SEYI OYENEYE v. THE STATE (2016)

SEYI OYENEYE v. THE STATE

(2016)LCN/8341(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/I/122C/2014

RATIO

EVIDENCE: CONFESSIONAL STATEMENT: THE DEFINITION OF A CONFESSIONAL STATEMENT

CRIMINAL CODE LAW: PRINCIPAL OFFENDER; STATUTORY DEFINITION OF WHO A PRINCIPAL OFFENDER IN A CRIME IS

Section 7 of the Criminal Code Law of Ogun State Volume 1 of the Laws of Ogun State of Nigeria, 2006, defines who is a principal offender in a crime. The Section states:
when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or forces any other person to commit the offence. PER. OBIETONBARA O. DANIEL-KALIO, J.C.A

CRIMINAL LAW: WHETHER THE COMMON INTENTION MANIFESTED IN THE EXECUTION OF THE COMMON OBJECT IS ENOUGH TO RENDER EACH OF THE ACCUSED PERSONS IN THE GROUP GUILTY OF THE OFFENCE
It is the Law that what each participant did in furtherance of the commission of a crime is immaterial. The mere fact that the common intention manifested in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See Nwankwoala vs. State (2006) 14 NWLR part 1000 p. 663; Ikanson vs. State (1986) 2 NWLR part 110 p.455; Oyakhire vs State (2001) 15 NWLR part 1001 p. 157; Godwin Alao vs. The State (2015) LPELR- 24686 (SC). That the role played by the appellant was restricted to hitting the deceased with a stick is immaterial. He participated in the furtherance of the commission of the crime. He is a particeps criminis. See Agwuna vs. AG of the Federation (1995) 5 NWLR part 396 p. 48. PER. OBIETONBARA O. DANIEL-KALIO, J.C.A

EVIDENCE: CORROBORATION; WHETHER CONFESSIONAL STATEMENT NEEDS TO BE CORROBORATED
Although the confessional statements are clear enough, it is the Law that it is desirable that they be corroborated by some other evidence outside them, no matter how slight. see Onochie & Ors vs. The Republic (1996) NWLR p. 307; R Vs. Sykes (1913) 8 CAR 233 at 236; Nwachukwu vs. State (2007) 17 NWLR part 1062 p. 31. The reason for this rather fastidious position of the Law is probably rooted in the maxim: in criminalibus probationes debent esse luce clariores (in criminal cases proofs must be clearer than daylight). PER. OBIETONBARA O. DANIEL-KALIO, J.C.A

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

SEYI OYENEYE Appellant(s)

AND

THE STATE Respondent(s)

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over a conviction for murder. The appellant, Seyi Oyeneye (1st accused at the lower Court) and one David Oyedele (2nd accused at the lower Court) faced a two count charge. Count 1 was conspiracy to commit murder contrary to Section 324 of the Criminal Code Law, Vol.1., Laws of Ogun State of Nigeria, 2006. Count 2 was murder, contrary to Section 316(2) and punishable under Section 319 (1) of the Criminal Code Law, Vol. 1, Laws of Ogun State of Nigeria, 2006. The particulars of the two counts show that the appellant and the said David Oyedele on or about the 9th day of January, 2006 at Oloronbo Area, near Ijeun Titun, Abeokuta, conspired together to murder and murdered one Semiu Babatunde.

As pieced together from the Record of Appeal, the facts of the case at the lower Court showed that the deceased and his brother were on a nocturnal walk on the day of the incident. They were branded to be thieves and attacked by the appellant and others. While the brother of the deceased managed to escape, the deceased was not so lucky. He was bludgeoned, tied up and shot. He died on

arrival at the hospital where he was rushed to by policemen who arrived at the scene of the crime.

After hearing the case of the prosecution and. the defence, the learned trial judge came to the view that both counts of the charge had been proved beyond reasonable doubt. He found the appellant guilty on both counts and sentenced him to death. The judgment was delivered on 7/1/14.

Dissatisfied with the judgment, the appellant post-haste filed a Notice of Appeal on 27/1/4. He later amended the Notice of Appeal by an Amended Notice of Appeal filed on 12/3/15. The Amended Notice of Appeal was filed pursuant to an Order of this Court of 9/3/15. In the Amended Notice of Appeal, the appellant challenged the judgment on five grounds. The five grounds without the particulars of the grounds which I have decided to exclude because of their prolixity are the following:
Grounds of Appeal
1. The learned trial judge erred in law in holding as follows:
?I find and hold therefore that Exhibit A, A1, C, C1 and B and B1, made by the 1st and 2nd accused persons respectively qualify as and are confessional statements.
However, there is still the task of

testing the truth of the confessions so as to be able to decide whether or not it is safe to convict the accused persons based on them……….
Finally on this issue of testing of the confessions, from the totality of the evidence adduced, I am absolutely convinced that the confessions of the accused persons were quite possible, considering the fact that they were caught right on the scene with both the dying man (their victim) and their weapons of crime in their hands, by the police……. So I believe, find and hold that given the entire surrounding circumstances of their arrest, the confessions of the two accused persons were possible, true and very consistent with other facts ascertained and proved before the Court. The statements in my humble view, pass all the six judicially stipulated conditions of testing the truth and veracity of a confessional statement of an accused. I therefore attach the maximum weight possible to the said confessional statements of the two accused persons.”
2. The learned trial judge erred in law when he held follows:
“However, I reiterate that even if for any reason the said Confessional statements are found insufficient,

deficient or even inadmissible, the evidence of the witnesses called by the prosecution proved beyond any reasonable doubt that the two accused persons by their brutal acts of inflicting very grievous bodily injury on the deceased by the use of sticks, cutlasses and gunshot and leaving him tied on the ground, bleeding for a considerable period of time, caused the death of the deceased, Semiu Babatunde. In other words, I find and hold that outside of the confessional statements of the accused persons, there is other evidence proving beyond reasonable doubt that the acts of the accused caused the death of the deceased. I hold therefore that the prosecution has proved the second ingredient of the count of murder against the accused persons as required by law.”
3. The learned trial judge erred in law when in holding that the third leg of the ingredient of murder was proved beyond reasonable doubt, he found as follows:
“All these circumstances convince me that the accused persons were deliberately and intentionally bent on killing the deceased that night….. The killing of the deceased was NOT an accident at all. It was also not a mistake. It was

deliberate and premeditated murder. The deadly intention of the accused persons was evidenced by their leaving him on the ground bleeding and tied up after being fatally harmed.”
4. The learned trial judge erred in law when he held that the prosecution had proved beyond reasonable doubt the ingredients of the count of conspiracy. :
5. The decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.

The appellant filed a Brief of Argument on 13/3/15. Same was deemed properly filed and served on 26/10/15. The Respondent?s Brief of Argument was filed on 23/11/15. Kolawole Esan Esq. who prepared the Appellant’s Brief of Argument argued the appeal on behalf of the appellant. P. A. Onamade Esq. prepared the Respondent?s Brief of Argument. However, O. A. Lawal (Mrs), Chief State Counsel argued the Respondent’s case. The appeal was heard on 25/1/16.

The Appellant in his Brief of Argument distilled 4 issues for determination, to wit:
ISSUES FOR DETERMINATION
1. Whether the learned trial judge was right in holding that Exhibit A1, C and C1 passed all the six conditions stipulated for testing the truth and

veracity of a confessional statement of an accused and were therefore possible, true and consistent with other facts ascertained and proved before the learned trial Judge. (Distilled from GROUND 1.)
2. Was the learned trial judge correct in holding that outside the confessional statement of the appellant, there were other pieces of evidence proving beyond reasonable doubt that the acts of the accused persons caused the death of the deceased? (Distilled from GROUNDS 2 & 3,)
3. Was the offence of conspiracy proved? (Distilled from GROUND 4.)
4. Whether the decision of the learned trial Judge was not altogether unreasonable and unsupportable having regard to the weight of evidence before the learned trial Judge (Distilled from GROUND 5.)

On its part, the Respondent was inclined to the view that the appeal can be decided based on three issues that it formulated. The three issues put forward by the Respondent are:
1. Whether the learned trial judge was right to have arrived at the conclusion that Exhibit A and A1, C and C1 are confessional statements and therefore rightly convicted the appellant on same.
2. Whether the prosecution

established the offences of conspiracy to commit murder and murder against the appellant beyond reasonable doubt.
3. Whether Exhibits A, A1, C and C1 pass conditions stipulated for testing the truth and veracity of a confessional statement.

The three issues of the respondent are similar to issues 1, 2 and 3 of the appellant although the issues are not stated in the same sequence.

The appellant’s fourth issue can be described as an omnibus issue. A consideration of the first three issues formulated by the appellant should suffice to determine this appeal.

As will be recalled, appellants issue 1 has to do with whether the learned trial Judge was right in holding that Exhibits A, A1, C and C1 passed all the six conditions for testing the veracity of a confessional statement. On this issue, the appellant’s learned counsel Kolawole Esan Esq. submitted that the learned trial Judge was in error in holding as he did in p. 133 line 3 and page 137-138 of the Record of Appeal, that Exhibits A, A1, C and C1 qualify as confessional statements and that they passed the six judicially stated conditions for testing the truth and veracity of a confessional

statement. Learned counsel referred us to Exhibits A and A1 at page 127 and 128 of the Record of Appeal and to Exhibits C and C1 at page 129 of the Record of Appeal. It was submitted that the said exhibits did not show that the appellant unequivocally admitted the commission of the offences for which he was charged and consequently that the learned trial Judge was wrong to have held that the said Exhibits were confessional statements of the appellant. It was submitted that the appellant was not cross examined on the relevant portions of Exhibits A, A1, C and C1. It was submitted that the failure of the respondent to cross-examine on the material parts of the said Exhibits meant that the respondent had accepted them. Learned counsel referred to Okosi vs. The State (1986) 1 NWLR part 100 p.1640. LSPDC vs. Nigeria Land & Sea Foods Ltd (1992) NWLR part 243 p. 620, Oforlete vs. The State (2000) 12 NWLR part 681 part 405 at p.436.

Learned counsel submitted that evidence before the lower Court showed that the appellant was a night guard on night duty. It was submitted that considering the circumstances that the appellant faced on the day of the incident, it

was not unusual for him as a night guard, to raise an alarm which alarm led to the response of the community and resulted in community members inflicting injuries on the deceased. It was contended that the content of Exhibits A, A1, C and C1 are consistent with what a night guard would ordinarily do when faced with the sort of situation that the appellant found himself. The learned trial Judge it was urged, should have considered the case from that perspective.

Learned counsel .submitted that PW4 testified under cross examination that the deceased was injured on the head with a matchet and that the appellant and the 2nd accused before the lower Court carried guns. It was submitted that the appellant never confessed to carrying a gun or a machete. It was submitted that PW1 and PW3 never stated that they saw the appellant with a gun or a machete.

It was submitted that the confessional statements of the appellant would not qualify as confessional statements when subjected to the six tests stated in the case of R vs. Sykes (1913) 18 CR App. 233. It was submitted that there is no evidence outside Exhibits A & A1 and C & C1 which show that guns

were fired on the night of the incident. It was submitted that the learned trial Judge was wrong to have held that Exhibits A & A1 and C & C1 were corroborated by the evidence of PW1, PW3, PW4 and PW5

In her argument in response, respondent’s learned counsel Mrs. P. A. Onamade Senior State counsel Ogun State Ministry of Justice, referred to Section 28 of the Evidence Act on the definition of a confessional statement. Learned counsel submitted that the confessional Statements i.e. Exhibit A and A1, C and C1 reveal that the appellant beat the deceased with a stick and also raised an alarm by calling the deceased a thief which said alarm attracted people in the community to join in the beating of the deceased, injuring him with machete cuts and even inflicting him with injury from a gunshot. Exhibits A and A1, C and C1, Learned counsel submitted, qualify as confessional statements and were rightly admitted as such by the learned trial Judge. It was submitted that the said Exhibits were corroborated by the evidence of PW2 and PW3 and by Exhibits E and F (two locally made guns) Exhibits H and H1 (two cutlasses) and Exhibit J (a walking stick).<br< p=””

</br<

Now it is settled law that a confessional statement is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act 2011. See also Odeh vs. Federal Republic of Nigeria (2008) 13 NWLR part 1103 p.1. In order to see if Exhibits A and A1 and C and C1 fall within the definition of a confessional statement, it will be necessary to examine their content. I shall reproduce the salient portion of Exhibit ‘A’, the English translation of the appellant’s statement. In doing so, I will quote it ipsissima verba, without bothering to correct the grammar Afterall, mala grammatical non vitiate chartam (bad grammar does not vitiate a deed). The relevant portion of Exhibit A reads as follows:
“I could remembered on the 9th day of January, 2006 at about 10:00 pm and some minutes, I was at Oloronbo village when I came for the vigilante work of the day………….I saw two men coming toward myself. I call on them to come nearer to me but they were both dressing back while I move closer to them and I saw one stick on the hand of one of them. I started struggling the stick

with him but the cover of the said stick removed into my hand, this was the time I discovered that what the man was holding is sword. I wanted to collect the sword from him before it cut me on my right finger and he also cut me with this sword on my hand. This was the time I grow annoyed and I started beating this man with the stick on my hand, while his second ran away. I also continue to raise alarm, thief, thief, thief before the whole entire community came out and they started beating this man. They cut this man with cutlass on his head. As we are all doing this, I saw David Oyedele alias Arowojobe who came to the scene with gun on his hand and he fired the gun at air at first time and the whole community people ran away to their houses?.. Later David Oyedele fired another gun at the mouth of the man while Sesi Shodiya came there with cutlass and cut the said man on his head. The man I am referring is Semiu Babatunde now deceased …… I know his name after the incident, was the person we all beat to stage of coma and when he cannot get up again, we decided to dragged him to one side of the road and we both tied his two leg……… All the people

that I mentioned were still there when I saw one urvan bus coming to our side . They were asking us to come and opened the iron-gate placed on the road by us and as I was going there to open this gate, I heard David Oyedele saying that he will fired anybody who came to our side. I also heard one voice saying I am DCO Ibara and that I am a police Officer but David Oyedele did not listened and still continue saying that he doesn’t want to know him. Along the line, the policemen saw the said Semiu Babatunde on the ground with machete cut and his pool of his blood: we were all arrested. Five of us were arrested and taken to Ibara police station…..”

Exhibit C the other statement of the appellant (the English translation of Exhibit C1) repeated more or less the facts stated in Exhibit A, (the English translation of Exhibit A1). It will not be necessary therefore to reproduce Exhibit C. Suffice it however that in Exhibit C the respondent described the deceased as one who was drunk and who was staggering on the road.

?From the submissions of the appellant’s learned counsel, he seemed to be making the case that all that the appellant did was to hit the

deceased with a stick and that the appellant: was not the one who inflicted the deceased with machete cut to the head or a gunshot wound to the mouth. That argument does not in law, lessen the culpability of the appellant. Section 7 of the Criminal Code Law of Ogun State Volume 1 of the Laws of Ogun State of Nigeria, 2006, defines who is a principal offender in a crime. The Section states:
?7 when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:
(a) every person who actually does the act or makes the omission which constitutes the offence;
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person commit the offence;
(c) every person who aids another person in committing the offence;
(d) any person who counsels or forces any other person to commit the offence.
?In Exhibit A the appellant confessed to hitting the deceased with a stick and to raising an alarm by crying thief, thief, thief, which alarm attracted people from the

community who then arrived the scene, some with machete and one with a gun, with which they joined in attacking the deceased. These facts show that the appellant was a principal offender within the ambit of Section 7 of the Criminal Code Law of Ogun State. It is the Law that what each participant did in furtherance of the commission of a crime is immaterial. The mere fact that the common intention manifested in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. See Nwankwoala vs. State (2006) 14 NWLR part 1000 p. 663; Ikanson vs. State (1986) 2 NWLR part 110 p.455; Oyakhire vs State (2001) 15 NWLR part 1001 p. 157; Godwin Alao vs. The State (2015) LPELR- 24686 (SC). That the role played by the appellant was restricted to hitting the deceased with a stick is immaterial. He participated in the furtherance of the commission of the crime. He is a particeps criminis. See Agwuna vs. AG of the Federation (1995) 5 NWLR part 396 p. 48.

?Exhibits A and C are confessional statements being statements that state or suggest the inference that the appellant committed the offences he was charged with to

wit, conspiracy to commit murder and murder. There was nothing in those Exhibits that exculpate the appellant.
Although the confessional statements are clear enough, it is the Law that it is desirable that they be corroborated by some other evidence outside them, no matter how slight. see Onochie & Ors vs. The Republic (1996) NWLR p. 307; R Vs. Sykes (1913) 8 CAR 233 at 236; Nwachukwu vs. State (2007) 17 NWLR part 1062 p. 31. The reason for this rather fastidious position of the Law is probably rooted in the maxim: in criminalibus probationes debent esse luce clariores (in criminal cases proofs must be clearer than daylight). The learned trial Judge saw in the evidence of PW3 the brother of the deceased, the evidence of PW1 the father of the deceased and the evidence of PW4 the Divisional Crime Officer, sufficient evidence that corroborated the confessional statements of the appellant. I have myself gone through the evidence of the said witnesses and I cannot agree more with the learned trial Judge when he said in his judgment at page 136 of the Record of Appeal, as follows:
?In my view the evidence of all these witnesses which are

outside the confessional statements of the accused persons, not only show that the confessional statements are true, they also very clearly corroborate their material contents. The locating of the deceased, the serious wounds inflicted on him, the dangerous weapons (gun, cutlass, sticks etc), the part of the body (head) inflicted, the tying with a rope etc which were all contained in the confessional statements are all quite clearly buttressed by the evidence of these witnesses. The arrest of both accused persons (with dangerous weapons) at the scene where the dying body of the deceased was lying in a pool of his blood while the accused persons and their accomplices stood and watched, and the timely rescue of PW1 and PW3 by the police from the custody of the accused persons, all lend very powerful and irresistible credence to the truth of the contents of the confessional statements.”

In my humble view, the evidence of the witnesses mentioned did not only corroborate the confessional statements of the appellant, they reinforce the veracity of what is stated in the statements.

?Having considered and decided issue 1, it is clear to me that issue 2 has

also been considered and decided as a result. This is because issue 2 is inextricably intertwined with issue 1. The result is that both issue 1 and issue 2 are resolved against the appellant.

Issue 3 as will be recalled, is whether the offence of conspiracy was proved. On this issue, appellant’s learned counsel submitted that in order to prove conspiracy, the prosecution must establish that there was an agreement between the accused persons to execute an agreed act and that the agreed act was unlawful. Learned counsel submitted that if his submissions on issues 1 and 2 are upheld and the appellant is acquitted of the charge of murder, then the charge of conspiracy must inevitably fall. The case of Albert lkem vs. The State (1985) 1 NWLR part 2 p. 378 at 388 was cited in support.

On issue 3, the respondent’s learned counsel submitted that to secure a conviction in a charge of conspiracy there must be evidence of agreement of the parties whether express or implied. Learned counsel argued that from the evidence before the lower Court it is clear that the appellant and his accomplices had a common intention to murder the deceased. We were urged not to

disturb the findings of the trial Judge that the prosecution proved the charge of conspiracy.

I agree with the submission of the appellant’s learned counsel that if the appellant is acquitted of the charge of murder then the charge of conspiracy to commit murder must fail. The converse argument holds true. If the appellant is found guilty of the charge of murder then the charge of conspiracy to commit murder must succeed. I think this is the implication of the decision of the Supreme Court in the case of Albert Ikem vs. The State (1985) 1 NWLR part 2 p.378 at 388.

Now it is the overt act or actus reus of a party accused of conspiracy that lends credence to an agreement, which is the vital element in the offence of conspiracy. The overt act of the appellant in this case is clear. He hit the deceased with a stick, he branded the deceased a thief by calling him one and he raised an alarm that made others from the community to join in attacking the deceased. His actions were proof enough of a criminal agreement to kill the deceased or at the very least, cause him grievous bodily harm. The offence of conspiracy was proved before the lower Court. Issue 3 is

also resolved against the appellant.

Issue 4 as I earlier mentioned in this Judgment is an omnibus issue. The issue is whether the decision of the learned trial Judge was not altogether unreasonable and unsupportable having regard to the weight of evidence before the learned trial Judge. A consideration of the earlier issues is capable of and has indeed resolved the issue of whether the decision of the learned trial Judge was reasonable or not or whether his decision was supported by evidence or not.

?Before I conclude, I must state that the act of the appellant was infernal and atrocious. By the confessional statement of the appellant Exhibit C, the deceased was in a drunken state, the appellant found him staggering along the road accompanied by another person. Now, the appellant did not say that he caught the deceased stealing or robbing anybody or doing anything of a criminal nature. Even if he did, that would have been no justification for the events that followed. It was therefore totally un-warranted for the appellant to have confronted the deceased, hit him with a stick, raised an alarm that branded him a thief, and further set in motion other

events that resulted in the death of the deceased. It was murder most unspeakable. The appeal lacks merit. It is dismissed. The Judgment of the lower Court is affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the draft lead judgment of my learned brother, Daniel-Kalio, JCA. I fully agree with all his reasonings and conclusions. I too would dismiss this appeal for being devoid of any merit. I also abide by all the consequential orders in the lead judgment.

NONYEREM OKORONKWO, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother Obietonbara Daniel-Kalio JCA in this curious murder appeal.
I agree with the reasoning and conclusions reached. The facts of the case under appeal fit squarely into the definition of murder and cannot be accommodated by ail the exceptions or defences of murder.

I also dismiss the appeal as lacking in merit.

Appearances

Kolawole Esan with him, lbukun Famoriyo (Miss) and Sunday O. AkinpeluFor Appellant

AND

O. A Lawal (Mrs) Chief State Counsel, Ogun State Ministry of JusticeFor Respondent