ENDURANCE MATTHEW V. THE STATE
(2013)LCN/6321(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2013
CA/B/223C/2012
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
Between
ENDURANCE MATTHEW Appellant(s)
AND
THE STATE Respondent(s)
RATIO
TEST OF THE ADMISSIBILITY OF CONFESSIONAL STATEMENT
It is trite law that the test of the admissibility of confessional statement is the voluntary nature of the statement.
The appropriate time to challenge the voluntary nature of a statement is when the prosecution seeks to tender the statement in evidence; the same principle applies in oral and written confessional statements. See:- Arogundade V. State (Supra); Basil Akpa V. The State (2010) Vol. 8 LRCN CC 77; Alarape V. State (2001) 84 LRCN 600. PER BAGE, J.C.A.
WHETHER OR NOT AN ACCUSED CAN BE CONVICTED BASED ON HIS CONFESSIONAL STATEMENT ALONE
It is trite law that an accused can be convicted based on his confessional statement alone if the court believes his confession. The courts are enjoined to seek any other evidence be it slight of circumstances which made it probable that the confession is true. See Alarape V. The State (2001) 5 NWLR (Pt. 705) 79; Edamine V. The State (1996) 3 NWLR (Pt. 438) 530 at 536. Also the finding of the trial court at pages 80 – 83 particularly page 83 lines 1 – 10 of the Records of Appeal. PER BAGE, J.C.A.
WHETHER OR NOT AN INADMISSIBLE EVIDENCE EVEN IF NOT OBJECTED TO IN CROSS-EXAMINATION MUST BE REJECTED BY THE COURT
The law is already trite that inadmissible evidence even if not objected to in cross-examination must be rejected by the court. If the trial fails to so do, it can be rejected on appeal. However, there is an exception to that rule i.e. if the evidence can be interpreted as complying with the statutory requirement, then it is a matter to be taken into consideration when interpreting the evidence that it went unchallenged. See the Supreme Court decision in Ibrahim Khali Yasin V. Barclays Bank D.C.O. (1988) All NLR 171 at 179. It was stated as follows:-
“If inadmissible evidence is not objected to and is admitted it must still be rejected on appeal but if the evidence can be interpreted as complying with the appropriate statutory requirement then it is a matter to be taken into consideration when interpreting the evidence that it went in unchallenged. In other words if the evidence can be treated as admissible it is not to be treated as inadmissible because there is a possible other interpretation which would render it inadmissible when that possible other interpretation had not been tested by questions from the party who could have objected to the evidence being admitted.” PER BAGE, J.C.A.
WHETHER OR NOT A TRIAL WITHIN TRIAL WILL BE CONDUCTED WHERE TEH PROSECUTION SEEKS TO TENDER AN EXTRA-JUDICIAL STATEMENT OF AN ACCUSED PERSON
It is trite law that, where the prosecution seeks to tender an extra-judicial statement of an accused and objection is raised thereto on the ground that it was not voluntarily made, the only option open to the court to test the voluntariness is to conduct a trial within a trial. See Emeka V. State (2005) 4 LRCN CC 187 at 197 A – D; Godwin Ikpasa V. Bendel State (1981) 9 SC 7 at Pp 26 – 29; Inusa Saidi V. The State (1982) 4 SC 41 at 69; Igbineweka Owie V. The State (1985) 4 SC (Pt. 2) 1 at 27; Alarape V. The State (2001) 2 SC 114; Uche Obiodiozo & Ors V. The State (1987) 12 SC 74 at Pp 93 and 100 – 102 also reported in (1987) 4 NWLR 748. PER BAGE, J.C.A.
ESTABLISHMENT OF THE CRIMINAL OFFENCE OF MURDER
The Supreme Court of Nigeria, in case of Friday Aiguobarueghian and Anor V. The State 17 NSCQR 442 at 487 per Niki Tobi JSC (as he then was) stated as follows:
“No doubt to ground a conviction for murder, the prosecution must establish beyond reasonable doubt the following ingredients.
(a) The death of the deceased.
(b) The act or omission of the accused which caused the death and
(c) That the act or omission of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Ogba V. State (1992) 2 NWLR (Pt. 222) 164; Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1; Fred Dapere Gira V. The State (1996) 4 NWLR (Pt. 443) 375 at 382; Haruna V. The State (1990) 6 NWLR (Pt.115) 125 at 126.”
In the case of Edwin Ogba V. The State (1992) 2 NWLR (pt. 222) 164 at 198 the Supreme Court held that:-
These three conditions must co-exist and where one of them is absent or tainted with doubt the charge is not proved. The onus is on the prosecution throughout and does not shift. See also Obudo v. The State (1991) 6 NWLR (Pt. 198) 435 at 458.”PER BAGE, J.C.A.
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Hon. Justice F.O. Ohwo of the High Court of Delta State sitting at Ughelli in Charge No. UHC/10C/2006, delivered on the 10th day of March, 2010 convicting and sentencing the Appellant to death by hanging, having been found guilty of the offence of murder. The Appellant was charged with murder; an offence punishable under Section 319(1) of the Criminal Code Cap 48 Vol. II 1976 Laws of Bendel State applicable to Delta State. The “particulars” are that on the 26th day of January, 2006 at Ekrerhavwe Village within jurisdiction, the accused murdered one Omonefe Oviefe (F). The evidence shows that the deceased (Omonefe Oviefe) was the child of the accused person.
Briefly the prosecution’s case at the High Court was that the Appellant was arraigned at the lower court on 24th day of January, 2007 for murder punishable under Section 319(1) of the Criminal Code Cap. 48, Vol. II 1976 Laws of Bendel State applicable to Delta State. See pages 48 and 49 of the record. The Appellant pleaded not guilty to the one count charge of murder and the case proceeded to trial.
In order to prove the charge against the Appellant, the prosecution called three witnesses and tendered one exhibit. Exhibit ‘A’ is the statement allegedly made by the Appellant to the police after her arrest.
In her defence, the Appellant denied the charge against her. At the point of tendering Exhibit ‘A’ by the prosecution, Appellant challenged the voluntariness of Exhibit ‘A’. The learned trial Judge ordered for a trial within trial at the end of which the trial court admitted Exhibit ‘A’ in evidence. See pages 54 to 60 of the record. Appellant admitted that the deceased was her child, but that it was one of her friend called Obakpororo and her brother (Okpako) that threw Appellant’s child to the well and that this was done without her consent. See the evidence of the Appellant at pages 52 to 64 of the record.
In his Judgment, the learned trial Judge relied on the evidence of PW1 and Exhibit ‘A’ to convict the Appellant and sentenced her to death by hanging. The learned trial Judge rejected the defence of the Appellant on the ground that the Appellant is “doubtlessly a big liar”.
Dissatisfied with the Judgment of the lower court, the Appellant appealed to this court. The notice of appeal filed on the 31st day of May, 2010, contained three (3) grounds of appeal. See pages 87 to 88 of the record.
The Appellant filed her Notice of Appeal contained on page 87 of the Printed Records dated 3/5/2010 and filed on the 31/5/2010. From the three (3) grounds contained in the said Notice of Appeal, the Appellant formulated the following sole issue for the determination of this court to wit:
“Whether having regard to the totality of the evidence adduced before the lower court, the lower court was right in holding that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.”
The Respondent on its part, formulated the following two (2) Issues from the three (3) Grounds of Appeal as follows:
(1) Whether having regard to the state of evidence before the court, the learned trial Judge was not right in law when he held that the prosecution proved the case of murder against the Appellant beyond reasonable doubt.
(2) Whether the learned trial Judge was right in law to have relied on the oral and written confessional statement (Exhibit CJ) of the Appellant in convicting him.
From the two sets of issues as formulated by the parties, I tend to be guided by the sole issue as formulated by the Appellant. The sole issue is all encompassing; and has captured the two of the Respondent. For the purpose of this appeal, the issue for determination is:-
“Whether having regard to the totality of the evidence adduced before the lower court, the lower court was right in holding that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.”
In arguing this appeal, the learned counsel to the Appellant submitted that having regard to the totality of the evidence before the lower court, the prosecution failed to prove the charge of murder preferred against the Appellant beyond reasonable doubt. Learned counsel listed out those essential ingredients of offence of murder. Also made reference to the decisions in Mbang V. The State (2007) ALL FWLR (Pt. 372) 1863; Uwaogbe V. The State (2008) ALL FWLR (pt. 419) 425; Yaki V. The State (2008) ALL FWLR (pt. 440) 618.
Learned counsel further submitted that from the evidence on record, it was a common ground from the prosecution and defence that the deceased died and that that issue was not in contention. But the second and third elements of the offence were hotly disputed and the onus is on the prosecution to prove that the death of the deceased resulted from the act of the Appellant and that the act of the Appellant was intentional with the knowledge that death or grievous bodily harm was probable consequence. In a bid to do this, the prosecution called three (3) witnesses and tendered Exhibit ‘A’. It is important to note from the onset that none of the three prosecution witnesses gave a direct eye-witness account on the act of the Appellant being responsible for the death of the deceased. That is, the throwing of the deceased who was the child of the Appellant into the well.
Learned counsel submitted further that it is beyond doubt that PW1 is not in a position to give evidence as to whether in truth it was the Appellant that committed the act of throwing the deceased into the well, this is because PW1’s evidence on this point amounts to hearsay evidence which is inadmissible in law. See Section 37 and 38 of the Evidence Act 2011. See also the case of Utteh V. The State (1992) 2 NWLR (Pt. 223) 257.
Learned counsel further submitted that since hearsay, the alleged oral confession of the Appellant to PW1 is inadmissible in law, it is therefore of no moment that that piece of evidence was not specifically contradicted under cross-examination. It was also wrong on the part of the learned trial Judge to hold that the evidence of PW1 on the point that the Appellant threw her baby into the well was not challenged. From the Record especially at page 50, the Appellant challenged the evidence of PW1 under cross-examination. Furthermore, the Appellant also gave evidence in her defence where she denied telling PW1 that she was the one that threw the deceased into the well. See pages 62 to 64 of the Record.
Learned counsel further submitted that, the mere fact that an accused person tells lies in respect of a charge against him or her does not amount to an admission of guilt and this will not relieve the prosecution of his duty to prove the charge against the accused person beyond reasonable doubt. See the case of Muka V. The State (1999) ACLR Page 141. In the present case, the learned trial Judge was so much influenced by his observation that the Appellant lied, he made reference to the Appellant in pages 76 and 80 as a liar. Infact the observation permeates the entire Judgment as if being a liar is one of the ingredients of the offence of murder. This observation no doubt, negatively influenced and prejudiced the mind of the court in convicting the Appellant.
Learned counsel further submitted that the learned trial Judge ought to have looked for corroborative evidence outside the testimonies of PW1, PW3 and Exhibit ‘A’ before reaching his conclusion in convicting the Appellant. Those evidence relates to confession which require corroborative evidence. A corroborative evidence must be an independent evidence from the evidence to be corroborated. See:- State V. Mbele (1990) 4 NWLR (Pt. 145) 484, 2 LRCN CC Pg. 17 at 34.
Learned counsel concluded his argument that having regard to the above authority, the learned trial Judge was also wrong to have relied on the evidence of PW2, the Medical Doctor, as corroborative evidence. PW2’s evidence is only relevant as to the cause of death and not as to who was responsible for the death of the deceased.
In reply to the arguments of the Appellant above, learned counsel to the Respondent submitted that, having regard to the state of evidence before the court, the learned trial Judge was right in law when he held that the prosecution proved the case of murder against the Appellant beyond reasonable doubt. A proof beyond reasonable doubt has been interpreted to mean that the prosecution must by credible evidence prove the ingredients of the offence for which the accused person is facing trial. See the cases of Bakare V. The State (1987) 1 NWLR (Pt. 52) 579; Ogunzee V. The State (1998) 58 LRCN 3512 at 3551; Edamine V. The State (1996) 3 NWLR (Pt. 38) 530 at 531. The evidential proof is either by (1) Credible Evidence of Witnesses (2) Circumstantial Evidence (3) By Admissions and Confessions of the very people accused of crime.
Learned counsel further submitted that in a charge of murder, the onus of proof is on the prosecution to establish by evidence the three essential ingredients, which must co-exist, where one of them is absent or tainted with doubt, the charge is said not to be proved. See:- Ogba V. The State (1992) 2 NWLR (pt. 222) 164; Nwosu V. The State (1986) 4 NWLR (Pt. 35) 384.
Learned counsel submitted further that it is the case of the prosecution at the lower court and before this court that it proved the ingredients of the offence of murder against the Appellant beyond reasonable doubt through the credible evidence of the prosecution witnesses particularly the PW1, PW2, PW3 and the oral and written confessional statements of the accused person. There is evidence on record that (a) Omonefe Oviefe was found dead in a well at Ekrenhavwe Village. She was certified dead by drowning. Evidence of PW1 at page 49 – 50 and that of PW2 at pages 50 – 51 of the Record of Appeal. (b) The Appellant in her extra-judicial statement Exhibit ‘A’ and the oral confession admitted she and her friends threw the deceased Omonefe Oviefe into the well where she died from drowning, evidence of PW1 at page 50 and Exhibit ‘A’ at page 22-23 of the Record of Appeal.
Learned counsel further submitted that the law is settled that the evaluation of evidence and ascription of probative value is that of the trial court which saw, heard and assessed the witnesses while they testified before it. The appellate court will not interfere with such findings of fact, nor is it the business of such appellate court to substitute its own view of the facts for those of the trial court. See:- Ogunzee v. The state (1998) 5 NWLR (Pt. 551) 527 at 557 Para F – G 559 Para C – D. The learned trial Judge both in the ruling in the trial within trial and the Judgment properly evaluated the evidence and ascribed probative value to it.
Learned counsel submitted further that in convicting the Appellant, the trial court placed reliance on the confessional statements Exhibit ‘A’ admitted in evidence after a trial within trial and the oral confession made to the PW1 by the Appellant. The Appellant’s counsel in his brief of argument is not disputing the fact that the Appellant made the said confession rather his argument is that the said confession is a hearsay evidence which he argues are inadmissible in law. The same argument was raised in the case of Arogundade V. The State (2009) 169 LRCN 17; Sunday Onungwa V. The State (1979) NSCC 27.
Learned counsel further submitted that the learned trial Judge was also right in law, when he held that the Appellant did not challenge the evidence of oral confession by the Appellant given by the PW1. It is trite law that the test of the admissibility of confessional statement is the voluntary nature of the statement.
The appropriate time to challenge the voluntary nature of a statement is when the prosecution seeks to tender the statement in evidence; the same principle applies in oral and written confessional statements. See:- Arogundade V. State (Supra); Basil Akpa V. The State (2010) Vol. 8 LRCN CC 77; Alarape V. State (2001) 84 LRCN 600.
Learned counsel submitted further that, there is nowhere in the Records of Appeal where the Appellant and his counsel challenged the voluntary nature of the evidence of oral confession given by PW1. The fact that the Appellant retracted it in her defence at the lower court will not prevent the court from acting on it. See:- Edamine V. State (1996) 4 NWLR 375; Odeh V. State (2008) All FWLR (Pt.424) 1590 at 1618.
Learned counsel further submitted that the Appellant’s statement to the police Exhibit ‘A’ is confessional in nature, the only difference in the two confessional statements is that, in Exhibit ‘A’ the Appellant said it was her friend who threw the deceased into the well with her consent. The question whether Exhibit ‘A’ is a confessional statement in view of the Appellant allegation that the physical act of throwing the baby into the well was done by the Appellant’s friend was answered by the learned trial Judge on page 82 of the records. The Appellant is not challenging the findings of the learned trial Judge on this issue. The Appellant’s counsel’s submission on the application of the inconsistency rule and cases cited is good law; but it is not applicable to this case. It is trite law that the inconsistency rule is not applicable to confessional statement made by an accused. See:- Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383.
Learned counsel further submitted that the trial Judge was right in law when he found corroboration of the Appellant’s confession in the evidence of PW1 and PW2. It is trite law that an accused can be convicted based on his confessional statement alone if the court believes his confession. The courts are enjoined to seek any other evidence be it slight of circumstances which made it probable that the confession is true. See Alarape V. The State (2001) 5 NWLR (Pt. 705) 79; Edamine V. The State (1996) 3 NWLR (Pt. 438) 530 at 536. Also the finding of the trial court at pages 80 – 83 particularly page 83 lines 1 – 10 of the Records of Appeal. The PW1 – PW3 are independent witnesses and the evidence they corroborate is the confessional statements of the Appellant. The learned trial Judge convicted the Appellant based on the uncontradicted confessional statements and the corroborative evidence of PW1 – PW3. The submission of Appellant’s counsel in this issue is a misconception in law in view of the facts before this court. This court is urged to uphold the finding of the learned trial Judge.
The submission of counsel to the sole issue for the determination of this appeal is carefully examined. The sole issue runs thus:-
“Whether having regard to the totality of evidence adduced before the lower court, the lower court was right in holding that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.”
The main crux of the Appellant’s appeal is the contention that, the prosecution had not proved its case beyond reasonable doubt, as required by law. Having failed to do so, there was therefore, no justification for the trial court to return a verdict of guilt against the Appellant and the consequent conviction of murder. For a more wholistic appreciation of this appeal, it becomes quite apposite even at this stage, to examine these grounds of appeal which are contained in the Notice of Appeal of the Appellant, dated the 31st day of May, 2010 contained on pages 87 and 88 of the Record of Appeal.
GROUND ONE
The learned trial Judge erred in law and thereby occasioned miscarriage of justice when he held as follows:-
“In the present case, I am of the firm view that the evidence of PW1 on the oral confession of the Accused at the scene was not challenged under cross-examination because the Accused actually made the confession as postulated by the witness for the prosecution. If the Accused did not make such confession she should have briefed her counsel at the earliest opportunity who would then have challenged such evidence. The denial by the Accused in her defence under cross-examination of the suggestion that she told the PW1 and others at the scene that she was the one who threw the deceased into the well is not only an afterthought but a hellish lie.”
PARTICULARS OF ERROR
i) PW1’s evidence on alleged oral confession by the Appellant is inadmissible in law to prove that Appellant killed the deceased.
ii) Evidence that is inadmissible remains so inspite of the fact that it was not challenged.
iii) PW1 gave evidence under cross-examination that he was not present when Appellant allegedly threw the deceased into the well.
iv) There was evidence before the trial court that it was not the Appellant that threw the deceased into the well.
GROUND TWO
The learned trial Judge erred in law and thereby occasioned miscarriage of justice when he relied on the evidence of PW1 and Exhibit ‘A’ in holding that the prosecution proved the charge of murder against the Appellant beyond reasonable doubt.
PARTICULARS OF ERROR
i) The Appellant gave evidence that she did not make Exhibit ‘A’ voluntarily.
ii) The fact that the Appellant lied in the course of her evidence is not enough to convict her.
iii) There was no direct evidence linking the Appellant with the death of the deceased.
iv) PW1 and PW2’s evidence did not corroborate the contents of Exhibit ‘A’ as to who killed the deceased.
v) The facts of this case is distinguishable from the case of Arogundade V. State (2009) All FWLR (Pt. 489) 409, which was relied upon by the trial Judge to convict the Appellant.
GROUND THREE
The Judgment of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the evidence.
From those grounds, the Appellant’s counsel attacks the decision of the trial court on its reliance on both the oral confession of the Appellant to the crime, which was said to have been made to the PW1, and the written confessional statement of the Appellant, which was obtained in the course of investigation by the PW3. The said written confession was admitted in evidence at trial and marked as Exhibit ‘A’.
The learned counsel to the Appellant had argued that it was wrong on the part of the trial court to rely on that oral confessional statement obtained from the evidence in chief of the PW1. The counsel fortified his argument with the fact that it was beyond doubt that PW1 was not present when the deceased was thrown into the well. PW1 according to counsel, was not therefore in a position to give evidence as to whether in truth it was the Appellant that committed the act of throwing the deceased into the well. The PW1’s evidence according to the learned counsel on this point amounts to hearsay evidence which is inadmissible in law. Learned counsel relied on the provisions of Section 37 and 38 of the Evidence Act 2011.
Let us pause for some moment and examine the evidence of PW1 at page 49 lines 24 to page 50 of the record, where the PW1 stated as follows:-
“My name is Friday Etiuagbedia. I live at No, 35 Ojegbe Street Agbarho, I am a business man. I am from Ekerhavwe Village Agbarho. I am the Vice President of Ekerhavwe Community. I know the accused person. I knew the accused when she threw her own baby into the community well. On the 26/1/2006 at about 7am, one Prosper Ighonomu the former President of the Community called on me and informed me that a certain lady had thrown her baby into the well. I drove down to Ekerhavwe Village. I saw the accused and some other persons who held the accused. We all together with the accused then went to the well. I saw a baby inside the well. The baby was dead at the material time.
We summoned a meeting of the elders and I was mandated to go and make a report to the police. The accused at the material time was crying and pleading for forgiveness. Accused admitted she was the one who threw the baby into the well. The reason the accused gave in my presence and to my hearing was that the father of the child rejected the child hence she threw the child into the well. I made a statement to the police. The police followed me to the scene and took photographs. The baby was brought out of the well.”
It is this evidence of the PW1 that the learned counsel to the Appellant had argued it only amounted to a hearsay evidence, and thus inadmissible. According to him, the said PW1 did not see with his eyes when the accused threw the deceased into the well. PW1 was also not in a position to say whether or not it was the accused who committed the act.
On the part of the trial court, the learned trial Judge on page 78 from line 30 to page 79 of the Record of Appeal, maintained that the evidence of PW1 on the oral confession of the accused at the scene was not challenged under cross-examination. The denial of the oral confession at the stage of defence after cross-examination was only an afterthought.
This court examined carefully the circumstances of the evidence in chief of the PW1 on the oral confession of the Appellant. The law is already trite that inadmissible evidence even if not objected to in cross-examination must be rejected by the court. If the trial fails to so do, it can be rejected on appeal. However, there is an exception to that rule i.e. if the evidence can be interpreted as complying with the statutory requirement, then it is a matter to be taken into consideration when interpreting the evidence that it went unchallenged. See the Supreme Court decision in Ibrahim Khali Yasin V. Barclays Bank D.C.O. (1988) All NLR 171 at 179. It was stated as follows:-
“If inadmissible evidence is not objected to and is admitted it must still be rejected on appeal but if the evidence can be interpreted as complying with the appropriate statutory requirement then it is a matter to be taken into consideration when interpreting the evidence that it went in unchallenged. In other words if the evidence can be treated as admissible it is not to be treated as inadmissible because there is a possible other interpretation which would render it inadmissible when that possible other interpretation had not been tested by questions from the party who could have objected to the evidence being admitted.”
The circumstance of the said oral confessional statement of the Appellant in the present appeal is quite unique. The PW1 in his evidence in chief stated that, on his arrival at the village, he met the Appellant was held by some people. Again he was told of the Appellant having thrown her baby into the well. He, the Appellant, and the others present moved to the well, where he saw the baby right inside the well lifeless. The Appellant was brought before the elders, who mandated him to lodge a formal report to the police. It was at this stage that the Appellant started crying. She confessed having thrown her baby into the well but was asking for forgiveness. No question was put in cross-examination on this evidence in chief. This court has no reason to disturb the interpretation given by the trial court, that the Appellant actually made the confession as postulated by PW1. If the Appellant did not make such confession, she should have briefed her counsel at the earliest opportunity who would then have challenged such evidence. Her denial of the confession on defence was an afterthought. This court is in one with the trial court that no other interpretation can be given to this oral confession other than the Appellant made it. In the given circumstance, although the PW1 did not see with his eyes the act of the Appellant throwing the baby into the well, the entire circumstances as narrated above makes what would appear to be inadmissible, to be admissible in court. This court has no reason to disturb the decision of the trial court in placing reliance on this oral confessional statement of the Appellant on arriving at its decision.
We now turn our attention to written confessional statement of the Appellant which is Exhibit ‘A’. The Appellant had challenged Exhibit ‘A’ on the ground that it was not made voluntarily. It is trite law that, where the prosecution seeks to tender an extra-judicial statement of an accused and objection is raised thereto on the ground that it was not voluntarily made, the only option open to the court to test the voluntariness is to conduct a trial within a trial. See Emeka V. State (2005) 4 LRCN CC 187 at 197 A – D; Godwin Ikpasa V. Bendel State (1981) 9 SC 7 at Pp 26 – 29; Inusa Saidi V. The State (1982) 4 SC 41 at 69; Igbineweka Owie V. The State (1985) 4 SC (Pt. 2) 1 at 27; Alarape V. The State (2001) 2 SC 114; Uche Obiodiozo & Ors V. The State (1987) 12 SC 74 at Pp 93 and 100 – 102 also reported in (1987) 4 NWLR 748.
In the present appeal, the trial court duly conducted a trial within a trial as contained on pages 54 – 60 of the records. The court entered a considered ruling before admitting the said written statement of the Appellant in evidence, and marked same as Exhibit ‘A’. In the given circumstance therefore the requirement of the law is satisfied. The written statement of the Appellant was validly admitted in evidence as exhibit ‘A’ and this court has no reason whatsoever to disturb it.
Having both the oral and written confessions of the Appellant undisturbed by this court, we now examine the content of such confessions and the entire conduct of the Appellant to the said offence. From the facts gathered in the evidence before the lower court, the Appellant made an attempt at a defence to exculpate herself from the offence charged. In doing so, she stated and maintained during defence that she did not commit the act of throwing the deceased into the well which resulted into death. She admitted the deceased was her child. She said it was her friend called Obakpororo and the brother Okpako that threw the deceased into the well without her consent. She came to live with Obakpororo her friend. The deceased, who was her child, was denied by the biological father. She said her friend had suggested to her, that the brother could marry her but for the presence of the (child) deceased. Her friend suggested to her that they kill the deceased for two reasons. (1) The father of the child had denied her. (2) Her own brother could marry her if the deceased was not there. The Appellant knew from that point that the life of her child was in danger. She did not say she did anything to protect it. The story is that while she was working in the kitchen, she discovered her child missing. Later on her friend surfaced without the child. She did not however stated those efforts that she made to have her friend to account for the whereabouts of her child. She did not say she had raised any alarm or sought for any assistance against her friend. She did not say of any attempt to report to the police or any person in authority. The lifeless body of the deceased was discovered inside the well, before she was held, and her friend escaped to an unknown destination. There is no doubt from above that the Appellant had knowledge that the deceased was in a state of danger, helplessly, yet she omitted in her responsibility to protect her. If the Appellant claims that she did not with the use of her own hands committed the act, her omission caused the death of the deceased.
The Supreme Court of Nigeria, in case of Friday Aiguobarueghian and Anor V. The State 17 NSCQR 442 at 487 per Niki Tobi JSC (as he then was) stated as follows:
“No doubt to ground a conviction for murder, the prosecution must establish beyond reasonable doubt the following ingredients.
(a) The death of the deceased.
(b) The act or omission of the accused which caused the death and
(c) That the act or omission of the accused which caused the death was intentional with knowledge that death or grievous bodily harm was its probable consequence. See Ogba V. State (1992) 2 NWLR (Pt. 222) 164; Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1; Fred Dapere Gira V. The State (1996) 4 NWLR (Pt. 443) 375 at 382; Haruna V. The State (1990) 6 NWLR (Pt.115) 125 at 126.”
In the case of Edwin Ogba V. The State (1992) 2 NWLR (pt. 222) 164 at 198 the Supreme Court held that:-
These three conditions must co-exist and where one of them is absent or tainted with doubt the charge is not proved. The onus is on the prosecution throughout and does not shift. See also Obudo v. The State (1991) 6 NWLR (Pt. 198) 435 at 458.”
To establish the three ingredients of the offence of murder against the Appellant, the prosecution placed its heavy reliance on both the oral and written confessions of the Appellant. The trial court in its Judgment on page 78 lines 27 and 28:
“In the present case I am of the firm view that the evidence of PW1 on the oral confession of the accused was not challenged as postulated by the witness for the prosecution…”
The law is already trite that the appropriate time to challenge the voluntary nature of a statement is when the prosecution seeks to tender the statement in evidence; the same principle applies in oral and written confessional statements. See:- Basil Akpa V. The State (2010) 8 LRCN CC 71, and Alarape V. State (2001) 84 LRCN 600. Having not challenged the said oral confession the trial court was therefore right to have acted upon it. Notwithstanding the fact that Appellant retracted it in her defence. See:- Edamine V. State (1996) 4 NWLR 375; Odeh V. State (2008) All FWLR (Pt. 424) 1590 at 1618.
This court had earlier in this Judgment, in giving effect to the decision of the Supreme Court in Ibrahim Khahi Yasin V. Barclays Bank DCO (Supra), since the oral confession went unchallenged, it is admissible, and was rightly so admitted by the trial court. The trial court on page 82 of the records lines 27 – 30 stated as follows:
“I had the opportunity to study PW1 at the witness box and he appeared to me as a witness of truth and I believe the witness testified on what he saw and heard without any embellishment. I therefore have no hesitation in holding that the oral confession by the accused as postulated in the evidence of PW1 and the written confession (Exhibit A) as postulated in the evidence of PW3 were free and voluntary and satisfactorily proved.”
The law is already trite that, the court can convict, on confession, even without corroboration, so long as the court is satisfied of its truth. See: Mohammed J, Yahaya V. The State (1986) 12 SC 282 at 290 per Kawu JSC (as he then was) stated as follows:-
“It is the law that even without corroboration a confession is sufficient to support a conviction so long as the court is satisfied of its truth.”
Again the Supreme Court in the same year maintained the same position per Karibi-Whyte JSC (as he then was) in Isaac Stephen V. The State (1986) 12 SC 450 at 470, it was stated as follows:
“It is well settled in law that a free and voluntary confession as Appellant’s statement to the police was alone without corroborative evidence sufficient to support a conviction. See R.V. Omokaro (1941) 7 WACA 146”
Before concluding, let me state some provisions of the Criminal Code Act Cap C38 Laws of the Federation of Nigeria 2004 in relation to homicide, suicide, infanticide, concealment of birth, unlawful possession of human head.
Section 306: Killing of a human being unlawfully:
“It is unlawful to kill any person unless such killing is authorized or justified or excused by law.”
Section 307: When a child becomes a human being:
“A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel string is severed or not.”
In the present appeal from all the submissions before this court, the deceased was a nine (9) month old baby, before the unfortunate incidence. The deceased had thus become a human being, and therefore capable of being killed as defined by the law.
On the whole therefore, I find this appeal as unmeritorious, and hence resolved the sole issue for determination against the Appellant and in favour of the Respondent.
The Judgment of Hon. Justice F.O. Ohwo of the High Court of Delta State, sitting at Ughelli Judicial Division in Suit No. UHC/10C/2006 delivered on the 10th day of March 2010, is hereby affirmed by this court.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s conclusion that the appeal is unmeritorious.
Accordingly, I dismiss the appeal and affirm the judgment delivered on 10/3/2010 by the lower court in Suit No: UHC/10C/2006.
TOM SHAIBU YAKUBU, J.C.A.: I had the privilege of reading the draft of the judgment, rendered by my Lord – SIDI D. BAGE, JCA.
I am fully in agreement with the lucid reasoning therein and the conclusion that this appeal merits nothing, but a dismissal.
I have nothing more useful to add to it. I too therefore dismiss the appeal and affirm the judgment of Ohwo, J., of the Delta State High Court of Justice, holden at Ughelli in Charge No. UHC/10c/2006 of 10th March, 2010.
Appearances
AYO ASALA with A.E. ALAGUNFor Appellant
AND
O.F. ENENMO with N.D. AGUSIOBOFor Respondent
