that it was negligence on the part of PW1 that caused the death of the deceased, as no medical doctor treated him. It is however clear from the evidence of PW1 that the deceased was already unconscious when he was brought in. The accused persons who took him to a Clinic cannot be allowed to turn round and accuse the Clinic of any deficiency, I hold.

It is also clear from the evidence of the medical doctor, PW5, that the cause of death was the injury to the head.

The evidence in Court of the Appellant, I note, is an outright denial of the offence. His evidence is that he went to visit the 1st accused person, Nurudeen, and joined him in watching the television. He gave him (1st accused) his phone to charge and slept off. Waking up, he discovered his phone to be missing. Following questions by him as to the persons who were in the room, he was taken to Itoku, where he questioned Azeez (PW7), who denied taking the phone. They took Azeez home and searched his room but found nothing. 1st accused assured him that they would get the phone for him. He left only to be arrested the

following day.

He denied hitting the deceased on the head with a plank or beating PW7. He also denied that Taiye Orobiyi hit the deceased on the head with a bottle.

With regard to his statements to the Police, he said, under cross examination:
“After my arrest I was taken to Enu Gada Police Station, from there I was taken to Adatan Police Station. I made a statement to PC Taiwo Olaofe. I volunteered my statement to PC Taiwo Olaife at Adatan Police Station. This is the statement.
I was later taken to SCID Eleweran. I made a statement at SCID. I told the Police what I knew about the case. Inspector Laide Lawal took my statement. This is it.
Court: Witness identifies Exhibits C and E
Witness cont: I was taken before a superior Police Officer by Inspector Laide Lawal.
I was in Court when Azeez Olasupo testified in Court. I did not tell the Police at SCID that I hit Saburi on the head with a plank. I did not tell the Police that the 1st accused, myself and others at large beat the deceased because of my missing phone. I do not know Wale Osoba, Taiye Orobiyi. Yes, I conspired with the 1st accused person, Taiye Orobiyi and

others to murder Saburi.
Re-Examination: None.”

The statements of the Appellant to the Police, I note, are inculpatory. He stated that on the day in question, he went to greet his friend Nurudeen, who he met sleeping. He also slept. On waking up he observed that his Nokia phone was missing. He questioned Nurudeen who denied it and who sent for the other boys living in the house, being the deceased, Azeez (PW7) and two others. They suspected Azeez. Azeez however told them to handle Saburi (the deceased) very well because he may be the culprit. He alleged, however, that it was on their return from bringing other boys that were living in the house that they noticed that Taye Orobiyi had broken a bottle on the head of the deceased.

He concluded the 1st statement by the words:
“This is my first time to gang-up to kill somebody. I know that to kill somebody is an offence. I know that everything started from me. I am very sorry….”

In his statement made at the State CID (Exhibit E), the facts leading to the assault on the deceased were the same.

On what led to the death of Saburi, he stated in Exhibit E:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“…I was coming from a party which I attended in Lagos on 15/12/11 at about 0600 hrs and I went to sleep at Nurudeen house. At Ogo Oba area, Abeokuta before going to my house.
When I woke up I could not find my Nokia hand set which I was charging inside the room. I reported to Nurudeen and Nurudeen said he left about five boys in the room watching film and we searched for all of them including Saburi Ishola now deceased.
Myself, Nurudeen, Wale Ojoba, Taiwo Orobiyi picked a motor cycle to look for them and we were able to get four out of five including the deceased and we gathered them for interrogation during which I beat deceased with a plank on his head. We also beat the rest boys with same plank and I used plank to beat Saburi Ishola now deceased on his head before Taiwo Orobiyi broke a bottle on deceased head but I was not present by then. I have gone with Nurudeen aka Jaskin and Wale to look for other people they mentioned. Nurudeen, Wale Osoba, Taiwo Owobiyi and myself beat those four boys including the deceased with plank before we went in search of those fleeing away.
When myself and Nurudeen a.k.a. Jaskin heard about the

deceased death, we were ready leaving toward Sango Otta (for escape arrest) before we were arrested at Sango Otta by some boys and handed over to the Police.”

Both these statements were recorded in English Language and signed by the Appellant. Also signing as recorder of Exhibit C is PW2 PC Olaofe Taiwo.PW3 Olaide Lawal recorded Exhibit E made at the State CID.

As rightly submitted by the States’ Counsel and held by the lower Court, the retraction in evidence of a statement does not affect its admissibility. Once properly proved it can be relied upon to convict the accused. The Court should however ask itself the following questions:
1. Whether there is anything outside the confessional statement of facts which make it most likely or true
2. Whether it is corroborated in any way;
3. Whether the relevant statements of facts made in it are most likely true as far as they can be tested;
4. Whether the accused person had the opportunity of committing the offence;
5. Whether the confession is possible;
6. Whether the alleged confession is consistent with other facts that have been ascertained and established.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Applying these tests to the facts of the case, the lower Court held, with regard to the 1st test:
“There is evidence that 1st accused knew the deceased before his death. In fact they were neighbours living in the same house. There is also the evidence of the 1st accused that he took the deceased to the hospital and in fact paid the hospital bill….”

On the 2nd test, of whether there was corroboration, it held:
“The confessional statement of the accused persons are corroborated by the evidence of PW7 a victim and an eye witness, PW1 – the nurse who attended to the deceased at the hospital 1st accused and his cohorts took Saburi to. He stated that 1st accused gave him information about Saburi when they got to the hospital. The evidence remains unchallenged, uncontroverted and uncontradicted. In fact it buttressed the fact that Saburi was taken to the hospital unconscious…”

On the 3rd test of whether the relevant statements of fact made in the confessional statement are most likely true as far as they can be tested, held:
“It seems to me that the statement of facts made therein are most

likely true as far as they can be tested.

On the 4th test of whether the accused person had the opportunity of committing the offence, held:
“..I answer this in the affirmative, the accused persons had the opportunity of committing the offence.”

On the 5th test of whether the confession is possible, it also answered this question in the affirmative.

On the 6th test of whether the alleged confession is consistent with other facts that have been ascertained and established, held:
“I answer this in the affirmative…the confession is consistent with other facts that have been ascertained and established.”

On the issue of conspiracy, the lower Court held:
“…it is clear that the best evidence in proof of conspiracy is the evidence of the conspirators. In the instant case it will be the confessional statements of the accused persons and their evidence in Court. I have perused the confessional statements of the accused persons in which they admitted knowing each other, being friends and were together on the day of the incident. I believe the fact that the statements were voluntarily made and

hold that the facts stated therein are proof of conspiracy to commit murder”

It rejected the submission of Counsel to the Appellant that there were contradictions in the testimony of PW7, and that it not clear from his evidence whether the cause of death was as a result of the deceased being hit on the head with a plank by the 2nd accused or with a bottle by one Taiye now at large.

The Court, rejecting this contention, held:
“It seems to me that there is no contradiction in the testimony of PW7. As earlier stated by me in this judgment, when more than one person are accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial..”

I have no reason to fault this reasoning of the trial Court. As correctly held, when more than one person are accused of jointly committing an offence, it is enough to prove that they all participated in the crime. It is thus not material, what each did in furtherance of the commission of the offence.

With regard to the question how conspiracy is proved, the Supreme Court in the

case of Kayode v State (2016) 7 NWLR (Pt. 1511) 199; (2016) LPELR-40028 per Ariwoola JSC defined Conspiracy as:
“..an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of an apparent criminal purpose common between them.”
As acknowledged by His Lordship Ariwoola JSC in that case:
“Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy, However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offence….Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, in itself, independent of the actual offence conspired to commit.”
It was also held in Olakunle v State (2018) 6 NWLR Part 1614 Page 91 at 109 Para B-C per Eko JSC that:
“Conspiracy can be inferred from the acts of the accused where there is no direct evidence of an agreement between the accused. The law, from a

long line of cases is settled that from the acts of the accused where there is no direct evidence between the accused and another, criminal conspiracy can be inferred. It is the law, from a number of cases, that from the acts or manner the accused persons were doing things towards actualizing a common end it can be inferred or deduced that they did so in furtherance of their conspiratorial agreement to commit the alleged offence”.

The conspiracy between the parties is apparent from the confessional statements of the Appellant. As submitted by the Chief State Counsel, a confessional statement, properly proved is the best form of evidence against an accused person.
In Essien v State (2018) 6 NWLR Part 1614 Page 167 at 174 Para B-C the Supreme Court, per M.D. Muhammad JSC held as follows:
“….by virtue of a chain of decisions of this Court, see R V Sykes (supra), Dawa v. State (supra) and Ikpasa v. State (supra), it is desirable to base the appellant’s conviction on further evidence outside his confession, the requirement for such corroborative evidence is however not mandatory. The principle still is that the Court, where the

confession is direct, positive and unequivocal and is properly proved, may convict an accused solely on such a confession. As learned respondent’s counsel rightly submitted, there is no evidence stronger than a person’s admission of the state of affairs”
See also Olakunle v State Supra at Page 113 Para G per Ogunbiyi JSC.

In the instant case, the Appellant agreed that he made statements to the Police and indeed identified the statements in Court as those made by him. They were also admitted in evidence without any objection. Exhibit “C” made at the State CID, as admitted by the Appellant, was taken to a “Superior Officer”, ASP Ola who read the same over to the Appellant, who signed it and was also signed by the ASP. The endorsement was tendered as Exhibit “E”

The feeble attempt, in cross examination, to deny that he admitted to the Police the attack meted out to the deceased by him and Orobiyi, does not avail him, having accepted that he made the statements to the Police and which statements were admitted, as aforesaid, without any objection.

In any event, the retraction of a confession does not

mean that the Court cannot act on it and convict accordingly as the circumstances of the case justify, as held in Nwachukwu v State (2002) 12 NWLR Part 782 Page 32(2002) LPELR-2084(SC) (P.32) Para A-B, per Iguh JSC.
Thus, even though, by law, the Appellant’s statement, having been properly proved can be relied upon solely in convicting the Appellant, the statement, as rightly held by the lower Court, was corroborated by the cogent and compelling testimony of PW 7.

I agree with the lower Court that it is immaterial what each accused person did and whether it was Taiye Orobiyi, now at large, that broke the bottle on the head of the deceased. The Appellant hitting the head of the deceased with a plank is clear evidence that the intention of the Appellant and his co- conspirators was to do him grievous harm, which brutality resulted in his death.

killed, or that of some other person;
(2) If the offender intends to do to the person killed or to some other person some grievous harm;
(3) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life;
(4) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(6) If death is caused by willfully stopping the breath of any person for either of such purposes, is guilty of murder.
In the notes, it is stated:
“In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case it is immaterial that the offender did not intend to hurt any person.
In the three last cases it is immaterial that the

offender did not intend to cause death or did not know that death was likely to result.”

Clearly, the Appellant and the other perpetrators intended to cause grievous harm to the deceased. Hitting a person on the head with a plank and a bottle is a patent intention to either kill him or do grievous harm to him.

As rightly pointed out by the trial Judge, aforesaid, where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial

Contrary to the submission of the Appellant’s Counsel, PW7 cannot be regarded as a tainted witness, as a tainted witness is one that has an interest or purpose to serve. No interest or purpose to serve by PW7 has however been shown. The fact that the deceased was the brother in law of PW7 is not suggestive of any interest to serve, I hold. There is thus no requirement for caution in the acceptance of his evidence. I hold that this testimony was rightly accepted by the trial Judge, thereby corroborating the confessional statement of the Appellant.

From the quality of evidence adduced at the trial,

the prosecution, I hold, proved the offence of conspiracy to commit murder and murder against the Appellant beyond reasonable doubt.

Having resolved the sole issue for determination against the Appellant, this appeal fails and is accordingly dismissed. The conviction and sentence of the Appellant by the lower Court is consequently affirmed.

FATIMA OMORO AKINBAMI, J.C.A.: I was opportune to read in draft the judgment just delivered by my learned brother, Oludotun Adebola Adefope-Okojie JCA. My learned brother has dealt well with the issues raised in this appeal. I am in complete agreement with his reasoning and resolution of the issues„ I also do not from those issues find any merit in this appeal and will dismiss the appeal.

The offence for which the Appellant was convicted and sentenced is that of murder. Although ours is not the mosaic law of an eye for an eye, under our penal laws the penalty for the offence of murder is death. The signification of this that those who kill by the sword should not fear the return of the sword or be allowed in any sense to escape from justice In the case of NJOKU Ors vs THE STATE (2013) 2 NWLR (PTA 1339) 548,

Onnoghen, JSC (as he then was) held that:
“It is elementary in criminal trial that before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of these two main elements of any crime that is the ACTUS REUS and the MENS REA. ACTUS REUS is taken to be the wrongful deed that generally must be coupled with MENS REA. MENS REA is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful act by the accused but must establish that the accused has the correct legal (criminal) mind of committing the act The two must co-exist whether explicitly or by necessary implication their interplay of words/phrases reflected in their book:
Criminal Law 831 3rd Edition 1982 Rolin M, Perkins and Ronald N. Boyce states that: The actus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus. Exploring this

further, it must be well understood that before conviction is secured for murder, certain conditions must be present. Rhodes-Vivour, JSC, in the case of KOLADE vs THE STATE (2017) LPELR-42362 (SC) held that:
For the prosecution to succeed under Section 316 of the Criminal Code the prosecution should prove beyond reasonable doubt that a person died and that he died as a result of an act by the Appellant The act of the Appellant which caused the death of Olaleye Kolade must be one of the six circumstances in Section 316 of the Criminal Code. If the act of the Appellant which caused the death is not one of the six circumstances, the death of the deceased is no longer murder. The six circumstances are:
1. If the Appellant intends to cause the death of the deceased or that of some other person;
2. If the Appellant intends to do to the deceased or to some other person some grievous harm;
3. If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such nature as to be likely to endanger human life;
4. If the Appellant intends to do grievous harm to some person for the purpose of facilitating the

commission of an offence which is such that the offender may be arrested without warrant, or for the purpose of facilitating the fight of an offender who has committed or attempted to commit any such offence;
5. If death is caused by administering any stupefying or overpowering things for either the purposes last aforesaid;
6. If death is caused by willfully stopping the breath of any person for either of such purposes.
See ILODIGWE VS, THE STATE (2012) 57 SC (PTE 11) Pa 143; CHUKWU VS, THE STATE 12 SC (PT. hill) PA 60B.

In the instant case, this Court must look at the case before the Lower Court and see if these prescribed conditions were prevalent before the Appellant was convicted These could be glaring or seen from the evidence and findings of the Court below. The witnesses for the prosecution gave evidence which at the end of the trial remain solidly intact and not in any form discredited. The attempt in cross-examination by the Appellant, to deny the attack meted out to the deceased by him and Orobiyi, does not avail him, having accepted that he made the statements to the Police and which statements were admitted as aforesaid without any

objection. The learned counsel for the Appellant made frantic efforts to impeach the confessional statement of the Appellant in this appeal.

The Lower Court therefore was absolutely right to rely on the confessional statement of the Appellant in convicting the Appellant The decision of the Lower Court cannot be faulted in his case.

With the foregoing and the fuller reasons advanced in the lead judgment, I come to the conclusion that this appeal is lacking in merit. I dismiss the appeal and also uphold the conviction and sentence of the Appellant by the Lower Court.

TIJJANI ABUBAKAR J.C.A.: I had the privilege of reading in draft the leading judgment prepared and rendered in this Appeal by my lord and learned brother, O.A. ADEFOPE-OKOJIE JCA I am in complete agreement with the entire reason and conclusion and held that the Appeal by the Appellant is lacking in a jot of merit, it is frivolous and vexatious and therefore deserves to be dismissed, it is hereby dismissed. The judgment of the lower Court delivered on the 15th day of July, 2015 by AKINYEMI J. in charge No. AB/9R/2012 is also affirmed by me.

Appearances:

D.A. Awosika Esq For Appellant(s)

F.E. Bolarinwa-Adebowale Assistant Chief State Counsel Ministry of Justice, Ogun State. For Respondent(s)