SUNDAY ADENIKEN V. THE STATE
(2012)LCN/5211(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of March, 2012
CA/B/191C/2009
RATIO
LAW OF EVIDENCE: WHETHER EVERY CONTRADICTION OR INCONSISTENCY IN THE PROSECUTION’S CASE THAT WILL RAISE A DOUBT
It is trite that it is not every contradiction or inconsistency in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibia Vs. The State (supra) at 280 A – D; Ikemson vs. The State (1989) 2 NSCC (Vol. 20) 471; Onubogu vs. The State (1974) 1 All NLR (Part II) 5; Okonji Vs. The State (1987) 1 NWLR (52) Okonji vs. The State (1987) 1 NWLR (52) 659; Adeyemo Vs. The State (2011) 12 WRN 158 @ 175 lines 28 – 41 PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
LAW OF EVIDENCE: ON THE DISTINCTION BETWEEN A CONTRADICTION AND INCONSISTENCY IN EVIDENCE
It is also pertinent to note that there is a distinction between a contradiction and inconsistency in evidence. The Supreme Court in the case of Ayo Gabriel Vs. The State (1989) 5 NWLR (122) 457 @ 468 – 469 per Nnaemeka-Agu, JSC explained the distinction thus: “… A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them … Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor difference in details. ‘See also: Agbo Vs. The State (2006) 6 NWLR (977) 545 @ 564 C – F; Akpa Vs. The State (2007) 2 NWLR (1019) 500 @ 520 – 521 H – A. PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
ON WHOM LIES THE ONUS TO DISPROVE THE DEFENCE OF ALIBI
The law is settled that where an accused person raises the defence of alibi the onus is on the prosecution to investigate and disprove it. The defence must however be raised at the earliest opportunity, i.e, at the investigation stage and preferably in the accused person’s statement to the Police. Where the defence is raised in the witness box there is no obligation on the prosecution to investigate it. At that stage it is too late. Such defence would be considered an after thought. See: Ikemson Vs. The State (supra) @ 466 G-H; 473 E – F, 479 E & 481B; Ndidi vs. The State (2007) 41 WRN 1 @ 30 lines 30 – 35. PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES:
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SUNDAY ADENIKEN – Appellant(s)
AND
THE STATE – Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, Ifon Judicial Division delivered on 1/12/08 convicting the appellant of the offence of murder and sentencing him to death.
The brief facts of the case are as follows: The appellant was alleged to have murdered one Solomon Ebo at Ugboruwen Camp via Ute in Ifon Judicial Division of Ondo State on 31/1/06. He was arrested by the Police and taken to Divisional Police Station, Ifon and later transferred to State CID Akure, Ondo State, After investigation into the matter, he was charged to court. The prosecution called two witnesses (the I.P.O. and the medical doctor who performed the post-mortem examination on the deceased) and tendered several exhibits, including Exhibit A (a confessional statement), Exhibit C, a knife (the alleged murder weapon) and Exhibit D, the medical report of cause of death. The appellant testified on his own behalf and called one other witness. It was the prosecution’s case that the appellant volunteered a confessional statement wherein he admitted stabbing the deceased to death. A trial within trial was conducted when the appellant objected to the admissibility of the confessional statement on the ground that he did not make it and that it was obtained after intimidation and duress. At the conclusion of the trial within trial the statement was admitted in evidence as Exhibit A.
On his own part the appellant’s case was that he was not at the scene of crime but was with DW2, his employer loading cocoa from 3.30pm on the date of the incident till the following day. He maintained that he did not make Exhibit A. At the conclusion of the trial and after listening to the addresses of learned counsel on either side, the learned trial Judge found the charge of murder proved against the appellant, convicted him accordingly and sentenced him to death.
Being dissatisfied with the judgment the appellant filed a notice of appeal containing five grounds of appeal. On 7/10/09 he filed an amended notice of appeal dated 28/9/09, which was deemed properly filed and served by an order of this court on 4/3/2010. The Amended Notice of Appeal contains six grounds of appeal.
The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 30/01/2012, LAWAL ALABI ESQ., holding the brief of IKENNA OKOLI, ESQ., adopted and relied on the appellant’s brief dated 21/4/11 and filed on 30/4/10. The said brief was deemed properly filed and served on 24/2/11. He urged the court to allow the appeal.
MRS, G.A. OLOWOPOROKU, Deputy Director of Public Prosecutions, Ministry of Justice Ondo State adopted and relied on the respondent’s brief dated 16/5/2011 and filed on 17/5/2011. It was deemed properly filed and served on 13/10/2011. She urged the court to dismiss the appeal and uphold the appellant’s conviction and sentence.
The appellant formulated three issues for the determination of the appeal, which were adopted by the respondent thus:
1. Whether the trial court was right to attach any or much weight to Exhibit A (Appellant’s confessional statement) and consequently convicting the Appellant based on the said Exhibit A?
2. Whether the learned trial Judge was right to admit Exhibit C (alleged murder weapon) in evidence and/or attaching any or much weight to Exhibit C?
3. Whether from the totality of the evidence adduced before the trial court, the prosecution proved the offence of murder against the appellant beyond reasonable doubt?
After a careful perusal of the three issues distilled above, I am of the view that the sole issue for determination is the appellant’s issue 3. Issues 1 and 2 shall be considered under this issue.
In arguing the appeal, learned counsel for the appellant submitted that the learned trial Judge ought not to have placed such heavy reliance on Exhibit A in convicting the appellant for the following reasons:
1. The appellant denied making the statement at the earliest opportunity. That he stated that he only made a statement to the police at Ifon where he was first arrested and his evidence in this regard was not contradicted.
2. The evidence of PW1 regarding the date when Exhibit A was recorded (24/2/06) and the date on the exhibit (13/2/06) are contradictory.
3. Exhibit A was not corroborated and there is nothing outside it to show that it is true.
4. Exhibit A is not cogent, direct and positive.
He submitted that for a confessional statement to ground a conviction it must be subjected to the test laid down in Nwaebonyi Vs The State (1994) 5 NWLR (343) 138 @ 150. He also relied on: Ikpo Vs The State (1995) 9 NWLR (421) 540. He noted that none of the prosecution witnesses listed in the proof of evidence was called to testify to corroborate Exhibit A and no reason given for failure to call them. He submitted that the glaring inconsistencies ought to have been resolved in the appellant’s favour.
In reply to the above submissions, learned counsel for the respondent submitted that the lower court was right when it admitted Exhibit A in evidence, because during the trial within trial the appellant’s position was that he did not make the statement, as opposed to its having been obtained involuntarily. She submitted further that the appellant’s specimen signature (Exhibit B) obtained during the trial was the same as the signature on Exhibit A, showing clearly that he made the statement. With regard to the submission that the appellant’s evidence that he only made a statement at Ifon was not contradicted, learned counsel submitted that the issue was not raised at the stage of tendering Exhibit A during the trial within trial. She maintained that the only objection raised was that the appellant did not make the statement and that it was recorded by the I.P.O. after a lot of intimidation and duress. She noted that it was at the defence stage during the trial within trial that the appellant changed his position. She submitted that he failed to discharge the onus on him to prove that he made a statement at Ifon Police station.
On the discrepancy between the evidence of PW1 and Exhibit A regarding the date it was recorded, she submitted that this is not a material fact and that it was due to the time lag between the commission of the offence and the time the testimony was given. On when contradiction in the prosecution’s case would affect the conviction of an accused she referred to: Ikemson vs. The State (1998) 1 ACLR 80 @ 105 para. 25; also reported in (1989) 3 NWLR (110) 455.
On corroborative evidence, learned counsel submitted that in Exhibit A the appellant gave graphic details of how he stabbed the deceased in the chest after an altercation. She noted that the evidence of PW2, the medical doctor who carried out the post mortem examination on the deceased, and Exhibit D, the report he produced, corroborated Exhibit A by the finding that the cause of death was due to a “homicidal stab wound in the chest.” She also noted that the appellant’s statement in Exhibit A that he brought out his knife and stabbed the accused was corroborated by the evidence of PW1 who stated that on a search of the appellant’s home he volunteered to produce the knife used on the deceased and was escorted to the kitchen where he produced Exhibit C. Citing the case of: Adio Vs The State (2005) 4 ACLR 295 @ 310 paras. 5 – 10; also reported in (1986) 4 SC 195, learned counsel submitted that a confessional statement, if proved and admitted, occupies the highest place of cogency in proving a crime. She submitted that once a confessional statement is admitted in evidence, it becomes part of the prosecution’s case and a trial Judge is bound to consider its probative value. She relied on: Egboghonome Vs The State (1993) 7 NWLR (306) 383 and Section 27(1) & (2) of the Evidence Act.
She reviewed the evidence before the court and submitted that all the conditions laid down in Nwaebonyi Vs The State (supra) in determining the weight to be attached to a confessional statement, whether retracted or not were fully considered and met with regard to Exhibit A and that the learned trial Judge duly cautioned himself before basing a conviction solely on a confessional statement. In conclusion she maintained that the learned trial Judge was right to have attached substantial weight to Exhibit A and to have convicted the appellant thereon.
In considering this issue, it is pertinent to note at the outset that appellant is not challenging the admissibility of Exhibit A. What he is challenging is the evidential weight that was attached to it by the learned trial Judge. The submissions of learned counsel for the respondent regarding the authenticity of the appellant’s signature on the statement and whether he was cautioned or not before the statement was obtained are not relevant in the consideration of this issue.
Sections 28 and 29(1) of the Evidence Act 2011 provide:Â Â
“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
29(1) 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.”
(See also Section 27(1) & (2) of the Evidence Act Cap. E14 Laws of the Federation of Nigeria 2004).
It has been argued on behalf of the appellant that Exhibit A is not direct, cogent or positive. I have examined the said statement. The appellant stated inter alia as follows:
“…When we got to the sawmill, Sylvester Aburo ask them why they were working at night, he then told them to off the back saw and the operator off it, then the man I took as the manager of the saw mill got up to go and off the generating plaint. I told him not to stop the generating plant because there will be total darkness, I wanted to stop him from putting off the generator when the man by name Solomon Ebo carried me up and smashed me to the ground, when I eventually got up I brought out my knife and stabbed the man at his chest. The man was shouting you have stab me you have kill me.. I am the one that stab the man to death”
There is no doubt that the statement is clear and unequivocal and states categorically that the appellant committed the offence of murder. It could not be clearer/more cogent or more positive. It therefore qualifies as a confessional statement within the meaning ascribed to it under the Evidence Act. The law is settled that the free and voluntary confessional statement of an accused person alone is sufficient to sustain a conviction. See: Kanu Vs The State (1952) 14 WACA 30; Ekpenyong Vs State (1991) 6 NWLR (200) 683; Adio Vs The State (1986) 4 SC 195; Ikemson Vs The State (1989) 3 NWLR (110) 455. It is also settled, as submitted by learned counsel for the respondent that once a confessional statement is admitted in evidence it becomes part of the prosecution’s case and the court is duty bound to consider it and determine its probative value.
It is contended on behalf of the appellant that he denied making the statement at the earliest opportunity by stating that the only statement he made was at Ifon Police Station. I have carefully examined the record of proceedings. The earliest opportunity to raise this issue was at the stage of tendering Exhibit A. Page 14 of the record reads thus:
“Otunba Orumen: Objects to the tendering of the statement, Says the accused denied making the statement and that the statement was recorded by the I.P.O. after a lot of intimidation and duress.”
Two witnesses testified for the prosecution during the trial within trial. Neither of them was cross-examined as to the making of any other statement by the appellant. It was during his defence in the trial within trial that the appellant raised the issue of a statement made at Ifon Police Station for the first time. It seems to me that this was an afterthought. In any event the issue before the court was not whether the appellant made any other statement to the Police but whether he made Exhibit A sought to be tendered by the prosecution. Having denied making the statement at all the learned trial Judge was in order to have admitted it in evidence and defer consideration of its probative value to the conclusion of the trial. Furthermore, as observed earlier, the appellant is not challenging the admissibility of the statement but the probative value attached to it.
Another complaint regarding Exhibit A is as regards the discrepancy between the evidence of PW1 and the exhibit itself as to the date it was recorded. Learned counsel for the appellant is of the view that it amounts to a material contradiction that ought to be resolved in the appellant’s favour, The offence with which the appellant was charged was allegedly committed on 31/1/06. Exhibit A is dated 6/2/06 while PW1 stated under cross-examination at page 16 of the record that the statement was recorded on 24/2/06. PW1 testified on 8/7/08, more than two years after the offence was committed.
It is trite that it is not every contradiction or inconsistency in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See: Dibia Vs. The State (supra) at 280 A – D; Ikemson vs. The State (1989) 2 NSCC (Vol. 20) 471; Onubogu vs. The State (1974) 1 All NLR (Part II) 5; Okonji Vs. The State (1987) 1 NWLR (52) Okonji vs. The State (1987) 1 NWLR (52) 659; Adeyemo Vs. The State (2011) 12 WRN 158 @ 175 lines 28 – 41. Material evidence has been described as evidence, which on account of its logical nexus with the issue, tends to influence decisively the establishment of the fact in issue. See: Ikemson vs. The State (supra) at 474 H. It is also pertinent to note that there is a distinction between a contradiction and inconsistency in evidence. The Supreme Court in the case of Ayo Gabriel Vs. The State (1989) 5 NWLR (122) 457 @ 468 – 469 per Nnaemeka-Agu, JSC explained the distinction thus:
“… A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them … Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor difference in details.’
See also: Agbo Vs. The State (2006) 6 NWLR (977) 545 @ 564 C – F; Akpa Vs. The State (2007) 2 NWLR (1019) 500 @ 520 – 521 H – A.
In the instant case, the material fact is that the appellant volunteered a statement to the Police subsequent to the commission of the offence stating that he committed the crime. The fact that the I.P.O. testified that he recorded the statement on 24/2/06 while the document is in fact dated 6/2/06 is a minor discrepancy, which does not amount to a contradiction nor is it substantial enough to dissuade the court from considering the probative value of the statement.
Another issue raised by the appellant is that there was no evidence outside Exhibit A to corroborate it. Before considering this issue, it is necessary to consider the ingredients of the offence of murder with which the appellant was charged. The prosecution must prove the following facts beyond reasonable doubt:
1. That the deceased has died;
2. That the death of the deceased was caused by the accused; and
3. That the act of the accused that caused the death was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See Nwachukwu vs. The State (2002) 12 NWLR (782) 543 @ 568 – 569; Adava Vs The State (2006) 9 NWLR (984) 152 @ 167 F – H and 171 B – D.
As rightly submitted by both learned counsel, before a court can rely on a confessional statement to convict an accused person it must test it by closely examining it in the light of other evidence to determine the following questions:
a. Is there anything outside it to show that it is true?
b. Is it corroborated?
c. Are the facts stated in it true as far as can be tested?
d. Did the accused person have an opportunity of committing the offence?
e. Is the accused person’s confession possible?
f. Is the confession consistent with other facts which have been ascertained and proved?
This is the test laid down in R V Sykes (1913) 8 CAR 233. It was applied in: Akpan Vs. The State (supra) at 527 E – H; Udofia Vs. The State (1984) 12 SC 139, Dawa Vs. The State (1980) 8 – 11 SC 236; Ojegale vs. The State (1988) 1 NWLR (71) 414; Nwaebonyi vs. The State (1994) 5 NWLR (343) 138 @ 150.
Applying the above principles in the instant case, the learned trial Judge as follows at page 43 of the record:
“It is apt at this stage to say that I have warned myself of the need for caution before convicting solely on the confessional statement.
There was enough evidence from the prosecution that the deceased died. PW1, the I.P.O. who investigated the case tendered the photographs and the negative of the deceased. The post mortem conducted by PW2 after the corpse of the deceased was identified by one Mr. Ben Aidelomo was tendered as Exhibit D, Therefore there is no controversy as to the death of the deceased.
Secondly the evidence of PW2 that the deceased died of homicidal stab wound on the chest is consistent with Exhibit A, the statement of the accused.
Thirdly the statement of the accused, Exhibit A in which graphic details of how he stabbed the deceased on the chest at the saw mill following an altercation is consistent with what PW2 found to be the cause of death. The intention to kill or at least caused (sic) grievous bodily harm can reasonably be inferred when the accused used Exhibit C to stab the deceased.
Based on the above it is my humble view that the essential ingredients that the prosecution is required to establish in a charge of murder to justify a conviction, as enunciated in the case of Nwosu Vs. The State, supra or The State vs. Ogbugbunjo, supra have been proved in this case. ”
Having carefully considered the above findings of the learned trial Judge, I am of the view and I do hold that His Lordship properly cautioned himself and adequately applied the principles in R. V Sykes to the facts of the case before him. Exhibit A was therefore accorded the due weight it deserved.
Learned counsel for the appellant argued that the learned trial Judge ought not to have placed reliance on Exhibit C because it did not form part of the prosecution’s case as contained in the proof of evidence. He also contended that PW2, the medical doctor did not state that Exhibit C was the weapon used in committing the crime and that the death could have been caused by any other sharp object. He argued further that no forensic test was carried out on Exhibit C to establish that it was the murder weapon and that PW1 admitted that he did not see any trace of blood on the exhibit. He submitted that the appellant denied giving the knife to PW1 and stated that he was not taken to the scene of crime for the purpose of the investigation. He submitted that the court ought not to have admitted Exhibit C in evidence. He submitted that the court has a duty not to act on inadmissible evidence even if it is inadvertently admitted in evidence. He relied on: A.G. Leventis (Nig.) Plc. V. Akpu (2007) 17 NWLR (1063) 416 @ 440.
In reply to these submissions, learned counsel for the respondent submitted that among the exhibits listed in the proof of evidence is the statement of the accused, wherein he stated that he stabbed the deceased with a knife. She submitted that the statement was attached to the proof of evidence. She submitted that Exhibit C, being relevant, was rightly admitted in evidence, She submitted further that through his testimony and by Exhibit D, PW2 corroborated the fact that the appellant used Exhibit C to commit the offence. She noted that his finding in Exhibit D was that the deceased died from a homicidal stab wound. She submitted that even where the weapon used to commit an offence is not tendered, the material fact is the intentional murderous assault on a vital part of the body, which led to the death of the victim. She referred to: Garba vs. The State (2001) 2 ACLR 213 @ 221 para- 25. She submitted that although PW2 was not an eyewitness to the crime, he was able to ascertain the cause of death from his experience in conducting post mortem examinations. She submitted that the evidence of PW1 that the appellant volunteered to produce Exhibit C and did produce it was not contradicted during cross-examination. As to whether the appellant was taken to the scene of crime, learned counsel referred to the evidence of PW1 at page 22 of the record and submitted that it could be inferred therefrom that the appellant accompanied PW1 and his team when they visited the scene of crime and it was from there that they proceeded to his house where he retrieved Exhibit C from the roof of the kitchen. She also stated that the two weeks and three days it took to apprehend the appellant would account for the fact that no bloodstain was found on Exhibit C. She submitted that the circumstances in which Exhibit C was recovered, as narrated by PW1 and the appellant’s confessional statement to the effect that he stabbed the deceased on the chest with a knife was sufficient to warrant due weight being placed on Exhibit C.
There is no doubt from the evidence before the court that the statement of the appellant in Exhibit A to the effect that he stabbed the deceased in the chest with a knife was corroborated by the evidence of PW2 and Exhibit D the report prepared and tendered by him wherein he found that the deceased died from a stab wound to the chest. The evidence of PW1 that the appellant produced Exhibit C himself from the roof of his kitchen was unshaken under cross-examination. Exhibit C is also consistent with the description of the wound in Exhibit D. PW2 described it as “…. two centimetres long and elliptical in shape. It was also about L2 centimetres deep.” Exhibit C has a long curued blade. I am also inclined to agree with learned counsel for the respondent that the fact that the appellant hid the knife and the length of time between the commission of the offence and its recovery would account for the fact that there was no trace of blood on it. In any event it is not a sine qua non that in a charge for murder the murder weapon must be tendered in evidence to secure a conviction provided there is cogent eyewitness evidence or in the absence of eyewitness evidence, there is enough circumstantial evidence that points to the guilt of the accused. See: Alor Vs. The State (1996) 4 NWLR (445) 726 @ 742 – 743 H – A; Adeyemo Vs. The State (supra) at 174 lines 30 – 35. Having regard to the circumstances of this case I am of the considered view that Exhibit A, in conjunction with the evidence of PW1, PW2 and Exhibit D were sufficient and cogent enough to warrant the reliance placed on Exhibit C by the learned trial Judge and the weight accorded it.
   On the final issue as to whether the prosecution proved its case beyond reasonable doubt, learned counsel for the appellant submitted that the prosecution failed to link the stabbing of the deceased with a knife to the appellant. He submitted that there was no evidence before the court to show that he was at the scene of the crime. He referred to the evidence of alibi given by the appellant and his witness DW2. He submitted that no eye witness testified that he saw the appellant stab the deceased and that he consistently denied making Exhibit A. Relying on the case of Edoho Vs. The State (2004) 5 NWLR (865) 27 @ 51, argued that the evidence before the court raised a reasonable doubt as to the appellant’91s guilt and should be resolved in his favour. He submitted that the prosecution had failed to prove that it was the act of the appellant that caused the death of the deceased. He submitted further that PW1’91s evidence is based on suspicion and that suspicion, no matter how strong cannot ground a conviction. He relied on: Isah vs. The State (2007) 12 NWLR (1049) 582 @ 605.
In reaction to the submissions of learned counsel for the appellant on this issue, learned counsel for the respondent reviewed the evidence before the court and submitted that from his confessional statement it was evident that the appellant had the necessary intent to commit the offence as required by section 316(1) of the Criminal code. She submitted that this could be inferred from the nature of the instrument used i.e, a knife. She relied on: The State Vs. Usman (2007) 5 ACLR 34 @ 68. She submitted that the appellant’s confession that he stabbed the deceased together with the evidence of PW2, who performed the post mortem examination on the deceased and Exhibit D, the report of his findings, provided the causal link between the appellant and the death of the deceased. She relied on: Ahmed Vs. The State (2003) 3 ACLR 145 @ 159. She submitted that in Exhibit A the appellant described how he went to the sawmill with some other persons, the altercation between him and the deceased and how he eventually stabbed him to death. She submitted that the appellant failed to raise the defence of alibi at the earliest opportunity. She referred to Ikemson Vs. The State (supra). With regard to the contention that there was no eyewitness to the crime, learned counsel submitted that the court is at liberty to rely on circumstantial evidence to corroborate the appellant’s confessional statement. She submitted that the learned trial Judge found ample evidence outside Exhibit A that supports it. She referred to Adio Vs. The State (supra). She maintained that the prosecution’s case was founded on cogent evidence and not on suspicion as contended on behalf of the appellant. She urged the court to hold that it had proved its case beyond reasonable doubt.
Earlier in this judgment I had set out the ingredients of the offence of murder. I have also held that the learned trial Judge was right to place significant reliance on Exhibit A. The findings of the learned trial Judge, reproduced above, to the effect that the prosecution established all the ingredients of the offence are fully supported by the evidence before the court. On the appellant’s reliance on the defence of alibi. His Lordship held at page 44 of the record:
‘The defence of the accused appears to be spurious. The learned Director of Public Prosecution had urged the court to regard the evidence of alibi put forward by the accused at the trial and the fact that he was an employee of DW1 as an after thought and nothing but lies. I think I am inclined to agree with him because accused never attempted to put up a defence of alibi in his statement to the police. He never said he was an employee of DW1. Also DW1 never made statement at the Police station to the effect that the accused was his employee or that accused was with him on the fateful day. All these could have been contained in the statement of the accused to the Police at the earliest opportunity. I therefore do not believe the defence and the defence is accordingly rejected.”
Once again this finding is unassailable. The law is settled that where an accused person raises the defence of alibi the onus is on the prosecution to investigate and disprove it. The defence must however be raised at the earliest opportunity, i.e, at the investigation stage and preferably in the accused person’s statement to the Police. Where the defence is raised in the witness box there is no obligation on the prosecution to investigate it. At that stage it is too late. Such defence would be considered an after thought. See: Ikemson Vs. The State (supra) @ 466 G-H; 473 E – F, 479 E & 481B; Ndidi vs. The State (2007) 41 WRN 1 @ 30 lines 30 – 35.
In conclusion, I hold that the prosecution established its case against the appellant beyond reasonable doubt. The sole issue for determination in this appeal is accordingly resolved against the appellant. The appeal therefore fails and is hereby dismissed. The conviction and sentence of death passed on the appellant by the High Court of Ondo State, Ifon Judicial Division in charge No. HIF/2C/2007 on 1/12/08 is hereby affirmed.
CHINWE E. IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree with the reasoning and conclusions therein. By way of emphasis I wish to comment briefly on the incidence of a retracted confession.
The appellant had denied making the confessional statement and also claimed that the statement was recorded by the I.P.O. after a lot of intimidation and duress. When an accused person denies making a confession, he is said to have retracted the confession. An accused who retracts a confession cannot turn round and claim that the confession was obtained from him by intimidation. The two are contradictory of each other. When a confession is retracted, there is no need for a trial within a trial. The trial Judge on being satisfied that the confession is voluntary admits the confession and after hearing ascribes probative value to the retracted confession. In the instant case, the learned trial judge played it safe and conducted a trial within a trial to determine the voluntariness of the confession. At the trial within a trial the appellant raised only the issue of retraction and did not adduce any evidence of intimidation. Being satisfied that the confessional statement was voluntary, the trial judge rightly admitted it in evidence as exhibit A. In the case of Edamine v. State (1996) 3 NWLR (Pt. 438) 530 @ 537 Ogwuegbu JSC observed:
“The learned trial Judge found that the appellant made Exhibits “A” and “B” voluntarily and this finding was upheld by the court below. Both statements having become part of the case for the prosecution, the learned trial judge considered, their probative values in the light of their retraction . …They are sufficient to ground the finding of guilt and it is immaterial that the appellant resiled from them during his trial. See R. Kanu & Ors. (1952) 14 WACA 30, Mamuni & Ors v. The State (1975) 6 SC 79 @ 94″
In addition, there was corroborative evidence in support of the retracted confession of the appellant. The appellant was properly convicted of the crime charged, I too hold that the appeal lacks merit and ought to be dismissed. I dismiss it and affirm the conviction and sentence of death passed on the appellant by the High court of Ondo State Ifon Judicial Division in Charge No. HIF/2C/2007.
MOORE A. A. ADUMEIN, J.C.A.: I am in full agreement with my learned brother, KEKERE-EKUN, JCA that this appeal lacks merit. I too dismiss the appeal and abide by all the consequential orders in the leading judgment of His Lordship, KEKERE-EKUN, JCA.
Appearances
Lawal Alabi Esq., holding the brief of Ikenna Okoli, Esq. For Appellant
AND
Mrs. G. A. Olowoporoku, DDPP, Ministry of Justice Ondo State, with Mrs. S. A. Adegoke, DDLR/DLS and Mr. John Olowookere, SLO For Respondent
