KEHINDE ADEDOTUN v. THE STATE
(2019)LCN/13567(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/IB/290C/2017
JUSTICES:
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
KEHINDE ADEDOTUN – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
THE OFFENCE OF COMMON INTENTION TO PROSECUTE AN UNLAWFUL PURPOSE
Section 8 of the Criminal Code provides thus:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
In a case of common intention as where the participe crimim inis as in the case agreed that a person be shot . It does not matter which of the accused did what See Alagba & Ors v. The King (1950) 19 NLR 129; R v. Atangi (1955) 15 WACA 34; R v. Gyang & Nfam (1954) 14 WACA 584.
The appellant is also implicated under Section 7 (b), (c) and (d) of the Criminal Code in the sense of aiding or procuring the commission of the offence. The confessional statement relied on by the trial Court shows that each of the accused with the appellant formed a design to commit murder and together followed it through to conclusion each encouraging the other by his presence and participation and later, active concealment.Adetokunbo Ogunlana & Or. v. The State (1995) 5 NCNJ 189; The State v. Fatai Azeez (2008) 4 SCNJ 325. PER OKORONKWO, J.C.A.
THE DOCTRINE OF LAST SEEN
The doctrine of LAST SEEN means that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out the person last seen with him is dead. See the case Igabele v. The State (2006) 2 SCNJ pg. 152.
In view of the doctrine of last seen, it is the duty of the accused persons to give an explanation relating to how the deceased who was last seen alive with them met his death. In the absence of tenable explanation by the accused persons, I therefore, in line with the provision of the law presume that the person last seen with the deceased have full responsibility for his death as the person last seen with them has turned up dead.
Based on all the above stated, I hold that the 2nd ingredient of the offence of murder has therefore been established. PER OKORONKWO, J.C.A.
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): By a judgment of the High Court of Oyo State delivered on 22nd day of May 2012 the appellant along with two others were convicted of the offence of conspiracy and murder contrary to Section 324 of the Criminal Code and Section 219 of the same code.
By leave of this Court granted the appellant on June 29, 2017, the appellant appealed against the judgment out of time by a notice of appeal filed in the Court below on June 30, 2017 which raised the following grounds of appeal.
Grounds of Appeal
Ground One
The learned trial Judge erred in law on the degree of evidence required to sustain the inferences/findings of conspiracy as charged.
Particulars of error
(a) The totality of the Oral evidence adduced by the prosecution and as reviewed by the learned trial Judge cannot support the findings of Conspiracy.
(b) The oral evidence adduced by the prosecution and materially supported by the appellant shows that the appellant had a common object with the other two accused persons charged but no common intention or agreement to commit the offences
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charged.
Ground Two
The learned trial Judge erred in law and on the facts in holding that the prosecution has proved its case beyond reasonable doubt against the appellant despite the material contradictions in the case of the prosecution and thereby occasioning a miscarriage of justice.
Particulars of error
(a) There were material contradictions in the evidence of prosecutions witnesses.
(b) Exhibits A1 to A4 and B1 to B23 were not in any way linked with the act of the appellant.
(c) The corpse of the alleged deceased (Yemi Shotona) was not tendered for postmortem examination and no medical report or certificate as to the real cause of the death of the deceased tendered.
(d) The nature and quantum of evidence against the appellant was neither clearly made out by the prosecution nor clearly identified by the learned trial Judge.
(e) There was a break in time or space within the commission of the crime, arrest and discovery of the corpse of the deceased.
(f) The alleged photograph of the corpse of the deceased taken by the officials of BCOS on the invitation of PW4 was never tendered by the prosecution.
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Ground Three
The verdict of the learned trial Judge is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence.
Facts of the Case
From the evidence led in Court and accepted by the Court the facts of the case were that the appellant and his co-accused Ibrahim Isah 1st accused and Jubril Salami were employed as night watch guard at Ajangboju Akobo Estate Community. They were under the supervision of the Baale of the estate.
While they were on duty on the night of 23rd May 2005 about 1.00 pm, they found a man walking alone in the night whom they accosted and questioned. As the man could not account for his presence in the estate, they took him to the Baale who after examining the man ordered them to kill the man at an agric bush nearby. According to the confessional statements, Exhibit C1, C2 and C3 of the accused persons in particular Exhibit C2 of the appellant. They led the wondering man to the agric bush where 1st accused shot the man on the chest and he died immediately. They resumed their work thereafter but were arrested by the police where each of the accused made the confessional
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statements. Commenting on the confessional statements, the learned trial Judge commented thus at page 201-203 of the record:
The 3 accused persons in Exhibits C1, C2 and C3, all voluntarily admitted to having killed the deceased. They infact testified as to how he was shot. I note the evidence of PW2 Oyeboade Alade who testified that on the night of 22/05/05 he was in his house when he heard a noise outside around his house at about 12 midnight. That he went out and he saw the 3 night guards (now 3 accused persons) beating a man whom they instructed to shout kengbe akara (bean cake) around the area in the dead of the night. He advised them to stop beating the man and to take him to the Baale’s house. That while discussing the arrested person tried to escape and he ran into his neighbor’s house and his said neighbor PW3 drove him out and the man was caught again by the suspects. That the 3 suspects went away with the deceased. PW3 Mr. Ambali Akanmu corroborated the evidence of PW2 that the 3 accused persons went away with the arrested deceased. They were advised to take him to the Baale’s house. The evidence
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as given by PW2 and PW3 corroborated the evidence of the 3 accused persons as given on the point.
Although, the appellant and the other accused persons each retracted from the confessions at the trial, the trial Court disbelieved them and held thus at page 204 of the record thus:
I earlier stated in the trial within trial that the statement were made voluntarily and I still so hold. On the issue of retraction of the statements made by the suspects. See the case of Nwachukwu v. The State where Iguh JSC stated at pg. 254 line 11.19 as follows:
The fact that the accused did subsequently retract his confession does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify it. See Nkwuda Edamine v. The State (1996) 4 NWLR 375 at 388. It is however desirable particularly if the confession is subsequently retracted that there should be some corroboration, no matter how slight but a conviction will not be quashed mainly because it is based upon the evidence of a confession by the appellant.
Of and concerning corroboration of the confessional statements the learned
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trial Judge found corroborative evidence to the confession in the evidence of PW2 Oyeboade Alade. The trial Court commented thus:
The 3 accused persons in Exhibits C1, C2 and C3, all voluntarily admitted to having killed the deceased. They infact testified as to how he was shot I note the evidence of PW2 Oyeboade Alade who testified that on the night of 22/05/05 he was in his house when he heard a noise outside around his house at about 12 midnight. That he went out and he saw the 3 night guards (now 3 accused persons) beating a man whom they instructed to shout kengbe akara (bean cake) around the area in the dead of the night. He advised them to stop beating the man and to take him to the Baale’s house. That while discussing the arrested person tried to escape and he ran into his neighbor’s house and his said neighbor PW3 drove him out and the man was caught again by the suspects. That the 3 suspects went away with the deceased. PW3 Mr. Ambali Akanmu corroborated the evidence of PW2 that the 3 accused persons went away with the arrested deceased. They were advised to take him to the Baale’s house. The evidence as
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given by PW2 and PW3 corroborated the evidence of the 3 accused persons as given on the point.
Having found corroboration as shown above, the trial Court felt justified in convicting appellant of the offence of conspiracy and murder as charged.
Issue for Determination
The appellant in his brief of argument raised one issue for determination which is:
Whether on the totality of evidence before the trial Court, the guilt at the accused/ appellant was proved beyond reasonable doubt. Ground I, II and III.
The respondent raised a similar issue as the appellant being:
Whether on the strength of the evidence adduced at the trial Court, it was right to hold that the prosecution proved its case beyond reasonable doubt.
In arguing this issue, the appellant relying on Kaza v. The State (2008) 7 NWLR (pt. 1085) at 175 pointed out the usual but essential elements the Prosecution is required to prove in a prosecution for murder being:
(i) That death of the victim deceased
(ii) That death was a result of the act of the accused person
(iii) That the accused know that his act will
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result in death or did not care whether the death of the deceased will result from his act.
Concerning the third element, appellant contended at paragraph 4.07 that the death of the deceased was not linked to the appellant and so the second element that death was a result of the act of the accused person was not proved. This is irrespective of Exhibit C2 the confessional statement of the appellant.
In response to this argument by the learned appellants counsel, it is quite true from Exhibit C1, C2 and C3. It was not the appellants act that directly led to the death of the deceased but evidence in those Exhibits C1, C2 and C3 revealed that the three were acting in concert and in pursuance of a design or plan by them to execute a common criminal purpose. By virtue of Section 8 of the Criminal Code, all of them are deemed in law to have taken part in all the activities that led to the death of the deceased.
Section 8 of the Criminal Code provides thus:
When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence
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is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
In a case of common intention as where the participe crimim inis as in the case agreed that a person be shot . It does not matter which of the accused did what See Alagba & Ors v. The King (1950) 19 NLR 129; R v. Atangi (1955) 15 WACA 34; R v. Gyang & Nfam (1954) 14 WACA 584.
The appellant is also implicated under Section 7 (b), (c) and (d) of the Criminal Code in the sense of aiding or procuring the commission of the offence. The confessional statement relied on by the trial Court shows that each of the accused with the appellant formed a design to commit murder and together followed it through to conclusion each encouraging the other by his presence and participation and later, active concealment. Adetokunbo Ogunlana & Or. v. The State (1995) 5 NCNJ 189; The State v. Fatai Azeez (2008) 4 SCNJ 325.
Concerning the need for corroboration of the confessional statements of the appellant and others, the trial Court found ample corroboration in the evidence of PW2
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and PW3. These were community members who came out from their houses on the night of 22/5/05 when they heard the deceased shouting as he (deceased) was being marched and paraded around the community. As they came out each on his own, they found the three guards i.e. (the three accused including appellant) beating the deceased as they paraded him in the dead of the night PW2 advised them to take the man to the Baale. PW3 into whose house the deceased ran into pursued him out to the guards who went away with the man. Not only does the evidence of PW2 and PW3 provide corroboration for the confessional statement, it also lays a ground for the operation of the doctrine of last seen considered by the trial Court at pages 206-207 of the record thus:
The doctrine of LAST SEEN means that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out the person last seen with him is dead. See the case Igabele v. The State (2006) 2 SCNJ pg. 152.
In view of the doctrine of last seen, it is the duty of the accused persons to give an explanation
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relating to how the deceased who was last seen alive with them met his death. In the absence of tenable explanation by the accused persons, I therefore, in line with the provision of the law presume that the person last seen with the deceased have full responsibility for his death as the person last seen with them has turned up dead.
Based on all the above stated, I hold that the 2nd ingredient of the offence of murder has therefore been established.
On intention, the trial Judge found that the accused persons including appellant admitted using a gun in killing the deceased. They deliberately shot the deceased person who was not armed with any weapon. The Judge said that intention is implied in the statement of the accused persons.
Generally, in murder cases, there can be no greater manifestation of intention to kill or cause grievous harm than the use of a knife (or gun) in killing the deceases Ehot v. The State (1993) 5 SCNJ 76.
In all the element raised, the judgment of the lower Court has complete answer that the findings of the trial Court are well founded and the application of the law was also good.
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In conclusion, I find no merit in this appeal. It is accordingly dismissed. I affirm the judgment of the lower Court.
ABUBAKAR MAHMUD TALBA, J.C.A.: I read before now the Judgment just delivered by my learned brother Nonyerem Okoronkwo JCA. I agree with his reasoning and conclusion that this appeal lacks merit. It is settled principle of law that a voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons is usually accepted as satisfactorily evidence on which the Court can convict. See Okumade v. State (2015) 61 (pt. iii) NSCQR 1568 and Semiu Afolabi v. State (2013) 54 (pt. 2) NSCQR 1193.
The Appellant has not shown why we should interfere with the findings of the trial Court.
The appeal is unmeritorious and it is accordingly dismissed.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now the lead judgment just delivered by my learned brother, Nonyerem Okoronkwo, JCA. I agree that this appeal lacks merit and should be dismissed.
The Appellant and two others were convicted of the offences of
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Conspiracy and Murder contrary to Section 324 and Section 219 of the Criminal Code.
The Appellant was convicted based on his confessional statements which the Court found corroborated by the evidence of P.W.2 and P.W.3. The finding of the trial Court on this point is unassailable. The Court found that Exhibit C2 as well as other confessional statements made by the Appellant and other convicts were proved as there exist independent evidence on record corroborating same.
I wish to add that an extra judicial confession if proved and admitted in evidence as in this instance has the same effect as a plea of guilt by an accused person in open Court. The Statements of the Appellant Exhibits C1, C2 and C3 were subjected to a trial within trial before they were admitted in evidence. There was abundant evidence to support the finding of proof beyond reasonable doubt by the trial Court.
It is for the foregoing and the fuller reasons contained in the lead judgment that I also hold that this appeal lacks merit and it is also dismissed by me.
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Appearances:
Adebayo Adegbite, Esq. For Appellant(s)
Kayode Babalola, Esq. (Asst. Director, Min. of Justice, Oyo State) For Respondent(s)
Appearances
Adebayo Adegbite, Esq. For Appellant
AND
Kayode Babalola, Esq. (Asst. Director, Min. of Justice, Oyo State) For Respondent