SEGUN AKINSUWA v. THE STATE
(2014)LCN/7437(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of August, 2014
CA/AK/141C/2011
RATIO
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
The position of the law is that an accused person can be convicted on his confessional statement alone. He may also be convicted where the confession is consistent with other ascertained facts which had been proved. See the case of Shurumo V. State (2010) 18 N.W.L.R (Pt. 1226) 73 SC where it was held as follows:
“If a confession is satisfactorily proved, a conviction founded on it without more will be sustained by an appellate court.”
See also the case of Ntaha Vs. The State (1972) 4 S.C 1. However, before a confessional statement can be relied on by the court to convict an accused person, it must be direct, positive, true and unequivocal of facts. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
CRIMINAL LAW: THE DEFENCE OF ALIBI; THE DUTY OF THE PARTY RELYING ON THE DEFENCE OF ALIBI TO PROMPTLY AND PROPERLY PUT UP THE DEFENCE OF ALIBI SO THAT THE PROSECUTION CAN INVESTIGATE IT
I agree with the trial court in its Judgment on page 116 of the record, having all the circumstances of this case in mind that, the appellant herein did not properly furnish the police of adequate particulars of his where about and this is in line with the argument of the learned counsel for the respondent as stated earlier. Therefore, relying on the foregoing authority, I hold that exhibit 5 is a valid confessional statement duly admitted in evidence by the trial court and given full weight. See the APEX Court’s decision in AYAN Vs STATE (2013) 15 N.W.L.R. (Pt. 1376) 34 SC as follows:
“Where the defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. Although there may be occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, it is not in all cases that such failure to investigate an alibi would be fatal to the prosecution’s case. Moreover, if the alibi is true, the accused person could call witnesses in support thereof. The trial court has a duty, even in the absence of investigation to consider the credibility of the evidence adduced by the prosecution vis-a-vis alibi.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
CRIMINAL LAW: THE DEFENCE OF ALIBI; THE DUTY OF THE ACCUSED PERSON RAISING THE DEFENCE OF ALIBI TO PROPERLY FURNISH THE POLICE WITH ADEQUATE PARTICULARS OF HIS WHEREABOUT AT THE TIME OF THE MURDER INCIDENCE
It is my candid view that the appellant failed to establish alibi as he did not properly furnish the police with adequate particulars of where particularly and, who he was together with at the time of the murder incidence. And as such, cannot avail him. See the case of Sunday V. State (2010) 18 N.W.L.R (Pt. 1224) 223 S.C where it was held as follows:
“For a plea of alibi to avail an accused person, it must be raised at the earliest opportunity”
See also the case of AYAN V. STATE (supra) where the court held thus:
“Where an accused person raises a defence of alibi but gives conflicting stories as to his where about at the material time, there is no duty on the prosecution to investigate the alibi and in such a case, no alibi is established. The appellant presented contradictory evidence on his whereabout on the day the deceased was killed and PW2 was attacked, He also admitted that he was arrested that same day at Oke – Ayedun town, Ekiti State though he had earlier stated in his plea of alibi that he was at Ibadan on that day. In the circumstance, the appellant did not establish his defence of alibi.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT EVEN IF HE RESILED FROM IT
It is trite law that an accused person can be convicted on his confessional statement even if he resiled from it. See the cases of Godwin Ikpasa V. A.G. Bendel State (1981) 9 S.C 7 and Nsofar V. The State (2003) F.W.L.R (pt. 153) 271 @ 274. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; THE TRUE TEST FOR DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT
It is also a principle of law that the true test for determining the veracity of a confessional statement is to seek any other evidence be it slight, of circumstances which make it possible that the confession is true. See Tegwonor V. The State (2008) 1 N.W.L.R (pt. 1069) 630 @ 654; and Nwaebonyi Vs. The State (1994) 5 N.W.L.R. (pt. 705) 7 per IGUH, J.S.C. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A CONVICTION FOUNDED ON THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON THAT IS SATISFACTORILY PROVED WILL BE SUSTAINED BY AN APPELLATE COURT
It is an established principle of law that if a confessional statement of an accused person is satisfactorily proved, a conviction founded on it without more will be sustained by an appellate court. See the case of Shurumo V. The State (2010) 19 N.W.L.R (pt. 1226) 73 S.C. Section 29 (1) of the Evidence Act 2011, Cap. E.14 state as follows:
“in any proceedings a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT: DUTY OF THE COURT; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT AND THE DUTY OF AN APPELLATE NOT TO DISTURB THE FINDINGS OF THE TRIAL COURT THAT ARE NOT PERVERSE
It is trite that the evaluation of evidence before the court is the preserve of the trial court. Unless conclusion reached from the facts is perverse the appellate court will not substitute its own views for that of the trial court. The question in criminal cases is usually whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial court, that is the end of the matter, provided it is manifest on the record that the trial judge has given due consideration to the evidence by and on behalf of the defence. See the following authorities:
– Ibrahim V. The State (1991) 4 N.W.L.R (pt. 186) 399 SC;
– Ben Vs State (2005) 11 N.W.L.R (pt. 936) 335 @ 344 – 345; – paras. H – A;
– Yakubu Vs. F.R.N. (2009) 14 N.W.L.R. (pt. 1160) 151 C.A. and
– State Vs. Onyenkwu (2004) 14 N.W.L.R. (pt. 893) 340. per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHAT IS THE OFFENCE OF CONSPIRACY
The offence of conspiracy is complete once a concluded agreement exist between two or more persons that share a common purpose. See the case of Bello Vs. State (2010) 12 (pt. 2) S.C.M pg. 52 para C.
It is also trite that when two or more persons actively participated in the commission of a crime in the execution of a common intention, each of them would be liable for the offence and it does not matter who did what in the commission of the offence.
See Atiku V. State (2010) 9 N.W.L.R (pt. 1199) 241 C.A. see also Shurumo V. State supra where it was held to wit:
“A conspiracy consist not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as the design rests on intention only, it is not indictable. When two or more agree to carry into effect the very plot is an act in itself, an act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for use for criminal means…” per. MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
SEGUN AKINSUWA Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the Judgment of his Lordship F. O. Aguda -Taiwo of the High Court of Justice Ore, sitting at Ondo, delivered on 5th of August, 2010.
The respondent commenced criminal proceedings against the accused persons by filing information dated 24th May, 2005.
The appellant and two others were arraigned before the Ondo State High Court, Ore sitting at Ondo on a two count charge of conspiracy to murder and murder contrary to and punishable under Section 516 of the Criminal Code Cap. 30 Vol. 11 Laws of Ondo State of Nigeria 1978 and Section 316, punishable under Section 319 (1) of the Criminal Code Cap. 30 Vol. 11 Laws of Ondo State of Nigeria, 1978 respectively.
The appellant, the 1st accused therein and the 2nd accused person pleaded not guilty to the two count charge and the case proceeded to hearing. The prosecution called four (4) witnesses and tendered Exhibits 1 – 10 and the I. D 1 – 9 containing photographs of the corpse of Mrs. Silifat Rahman. Appellant testified and called no witness. The 3rd accused person, Ayo Omoduyilemi was during the trial of this case released from the prison custody by the Chief Judge of Ondo State based upon the recommendation of the committee on Administration of Criminal Justice. His name was subsequently struck out of the case. PW1, Chief Jibayo Akinseye is a farmer who knew the 3 accused persons and who also knew the victim and her husband. He was also the person who complained at the Police station about the missing woman. PW2 Joseph Ogunlusi Akinmutayo Akinseye is also a farmer who knew all the accused persons and had seen the 2nd accused person on their way to the farm the day the victim was murdered.
PW3 is Sergeant Muideen Oyewale who served at Ondo State C.I.D, Akure. He was involved in the investigation of the case. He identified the voluntary confessional statements of the accused persons.
PW4, William Olu Oyewole is a Doctor of Medicine, Specialist in Forensic Pathology and morbid Anatomy. He was also the permanent Secretary, Ministry of Health, Ondo State.
The 1st accused person herein the appellant went and met one Mrs. Silifat Rahman also known as Mama Lekan informing her that he had some Kolanuts to sell for her in the farm of the 3rd accused’s father. He later went and met the 2nd and 3rd accused persons who agreed to the idea of deceiving the woman into buying kolanuts that did not exist.
The appellant went ahead of his cohorts to the farm allowing them to lead the woman to the farm where they planned to rape her. Appellant testified that when the deceased resisted, he forcefully pushed her down and that she pleaded they should not kill her. Appellant used her cloth to cover her mouth and then raped her.
When he was through with raping her he removed a knife and stabbed her on her jaw and throat. The 2nd and 3rd accused persons then took turns to rape her while she bled to death. Thereafter they pulled her body to a nearby stream and hid her. It was following a report by PW1 and the news having gone round that the deceased went to buy kolanuts and had not returned home, that search was conducted by the villagers who later found the deceased’s body. The accused persons including the appellant were later arrested in connection with the case and arraigned before the trial court.
The appellant who did not call any witness, testified on his own behalf on the 14/04/2008 (about five 5 years after the incidence) and denied knowing anything about what happened on the 5/6/03. He denied knowing the 2nd and 3rd accused persons and claimed that he met them for the first time at the Police Station. He also denied knowing the deceased person. He went on to narrate how on that fateful day he carried some passengers in his car to the Market, how he went to his brother’s house whom his wife was delivered of a baby. He also gave evidence on how he bought drinks for people around and also slept in the said village (Ominutu i.e his father’s village). According to the appellant, it was the next day 6/6/2003 while approaching Asejire that he was apprehended by some people numbering eight (8).
The accused (appellant herein) claimed that he was apprehended because his father had quarreled with the Baale. The appellant at the trial denied writing Exhibit five (5). The prosecution closed its on the 29th November, 2007.
The learned trial Judge in a considered judgment delivered 5th August, 2010 found the appellant guilty of conspiracy to murder and murder. He was convicted accordingly.
Dissatisfied with the conviction and sentence, the appellant who was the 1st accused at the trial in the court below filed a notice of appeal dated 25th August, 2010.
By a motion on notice filed on 18/9/12 the appellant was granted 14 days within which to file his amended Notice of Appeal as sought. The appellant’s Amended Notice of appeal dated 20th February, 2013 was filed on the 21/02/13 and deemed properly filed pursuant to the order of the court granted in a motion dated 18/9/12. The appellant’s amended notice of appeal contained nine (9) grounds of appeal. The parties duly filed and exchanged briefs of argument in compliance with the rules of this Honourable Court.
Appellant’s brief of argument dated 30th May, 2013 was filed 3/6/13 and deemed filed 19/3/14 and adopted on 7/5/14.
Respondent’s brief of argument filed and deemed 10/4/14 was adopted 7/5/14.
Learned counsel for the Appellant nominated four (4) issues for determination of this appeal which are as follows:
1. Whether the defence of alibi raised by the appellant was properly raised and avails the appellant (Grounds 2 and 3 of the Amended Notice of Appeal)
2. Whether the trial court was right in expunging as well as failing to give any weight to exhibit 10 and/or 10A (Grounds 5 and 6 of the Amended Notice of Appeal).
3. Whether in view of the evidence before the trial court, it was right in convicting the appellant of the offences with which he was charged. (Grounds 1, 4, 7 and 8 of the Amended Notice of Appeal).
4. Whether the trial court was right in proceeding to deliver judgment in this case when the appellant was yet to close his case or address it and if not, whether this does not amount to an infraction of his right to fair hearing (Grounds 9 of the Amended Notice of Appeal).
The respondent’s counsel on his part formulated the following issues for determination of the appeal.
1. Whether the prosecution had discharged its burden of proof beyond reasonable doubt in respect of this matter to warrant the conviction of the appellant by the trial court (Grounds 1, 7 and 8 of the Amended Notice of Appeal).
2. Whether the trial court wrongly rejected the appellant’s defence of ALIBI, thereby occasioning an error of law (Grounds 2 and 3 of the Amended Notice of Appeal).
3. Whether the trial court’s reliance on Exhibits 5, 6 and 7 and its expunging of exhibit 10 in view of its inadmissibility occasioned a miscarriage of justice (Grounds 4, 5 and 6 of the Amended Notice of Appeal).
4. Whether the refusal of the trial court to wait indefinitely for the appellant’s address before delivering its judgment after having given the appellant adequate opportunity to file its address amounted to lack of fair hearing (Grounds 9 of the Amended Notice of Appeal).
I consider the issues raised above by counsel on both sides to be similar and I think the four (4) issues formulated by the learned counsel for the appellant will sufficiently determine this appeal. I shall be adopting them and they are so adopted for the determination of the appeal.
ISSUE NO 1
Whether the defence of alibi raised by the appellant was properly raised and avails the appellant.
In arguing this issue, learned counsel for the appellant referred to the confessional statements of the 1st accused person herein the appellant contained on pages 11 – 13, 28 – 29 and 30 – 31 of the record of appeal. The statements were marked Exhibits 5, 10 and 10A.
Learned Counsel for the appellant is not disputing the fact that one Silifat Rahman died on the 5th June, 2003 but submitted that the appellant was somewhere else on that fateful day as contained in Exhibits 10 and 10A. The appellant’s counsel raised a defence as of alibi and cited the cases of Ifejirika V. the State (1999) 3 N.W.L.R.(Pt. 593) 59 @ 78 and Isiekwe Vs The State (1999) 9 N.W.L.R. (Pt. 617) 43 @ 65, for meaning of alibi. On evidential burden, learned counsel citied the case of Ikono V The State (1973) 8 N.S.C.C. 352 @ 363. He went further to quote the authority of Esangbedo V. The State (1999) 20 N.S.C.C.(Pt. 111) 23 @ 31 as to the nature of evidential burden as follows:
“What is the position where an accused person has raised a defence of alibi? In that case, the persuasive or ultimate or legal burden remains on the prosecution to establish the guilt of the accused person beyond reasonable doubt, whereas the evidential burden of eliciting or bringing evidence about his defence of alibi is on the accused”.
Counsel referred the court to the following cases: Ozaki V. the State (1990) 1 N.W.L.R (pt. 124) 92 at 125
– Audu V. The State (1985) 1 N.W.L.R (pt. 1) 55 @ 56
– Balogun V. A.G. Ogun State (No. 2) (2002) 6 N.W.L.R. (pt. 763) 512 @ 536.
In an attempt to further buttress his points on alibi, counsel argued that the appellant only needed to introduce, adduce or produce evidence of his alibi. Counsel is conscious of the fact that the appellant who has raised that defence must give particulars of his whereabout and who he was together with and time, to enable proper investigation. Learned counsel further referred the court to the following cases:
– Ibrahim v. The State (1991) 4 N.W.L.R (pt. 186) 399 @ 415.
– Ikemson v. The State (1989) 3 N.W.L.R (pt. 110) 455
– Kwume v. The State (2000) 5 N.W.L.R (pt. 658) 550 @ 565-666
In trying to further establish the defence of alibi the learned counsel for the appellant drew the attention of the Honourable Court to the extra – judicial statement of the 1st accused person who is the appellant herein, which was marked Exhibit 10 and contained on pages 30 – 31 of the record.
Counsel hinged on PW2’s evidence that he saw the deceased person going to the farm on that fateful day around 6pm, 5/6/2003 in company of the accused 2nd person.
Counsel contends that since the appellant left his farm in Asejire Camp by 12 noon on that same day and went about his business, that at that time the deceased was still alive and had not gone near the 3rd accused’s father’s farm where she was killed. That by 4pm, the appellant had closed work and went back to paradise, where he lived and from there he proceeded to Omitutun Camp where his brother’s wife was in labour and only returned at about 12 midnight.
It is the learned appellant’s argument that, as at 6pm when PW2 said he saw the deceased alive in company of the 2nd accused person, that the appellant was at Omituntun Camp.
Learned Counsel for the appellant is of the view that the Police failed in their duty to investigate the whereabout of the appellant at the material time having been told by the appellant that he was at the house of his brother on that day and time. Counsel referred the court to the cases below: Ozulonye Vs The State (1981) 1 NCR 38 @ 50 – 51, Ikemson Vs the State Supra @ P. 479 and Salami V. The State (1988) 3 N.W.L.R. (Pt. 85) 670 @ 693.
Counsel submits on point of law that where the police failed to investigate the alibi raised, that it is tantamount to an admission by the prosecution and raises a reasonable doubt in the mind of the judge, which doubt must be resolved in favour of the appellant and lead to his acquittal. He referred the court to the following cases:
– Agbanyi V. The State (1995) 1 N.W.L.R. (Pt 369) 1 @ 27
– Ozulonye V. The State (Supra)
– Onuchukwu v. The State (1998) 4 N.W.L.R (Pt. 547) 576 @ 592
Learned Counsel averred that once the evidence of alibi casts a doubt as to whether the accused was present at the time and place of the commission of the offence, that is enough to secure him an acquittal. He referred the court to the following cases: Oyewunmi Adedeji Vs. The State (1971) 1 All N.L.R. 75. Ukwumneni V. The State (1989) 4 N.W.L.R. (Pt. 114) 131 @ 155.
Learned counsel referred this Honourable Court to pages 62 and 63 of the record containing the extrajudicial statement of the appellant wherein he purportedly raised the issue of alibi. He excerpted as follows:
“……. On my return someone sent for me that I was wanted at home when I got to paradise I wanted to purchase petrol near my house my wife told me that as soon as I left my house in the morning my dad sent for me to meet him in Oninutu village. My wife said i should take care of my brother (his wife) who was in labour to Ore I went to Oniinutu, I saw a woman (Eleyinju) I don’t know mama Lekan, She was sitting down the doctor said I should not take the woman, to Ore because she was expecting a first child. He said he (sic) should be after to take the delivery. Later in the evening the doctor adviced that I should take her for a walk she later had a safe delivery at night. June 5, 2003 is Thursday. I bought drinks for people around; they are mama, Juliana, Talabii and lya Monisola and my Daddy’s friend. Some owner (sic) came to bathe the baby Baba Akindunni and Baba Amohun and Baba yellow were around.”
“….The villagers told the Mobile at Ore that I slept in my village Onimutu”
Learned Counsel argued that the trial court flimsily waived aside the alibi. He referred the court to excerpt of the judgment of the trial court on pages 115 – 116 of the record as follows:
“Where was the 1st accused person on the date of the alleged murder? Did he go to his farm early in the morning and then to Ominutu and slept in Baba Beniah’s house in Asejire or did he go to Igbokoda with market woman and later to Ominutu where he slept. He would have let the police know at the earliest possible time where he was at the time of the murder….”
…The 1st accused person who testified as DW1, in his evidence in court stated that he was somewhere else and was not at the scene of crime with which he is charged. By so doing he raised the defence of alibi at large. The law is that this defence can only be raised at the earliest opportunity when making his statement to the police where he must give adequate particulars of his whereabout at the time of the commission of the offence to assist police investigation. Where the 1st accused person in this case did not set up this defence in his statement to the police (as no statement was seen to have been made to the police who could have investigated the defence before trial) he cannot do so while giving evidence in court.
However incredible an alibi, it should not be disregarded unless there is overwhelming evidence to rebut it.
I have carefully considered the defence of alibi raised by DW1 the 1st accused person and disbelieved him. I do not therefore accept the defence of alibi (if indeed any was open to him) since he was the person who initiated the rape plan and was the major participant in the alleged act of conspiracy and charge of Murder he made desperate attempt to resile from or retract his statement in Exhibit 5 in court.”
It is on this note that the appellant’s learned counsel concisely gave below the reasons why the trial court refused to accept the appellant’s defence of alibi
(1) That the appellant did not raise the defence in his extrajudicial statement to the Police and can no longer raise same at the trial or in his defence; and
(2) That assuming the appellant could still validly raise the defence of alibi, the confession to the commission of the offences contained in Exhibit 5, provides overwhelming evidence to rebut the alibi.
Learned counsel submitted that the foregoing basis used by the trial court in rejecting the alibi of the appellant was not only erroneous but run contrary to the evidence before the trial court.
Learned Counsel for the appellant argued that the appellant actually raised the defence of alibi at the earliest stage in his statement to the police. That the appellant raised alibi in his statement written both in Yoruba and English dated 6/6/2013 which is Exhibit 10 and 10A admitted in evidence Counsel argued that the finding of the trial court that the appellant did not raise the defence of alibi in his statement to the Police is utterly perverse and ought to be disturbed and set aside by this Honourable Court. Counsel referred the court to the cases of
– A. G. Federation V. Abubakar (2007) 10 N.W.L.R (pt. 1041) 1 @ 140 paras G – H,
– Oniah V. Onyia (1989) 1 N.W.L.R. (pt. 99) 514,
– Onu V. Idu (2006) 12 N.W.L.R (Pt. 995) 657 @ 686 para C – F
Learned Counsel quoted ONU V IDU supra 2006 where it was held per: OGBUAGU, JCA as follows:
“Firstly, the meaning of a finding said to be perverse and therefore, an appellate court, could interfere, has been stated and restated in a number of decided authorities including Kuma V. Kuma (1936) 5 W.A.C.A 4 and Akinloye v. Eyiyola (1968) N.M.L.R 92. A finding is said to be perverse, when it runs counter to the evidence and pleadings or where it has been shown that the trial judge took into account matters which ought not to have been taken into account or shuts his eyes to the obvious or………. when it has occasioned a miscarriage of justice.”
Appellant’s counsel urged, this court to hold that the trial court’s finding that the appellant did not raise the defence in his statement to the Police is perverse and same be set aside.
Counsel contended that, by law, where such defence was not raised during investigation, that the Police would not be duty bound to investigate it at the later stage. That failure to raise such a defense at that stage does not rob the trial court of competence to entertain the defense. He referred the court to the following cases:
– Fatoyinbo Vs. A. G. Western Nig (1966) W.N.L.R 4 @ 6;
– Ntam V. The State (1968) N.W.L.R 86 @ 87 – 88
– Onyeagbu Vs. The State (1995) 4 N.W.L.R. (pt. 391) 510 @ 532.
Learned Appellant’s counsel argued that it can be raised for the first time at the trial. That all the prosecution requires in such a situation is to apply for an adjournment to enable the Police conduct investigation. He referred to the following cases:
– Ntam Vs The State (supra);
– Adisa V. The State (1991) 1 N.W.L.R. (pt. 168) 490 @ 508;
– Onyebu V. The State (1994) 1 N.W.L.R. (pt. 320) 328 @ 344.
Learned Counsel submitted that failure of the Police to investigate the where about of the appellant on the said date and the interview of the persons mentioned by the appellant in his statement of 6/6/2003 was fatal and amounted to an admission of the alibi by the prosecution and that the trial court had no choice than to have accepted the alibi as raised.
He further argued that the appellant having not been linked to the deceased by any of the prosecution witnesses or seen at the locus delicti that the trial court ought to have entertained doubts as to the presence of the appellant at the time and place of commission of the offences alleged. Learned counsel submitted that the position of the trial court overlooked the existence, content and purport of Exhibit 10 and 10A. He argued that the finding of the trial court that Exhibit 5 provided overwhelming evidence of commission of the offences charged is equally perverse as it failed to consider the existence of Exhibit 10 which contradict Exhibit 5. Counsel urged this court to set it aside. He referred the court to the case of A. G Federation vs. Abubakar (supra); Oniali V. Onyia (supra) and Onu V. Idu (supra).
Learned Counsel agreed that this was a case of an accused person having two statements which cannot mutually co-exist. He contended that the trial court ought to have either rejected the purported confessional statements and the other statements and proceed to hear evidence afresh from the witnesses called by both sides of the dispute or preferred the statements of the appellant and the other accused persons such as Exhibit 10 wherein they denied commission of the offences and should have insisted on proof beyond reasonable doubt by the prosecution. That instead the trial judge failed to so do and thereby occasioned a miscarriage of justice. He urged the court to so hold.
Learned counsel submits that the trial court misplaced the burden of proving or disproving alibi when it held that Exhibit 5 provides overwhelming evidence that rebutted appellant’s defence of alibi and that it did not believe the appellant’s alibi. Counsel excerpted the learned trial court’s judgment on page 120 of the record as follows:
“Where the 1st accused person intend to rely on alibi he failed to call as witness his brother Ezekiel or Augustine, Baba Beniah, his wife, father, and the (sic) any of the passengers which (sic) he took to Igbokoda and others whom he claimed saw him on day of the alleged murder. I find that the 1st and 2nd accused person’s had no defence to this case”
Learned counsel further argued on this issue that the trial court erred by believing that the onus lied on the appellant to disprove the alibi which according to him, by law, was merely expected to introduce. Counsel submits that it amounted to misdirection, as burden of disproof of the alibi rested on the prosecution. He referred the court to the cases to wit:
– Ikono v. The State (supra);
– Esangbedo v. The State (supra);
– Ozaki v. The State (supra) and
– Balogun v. Arh. Ogun State (No: 2) (supra)
Learned Counsel urged the court to resolve this issue in favour of the appellant and against the prosecution/respondent.
The learned counsel for the respondent on this issue submits that it was necessary for the appellant to, having raised the defence of alibi, furnish the Police adequately with the particulars that would assist the police to make meaningful investigation in that respect. He referred the court to the following cases:
– Balogun v. A. G. Ogun State (2002) F.W.L.R (pt. 100) 1287;
– Obiode v. The State (1970) All N.L.R 35 and
– Njovens v. The State (1973) 1 N.L.M.R 331.
Learned respondent’s counsel referred to page 30 of the record where the appellant herein set up according to him a semblance of defence of alibi in his extra judicial statement dated 6th June, 2003. He excerpted as follows:
“… I went to the said farm yesterday 5/6/2003 at about 12 noon I returned from the farm and I started doing work but closed around 4pm. I returned to paradise where I am living from (sic) 1 went to Omititun camp where any brother’s wife was about to born (sic) and I returned at 12 midnight to paradise…”
Learned Counsel in examining the foregoing extract from Exhibit 10, argued that the appellant failed to mention the specific time he left the locality where the crime in question was committed for Omituntun. That, the appellant also failed to mention the particulars of his brother’s wife who lived at Omituntun and was unable to call her or any other person as a witness to give evidence in Court in support of his claim. Counsel, citing Section 140 of the Evidence Act, Cap. E14, 2011 submits that the appellant’s alibi or its semblance is a fact within his knowledge which he is required to prove. Counsel argued that it suffices for a defendant or an accused person to prove alibi, on a balance of probabilities. He referred the court to the following cases
– Almu V. The State (2009) 4 SCM, 40,
– Omotola V. The State (2009) 8 A.C.L.R. 29 @ 78
– Bashanya V. The State (1998) 5 N.W.L.R. (pt. 550) 341
Learned respondent’s counsel described the alibi of the appellant as vague and porous which according to him is too destitute of sufficient facts to warrant investigation and thus, cannot avail the appellant, he said.
Counsel referred to pages 61 – 65 of the record and contended that the appellant attempted to remedy the deficiency contained in his extra judicial statement during his evidence in chief. That, the evidence raised by the appellant in his evidence in chief in the wltness box was not expected to be investigated by the police and this, he said cannot be, sustained in view of its abysmal belatedness. Counsel referred this Honourable Court to the following authorities:
– Okosi V. The State (1989) 1 N.W.L.R. (pt. 100) 642;
– Njiokumani V. The State (2001) 14 W.R.N 96 and
– Akpan v. The State (2001) 6 N.S.Q.R (Pt. 11) 755.
Counsel aver that Exhibit 10 which contains the alibi of the appellant has been expunged from the record, having been wrongly admitted. He urged us to resolve this issue in favour of the respondent.
RESOLUTION OF ISSUE ONE
Issue 1 which in recap is whether the defence of alibi raised by the appellant was properly raised and avails the appellant; the trial court by its judgment attempts to show how it has objectively and dispassionately reached its decision having heard the evidence led by all parties and watched their demeanor. The position of the law is that an accused person can be convicted on his confessional statement alone. He may also be convicted where the confession is consistent with other ascertained facts which had been proved. See the case of Shurumo V. State (2010) 18 N.W.L.R (Pt. 1226) 73 SC where it was held as follows:
“If a confession is satisfactorily proved, a conviction founded on it without more will be sustained by an appellate court.”
See also the case of Ntaha Vs. The State (1972) 4 S.C 1. However, before a confessional statement can be relied on by the court to convict an accused person, it must be direct, positive, true and unequivocal of facts.
The learned trial judge in evaluating the confessional statement and evidence of the accused person and other pieces of evidence adduced before him ought to examine the new version of events as presented by the accused person, alongside the extra judicial statement so as to have himself satisfied by answering such questions as:
a. Is there anything outside of the confession to show that it is true?
b. Is it corroborated?
c. Are the relevant statements of facts made in it most likely to be true as far as they can be tested?
d. Did the accused person have the opportunity of committing the offence?
e. Is the confession possible?
f . Is the confession consistent with other facts which have been ascertained and have been proved? See
Nwaebonyi Vs. State (1994) 5 N.W.L.R (Pt. 343) 130 @ 150.
Exhibits 5, 10 and 10A were admitted as voluntary confessional statements of the accused person. The said exhibit 5 was tendered in court by PW3 the IPO on the 12th June, 2007 without objection by the accused person or his counsel. The appellant through his counsel relying on exhibit 10 as contained on pages 30 – 31 of the record contended that the appellant had properly raised the defence of alibi which ought to have been investigated by the police. Exhibit 10 is hereunder excerpted:
“…. I went to said farm yesterday 5/6/2003 at about 12noon I returned from the farm and I started doing work but closed around 4pm I returned to paradise where I am leaving. From I went Omituntun camp where my brother’s wife was about to born and returned at 12 midnight to paradise. When I got to Asejire Camp, I saw that they block the road against us then I park my car by the side of the road and I was about to pass by foot but the Yoruba people around warned not to leave Asejire camp on the night so that they will not say I know anything about this matter. However, I slept there until the following morning around 3am 6/6/2003…. I did not know anything about the death of Iya Lekan. It was true that I know Iya Lekan for the past three years now. She was trading on Cola nuts I now I know Ayo Omoduyilemi ‘m’ I did not follow him to the farm to kill somebody I did not know Omojola….”
The learned trial judge having gone through the pieces of evidence adduced before him and the exhibits and facts therein held on page 115 of the record as follows:
“I find that the statement of the 1st accused person contained in Exhibit 10 apart from being contradictory of his testimony in court is complete falsehood, In his statement in Exhibit 5 made on the 12th of June, 2003 he stated that he was arrested three days after the murder. If the 1st accused was indeed arrested three days after the alleged murder he could not have made and was impossible for him to have made any statement contained in Exhibit 10 which was recorded on the 6th of June, 2003 one day after the day of the alleged murder. I find that Exhibit 10 was a complete fabrication a concoction and an afterthought.”
Exhibit 5 which is purportedly the voluntary confessional statement of the 1st accused person herein, the appellant, was admitted in evidence unchallenged. Appellant attempted to resile from the said exhibit 5 while giving evidence before the trial court and through Exhibit 10 which was expunged from evidence by the trial court as found in the foregoing excerpt. For purposes of clarity excerpt of Exhibit 5 as contained on page 12 of the record is hereunder reproduced.
“I know one mama Lekan who is now late. I know her to be a colanut buyer. On 5/6/2003 in the morning time I went to one woman called mama lekan and told her that she should come and buy cola nut at Ayo’s father farm, I inform Ayo Omoduyilemi and Omotola Akinlomi whom I had planned with that we shall tricked the said woman to farm and have sex with her to come with the woman. As we move from home I went ahead without allowing the woman to see me going in the front On getting to the farm, the woman asked Ayo that where is the colanut she is to buy. I replied the woman that there is no colanut for her to buy but we are here to have sex with hen She refused but when she sees that f am forcing her, she pleaded that we should not kill hen I then used her clothe to cover her mouth so that she will not cried out f then forcefully have sex with her. After I finished with hen I stabbed her with knife at the jaw and throat. I decided to stab her because I don’t want her to come and revealed the matter at home. It was alter I stabbed her that Omojola and Ayo sexed her respectively. The woman was still shaking when the two boys sexed her. After we pulled the body to a stream where we went and hide the body. We later went away. On getting home. I went on my driving business Ayo and his second were the people arrested that day. It was three days later that I was arrested I dont initially heard that Ayo and his second have been arrested. It was when I was arrested that I got to know they have been arrested. On that 5/6/2003, in the evening time I heard people have started looking for the woman but I did nothing, The day I was arrested I was going to park my vehicle when the villages called on me and I went to answer them”
The learned trial judge further held on page 115 of the record that unlike Exhibits 5, 6 and 7 of the 1st, 2nd and 3rd accused persons respectively, that exhibit 10 was not counter signed by the person who recorded it the IPO and was not taken before a Superior Police Officer and, that it was without the usual attestation. That the 1st accused person having claimed he could neither read nor write could not have written the yoruba version of Exhibit 10. That, the identity of whoever wrote Exhibit 10 was unknown even though signed by the accused person. The learned trial judge found that Exhibit 10 was wrongly admitted and expunged same from the records of the court. I agree with the trial court’s position and I so hold.
I have read thoroughly all the pieces of evidence before the court.
Exhibit 5 which was made on the 12/6/03 as excerpted somewhere in this case shows the appellant unequivocally admitting the commission of the offences as alleged and it was also shown that the 1st accused was the master mind or brain behind the heinous act. By the evidence contained in Exhibit 5, the appellant herein confessed to knowing the 2nd and 3rd accused persons and the deceased. He also confessed to stabbing the deceased with a knife on her neck and throat after raping her. He claimed he was arrested three (3) days after the day of the commission of the offence.
In Exhibit 10 which was expunged by the trial court the appellant herein admitted knowing the deceased and the 2nd and 3rd accused persons. He claimed that on the day of the incidence 5/6/2003 he was in his farm around 12 noon started his taxi work and closed around 4pm and went to paradise. From there he went to Omituntun to help his brother’s wife who was in labour and only returned to paradise at 12 midnight. That he slept at Asejire Camp that night.
In his evidence before the trial court, the 1st accused person herein the appellant denied knowing the deceased person as well as the 2nd and 3rd accused persons. He claimed that on the day of the incidence he slept in his father’s village Ominutu. That in the morning he went to Igbokoda. Appellant narrated before the court how he took some people in his car to Igbokoda and how he went to take care of his brother’s wife and also how he bought drinks for people around. He also mentioned carrying 4 people from Ominutu supposedly to Ore on 6/6/03. He narrated how he was taken to the Baale and the quarrel between his father and the Baale.
Considering Exhibits 5, 10 and 10A and the evidence of appellant before the trial court, I find contradictions. Even Exhibit 10 wherein the appellant raised the defence of alibi was contradicted by his evidence before the court. He admitted knowing the deceased and his co-accused persons in Exhibits 5 and 10 but denied knowing them in his evidence before the court.
The learned trial court in evaluating the evidence before it on page 115 of the record had to ask the following questions: Where was the 1st accused person on the date of the alleged Murder? Did he go to his farm early in the morning and then to Omunutu and slept in Baba Baniah’s house in Asejire or did he go to Igbokoda with market women and later to Omunutu where he slept.
I am at this point comfortable with the position of the trial court that the statement of the 1st accused person admitted as exhibit 5 was a confessional statement obtained voluntarily under caution. I also agree with its finding that exhibit 10 is inadmissible evidence which was wrongly admitted in evidence. I so hold.
Appellant herein attempted to resile from the said exhibit 5 which was admitted in evidence and believed by the court. It is trite law that when a counsel stands by and allows exhibits to sail smoothly through to become evidence without objecting, then it becomes obvious that the counsel is comfortable with the evidence and sees no reason why he should challenge its admissibility. See the Supreme Court’s decision in case of Shurumo v. State supra where it was held thus:
“If an accused person does not object when his confessional statement is being tendered, as in the instant case the only reasonable conclusion is that it was made voluntarily…”
Learned counsel for the respondent in his argument examined exhibit 10 and argued that the appellant failed to mention the specific time he left the locality where the crime in question was committed for Omituntun. That he also failed to mention the particulars of his brother’s wife he claimed to have been with while she was in labour. I have evaluated the evidence and have found it to be true. Appellant also failed to call his brother’s wife or the other, persons he mentioned buying them drinks after his brother’s wife gave birth as witnesses. I disagree with the learned counsel where he argued in the appellant’s brief that the trial court flimsily waived aside the alibi raised by the appellant.
Considering therefore the circumstances surrounding this case I find that there was sufficient evidence of circumstances which made exhibit 5 true.
It was held in the case of Ikemson V. The State (1998) 1 A.C.L.R. 80 as follows:
“Once a statement complies with the law and rules governing the method for taking it and it is tendered and not objected to by the defence, whereby it was admitted as an exhibit, then it is a good evidence and no amount of retraction will vitiate its admission as a voluntary statement.”
I agree with the trial court in its Judgment on page 116 of the record, having all the circumstances of this case in mind that, the appellant herein did not properly furnish the police of adequate particulars of his where about and this is in line with the argument of the learned counsel for the respondent as stated earlier. Therefore, relying on the foregoing authority, I hold that exhibit 5 is a valid confessional statement duly admitted in evidence by the trial court and given full weight. See the APEX Court’s decision in AYAN Vs STATE (2013) 15 N.W.L.R. (Pt. 1376) 34 SC as follows:
“Where the defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. Although there may be occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, it is not in all cases that such failure to investigate an alibi would be fatal to the prosecution’s case. Moreover, if the alibi is true, the accused person could call witnesses in support thereof. The trial court has a duty, even in the absence of investigation to consider the credibility of the evidence adduced by the prosecution vis-a-vis alibi.”
Therefore exhibit 5 which was believed by the trial court and now this court to be the true voluntary confessional statement of the 1st accused person herein the appellant and, which was made on the 12/6/2003 is direct and unequivocally corroborates exhibits 6 and 7 purportedly the confessional statements of the 2nd and 3rd accused persons both made on the 10th of June, 2003.
The appellant testified in exhibit 5 that he was arrested three (3) days after the date of the murder incidence. Exhibit 10 unlike exhibits 5, 6, and 7 was not counter signed and attested to, is dated 6/6/03 reveals that it was made a day after the day of the incidence. Thus, since the appellant who claimed he could neither read nor write was arrested three(s) days after the incidence, it was impossible for him to have written the Yoruba version of exhibit 10 dated 6/6/03 and which was interpreted in court by the court registrar.
Therefore, I firmly agree with the reasoning of the learned trial Judge that exhibit 10 was a complete fabrication; a concoction and an afterthought. I also disbelieve and accordingly reject the contents of exhibit 10. The learned trial court was therefore in order by expunging exhibit 10 from the records of the court. I so hold. It is my candid view that the appellant failed to establish alibi as he did not properly furnish the police with adequate particulars of where particularly and, who he was together with at the time of the murder incidence. And as such, cannot avail him. See the case of Sunday V. State (2010) 18 N.W.L.R (Pt. 1224) 223 S.C where it was held as follows:
“For a plea of alibi to avail an accused person, it must be raised at the earliest opportunity”
See also the case of AYAN V. STATE (supra) where the court held thus:
“Where an accused person raises a defence of alibi but gives conflicting stories as to his where about at the material time, there is no duty on the prosecution to investigate the alibi and in such a case, no alibi is established. The appellant presented contradictory evidence on his whereabout on the day the deceased was killed and PW2 was attacked, He also admitted that he was arrested that same day at Oke – Ayedun town, Ekiti State though he had earlier stated in his plea of alibi that he was at Ibadan on that day. In the circumstance, the appellant did not establish his defence of alibi.”
Relying on the foregoing authority and having considered the circumstances of this case and the arguments presented by the learned counsel on both sides, I hold that the appellant did not establish his defence of alibi.
This issue is therefore resolved against the him and in favour of the Respondent.
ISSUE 2
Whether the trial court was right in expunging as well as failing to give any weight to Exhibit 10 and/or Exhibit 10A.
On this issue, learned counsel for the appellant started by excerpting the judgment of the learned trial court as contained on page 115 of the record of proceedings, wherein the learned trial Judge evaluated and made his findings on exhibits 5, 6, 7 and 10 of the accused persons therein.
The learned counsel went on to ask the question whether based on the foregoing pronouncement the learned trial judge was right to have declared inadmissible and expunged Exhibit 10 from the record.
Counsel submits that the trial judge court was in error.
As to the contradiction between the appellant’s day of arrest and when he made confessional statement Exhibits 10 and 10A, counsel referred the Honourable Court to pages 61 – 67 particularly pages 61 – 63 of the record for clarification. He argued that the appellant testified being arrested on the 6th June, 2003 and taken to Ore after his properties had been burnt. That the appellant said he was taken from Ore to Akure on the 8/6/2003 which is three (3) days after the murder of the deceased. Counsel submits that the trial court was wrong and that its finding on that issue was perverse. He urged the court to set it aside and referred us to the case of Attorney General of the Federation V. Abubakar (supra); Oniah V. Oniyia (supra) and Onu V. Idu (supra).
Appellant’s counsel argued that the prosecution was bent on covering up statements made at the Ore Police Station, that no witness was produced from the said station to testify except One Sergent Sunday James of the Divisional Police Station, Ore who was listed as a prosecution witness. That, PW3 who testified from Force C.I.D. Akure clearly omitted to tender the appellant’s statement of 6/6/2003 and instead tendered the confessional statement of the appellant dated 12/6/2003.
Learned counsel argued that the prosecution listed and frontloaded the appellant’s statement of 6/6/2003 and its Yoruba version as part of the proof of evidence at the inception of the matter which were marked Exhibits 10 and 10A respectively. Counsel urged the court to hold that the trial court was wrong in failing to give value to and refusing to accept Exhibit 10’s content as true.
Referring to the trial judge’s treatment of Exhibit 10 as inadmissible and expunging same from evidence, counsel argued that the requirements of the I.P.O counter signing a statement and taking an accused person and the statement before a superior police officer for attestation are according to him, provided by the Judges’ Rules 1912 of England as adopted in the Southern States of Nigeria (Ondo State inclusive) and are fully required to be complied with where the statement in question is a confessional statement.
Learned counsel contended that Exhibits 10 and 10A in the instant case are not confessional statements which require the compliance with the Judges’ Rules, the appellant having denied committing the offence and knowledge of the other accused persons. Counsel maintained that the trial court was wrong in declaring Exhibit 10 inadmissible and expunging same from record. That such was a travesty of justice.
Learned counsel argued that since the issue of who authored Exhibit 10 and 10A was not raised between the parties, that the trial court was wrong not to have confined itself to the issues placed before it. He referred the court to the cases to wit:
– Oshatoba V. Calabar (2000) 5 N.W.L.R (pt. 655) 159 @ 170
– University of Calabar V. Dr. Essien (1996) 10 N.W.L.R. (pt. 447) 225 @ 251
– Nig Bank For Commerce & Ind V. Integrated GAS (Nig) Ltd (2005) 4 N.W.L.R (Pt. 916) 617 @ 644 and
– Okputor v. The State (1990) 7 N.W.L.R. (pt. 164) 581
Learned Counsel added that the trial court was wrong to have raised the issue suo motu without giving the parties and in particular the appellant the hearing before resolving the issue against him. He referred the court to the case of Adegoke V. Adibi (1992) 5 N.W.L.R (pt. 242) 420 – 421 and A. G. Leventis PLC V. Akpu (2007) 9 MJSC 134 @ 152 paras E – G.
Learned Counsel urged this Honourable Court to restore exhibits 10 and 10A as part of evidence in this case and accord it weight. Counsel further urged us to resolve this issue in favour of the appellant.
The learned counsel for the respondent in reaction to this issue as formulated by the learned counsel for the appellant started by describing Exhibit 5 which is the confessional statement of the appellant dated 12/6/08 and contained on page 12 of the record.
That, the statement discloses how the appellant who was the mastermind and his cohort (2nd and 3rd accused persons), executed the raping and unlawful killing of the deceased.
Counsel argued that exhibits 6 and 7 which are the confessional statements of the 2nd and 3rd accused persons, disclose the active participation of the trio in raping and murder of the deceased. That the probative significance of Exhibits 6 and 7 lies in their consistence with Exhibit 5
Learned counsel argued that neither the appellant nor his counsel objected to the admissibility of Exhibit 5 when it was tendered and, that it was during the appellant’s evidence in chief that he retracted the statement. Counsel made excerpt of PW3’s evidence relating to Exhibit 5 as contained on page 53 of the record as follows:
“…..the 1st accused person made a confessional statement, I then took the confessional statement to a superior police officer for attestation.”
Learned respondent’s counsel submitted that an accused person can be convicted on his true and positive confession alone even where the accused has retracted his statement. He referred to the following cases:
– Yesufu V. The State (1976) 6 SC 167
– Salawu V. The State (1971) 1 N.W.L.R 249
– Godwin Ikpasa V. A. G. Bendel State (1981) 9 S.C. 7.
Counsel contented that the law only requires that such a confessional statement pass the test laid down in R. V. Sykes 1933 (A.R.P 113) which according to counsel, decision has been adopted by the Supreme Court in a plethora of decided cases here under inter-alia
– Stephen V. The State (1986) 5 N. M. L. R. (pt. 46) 978;
– Dawa V. The State (1980) 8 – 11 S.C 236;
– Ogido V. The (2011) 11 – 12 (pt. 1) SCM 209 @ 240
Learned counsel holds the contention that the trial court took the right decision concerning Exhibits 5, 6, and 7 by convicting the appellant, the said exhibits having passed the required test explained above. He referred to extracts from the lower Court’s judgment on page 117 of the record as follows:
“I am satisfied from the surrounding circumstances at hand and I hold that the voluntary confessional statements of the 1st and 2nd accused persons contained (sic) Exhibits 5 and 6 are true. It is therefore my view that the full weight and effect should be accorded to the confessional statements of the two accused persons, I am even of the view that the 1st and 2nd accused persons could be convicted in view of their confessional statements contained in Exhibit 5 and 6 alone.”
Respondent’s counsel lunged on exhibit 7 which is credited to the 3rd accused person that it was not at variance with Exhibits 5 and 6. He urged this court to so hold.
Furthermore, learned counsel referred to page 115 of the record in respect of the trial court’s reaction to Exhibits 10, which is the appellant’s statement dated 6/6/2003. He excerpts as follows:
“I find the statement of the 1st accused contained in Exhibit 10 apart from being contradictory of his testimony in court is complete falsehood. In his statement in Exhibit 5 made on the 12th of June, 2003 he stated that he was arrested three days after the murder. If the 1st accused person was indeed arrested three days after the alleged murder, he could not have made and was impossible for him to have made any statement contained in Exhibit 10 which was recorded on the 6th day of June, 2003 one day after the day of the alleged murder. I find that Exhibit 10 was complete fabrication a concoction and afterthought”.
Learned Counsel added that an unsigned document is useless. That this trial court observed that unlike Exhibits 5, 6, and 7, that Exhibit 10 was never countersigned by the person who recorded it. He referred the court to Section 83 (4) of the Evidence Act, 2011 and argued that the appellant admitted on page 70 of the record to wit:
“What I said about the 3rd accused person in Exhibit 10 is false.”
Counsel contends that the foregoing excerpt reinforces the learned trial court’s observation that Exhibit 10 was a document replete with falsehood.
Learned respondent’s counsel submitted that the learned trial court rightly expunged from the record of the court the purported alibi contained in Exhibit 10 which according to him, lacks necessary particulars and that the appellants never adduced any evidence in support thereof in line with the Supreme Court’s decision in Almu v. The State (supra).
He urged this court to resolve this issue in favour of the respondent and against the appellant.
RESOLUTION OF ISSUE 2
Issue No 2 is whether the trial court was right in expunging as well as failing to give any weight to Exhibit 10 and/or exhibit 10A. To start with, hereunder is an excerpt of the lower Court’s finding on this issue as contained on page 115 of the record.
“I find that the statement of the 1st accused person contained in Exhibit 10 apart from being contradictory of his testimony in court is complete falsehood. In his statement in Exhibit 5 made on the 12th of June, 2003 he stated that he was arrested three days after the murder. If the 1st accused person was indeed arrested three days after the alleged murder he could not have made and was impossible for him to have made any statement contained in Exhibit 10 which was recorded on the 6th of June, 2003 one day after the day of the alleged murder I find that Exhibit 19 was complete fabrication a concoction and an afterthought.
Furthermore unlike Exhibits 5, 6 and 7, Exhibit 10 was not counter signed by the person who recorded it the 100 and was not taken before superior Police Officer and was without the usual attestation. Where the 1st accused person claimed that he could neither read nor write he could not have written the Yoruba Version of Exhibit 10. The identity of however (sic) wrote Exhibit 10 even though supposedly signed by the 1st accused person in unknown. I find that the statement of the 1st accused admitted as Exhibit 5 was a confessional statement obtained voluntarily under caution. I therefore find that Exhibit 10 is inadmissible evidence which was wrongly admitted in evidence and should be expunged from the records of the court.”
It is clear from the above excerpt that the learned trial judge having evaluated exhibits 5, 6 and 7 which are the purported voluntary confessional statements of the 1st, 2nd and 3rd accused persons, the evidence before the court and the demeanor of the accused person arrived at the above conclusion. Exhibit 5 which is credited to the appellant herein was made on the 12/6/03 and which corroborates Exhibits 6 and 7.
The learned trial judge found that the said exhibit was direct and unequivocal. Appellant in the said exhibit 5 admitted having committed the alleged offences he is charged with infact, appellant narrated how he planned the whole act and how he stabbed the deceased person severally after raping her. In the same statement Exhibit 5 as excerpted somewhere in this case, appellant confessed that he was arrested three (3) days after the incidence.
Exhibit 10 which its contents were disbelieved by the lower Court is believed by us to be a fabricated story and lacking truth. This is corroborated by the appellant’s evidence before the trial court contained on page 70 of the record as follows:
“What I said about the 3rd accused person in Exhibit 10 is false”
Appellant made the above statement in his evidence in chief when confronted with the facts he made in Exhibit 5 as to knowing the 3rd accused person. Appellant attempted to resile from his confessional statement contained in exhibit 5. Exhibit 10 is hereunder excerpted.
“… I went to said farm yesterday 5/6/2003 at about 12 noon. I returned to paradise where I am living. From I went Omituntun camp where my brother’s wife was about to born and I returned at about 12 midnight to paradise. When I got to Asejire camp. I saw that the block the road against us then I pack my car by the side of the road and f was about to pass by foot but the Yoruba people around warned not to leave Asejire camp on that night so that they will not say I know anything about this matter. However I slept there until the following morning around 3 am 6/6/2003. They woke all of us in the camp…”
In his evidence before the trial court appellant herein gave contradictory evidence against his voluntarily confessional statement. On that fateful day, appellant claimed he left his house around 5am. He carried women passengers to Igbokoda Market from here he went to paradise. From paradise appellant went to Ominutu to take care of his brother’s wife who was expecting a baby. Appellant narrated how he bought drinks for some people in celebration he slept in Ominutu, his father’s village. That, on 6/6/03, appellant carried 4 passengers in his car from Ominutu to Ore. Appellant explained how on approaching Asejire they met a road block and how he was arrested by some people. He went on to narrate the quarrel between his father and the Baale. Appellant denied knowing the deceased and the 2nd and 3rd accused persons in his evidence before the court.
It is the case of the learned counsel for the respondent that the learned trial court rightly expunged from the record of the court the contents of exhibit 10.
The learned trial court held on page 117 of the record as follows:
“I am satisfied from the surrounding circumstances at hand and I hold that the voluntary confessional statement of the 1st and 2nd accused persons contained exhibits 5 and 6 are true. It is therefore my view that full weight and effect should be accorded to the confessional statements of the two accused persons….”
Exhibit 5 therefore was found to be true having been tendered and admitted in evidence without being objected to by the Appellant or his counsel. I agree with the position of the learned trial court and I hold that exhibit 10 was rightly not given probative value and expunged from the record.
Considering the available evidence before the court, it is not in doubt that the appellant had the opportunity to commit the crime he confessed to in Exhibit 5.
It is trite law that an accused person can be convicted on his confessional statement even if he resiled from it. See the cases of Godwin Ikpasa V. A.G. Bendel State (1981) 9 S.C 7 and Nsofar V. The State (2003) F.W.L.R (pt. 153) 271 @ 274.
It is also a principle of law that the true test for determining the veracity of a confessional statement is to seek any other evidence be it slight, of circumstances which make it possible that the confession is true. See Tegwonor V. The State (2008) 1 N.W.L.R (pt. 1069) 630 @ 654; and Nwaebonyi Vs. The State (1994) 5 N.W.L.R. (pt. 705) 7 per IGUH, J.S.C.
The trial court was in order when it expunged exhibit 10 from the record of court, I also believe that exhibit 5 was true and a voluntary confessional statement of the 1st accused person herein the appellant. I so hold.
This issue is resolved in favour of the respondent and against the appellant.
ISSUE 3
Whether in view of the evidence before the trial court, it was right in convicting the appellant of the offences with which he was charged:
The learned Counsel for the appellant argued that of all the witnesses called by the prosecution PW1, PW2, and PW3, none of them gave evidence linking or capable of linking the appellant with any of the other co-accused persons, the deceased or any of the alleged offences. Learned Counsel referred to pages 80 – 135 of the record and contended that the trial court did not rely on the evidence of any of the prosecution witnesses to convict the appellant. That it solely relied on Exhibits 5, 6 and 7, which according to counsel was wrong, as they were only a part of the proof of evidence front loaded along with other initiating processes by the prosecution.
That, they are means of proof rather than evidence. Counsel agrees with the fact that the said Exhibits, 6 and 7 are without doubt the extra judicial statements made by the 2nd and 3rd accused persons which the court used in convicting them. Counsel conceded that the court may do that when the extra judicial confession is voluntary, direct, positive and unequivocal even where same is inconsistent with the evidence in court. He referred the court to the following cases:
– Edhigere V. The State (1996) 8 N.W.L.R (Pt. 464) 1 @ 13 – 14;
– Queen V. Itule (1961) 2 S.C.N.L.R. 183;
– Bature V. The State (1994) N.W.L.R. (Pt. 320) 267 @ 285 – 286.
Learned Counsel contended that the court is to view such statements with suspicion and to consider it desirable to have some corroborative evidence of the circumstances outside the said confessional statement to the police no matter how slight which makes it probable that the confession is true.
That courts are at all times to test the truth of such confessions. He referred the court to the authorities to wit.
– Paul Onochie & Ors V. The Republic (1966) 4 N.W.L.R. 307
– R. V. Kanu (1952) 14 WACA 30
– Tafiya Kpa v. The State (1971) 1 All N.L.R (pt. 326) 273 @ 300 and
– Kareem V. FRN (No. 1) (2002) 8 N.W.L.R. (pt. 770) 636 @ 656.
Learned counsel further cited the authority of this Honourable Court in Obisi V. Chief of Naval Staff (2002) 2 N.W.L.R. (pt. 751) 400 @ 418 – 419 where it was held as follows:
“The tests for determining the truth or otherwise of extra judicial confessional statement is to look outside for any corroborative evidence which makes it possible that the confession is true. In carrying out the test the court will consider issues such as (1) Whether there is anything outside the confessional statement to show that is true. (2) Whether the confessional statement is itself corroborated. (3) Whether the statement of fact made in the confessional statement so far as can be tested is true (4) Whether the accused person had the opportunity of committing the offence. (5) Whether, given the surrounding circumstances, the confession of the accused was possible (6) Whether the confession was consistent with other fac6, which have been ascertained and proved at the trial.”
Counsel further referred the court to Ikpasa V. A.G. Bendel State (1981) 9 SC 7 and R V. Kanu Supra and argued that the trial court without conducting the foregoing test went ahead to accept the contents of exhibits 5, 6 and 7 and relied on them in convicting the appellant. He averred that the 2nd accused person in his statement of 6/6/2003 denied knowing or having anything to do with the appellant but claimed that the 3rd accused person confessed to the killing of the deceased and warned him not to tell anyone. Counsel referred the court to pages 25 – 27 and 70 – 74 of the record.
Learned counsel submitted that this was not a case of an accused seeking retraction of his confessional statement but a situation where two statements exist where one is a complete denial of the contents of the other. Counsel submits that the trial judge should have either discountenanced all statements made or purportedly made to the police or out rightly rejected the supposed confessional statements as being unsafe to rely on, that the trial judge had a bounden duty to adopt in the circumstance an approach which is most favourable to the appellant. He cited the case of Sam V. The State (1991) 2 N.W.L.R. (pt. 176) 699 @ 707 – 708 where it was held by this Honourable Court, per Katsina Alu, J.C.A (as he then was) thus:
“Faced with Exhibit “F” and “G” which contradict each other, the learned judge was in duty bound to adopt an approach that was most favourable to the appellant. Having believed and accepted exhibit “G”, the learned judge had no basis whatever for believing Exhibit “F” for which she confessed to the killing”
Counsel averred that the trial court failed in its duty by adopting an approach most prejudicial to the appellant by accepting the truth of the contents of Exhibits 5, 6, and 7 to convict the appellant. He urged the court to reverse the decision of the trial court.
It is the learned counsel for the appellant’s contention that the trial court had a duty to determine at the conclusion of trial whether the said statement (Exh.10) was made by the accused person or not. He referred the court to the following cases:
– Ogunye Vs. The State (1999) 5 N.W.L.R. (Pt. 604) 548 @ 570;
– Okoro V. The State (1993) 5 N.W.L.R (pt. 282) 425 @ 437;
– Ehot V. The State (1993) 4 N.W.L.R. (pt. 290) 644 @ 659, and
– Victor V. The State (2002) 10 N.W.L.R (Pt. 775) 274 @ 289.
Learned Counsel referred to page 112 of the record where the learned trial judge held as follows:
“It should be noted that during trial the learned defence counsel Mr. Kunle Adetowuba did not raise any objection to the admissibility of Exhibits 5, 6 and 7, the consequence is that the 1st, 2nd and 3rd accused persons agreed or admitted that they made Exhibits 5, 6 and 7 voluntarily.”
Counsel described the foregoing as held by the learned trial court as a shortcoming, that it failed to realize it must determine at the conclusion of trial whether in actual fact the appellant made Exhibit 5.
He cited the case of Ogunya V. The State (supra) @ pg 572 where it was held per lgu, J.S.C as follows:
“With the greatest respect to the learned trial judge, it was nothing short of a gross misdirection to have relied on Exhibit ‘A’ and ‘S’ in convicting the appellant without making a specific finding as to whether or not these confessions were infact made by him, it was equally erroneous on the part of the court below to have relied on the contents of such improved statement in affirming the conviction of the 5th appellant.”
Learned counsel is in accord with the fact that the admission of Exhibits 5, 6 and 7 were proper having not been challenged by the appellant and the 2nd accused person but contended that the trial court did not make any ruling to that effect anywhere in its Judgment before relying on same. He says it amount to gross misdirection and urged the court to so hold and quash the appellant’s conviction.
Counsel argued the trial court wrongly constantly referred to exhibits 6 and 7 alongside Exhibit 5. He contended that unless accused person against whom the statement of a co-accused person has adopted same at the trial, that an extra – judicial statement or evidence of a co-accused is not to be used in convicting the accused person and that if the trial judge does so, that such a conviction must be quashed on appeal. He referred the court to the following cases:
– Titilayo V. The State (1998) 2 N.W.L.R (pt. 537) 235 @ 244
– Bassey V. The State (1993) 7 N.W.L.R (pt. 306) 469 @ 481 and Section 27 (27) of the Evidence Act Cap. E L2 LFN 2004.
Appellant’s Counsel further referred the court to pages 119 – 120 of the record where the court held as follows:
“I also find that the prosecution relied on circumstantial evidence in proof of its case. Though there were no eye-witnesses to sex the brutal killing of the victim, there were the confessional statements of the accused persons and enough circumstantial evidence that the 1st, 2nd and 3rd accused persons planned to rape the deceased (sic) in the farm of the father of the 3rd accused person. The act of killing the accused person (sic) was actually carried out by the 1st accused person the 1st accused person also confessed retrieving a sum of N5,000.00 from the deceased after she was killed. The evidence of PW1, PW 2 is so cogent, convincing and compelling, linking or connecting the 1st and 2nd accused persons in the circumstances of this case to the offence charged. I find that the prosecution adequately linked the 1st and 2nd accused persons with the deceased alive I find that the 1st and 2nd accused persons had no defence to this case. On the whole I find that the 1st accused person was the one who physically inflicted the deadly premeditated and unprovoked assault on the deceased in the presence of the 2nd and 3rd accused person (sic) who stood by and watched and did nothing to prevent the assault. The assault was premeditated because the 1st accused carried a deadly weapon with him to the farm. I therefore find that the confessional statement of the accused persons is direct evidence to ground the conviction of the 1st and 2nd accused person.”
Counsel conceded that circumstantial evidence though can ground conviction, submits that such circumstantial evidence must not only be cogent, complete and unequivocal but be compelling and, led to the irresistible conclusion that the prisoner and no one else is the murderer. He relied on the following authorities:
– Ijiofor Vs. The State (2011) 9 N.W.L.R (pt. 718) 371 @ 383
– Yongo V. C.O.P. (1992) 8 NWLR. (pt. 257) 36 and
– Alake v. The State (1992) 9 NWLR (pt. 265) 260.
Appellant’s counsel argued that, since there was no evidence/witness apart from the Exhibit 5 linking the appellant with either the deceased or the offences alleged, that the learned trial court’s findings were based on speculations. He urged this court to set aside according to him, these perverse findings. He referred the court to:
– Ukoh Vs The State (1972) 5 SC. 135 @ 141 per Coker J.S.C.
– A.G. Federation Vs. Abubakar supra,
– Oniah Vs. Onijia supra and
– Onu Vs Idu supra.
Counsel finally on this issue urged the court to resolve same in favour of the appellant and allow the appeal.
On its part the respondent through the respondent’s counsel submits concerning this issue that the prosecution proved the case of conspiracy and murder against the appellant beyond reasonable doubt.
Counsel argued that to prove conspiracy, that the following elements must be established:
i. an agreement between two or more persons to do an unlawful act or an act which is illegal by an unlawful means; and
ii. an act in furtherance of this agreement in which each of the accused persons is actively involved.
He referred the court to the following cases:
– Usman Kaza v. The State (2008) 7 N.W.L.R. (pt. 10 – 85) 125 SC;
– Gbadamosi V. The State (1991) 5 N.W.L.R. (pt. 196) 182 SC
– Shodiya V. the State (1992) 3 N.W.L.R (pt. 230) 457.
Learned counsel argued that Exhibits 5, 6, and 7 which are confessional statements of the appellant and his cohort, flagrantly disclosed a conspiracy to rape the deceased by luring her to the 3rd Accused’s father’s farm, to sell kolanut to her. That the said Exhibits 5, 6 and 7 having been admitted in evidence, have become part of the prosecution’s case. Counsel referred us to Princewill V. The State (1994) 7 – 85 (pt. 11) 226 @ 240.
Counsel excerpts Exhibits 5, the extra judicial statement of the appellant contained on page 12 of the record as follows:
“………. on 5/6/2003 in the morning time I went to the woman called mama Lekan and told her that she should come and by colanut at Ayo’s father farm (sic) I informed Ayo Omoduyilemi and Omotola Akinlomi whom I had already planned with that we shall tricked (sic) the said woman to farm and have sex with her…”
Learned respondent’s counsel further excerpted Exhibit 5′ on the same page as follows:
“…..on getting to the farm, the woman asked Ayo that where is the colanut she is to buy I replied the woman that there is no colanut for her to buy but we are here to have sex with her. She refused but when she sees that I am forcing her, she pleaded that we should not kill her. I then used her clothe to cover her mouth so that she will not cried (sic) out. I then forcefully had sex with her…”
From the foregoing excerpts of Exhibit 5 respondent’s counsel submits that there was agreement between the appellant and his cohort to do an unlawful act. He further contended that the appellant and the other accused persons’ mindset met somewhere for the purpose of raping the deceased. Counsel referred the court to the following cases:
– Haruna V. The State (1972) All N.L.R. 738
– The State V. Salawu (2011) 48 N.S.C.Q.R 290.
Counsel for the respondent argued that the appellant and his cohort conspired to rape the deceased and in the process, death resulted. That, who did the act of killing did not matter. He referred to the case of State V. Oladimeji (2003) F.W.L.R (Pt. 175) 395 SC @ 409 – 410 paras. H – C.
Learned counsel urged the court to hold that the appellant and the other accused persons conspired to commit felonies, rape and murder.
In an attempt to establish his points, learned counsel mentioned the following as ingredients which must be established in order to prove murder!
i. That the death of the deceased
ii. That it was the act or omission of the accused which caused the death; and
iii. That the act or omission of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence. Counsel referred the court to the following cases:
– The State v. Oghubun (2001) FWLR (pt. 37) 1097; (2001) SCNJ 86
– Fafilewa v. The State (2007) 5 A.C.L.R 607 @ 629 and
– Okeke v. The State (1999) 2 N.W.L.R. (pt. 590) 246 @ 273
The respondent’s counsel in establishing that one Mrs. Silifat Raham died, referred to the evidence of PW2 and PW3 and also, PW4’s expert evidence contained in Exhibit 9, the medical report that, the said body of the deceased was identified by one Jimoh. He referred the court to pages 48 – 55 and page 57 of the record. Counsel urged the court to hold that the death of the deceased was established.
Learned counsel contends that the active involvement of the appellant in the raping and murder of the deceased in cold blood was open in exhibit 5 which is his confessional statement contained on page 12 of the record.
Counsel submits that the evidence of PW4 was not at variance with the confessional statement (Exhibit 5) of the appellant. Counsel excerpted PW4’s evidence contained on page 57 of the record as follows:
“I was served with cochers (sic) paper to perform postmortem examination on the body of a woman, Silifat Rahman…. There was evidence of manual strangulation of the neck of the accused (sic). The neck was cut first done (sic) before the neck was twisted….. There was valve swollen and congestion (sic) of virginal (sic) examine it and came to the conclusion that sexual activity had taken place. There was evidence of rape.”
Respondent’s counsel submits inferring from the fore going extract that the deceased died from the combined effects of the injury inflicted on her by the appellant and the successive raping by the accused persons.
Learned counsel maintained that the appellant having not set up any legal defence (provocation, self defence or mistake) supported by cogent evidence that the presumption of mental capacity provided in Section 27 of the Criminal Code, Vol. 1 Cap 37, Laws of Ondo State, 2006 was sufficient to establish his Mens rea.
Counsel argument that the appellant herein by the facts of exhibit 5 admitted inflicting injury on the deceased’s neck not leg in order to conceal the crime, counsel argued that his act was intentional and with the knowledge that death or grievous bodily harm was its probable consequence. He referred the court to the cases to wit:
– Orisakwe V. The State (2004) 12 NWLR (pt. 887) @ 34 para. G. and
– Nyambus V. Usman (2007) 5 A.C.L.R. 34 @ 41-42
Counsel mentioned Section 145 (1) of the Evidence Act Cap E 14, 2011 and the case of Nyambus Kpata V, The State (1977) 1 F.C.A. 259 and pointed out that a man intends the natural consequences of his act and that the court may presume same. He submits that intent to kill can be ascertained or inferred from the nature of instrument used and the wound inflicted. Counsel referred the court to the following cases:
– The State V. Babawuro Usman supra: and
– Ehiot v. The state (1993) 4 N.W.L.R. (pt. 290) 644 – 644 and 67.
Counsel noted that the appellant herein having admitted stabbing the deceased’s jaw and throat with a knife with a view to concealing the crime, intentionally killed her. Learned counsel urged the Honourable Court to so hold and resolve this issue in favour of the respondent.
RESOLUTION OF ISSUE 3:
Issue three (3) is whether in view of the evidence before the trial court, it was right in convicting the appellant of the offences charged?
The instant appellant was charged along with two other accused persons before the trial court for conspiracy to murder and murder of the deceased. At the trial the appellant and his co-accused person denied guilt. Exhibits 5, 10 and 10A were admitted as confessional statements of the appellant. Exhibit 10 a Yoruba version which was tendered in court by the court registrar was not accorded value or given weight to its contents by the learned trial court. It was subsequently expunged from the record of court as mentioned earlier in this case.
Learned counsel for the appellant argued on this issue that all the witnesses called by the prosecution could not link the 1st accused person with any of the accused persons. He contended that the trial court solely relied on Exhibits 5, to convict the 1st accused person herein the appellant.
The said exhibit 5 is a voluntary confessional statement of the appellant which was tendered and admitted in evidence without objection. Even though the appellant while giving evidence attempted to resile from it, the learned trial judge believed the said exhibit to be true and voluntarily made under caution. The trial judge held in its judgment on page 117 of the record as follows:
“I am satisfied from surrounding circumstances at hand and I hold that the voluntary confessional statements of the 1st and 2nd accused persons contained exhibit 5 and 6 are true”
It is an established principle of law that if a confessional statement of an accused person is satisfactorily proved, a conviction founded on it without more will be sustained by an appellate court. See the case of Shurumo V. The State (2010) 19 N.W.L.R (pt. 1226) 73 S.C.
Section 29 (1) of the Evidence Act 2011, Cap. E.14 state as follows:
“in any proceedings a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.”
I took a close look as did the trial judge at all the exhibits before the court. I have also considered the circumstances surrounding this case. The trial court in my considered view showed due objectivity and dispassion in reaching its decision to admit Exhibit 5 as a confessional and voluntary statement of the appellant and also, not giving weight to exhibit 10 and expunging same from the record.
It is trite that the evaluation of evidence before the court is the preserve of the trial court. Unless conclusion reached from the facts is perverse the appellate court will not substitute its own views for that of the trial court. The question in criminal cases is usually whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial court, that is the end of the matter, provided it is manifest on the record that the trial judge has given due consideration to the evidence by and on behalf of the defence.
See the following authorities:
– Ibrahim V. The State (1991) 4 N.W.L.R (pt. 186) 399 SC;
– Ben Vs State (2005) 11 N.W.L.R (pt. 936) 335 @ 344 – 345; – paras. H – A;
– Yakubu Vs. F.R.N. (2009) 14 N.W.L.R. (pt. 1160) 151 C.A. and
– State Vs. Onyenkwu (2004) 14 N.W.L.R. (pt. 893) 340.
The appellant’s evidence before the trial court was contradictory of his voluntary confessional statement made on the 12/6/03, exhibit 5. The said exhibit 5 corroborates exhibits 6 and 7 of the 2nd and 3rd accused persons. The argument of the learned counsel for the appellant that there was no evidence apart from Exhibit 5 linking the appellant with either the deceased or the offences alleged cannot stand. The law is that, an accused person can be convicted on his confessional statement alone. See Alarape Vs. State (2001) 2 S.C 114.
It is the trial court that is best placed to observe and weigh all the evidence placed before it first hand and also watch the demeanor of the witnesses. Thus any decision reached by the court having seen and observed such evidence put before it and having made a finding of fact out of it should be accorded such weight so long as such decision is not unreasonable or perverse. See Ben Vs State Supra.
Therefore, exhibit 5 to my mind is unequivocal, positive and direct. I hold that the court can conveniently convict the appellant solely on it. Not only am I satisfied that Exhibit 5 discloses enough evidence to ground a conviction but that, there are facts outside the exhibit which are corroborative of it and pointing to the appellant’s guilt.
I find that the appellant together with the 2nd and 3rd accused persons conspired to carry out the unlawful act. By exhibit 5 the appellant to my understanding masterminded the orchestrated unlawful act. The Learned Trial Judge in his judgment on page 116 of the record asked as follows:
“How can the 1st accused person who voluntarily narrated the role he played in the killing of Silifat now ferment a defence of alibi to exculpate himself from criminal responsibility? He gave evidence that he stabbed the victim in the neck with a knife knowing the stabbing could kill his victim”
See again the excerpt of the appellant’s statement contained in the said exhibit 5:
“On 5/6/2003 in the morning time I went to one woman called Mama Lekan and told her that she should come and buy cola not at Ayo’s father farm. I inform Ayo Omoduyilemi and Omotola Akinlomi whom I had planned with that we should tricked the said woman to farm and have sex with her to come with the woman…”
The offence of conspiracy is complete once a concluded agreement exist between two or more persons that share a common purpose. See the case of Bello Vs. State (2010) 12 (pt. 2) S.C.M pg. 52 para C.
It is also trite that when two or more persons actively participated in the commission of a crime in the execution of a common intention, each of them would be liable for the offence and it does not matter who did what in the commission of the offence.
See Atiku V. State (2010) 9 N.W.L.R (pt. 1199) 241 C.A. see also Shurumo V. State supra where it was held to wit:
“A conspiracy consist not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as the design rests on intention only, it is not indictable. When two or more agree to carry into effect the very plot is an act in itself, an act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for use for criminal means…”
In the instant case therefore, the confession of the appellant in exhibit 5 which corroborates Exhibits 6 and 7 of the 2nd and 3rd accused person was enough to nail him on the count relating to conspiracy.
Moreover, the appellant having conspired to rape and did raped the victim, stabbed her severally knowing fully the consequences of his actions.
Hereunder is a further extract of the appellant’s confessional statement exhibit 5.
…”We are here to have sex with her. She refused but when she sees that I am forcing her, she pleaded that we should not kill her. I then used her clothe to cover her mouth so that she will not cried (sic) out, I then forcefully have sex with her. After I finished with her, I stabbed her with knife at the jaw and throat, I decided to stab her because I don’t want her to come and revealed (sic) this matter at home…”
An autopsy report made by PW4 as contained on page 57 of the record was tendered in court and admitted in evidence, marked as exhibit 9 confirming the brutal murder of the deceased was earlier on this case excerpted.
It is not in doubt therefore that the appellant herein participated actively in terminating the life of Silifat Rahman. It was held in Ofolete V. State (2000) 12 N.W.L.R (pt. 681) 415 @ 441 as follows:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved; in a criminal proceeding, beyond reasonable doubt the first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence …………” per Ayoola, J.S.C.
In the circumstance therefore, relying on the above authority and the evidence before the court I can safely say the prosecution by Exhibit 5 as excerpted earlier in this case, which is the appellant’s voluntary confessional statement admitted in evidence without any objection from the appellant’s side and which corroborates exhibits 6 and 7 of the 2nd and 3rd accused persons as earlier mentioned, was able to correctly and without doubt establish the offences of conspiracy to murder and murder against the appellant.
This issue is resolved against the appellant.
ISSUE 4
Whether the trial court was right in proceeding to deliver judgment in this case when the appellant was yet to close his case or address it and if not, whether this does not amount to an infraction of his right to fair hearing.
In arguing this issue appellant’s counsel contended that the learned trial judge delivered Judgment in this case without permitting the appellant herein the opportunity to address the court and that it amounted to beach of the appellant’s right to fair hearing.
That at the time the trial court adjourned the case to 1st December, 2008 on the 11th November, 2008, that two things or steps were outstanding before the case could be concluded.
(1) More time to enable the appellant call his remaining witnesses and conclude his case, and
(2) Address of counsel.
Counsel averred that the trial court was aware of the aforementioned steps and decided to adjourn the case to 1st December, 2008. He referred the court to pages 75 – 76 of the record.
That from 9th June, 2009 nothing transpired in the trial court until 5th August, 2010 when according to counsel without the formal closing of the appellant’s case and without giving the parties the opportunity to address it, the trial court delivered judgment in the case.
Counsel submits that, the trial court by that act occasioned three (3) consequences to wit:
(1) It foreclosed the appellant’s case as there was no way the appellant could call any remaining witness again.
(2) It barred or prevented counsel to the parties, particularly the appellant’s counsel from presenting final addresses; and
(3) It unwittingly punished the appellant for the sin/absence of the prosecution counsel.
Counsel submits that the appellant under Section 36 (1) of the Constitution of Nigeria 1999 (as amended) is entitled to fair hearing. He maintained that the trial court infringed on the appellant’s right to fair hearing when it foreclosed the appellant’s right to call additional witnesses before closing the case. He argued that failure to accord the appellant that right vitiated the entire proceeding. That the right of the accused person to have his counsel address the court is part of the right enshrined in Section 36 of the Constitution. Counsel referred the court to the following cases:
– Amough V. Zaki (1998) 3 N.W.L.R. (pt. 542) 483 @ 490 – 491;
– Obodo V. Olomu (1987) 3 N.W.L.R (pt. 59) 111 @ 121 and
– Eshenake V. Gbinije (2006) 1 N.W.L.R. (pt. 961) 228 @ 239 – 250
Learned appellant’s counsel aver that address of counsel is statutorily provided for in the Criminal Procedure Act/Law Section 241 as follows:
“After the case for the prosecution is concluded the accused or the legal practitioner representing him, if any, shall be entitled to address the court at the commencement or conclusion of his case, as he thinks fit, and if no witnesses have been called for the defence, other than the accused himself or witnesses solely as to the character of the accused and no document is put in as evidence for the defence, the person appearing for the prosecution shall not be entitled to address the court a second time but if in opening the case for the defence the person appearing for the accused has in addressing the court introduced new matter without supporting it by evidence the court, in its discretion may allow the person appearing for the prosecution to reply.”
On the foregoing authority counsel contended that they are unambiguous and must be given their ordinary and natural meaning. He referred the court to the following case:
– Awolowo V. Shagari (1979) N.S.C.C.87 @ 122 lines 25 – 40
– A. G. Abia State V. A. G. Federation (2002) 6 N.W.L.R. (pt. 763) 264
Learned Counsel argued on points of law that where a statute has provided a procedure to be followed that only that procedure and non other is favourable. He relies on the following authorities:
– Okereke V. Yar’dua (2007) 12 N.W.L.R (pt. 1100) 95 @ 127 para. E.
– Odegwu V. Ilombo (2007) 8 N.W.L.R (pt. 1037) 488 @ 515 – 516;
– Ude V. Nwara (1993) 2 N.W.L.R. (pt. 278) 638;
– Ojong V. Duke (2003) 14 N.W.L.R (pt 841) 618;
– Ajuta II Vs. V. Ngene (2002) 1 N.W.L.R. (pt. 748) 300.
Learned counsel relying on his submissions further submit that failure by the trial court in according the appellant the right to address it was fatal and a breach of the mandatory provision of the Criminal Procedure Act/Law and renders its judgment unlawful. Counsel urged the court to so hold.
Counsel further referred the court to pages 34 – 44 of the record.
Learned counsel for the appellant expressed that even though the trial court with the consent parties could order that written address of counsel be filed and exchanged, that there was no such order made by the trial court.
He contends that the trial court learned heavily on the written address filed by the prosecution in its judgment.
Counsel referred to pages 99 – 103 of the record and submits that justice was not done. He urged the court to hold that appellant was not given fair hearing before his conviction and sentence. He further submitted that such violations of the appellant’s right to fair hearing renders the entire proceedings and judgment of the learned trial court a nullity. Counsel referred the court to the case below: Ika Local Government Area V. Mba (2007) 12 N.W.L.R. (pt. 1049) 702 Paras. E – F; Okafor V. A. G. Anambra State (1991) 6 N.W.L.R, (pt. 200) 659; Obiesie V. Obiesie (2007) 16 N.W.L.R. (pt. 1060) 223 @ 232.
Counsel further referred the court to the following cases: Alsthom S.A.v. Saraki (2005) 3 N.W.L.R. (pt. 911) 208 and Ndukanba V. Kolomo (2005) 4 N.W.L.R. (pt. 915) 411.
Learned counsel urged this Honourable Court to set aside the entire proceedings and judgment, conviction and sentences in this case. He requires the court to resolve this issue in favour of the appellant and against the respondent.
Learned counsel for the appellant urged this court to allow this appeal, discharge and acquit the appellant.
On the respondent’s part, his counsel holds the view that fair hearing is a trial conducted according to all legal rules formulated to ensure that Justice is done to the parties to the cause, particularly the appellant. He referred us to the decisions of this court in
– Egbo V. Agbara (1997) 1 N.W.L.R. (pt. 481) 293 @ 314 and
– Ariori V. Elemo (1983) 1 S.C.N.L.R 1.
Learned counsel argued that the appellant’s cross examination was concluded on the 2nd June, 2008 but that, instead of closing their case to allow for progress in the proceedings sought an adjournment with the excuse to call witnesses. The court adjourned.
Counsel referred to pages 69 – 70 in that respect. That, on the 24th of June, which was the next adjourned date, that appellant did not produce any witness and the case was further adjourned (pages 70 – 76 of the record).
Again, argued counsel that on the 11th November, 2008 appellant was still unable to produce his witness and that it was based on that the trial court as contained on pages 75 – 76 of the record made the following orders:
“This is the 3rd time the Counsel is asking for an adjournment to call the last witness for the 1st accused person. Because of the nature of this case the court is inclined to grant the very last adjournment in favour of the 1st accused person. Case is adjourned to the 1st of December for conclusion of trial of the 1st accused and address by counsels (sic).”
Learned respondent’s counsel aver that the case was for last time adjourned to 29/6/2009 as contained on page 76 of the record to enable the parties comply with the court order dated 11th November, 2008. That, Judgment was eventually delivered on the 5th August, 2010.
Counsel argued on the aforesaid that it cannot be gain said that the trial court gave the appellant sufficient opportunity for his defence and address. He cited the case of Ogunsanya V. The State (2011) 9 S.C.M. 5 @ 31 – 32 Paras H – 13 where counsel says it was held, that where the trial court created environment for fair hearing, but the appellant failed to take advantage of same, his complaint is not rooted on a firm ground. He referred the court to the case of Effiom V. The State (1995) 1 N.W.L.R. (pt. 379) 507.
Learned respondent’s counsel contended that the trial court gave equal opportunities to parties to address the court and that since the appellant’s counsel failed to utilize the opportunity, that this cannot be said to occasion a miscarriage of justice because said he, cases are won on credible evidence, not address.
Learned Counsel cited the case of Ogunsanya V. The State (supra) where it was held as follows:
“…. No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of justice. This is so because whether counsel addresses a court or not the court must do it own research with the sole aim of seeking the truth…”
Counsel for the respondent is of the firm belief that the appellant’s counsel deliberately refused to address the court. He contended that the trial court accorded fair hearing to the parties in the instant case. Counsel urged the court to so hold and resolve the issue in favour of the respondent.
Learned counsel submits that the findings of the trial court are not perverse and that this court should not interfare with or reverse same. He referred this court to:
– Ebba Vs. Ogodo (2000) F.W.L.R (pt 27) 2094 and
– Omolola & Ors V. The State (Supra) 29 @ 86.
Counsel concluded by urging this Honourable Court to affirm the decision of the lower court and dismiss the appeal.
Learned counsel cited the case of Ogunsanya V. The State (supra).
RESOLUTION OF ISSUE 4
Whether the trial court was right in proceeding to deliver judgment in this case when the appellant was yet to close his case or address it and if not, whether this does not amount to an infraction of his right to fair hearing.
It is the contention of the learned counsel for the appellant that the right of the appellant to fair hearing as contained under Section 36 (1) of the Constitution, 1999 as amended was infringed upon by the trial court. He argued that the court ought to have given more time to enable the appellant call more witnesses and for address by counsel. That failure to accord right for counsel’s address vitiated the whole proceedings; counsel relied on Section 241 of the Criminal Procedure Act in attempt to make this point.
Learned counsel for the respondent countered this by arguing that the learned trial judge gave equal opportunity to both sides and that counsel for the appellant deliberately avoided addressing the court.
This matter was before the trial court on the 26th of February, 2007 when the instant appellant pleaded not guilty to the charges against him. This is reflected on page 45 of the record. Judgment was delivered on the 5th August, 2010 about three years and five months after.
However, it is on record that the appellant’s cross-examination was concluded on the 2nd of June, 2008 and between this day and the day judgment was delivered, there has been several adjournments at the instance of the 1st accused person especially, in respect of bringing witnesses to testify. The trial court having complied with the rules of court as contained in Order 3 Rule 14 of the Rules of the court, made its order on the 11/11/2008 earlier reproduced in this case as contained on page 75 of the record.
In the circumstance therefore, I am of the firm belief that the learned appellant’s counsel had ample opportunity to address the court of which he failed to utilize. I hold that the learned trial judge was in order and being guided by the rules of court, did justice in his judgment delivered on the 5th August, 2010.
I am in agreement with the learned counsel for the respondent that the case was adjourned to 29/06/2009 to enable both parties comply with the court’s order dated 11/11/2008.
It is trite that, no matter how beautiful the addresses of counsel, it cannot take the place of evidence. Addresses are meant to assist the court and failure to address may not be fatal or cause miscarriage of justice. See the case of Ogunsanya V. State (supra).
Relying on the above authority and in the interest of justice of which the court stands for, I hold that the learned trial court did not infringe on the appellant’s right to fair hearing as argued by the appellant’s counsel. I also disagree with the appellant’s counsel that the trial court foreclosed the appellant’s right to call additional witnesses having not utilized the ample time and opportunity accorded to them as evidenced in the record. It is therefore a complete misconception and misleading argument on the appellant’s side.
Accordingly, this issue is resolved against the appellant.
Having regard to the surrounding circumstances of this appeal, I have come to the conclusion that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt. I hold that the appeal lacks merit and, it is hereby dismissed. The conviction and sentence of death imposed on the appellant by the High Court of Ondo State sitting at Ore on the 5th of August, 2010 is hereby affirmed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Mohammed A. Danjuma, JCA.
I agree with the conclusion that the appeal lacks merit. I also dismiss the appeal.
JAMES SHEHU ABIRIYI, J.C.A.: Oh what a piece of work is man!
The sordid account of this crime contained in the extra-judicial statement of the appellant Exhibit 5 would make the stones bleed. It reads in part as follows:
“I then forcefully have sex with her. After I finished with her I stabbed her with knife at the jaw and throat. I decided to stab her because I don’t want her to come and revealed the matter at home. It was after I stabbed her that Omojola and Ayo sexed her respectively. The woman was still shaking when the two boys sexed her. After we pulled the body to a stream where we went and hide the body”
When Exhibit 5 was tendered in Court, the appellant raised no objection to it. He neither denied making it nor alleged that it was not voluntary. Exhibit 5 was corroborated by PW4 who stated in evidence thus:
“I discovered dead sperm cells on the vagina.”
A voluntary confession of guilt if fully consistent and probable and is coupled with clear proof that a crime has been committed by some person, is usually accepted as satisfactory evidence on which the Court can convict. See Ogoala V. State (1991) 2 NWLR (Pt. 175) 509
On the confessional statement of the appellant which was corroborated his conviction and sentence cannot be quashed.
The appellant has strenuously argued that his defence of alibi was not considered by the lower Court. Alibi is a defence that places the accused person at the time of crime in a different place from the scene of crime and renders it impossible for him to have committed the offence. However, there is nothing extraordinary in the plea of alibi.
If the prosecution adduces sufficient evidence to fix the accused person at the scene of crime at the material time his alibi is thereby logically and physically demolished. See Aremu & Anor v. State (1991) 7 SCNJ 296 and Njovens v. State (1973) 5 SC 12.
On his own confession, the appellant was fixed at the scene of the crime at the material time. His alibi was thereby physically and logically demolished.
The appellant further argued that he was denied fair hearing because he did not close his case and did not address the Court.
At page 99 of the record of appeal, the lower Court stated thus:
“There were many adjournments initially at the instance of the 1st and 2nd accused persons who was (sic) unable to call more witnesses.”
This in my view shows that the appellant was given the opportunity to defend himself but was unable to utilize the opportunity. He cannot therefore successfully argue that he was denied fair hearing.
I read before now the draft of the lead judgment just delivered by my learned brother Mohammed A. Danjuma JCA. I agree entirely with him that this appeal lacks merit. It is hereby dismissed. The conviction and sentence of death imposed on the appellant by the lower Court are hereby affirmed.
Appearances
A. A. Olatunji Esq.For Appellant
AND
D. L. Olafimihan (Principal Legal Officer, Ministry of Justice, Ondo State)For Respondent
