OLUWASOLA v. STATE
(2020)LCN/15216(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Tuesday, March 31, 2020
CA/EK/60C/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
KOLAWOLE OLUWASOLA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
ESSENTIAL INGREDIENTS TO PROVE THE OFFENCE OF MURDER
The law is that in a charge of murder, the essential ingredients the prosecution must prove in order to secure a conviction are:
(a) that the deceased died;
(b) that the death of the said deceased has resulted from the act of the accused;
(c) that the said act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
To sustain a conviction, all the above ingredients must be clearly proved. Therefore, as set out in Section 139 of the Evidence Act, 2011, the said ingredients must be proved beyond reasonable doubt. PER ORJI-ABADUA, J.C.A.
WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
There are three ways in which the guilt of an accused person can be established and as chronicled in a plethora of cases, it can be proved by;
(a) the confessional statement of the accused person; or
(b) circumstantial evidence; or
(c) evidence of eye witness of the crime.
It follows, therefore, that the prosecution does not always need an eye witness account to convict an accused of murder, if the charge can otherwise be proved. See Emeka vs. State (2001) 14 NWLR Part 734 page 666 and Igabele vs. The State (2006) 6 NWLR Part 975 page 100. Furthermore, it is trite law that circumstantial evidence has no relevance where the killer of the deceased with his own mouth confessed commission of the crime. See Abacha vs. The State (2002) 11 NWLR Part 779 p. 437 per Onu J.S.C at 521. What this means is that whether the circumstantial evidence adduced before the lower Court met the required standard or not, once there is a confessional statement of the accused admitting the commission of the offence, the said circumstantial evidence will, therefore, be irrelevant and may not be countenanced. PER ORJI-ABADUA,J.C.A.
WHETHER OR NOT CORROBORATIVE EVIDENCE MUST BE AN INDEPENDENT TESTIMONY WHICH AFFECTS THE ACCUSED BY CONNECTING OR LINKING HIM WTH THE CRIME HE IS CHARGED IWTH
Corroborative evidence must be an independent testimony which affects the accused by connecting or linking him with the crime he is charged with. It must not only implicate him in the commission of the offence or crime in material particular but also that he actually, committed the crime/offence. In considering whether some evidence is corroborative of another, the Court must take all the little items of the former together and consider if they all add up to corroboration. It is important to note that corroboration need not consist of direct evidence that the accused did commit the offence alleged nor must it amount to confirmation of the whole account given by the witness. The only important requirement is that the evidence corroborates the evidence in some respect material to the charge. See Nwankwoala vs. The State (2005) 12 NWLR Part 940 page 637. PER ORJI-ABADUA,J.C.A.
THERESA NGOLIKA ORJI-ABADUA,J.C.A. (Delivering the Leading Judgment): The Appellant was charged with the offences of murder and armed robbery. In the Information dated the 3rd January, 2017 and filed by the Prosecution on the 25th January, 2017 before the High Court of Ekiti State sitting at Ado-Ekiti, the Appellant was charged with two Counts of Offences which read thus:
“Count 1: Statement of Offence: Murder, contrary to Section 316 of Criminal Code Law, Cap 16, Laws of Ekiti State, 2012. Particulars of Offence: Kolawole Oluwasola, on or about the 13th day of April, 2016 at Sabo Area, Aramoko within the jurisdiction of the Honourable Court, did murder one Yahaya Sumaila.
Count II: Statement of Offence: Armed Robbery contrary to Section 402(2) of the Criminal Code Law, Cap 16, Laws of Ekiti State, 2012.
Particulars of Offence: Kolawole Oluwasola, on or about the 13th day of April, 2016 at Sabo Area, Aramoko within the jurisdiction of the Court, did rob one Yahaya Sumaila.”
Trial was conducted at the lower Court during which the Prosecution presented six witnesses i.e. PW1, Sanni Anas, who witnessed when the deceased and the accused person were haggling over the price of the Okada fare to Ido-Ekiti and they agreed on the price of N1,000 and he bade his brother safe trip. PW2 was the owner of the motorcycle driven by the deceased. PW3 was the Chairman of Hausa community in Aromoko. PW4 was the father of the deceased who also identified the body of the deceased, Yahaya Sumaila. PW5 and PW6 were the Investigating Police Officers who conducted investigations into the crime. Only the accused person testified on his behalf. At the end of the trial, and after reviewing the evidence procured by the parties and applying the applicable laws, the lower Court, on the 5th October, 2017, delivered its judgment and found the accused person guilty of the offences of murder and armed robbery and sentenced him to death by hanging on the neck.
The accused was distraught at the judgment that he filed his Notice of Appeal on the 3rd November, 2017 which was founded on the ground that the decision of the Court is unreasonable and unsupported having regard to the weight of evidence. The record of appeal was transmitted to this Court on 14/6/2018 but was deemed as having been appropriately compiled and transmitted to this Court on 26/2/2019. He filed an Amended Notice of Appeal on 8/10/18 but it was deemed as duly filed and served pursuant to the order of this Court made on the same 26/2/19.
The Appellant’s Brief of Argument settled by Dr. Kayode Ajulo was filed on 3/4/2019. Two issues were postulated therein and they read:
“1. Whether the Prosecution proved its case of murder beyond reasonable doubt having regard to the evidence adduced at the trial Court.
2. Whether the Prosecution proved its case of armed robbery beyond reasonable doubt having regard to the evidence adduced at the trial.”
The Respondent adopted the two issues distilled by the Appellant.
Submitting on behalf of the Appellant, his learned Counsel, after stating the legal principles laid down for the proof murder case, the standard required by the Evidence Act and the method by which those ingredients can be proved, stated that there was no doubt the deceased had died based on the evidence before the Court showing that the decomposing body of the deceased was found in the course of investigation by the Police few meters to Ido-Ekiti.
He referred to Exhibits C1-C5, being the photographs taken of the deceased that he had died.
With respect to the second ingredient as to whether the death of the deceased was caused by the accused, it was submitted that there was no eye witness to the alleged act of murder even though PW1 said that he saw the Appellant with the deceased before they departed for Ido-Ekiti. He contended that the trial Court wrongly relied on the alleged confessional statement of the Appellant tendered as Exhibit E rather than on Exhibit B where he gave graphic detail of what transpired on the journey concerning armed robbery attack on them and how he escaped unhurt while the deceased was stabbed with a knife by one of the assailants and died. Learned Counsel pointed out that no post mortem examination was carried out on the body of the deceased to establish the actual cause of death of the deceased. He argued that the evidence before the trial Court is conflicting since there was no result showing whether the deceased died of suffocation or his throat was slit, and none of them was linked to the Appellant during the trial. He submitted that there is no proof that the Appellant’s act caused the death of the deceased, so there is uncertainty in the cause of death of the deceased. He referred to the evidence of DW1 that after the deceased fell down from the motorcycle upon being attacked by the assailants, he was lucky and fled the scene. He contended that the evidence of the Respondent raised doubts and the doubts go to the benefit of the Appellant. He cited the cases of Ibeh vs. The State (1997) 4 NWLR Part 484 page 632 at 661 and Omotayo vs. State (2013) 2 NWLR Part 1338 page 235 and submitted that where there is doubt or where the Prosecution’s case is shaky, the accused would be entitled to have the benefit of such doubt resolved in his favour.
On the third ingredient that the act of the accused which caused the death was intentional and with knowledge that death or grievous bodily harm was its probable consequence, learned Counsel submitted that mensrea is fundamental in the proof beyond reasonable doubt. He referred to the evidence of the Appellant that he did not kill the deceased and stressed that the defence of the Appellant that the deceased was stabbed with a knife by one of the assailants and died was never contradicted or rebutted throughout the trial. He stated that the Appellant was not cross-examined on his testimony that he did not kill the deceased and that the evidence remained unchallenged and uncontroverted. He made reference to some cases including Egbunike vs. African Continental (1995) 2 NWLR Part 375 page 34; and Adamu vs. State (2014) 10 NWLR Part 1416 page 441 and submitted that the duty of disproving any defence raised by the defendant in a criminal trial is imposed on the Prosecution. He submitted that those defence can be raised by the accused specifically or can be deduced from evidence before the Court. It can be relied upon in determining whether the actions of the accused raised any defence in law. There can be no proof beyond reasonable doubt unless the mental capacity of the accused at all times material to the act constituting the offence charged is established once raised is apparent from the materials before the trial Court. He contended that it was wrong for the trial Court to rely on the contents of Exhibit E that were controverted and retracted, to hold that the Prosecution proved its case beyond reasonable doubt.
He further argued that since the Prosecution failed to challenge or contradict the Appellant on his evidence that they were attacked by two men who blocked the road with their Toyota Camry and while he was lucky and escaped, the deceased was stabbed with a knife by one of the assailants and he died, the Court cannot do the Prosecution’s case for it, and there is no proof of the element of mens rea beyond reasonable doubt to secure a conviction of the Appellant. He made reference to the cases of Amayo vs. State (2001) 18 NWLR Part 745 page 251 at 280-281 and Olabode vs. State (2007) All FWLR Part 389 page 301 at 1323 and submitted that the Prosecution failed to prove the elements of the offence of murder punishable with death against the Appellant.
Then reacting to the submissions of the Appellant, learned Counsel for the Respondent, Olawale Fapohunda, Esq., the Hon. A. G., Ekiti State, in the Respondents Brief of Argument prepared by him, submitted that the Prosecution through the evidence of PW2, PW3 and PW5 established that the deceased, Yahaya Sumaila is dead, that it was the Appellant who led those witnesses to the spot where the decomposing body of the deceased was recovered. He made reference to Exhibits C1-C4 and reiterated that there is ample proof that the said Yahaya Sumaila is dead.
Marshaling his points in respect of the second ingredient, learned Counsel made reference to the decisions in Michael Taiye vs. State (2018) All FWLR Part 969 page 737 at 757-758; Adamu vs. State (2018) All FWLR Part 925 page 48 at 79; Omoregie vs. State (2018) All FWLR Part 925 page 1 at 17 and Famuyiwa vs. State (2018) All FWLR Part 919 page 1 at 24 in which it was restated that guilt of an accused can be proved by either (1) Voluntary confessional statement of an accused person. (2) Circumstantial evidence which must be cogent, unequivocal and compelling leading to the conclusion that the accused and no other person committed the offence and or (3) evidence of eye witness or witnesses otherwise known as direct evidence. He submitted that through PW6, the Prosecution tendered Exhibit E, the statement made by the Appellant at the Command Headquarters, Ado-Ekiti following the transfer of the case from the Divisional Police Headquarter, Aromoko Ekiti while the statement of the Appellant made at Aromoko was tendered as Exhibit B via PW5. He said that the Appellant confessed in Exhibit E that he committed the murder. He pointed out that there was no objection to the admissibility of Exhibit E on the ground of involuntariness. He further referenced Section 28 of the Evidence Act, 2011, the cases of Michael Taiye vs. State (supra); Lekan Olaoye vs. State (2018) All FWLR Part 961 page 1532 at 1557 then relevant portions of the Appellant’s statement in Exhibit E where he stated that he was brought down to Aramoko Ekiti Police Station and he took the Police to the place where the rider was killed by him and they saw decaying body on the road where they fought although he had lied that he was not the person that killed him as at then. He said that he slit the Okada rider on his throat with a knife in his possession before he lost control. He submitted that the Appellant gave an account of what led to the death of the deceased on the day of the incident. He further submitted that by those statements it is clear that the Appellant killed the deceased and he led the IPO to the scene where the corpse was discovered. He made reference to the cases of Haruna vs. A.G. Fed. (2012) All FWLR Part 632 page 1617; Alarape vs. State (2001) All FWLR Part 41 page 1872; Irene Nguma vs. A.G. Imo State (2014) 16 WRN page 1 at 24-25 and submitted that it is settled that a free and voluntary confession which is direct, positive, and properly proved is sufficient to sustain a conviction. Though desirable, corroborative evidence is not necessary. Once the Court is satisfied with its truth, it can safely convict on the basis of the confessional statement of an accused alone.
He however, submitted that there are series of evidence which corroborate the Appellant’s statement in Exhibit E. He referred to the evidence of last seen procured through PW1 who told the Court that the deceased was last seen with the Appellant and corroborated the confessional statement of the Appellant and the same was unchallenged during cross-examination. He referred to the cases of Mbang vs. State (2010) 22 WRN page 111 at 128-129; Umar vs. State (2018) All FWLR Part 963 page 1816; Part 1821 at R4; Omoregie vs. State (2018) All FWLR Part 925 page 1 at 20-21; Haruna vs. A.G. Fed. (2012) All FWLR Part 632 page 1617 at 1632 and Igabele vs. State (2006) All FWLR Part 311 page 1797 and submitted that the law presumes that the person last seen with a deceased bears full responsibility for his death. Therefore, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion it leaves no room for acquittal. He stressed that from the evidence adduced by the Prosecution, the Appellant was the last person to be seen with the deceased and no satisfactory explanation has been given by the Appellant as regards the death of the deceased.
Learned Counsel then touched on the explanation given by the Appellant that they were both attacked by two assailants who blocked the road with a Toyota Camry and while he was able to escape, the rider was so unlucky and was stabbed by one of the assailants, and then described such as a fallacy. He stated that the Appellant lied in his testimony otherwise, why did the Appellant fail to report that to the Police and chose to ride the motorcycle to Ibadan where he was eventually apprehended. He submitted that although it is the law that the fact of lying alone without more does not translate into the guilt of an accused in a criminal trial, but if that fact of lying together with other circumstances in the case go to show that the accused is guilty of the offence charged, that lie can be considered as relevant evidence against. He cited the cases of Ajiboye vs. State (1994) 8 NWLR Part 364 page 587 at 593 and Shodiya vs. State (1992) 3 WLR Part 230 page 457 in support. He further pointed out that the fact that the deceased’s motorcycle was found in the possession of the Appellant constitute circumstantial evidence which points irresistibly to the fact that the Appellant is responsible for the death of the victim. He further relied on Omoregie vs. State (supra) at page 22; Chukwu vs. State (2007) All FWLR Part 289 page 124 at 1229-1230; Adekunle vs. State (2006) All FWLR Part 332 page 1452 and Kalu vs. State (supra) at 396 and then submitted that the unchallenged circumstantial evidence adduced in the instant case is overwhelming and in conformity with the principle established in the aforementioned cases.
On the third ingredient which borders on whether the act of the accused person which caused the death of the deceased was intentional with the knowledge that the death or bodily harm was its probable consequence, learned Counsel referred to Exhibit E where the Appellant confessed to the fact that he slit the throat of the deceased with knife and strangulated him. The same was corroborated by the evidence of PW5 who testified that he saw splashes of blood at the scene when the Appellant led them there and a knife was discovered at the scene.
He made reference to the decisions Nwokeru vs. State (2013) 16 NWLR Part 1380 page 207; Akinlolu vs. State (2015) 2 NWLR Part 1497 page 03 and Orisakwe vs. State (2004) 12 NWLR Part 887 page 28; Afolabi vs State (2016) 11 NWLR Part 14 page 497 and The State vs. Njoku (2010) All FWLR Part 523 page 1924 and submitted that it is the law that an intention to cause death is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it will result in the death of or grievous bodily harm to the victim. Also where a man in full knowledge of danger involved and without lawful excuse deliberately does that which exposes a victim to the risk of probable grievous bodily harm or death and the victim dies, the perpetrator of the crime is guilty of murder.
Learned Counsel then submitted that the Appellant who slit the throat of the deceased at night and strangled him clearly intended the death of the deceased or grievous bodily harm on the deceased.
He referred to the contention of the Appellant that no post mortem examination was carried out on the body of the deceased to reveal the actual cause of death of the deceased, and submitted that that does not absolve him of committing the crime in the light of Exhibits A and E, and the elucidation in his oral testimony which clearly showed that he was implicated in the death of the deceased. Also his escape from Ido-Ekiti to Ibadan after the incident shows that he has some explanations to make in the death of the deceased. He further explained that the Appellant was the one who took PW5 and his team together with PW2 and PW3 to the scene of crime where the decomposing body of the deceased was found which could not allow for a post mortem examination but was able to be identified by PW4, the father of the deceased. He therefore, persuaded this Court to resolve the issue against the Appellant.
Turning to issue No. 2, i.e. whether the Prosecution proved its case of armed robbery beyond reasonable doubt having regard to the evidence adduced at the trial, the learned Respondent’s Counsel placed reliance on the cases of Attah vs. State (2010) All FWLR Part 540 page 1224 at 1256 and Sowemimo vs. State (2011) All FWLR Part 599 page 1064 at 1086 and stated the three ingredients of the offence of armed Robbery that must be contemporaneously proved to sustain the allegation of the offence, thus: that (a) there was robbery (b) the robbery was an armed robbery and (c) the accused person took part in the robbery. He equally referred to the cases of Adamu vs. State (2018) All FWLR Part 925 page 48 at 79; Omoregie vs. State (2018) All FWLR Part 925 page 1 at 17 and Famuyiwa vs. State (2018)All FWLR Part 919 page 1 at 24 and submitted that the guilt of an accused person can be proved either by: (1) evidence of an eye witness, or (2) confessional statement or (3) circumstantial evidence. He then submitted that PW2, PW3 and PW5 were unanimous and very assertive in their testimony that the deceased’s motorcycle was found in the possession of the Appellant in Ibadan. PW2 confirmed the ownership of the motorcycle before the DPO, Gbagi Police Station when he identified the motorcycle in the midst of other motorcycles.
He further reproduced a portion of PW3’s evidence, an excerpt from Exhibit E, the Appellant’s confessional statement and submitted that the Exhibit was clearly corroborated by the Prosecution’s witnesses. He said that the Appellant gave a contrary account during his oral testimony and in that regard, an accused person who wishes to impeach his earlier extra-judicial statement has an onerous duty to establish that his earlier confessional statement cannot be true or correct by showing either: (1) that he was not correctly recorded or (b) that he, in fact did not make the statement or (c) that he was unsettled in mind at the time he made the statement or (d) that he was induced to make the statement. He referred to Hassan vs. State (2001) FWLR Part 74 page 212 and Usung vs. State (2009) All FWLR Part 462 page 1203 and submitted that none of the events has been established by the Appellant, therefore, the Appellant’s conviction and sentence are sustainable on Exhibit E. He further referred to Abdulmumini vs. FRN (2018) All FWLR Part 963 page 1863 at 1875 and Bolanle vs. State (2010) WRN Vol. 4 page 26 at 34 and submitted that it is not the business of an appeal Court to interfere and to substitute its views for the view of the trial Court. He thereafter urged this Court to resolve the two issues against the Appellant and dismiss the appeal.
The Appellant’s Reply Brief was filed on 15/10/2019, the contents of which have been perused and taken into consideration in this judgment.
The first issue raised by the Appellant is whether the Prosecution proved its case of murder beyond reasonable doubt having regard to the evidence adduced at the trial. It ought to be borne in mind that the offence of murder attracts death penalty where the accused is found culpable, that is why, the law had put in place some stringent requirements that must co-exist before a Court can be convinced that a particular accused person committed the atrocious crime. These were restated in the submissions of respective Counsel for the parties but for clarity sake, I may be compelled to recapitulate them here at so as to decipher whether any of them or indeed all had been proved by the Prosecution as required by law. The law is that in a charge of murder, the essential ingredients the prosecution must prove in order to secure a conviction are:
(a) that the deceased died;
(b) that the death of the said deceased has resulted from the act of the accused;
(c) that the said act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
To sustain a conviction, all the above ingredients must be clearly proved. Therefore, as set out in Section 139 of the Evidence Act, 2011, the said ingredients must be proved beyond reasonable doubt.
There are three ways in which the guilt of an accused person can be established and as chronicled in a plethora of cases, it can be proved by;
(a) the confessional statement of the accused person; or
(b) circumstantial evidence; or
(c) evidence of eye witness of the crime.
It follows, therefore, that the prosecution does not always need an eye witness account to convict an accused of murder, if the charge can otherwise be proved. See Emeka vs. State (2001) 14 NWLR Part 734 page 666 and Igabele vs. The State (2006) 6 NWLR Part 975 page 100. Furthermore, it is trite law that circumstantial evidence has no relevance where the killer of the deceased with his own mouth confessed commission of the crime. See Abacha vs. The State (2002) 11 NWLR Part 779 p. 437 per Onu J.S.C at 521. What this means is that whether the circumstantial evidence adduced before the lower Court met the required standard or not, once there is a confessional statement of the accused admitting the commission of the offence, the said circumstantial evidence will, therefore, be irrelevant and may not be countenanced.
In considering this case, it is distinct in the submissions of the learned Counsel for the respective parties and as was expounded by the lower Court in its judgment that the first ingredient required of the Prosecution to prove in a charge of murder was indeed proved, that is to say, that one Yahaya Sumaila, the deceased, in this dastardly act, is dead. It is a copious fact that his lifeless body was identified by his biological father, who testified as P. W. 4. This was buttressed by the evidence of P. W. 2, P. W. 3 and P. W. 5, and, the still pictures of the deceased body of the said Yahaya Sumaila, taken by P. W. 5 at the scene of crime when the Appellant led them to the place, which were tendered as Exhibits C1-C5. The trial Court also had no difficulty in finding in that respect.
The evidence led by the prosecution in proof of the second ingredient, that is, that the act or omission of the accused caused the death of the deceased was considered in great depth and sifted by the Trial Court. It acknowledged the absence of evidence of an eye witness to the commission of the offence but had recourse to the circumstantial evidence and the alleged confessional evidence of the Appellant contained in Exhibit E tendered by P. W. 6 who asserted he obtained the said statement from the accused i.e. the Appellant. The Trial Court also weighed the circumstances under which the said Exhibit was tendered to eliminate its involuntariness and indeed observed that at the point of its admissibility, no objection was raised by the Appellant via his Counsel that the same was obtained either by coercion or intimidation. There was no allegation of the said statement recorded by P. W. 6 from the Appellant having been involuntarily made by the Appellant before the lower Court. The only contention on the part of the Appellant was that he did not sign the statement. This definitely is not tantamount to making an allegation of involuntariness of the said statement but a retraction of the same. By denying signing the same, the Appellant brazenly denied ever making the statement. He asserted through his Counsel that he did not sign the statement.
As I noted earlier, the denial of signing a confessional statement cannot be equated with a claim that the statement was made under coercion or duress or serious threat to life, i.e. being made involuntarily. It is not evident in the record of appeal that admissibility of the said confessional statement was challenged on the ground that it was made involuntarily, that is, the Appellant did not object to the admissibility of the statement on the ground of involuntariness. The Supreme Court had repeatedly pronounced that a confession does not become inadmissible merely because the accused person denied having made it. See Shande vs. The State (2005) 12 NWLR Part 939 p. 301 where the excerpt from the decision in Queen vs. Itule (1961) 2 SCNQR 183, All NLR 462 at 484 per Brett Ag. C.J.F. was referred to. The contents of Exhibit E was carefully examined by the Trial Court particularly the portions at which the Appellant gave a gory detail of how he, the Appellant, during their journey, and on getting closer to Ido Local Government Secretariat, held the deceased on his neck and both of them fell off the motorcycle and started struggling and dragging, before he succeeded in strangulating him to death. Then at a later part, he said that he slit the throat of the Okada rider with a knife in his possession, before he lost control and both of them fell off the motorcycle and he made off with it.
It was strongly argued by the Appellant that the Trial Court was wrong in relying on Exhibit E rather than Exhibit B wherein the Appellant supposedly gave graphic detail of what transpired between the deceased and himself during their journey, that they were brutally attacked by armed robbers who stabbed the deceased with a knife. It was further stressed that no post mortem examination was carried out nor was any forensic analysis made on the knife recovered from the body of the deceased.
He stated that there is uncertainty in the actual cause of death of the said Yahaya Sumaila therefore, there is no proof that the Appellant’s act caused the death of the deceased.
What appears baffling to me is the volte-face made by the Appellant in his oral evidence before the Trial Court. He made horrendous allegations for the first time that the motorcycle used by the deceased to convey him was planted on him by the Police who then brandished him as a thief. He feigned ignorance of the death of the deceased, and did not even mention having any encounter with him. Lord have mercy! The question is, if he truly testified to the facts recorded at pages 43-46 of the record of appeal, upon which premise then, is his counsel trying to steer this Court to prefer his statement contained in Exhibit B. At least in Exhibit B, he admitted hiring the deceased between 10.00pm and 11.00pm to convey him from Aramoko Motor Park to Ido-Ekiti at a fee of N1,000. He claimed that on their way, they were attacked by armed robbers and it was the robbers that stabbed the deceased. By his statement in Exhibit B, he did not report to the Police about the alleged robbery attack on them but rather, disappeared with the motorcycle of the deceased. He said that it was after the attack he went back to the scene and saw the deceased with his throat cut, he then carried the motorcycle and went to his wife’s house at Ipere Road, Ido-Ekiti. Even when his wife endeavoured to ascertain the owner of the motorcycle, he lied to her that it belonged to a friend.
Curiously, he did not immediately intimate his wife of the alleged armed robbery attack or that the owner of the motorcycle could have been killed by the robbers and that he rescued the motorcycle. He simply told her that the motorcycle belonged to a friend. This is the statement the Appellant’s Counsel has urged this Court to countenance and hold that there is doubt in the evidence procured before the Court. I must observe that the Appellant’s statement in Exhibit B is riddled with lies and he failed to paint the true picture of what transpired between him and the deceased. However, in order to test the truth of the said statements, the learned trial Judge beamed his search light on other corroborative evidence before the Court. It is also significant to observe, that the Appellant’s statement in Exhibit E was corroborated by the testimonies of PW1, PW2, PW3, PW4 and PW5 as found by the trial Court. See the analysis of the Trial Court at pages 115-116 of the record of appeal. The word “corroboration” means confirming or giving support to either a person, statement, or fact. The purpose of corroboration is not to give validity or credence to an evidence which is deficient, incredible or suspect. It is merely to confirm and support that which as evidence is sufficient, satisfactory and credible.
Corroborative evidence must be an independent testimony which affects the accused by connecting or linking him with the crime he is charged with. It must not only implicate him in the commission of the offence or crime in material particular but also that he actually, committed the crime/offence. In considering whether some evidence is corroborative of another, the Court must take all the little items of the former together and consider if they all add up to corroboration. It is important to note that corroboration need not consist of direct evidence that the accused did commit the offence alleged nor must it amount to confirmation of the whole account given by the witness. The only important requirement is that the evidence corroborates the evidence in some respect material to the charge. See Nwankwoala vs. The State (2005) 12 NWLR Part 940 page 637. The Trial Court rightly found that Exhibit E was corroborated by cogent and strong circumstantial evidence. It found as a fact that:
“the defendant was the person last seen with the deceased, and that after PW1 saw the deceased and the defendant left for Ido-Ekiti, no other person saw the deceased alive again. He was declared missing thereafter. In addition to the fact that the defendant was the last person seen with the deceased, the motorcycle of the deceased was recovered from the defendant at the Tollgate, Ibadan by the Police. The defendant could not provide a reasonable explanation as to how he came in possession of the motorcycle except the reason he gave in Exhibit B. The defendant was also the only person who knew where the corpse was recovered. The confessional statement of the defendant coupled with the circumstantial evidence point unequivocally to the fact that the defendant killed the deceased.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In view of the foregoing, I have no difficulty in agreeing with the Trial Court’s finding that the second ingredient of the offence of murder was proved by the Prosecution.
With regard to the third ingredient which requires proof of mens rea that is, the said act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. I tend to agree too with the evaluation made by the Trial Court of the evidence proffered in that respect particularly as demonstrated by the Appellant in Exhibit E wherein he unapologetically and heartlessly stated that he strangulated the deceased to death and in fact, the Okada rider’s throat was slit by him. It is a stark fact that whoever sets out to strangulate another person to death or slit his throat with knife knows full well that his actions would likely cause the death of the individual or inflict upon him, grievous bodily harm. I cannot but agree with this sober finding of the Trial Court that:
“The defendant in this case confessed that he slit the throat of the deceased with knife and at the same time strangulated him. PW5 corroborated the confession of the defendant that he slit the throat of the deceased with knife when he said in his evidence that when the defendant took them to the scene, he saw blood stain on the grass and a knife which he described as the type used by butchers.”
The Court went further to state that:
“the defendant who slit the throat of the deceased on a moving motorcycle at night and then went ahead to strangle him when he fell, without doubt intended the end result of his wicked act being the death of the deceased or grievous bodily harm to him. The defendant should be held responsible for the consequences of his violent act.”
It is clear in the facts placed before the Trial Court and the detailed findings of the Trial Court that issue one ought to be resolved in favour of the Respondent.
Issue No. 2 relates to the offence of armed robbery. It is the law that in order to establish commission of the offence of armed robbery, the prosecution must prove the ingredients thus: (a) that there was a robbery or a series of robberies; (b) each robbery was an armed robbery; and (c) the accused was one of those who took part in the robbery. In proof of the ingredients, it should be noted that the prosecution is not obliged to call a host of witnesses, but it’s case could be weakened by the failure to call material witnesses. It is within the discretion of the prosecution to call the witness or number of witnesses required to prove the commission of the offence beyond reasonable doubt. It need not call an eye witness if it has reasonable belief that such a witness would not speak the truth, though, a conviction may be quashed if a witness whose evidence could have swayed the Court or establish the commission of the offence was not called.
Amongst the witnesses who testified for the Prosecution were PW1 and PW2. PW1, Sani Anas, said that on 13/4/16 as he was going home, he saw his brother, Yahaya Sumaila discussing with the accused. Yahaya Sumaila was a commercial motorcyclist (Okada). In his presence, Yahaya Sumaila and the accused negotiated the transport fare and eventually agreed on the sum of N1,000 after much haggling. When they agreed, he then bade his brother, Yahaya Sumaila safe journey and they left. He, PW1 then went to Otan Ayegbagu for his WASC exams and came back on the third day. On his return, his father told him they were looking for Yahaya and he told his father that he saw him and then narrated what he had just told the Court to him, that he took somebody to Ido-Ekiti. Then, some people, namely, Alhaji Garuba, Alhaji Yahaya, Alhaji Hussein and Sanni, the Chairman of Hausa community in Aromoko-Ekiti set out to search for him at Ijero and Ido where they reported to the Police. Few days later, they received a call from the Police trying to find out from them the owner of the motorcycle they recovered. He later made statement to the Police at the State CIID, Ado-Ekiti.
PW2, one Basiru Mohammed said that he was the one who bought the motorcycle and gave it to Yahaya for commercial purposes. Then on 13/4/2016, he was at the motor park at about 5.30pm when the defendant came to meet Yahaya and requested him to take him to Ido-Ekiti. They agreed on N1,000 and the defendant showed him his ID card saying he was a soldier that they wouldn’t encounter any problem on their way. He explained that the person who sold the motorcycle inscribed his phone number on the motorcycle, so when the Police accosted the defendant with the motorcycle at Gbagi, Ibadan, they called the number of the man who sold the motorcycle to him which he wrote on the motorcycle. Then the man called him PW2, to find out the whereabouts of the motorcycle. He told him they have been looking for the motorcycle for the past three days. He gave him the telephone number of the Police at Ibadan. He called the Police at Ibadan and they invited him to come with the motorcycle particulars. The following day he travelled to Ibadan in the company of Alhaji Garuba, the Chairman Hausa Community in Aramoko. On reaching the Police at Ibadan, he showed them the particulars and then identified his motorcycle.
In the instant case, the Appellant admitted both in Exhibits B and E that he made away with motorcycle driven by the deceased when he was attacked. Although he claimed in Exhibit B that they were attacked by armed robbers on their way to Ido-Ekiti but admitted in Exhibit E that he attacked the deceased with a knife from the back when the deceased was conveying him to Ido-Ekiti. It was the confessional statement of the Appellant, which he never objected to on the ground of involuntariness, that painted the clear picture of how the Appellant committed the robbery. He robbed the deceased of the motorcycle in his possession at the time he was carrying him. He was armed with knife which he used to slit the throat of the deceased and overpowered him to dispossess him of the motorcycle. The accused was the only one who took part in the robbery as per Exhibit E. See pages 113-117 of the record whereat the trial Court thoroughly assessed the evidence proffered in proof of the charge of armed robbery against the Appellant and rightly convicted him of the offence. Therefore, issue 2 is hereby resolved against the Appellant.
In the final analysis, I find no merit whatsoever in this appeal, I accordingly dismiss it and affirm the conviction and sentence of the Appellant by the Court below.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I agree.
Appearances:
Dr. Olukayode Ajulo – for Appellant For Appellant(s)
Olawale Fapohunda, Esq., Hon. A. G., Ekiti State, with him, L. B. Ojo, Esq., Solicitor General, Ekiti State, S. B. J. Bamise, Esq., Director Civil Litigation, Julius Ajibare Esq., Director Public Prosecution, Tosan Odudu, Esq., A.C.L.O, Ibironke Odetola, Esq., P.L.O., Oluwaseun Olasanmi, Esq., S.L.O. and Sheila Onah, Esq., L.O. – for Respondent For Respondent(s)
