TONY ATALOYE v. THE STATE (2012)

TONY ATALOYE v. THE STATE

(2012)LCN/5688(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of November, 2012

CA/L/300/2005

RATIO

CONSTITUTION LAW: PRESUMPTION OF INNOCENCE

Instructively, it’s a trite fundamental principle, that any person who is alleged to have committed a crime (offence), he shall be presumed to be innocent until proved guilty. That is the purport of the provision of section 36 (5) of the constitution of the Federal Republic of Nigeria, 1999 as amended.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

EVIDENCE: BURDEN OF PROOF FOR THE COMMISSION OF AN OFFENCE

It is also, equally provided in section 138 (1) of the Evidence Act, CAP. E114 Laws of the Federation, 2004, as amended, that if the commission of an offence by a party to a proceeding (whether civil or criminal) before a court is directly in issue, it must be proved beyond reasonable doubt. This trite, and rather fundamental, doctrine has been enunciated in a plethora of authorities by both the apex court (Supreme Court) and this court. See ALAKE V. THE STATE (1991) 7 NWLR (Pt. 205) 567; UKPE V. THE STATE (2001) 18 WRN 84; ATAN V. THE STATE (1991) 2 NWLR (Pt. 172) 127; BAKARE v. STATE (1987) 1 NWLR (Pt. 52) 579; EDET V. FRN (2000) 18 WRN 13; CHUKWU V. STATE (2007) 13 NWRL (Pt. 1052) 430, respectively.

Most particularly, in the notorious case of CHUKWU V. STATE (supra), this court was reported to have aptly held, inter alia, thus:

The combined effect of section 135 (1) of the Evidence Act and Section 36 (5) of the 1999 Constitution is that under the Nigerian (adversarial) judicial system, the prosecution has a fundamental duty of proving its case beyond reasonable doubt against an accused person, otherwise the trial is vitiated and the accused person ought to be discharged and acquitted. Per Saulawa, JCA at 456 paragraphs E – G, & 456 – 457 Paragraph G – B, respectively.PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

CRIMINAL LAW: INGREDIENTS OF PROVING THE OFFENCE OF MURDER

A fortiori, it so happens that whenever a charge of murder is in issue in any given case, the prosecution is required to prove, beyond reasonable doubt, three fundamental elements or ingredients viz:

(i) That the deceased person has died;

(ii) That the death of the deceased person was occasioned by the act or omission of the accused person; and

(iii) That the act or omission in question was intentional and with knowledge that death or grievous harm was its probable consequence.

See CHUKWU V. STATE (supra) at 457 – 458 paragraphs E – A, 460 paragraphs E – E, & H67 paragraphs E – H; UGWU V. STATE (2002) 9 NWLR (Pt. 771) 90; OGBA V. STATE (1992) 2 NWLR (Pt. 222) 164 at 194, et al. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

CRIMINAL LAW: MEANING AND NATURE OF CONFESSIONAL STATEMENT

Instructively, the term confession is a criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime allegedly committed. According to John H. Wigmore: Evidence in Trials at common law, 4th revised edition, 1970 at 308:

“A confession is an acknowledgement in express words by the accused in a criminal case of the truth of the main fact charged or of some essential part of it.”

See also BLACK’S LAW DICTIONARY, 8TH edition 2004 at 317.

Invariably, by the provision of section 27 of the Evidence Act, the term Confession is defined as:-

“An admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

It is equally a trite fundamental doctrine, that for any confessional statement, so called, to be capable of admitting the guilt of an offence, it must be seen to be voluntary; not resulting from any form of inducement, threat, or pressure. See Section 28 of the Evidence Act. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

Between

TONY ATALOYE Appellant(s)

AND

THE STATE Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State, Ikeja Judicial Division, which was delivered on December 5, 2003 by the Hon. Justice J. A. Oduneye in charge No: ID/28C/96. By the Judgment in question, the court below convicted and sentenced to death (by hanging) the present Appellant and four others under a one count charge of murder, contrary to section 319 of the Criminal code, Laws of Lagos State, 1994 as amended.
BACKGROUND FACTS: –
As gleaned from the records of appeal, on February 2, 1995 at about 7.30pm, One Daniel Obi of No. 22B Amaechi Lane, Layinka Ajegunle, Lagos was allegedly murdered by the Appellant and some other persons. The Appellant and some other persons were thereafter arrested and taken to Ajegunle police station, Lagos. However, it was not until three years after the offence was committed that the Appellant and co-accused persons were formally arraigned before the court below and their respective pleas entered. That was exactly on February 5, 1998. At pages 24-25 of the Record, it was recorded, inter alia, thus:
IKEJA: THURSDAY THE 5TH OF FEBRUARY 1998 BEFORE THE HON. JUSTICE J. A. ODUNEYE – JUDGE SUIT NO: ID/289/96.
BETWEEN:
THE STATE…………… complaint
V.
WILLIAMS & ORS….. accused
ACCUSED PERSONS PRESENT
A. BAKARE FOR THE STATE
O. ADETIBA FOR ALL THE ACCUSED PERSONS.
The one count plea charge is read to the accused person in English Language. They all understood the charge.
1st Accused- Not guilty.
2nd Accused -Not guilty
3rd Accused -Not guilty
4th Accused- Not guilty
5th Accused -Not guilty
Bakare – I apply that the accused persons be remanded in prison custody till the next adjourned date.
Adeoba – The accused persons have been in custody since February 1995. They have spent 3 years awaiting their trial. I urge the Court to ask the prosecution to be ready with their witnesses so that trial will commence without delay.
Court: It is a pity that the accused persons have spent three years in custody awaiting trial for this murder case. Now that they are in court, the prosecution should be ready at the next adjourned date to produce the witnesses and the accused persons in court so that trial may commence. This matter is adjourned to 19/3/98 for hearing.
On February 28, 2002 (exactly 7 years after the Appellant and co-accused persons were arrested), the prosecution closed its case. Thereafter the defence counsel made a no-case submission, urging upon the trial court to discharge the accused persons. On October 24, 2002 the trial court ruled upon the no-case submission in question, to the conclusive effect thus:
“I therefore rule that the prosecution has made out a prima facie case against all the accused persons. The no-case submission is therefore overruled and I call on each of the five accused persons to enter their defence.”
(See pages 88 – 93 of the Records).
Consequent upon the ruling on the no-case submission in question, the five accused persons (the Appellant inclusive) proceeded to give evidence in their respective defence. At the conclusion of which, the respective learned counsel addressed the court. Thus, resulting in delivering of the vexed judgment, to the conclusive effect, inter alia, thus:
I hold that there is a common purpose or common intention by all the accused persons. This will make the act of one accused be the act of the other as the offence committed is in furtherance of the prosecution of this unlawful common purpose…
As to whether confessional statement by the accused can on its own ground a conviction the case of Adio V. The State (supra) which is to the effect that if the said statement is held to be voluntarily made it will ground a conviction…
The other four accused (a) William Owodo – 1st accused (b) Ikechukwu Nwaogu 2nd accused, (c) Anefok Ukpa – 3rd accused and (d) Amaka Doripolo – 5th accused are also guilty of the charge by section 8 of the Criminal Code. They held a common purpose to prosecute an unlawful act.
I therefore sentence all the five accused persons to death by hanging. May the good Lord have their souls.
SGD
J.A. ODUNEYE,
JUDGE.
Incidentally, the present Appellant was the 3rd Accused person on the one count charge of murder in question. Not unnaturally, being dissatisfied with the said conviction and sentence passed thereupon, the Appellant filed the notice of appeal thereof, pursuant to the leave duly granted by this court. The notice of appeal was predicated upon 6 grounds of appeal.
The Appellant’s brief was filed on 27/9/11, while the reply brief of argument was filed on 26/9/12. On the other hand, the Respondent’s brief was filed on 01/02/12. At pages 5-6 of the brief thereof, the Appellant has formulated a total of five issues, viz:
(a) Whether the Trial court was right in holding that the Prosecution had proved the charge against the Appellant beyond reasonable doubt despite the manifest lack of evidence. (This issue is distilled from Grounds Nine and Ten)
(b) Whether the trial court was right in convicting and sentencing the Appellant to death on the purported confessional statement which was challenged by the Appellant as being involuntary, same having been extracted under torture and duress. (This issue is distilled from Grounds Two and Three).
(c) Whether the trial court was right to have convicted the Appellant and sentenced him to death by hanging despite his age (Sixteen (16)) at the time of the alleged offence. (This issue is distilled from Ground Five).
(d) Whether the trial court was right in sentencing the Appellant to death and thereby violating his Right to Life and Dignity of Human Person under the Constitution and other International Charters to which Nigeria is a signatory. (This issue is distilled from Grounds Six, Seven and Eight).
(e) Whether the defence of Alibi was available to the Appellant in the circumstances of the case. (This issue is distilled from Ground Four of the Notice of Appeal).
The argument of the Appellant’s learned counsel regarding the first issue is contained at pages 6 – 14 of the brief thereof. References were made to section 36 (5) of the 1999 Constitution, as amended, sections 135 and 138 of the Evidence Act, regarding the presumption of innocence of an accused person vis -a -vis the burden of proof in Criminal Cases. The counsel equally referred to Section 316 of the Criminal Code Law, Lagos of Lagos State, 1994 and the cases of OGBA V. STATE (1999) 2 NWLR (Pt. 222) 164 at 198; OMOGODO V. STATE (1981) 5SC 5 at 26 – 27, regarding the circumstances or elements to be proved, beyond reasonable doubt, by prosecution. With particular regard to the 1st ingredient, the learned counsel alluded to the testimonies of the PW1, PW2 & PW4.
However, regarding the 2nd ingredient of the offence, the learned counsel contended that the lower court was in grave error in convicting the Appellant, and holding that there was a common intention between the accused persons to murder the deceased. It was argued, that considering the contradictory testimonies of PW3, it is apparent that certain ambiguities were raised which ought to have been resolved in favour of the Appellant. The learned counsel urged upon the court to accordingly resolve the issue No. 1 in favour of the Appellant, as the prosecution has allegedly failed to prove the charge of murder beyond reasonable doubt.
Regarding the issue No. 2, the Appellant’s learned counsel submitted, inter alia, that the Appellant has challenged the purported confessional statement as being a product of threat and inducement. Thus, the proper procedure should have been to conduct a trial within trial, which was not done. And the Appellant was convicted solely on the confessional statement that was never verified. It’s contended, that the lower court has erred in law in not conducting a trial within trial in determing the voluntariness of the purported confessional statement of the Appellant. The court is urged to expunge the confessional statement, and accordingly discharge and acquit the Appellant. See NNAE BONY V. STATE (1994) 5 NWLR (Pt.343) 138 at 157. Thus, the court has been urged to resolve issue No. 2 in favour of the Appellant.
On the issue No. 3, it was submitted, inter alia, that the trial court has failed to conduct an enquiry as to the age of the Appellant, which said failure has amounted to a miscarriage of justice, thus raises doubt in the prosecution’s case. See YOUNGO V. COP (1992) 8 NWLR (Pt.257) 36.
That, the lower court has flagrantly violated section 319 (2) of the Criminal Code Law, thereby amounting to a miscarriage of justice. Therefore, the Appellant is entitled to a discharge and acquittal.
Regarding the issue No. 4, it was contended, that the death sentence passed upon the Appellant violates the right to life thereof under Article 4 of the African Charter on Human and Peoples’ Rights. See JOHNSON V. LAFADEJU (2002) 8 NWLR (Pt. 768) 192 at 220 – 221; ABACHA V. FAWAHENMI (2000) 6 NWLR (Pt.660) 228 at 292; Order 11 Rule 1 at the Fundamental Rights (Enforcement Procedure) Rules, 2009.
The court is urged to so hold, and accordingly resolve issue No.4, in favour of the Appellant.
On the issue No. 5, it was submitted that the lower court erred in law when it failed to consider the defence of alibi raised by the Appellant. And that the failure by the prosecution to investigate and disprove the alibi raises material doubts in the prosecution’s case, thus ought to be resolved in Appellant’s favour. The court is once again urged to resolve the 5th issue in Appellant’s favour.
Conclusively, the court has been urged to quash the conviction and sentence of the Appellant.
On the part thereof, the Respondent’s learned counsel has equally raised five issues for determination, to wit:
1. Whether the Trial court was right in holding that the Prosecution had proved the charge against the Appellant beyond reasonable doubt despite the manifest lack of evidence.
This issue is tied to Grounds 9 & 10 of the Notice of Appeal.
2. Whether the trial court was right in convicting and sentencing the Appellant to death on the purported confessional statement which was challenged by the Appellant as being involuntary, same having been extracted under torture and duress.
This issue is tied to Ground 2 & 3 of the Notice of Appeal.
3. Whether the trial court was right to have convicted the Appellant and sentenced him to death by hanging despite the age of the Appellant at the time of the alleged offence.
This issue is tied to Ground 5 of the Notice of Appeal.
4. Whether the trial court was right in sentencing the Appellant to death and thereby violating his Right to Life and Dignity of Human Person under the Constitution and other International Charters to which Nigeria is a signatory. This issue is tied to Ground 6, 7 and 8 of the Notice of Appeal.
5. Whether the defence of Alibi was available to the Appellant in the circumstances of the case.
This issue is tied to Ground 4 of the Notice of Appeal.
On issue No. 1, it was submitted, inter alia, that the alleged contradiction in PW3’s testimony does not relate to any material fact that goes to the root of the case to make it substantial. As such, the court is urged to discountenance the Appellant’s argument thereon. See EKANG V. STATE (2001) 11 NWLR (Pt 723) 1, 24 BE, 32 D-E et al.
The court has been urged to also hold that the Respondent has proved the commission of the offence beyond reasonable doubt, and uphold the decision of the lower court on the issue.
On the issue No. 2, it was submitted, that the Appellant did not deny making that confessional statement, but rather challenged the voluntariness of the statement (Exhibit D) in question. That, the lower court would still have come to the conclusion it did in respect of the Appellant, as there were other substantial and material evidence before the court corroborating the statement (Exhibit D). The court is urged to so hold.
Regarding issue No. 3, it was contended, without much ado, that the trial court was right to have convicted and sentenced the Appellant to death by hanging, despite the age of the Appellant at the time of the offence. The court is urged to resolve the issue No. 3 in favour of the Respondent.
On issue No. 4, it was submitted, inter alia, that the provisions of Articles 4 & 5 of the African Charter on Human and People’s Rights recognize the inviolability of human beings, and the fact that no one should be deprived of his right, except in accordance with due process of law. Thus, the conviction and sentence passed upon the Appellant has not in any way amounted to a denial of his right to life. The court is urged to so hold.
On issue No. 5, it was submitted that the issue of alibi is rather an afterthought, thus ought to be discountenanced by this court, in view of the confession made by the Appellant. See section 27 (2) of Evidence Act; OTTI V. STATE (1994) 4 NWLR (Pt.290) 675 @ 678 Ratio 4.
On the whole, the Respondent submits that the appeal lacks merit, and should be dismissed.
The Reply brief of the Appellant on issue No.1 relates to the Respondent’s submission on section 8 of the Criminal Code, regarding common intention between the accused persons to murder the deceased person. The Appellant contends that the Respondent’s submission in question is misconceived, and grossly erroneous. And that the authorities cited by Respondent are in applicable to the present case.
Thus, as the Respondent has failed to prove the charge beyond reasonable doubt against the Appellant, the court is urged to set aside the conviction and sentence thereof.
On issue No. 2, it was contended that the Respondent’s failure to join issues with the Appellant on paragraphs 4.5 – 4.49 of the brief thereof, constitutes an admission of the facts stated therein. The court is urged to so hold.
On issues 3, 4 & 5, the Appellant maintains the submissions thereon, and once more urged the court to accordingly allow the appeal, and set aside the conviction and sentence passed upon the Appellant by the lower court.
I have accorded an amply critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the appeal, the argument of the learned counsel contained in the respective briefs thereof, the authoritative decisions cited and relied thereupon vis – a – vis the record of appeal, as a whole.
I have deemed it expedient to determine this appeal on the basis of the five issues formulated by the Appellant in the brief thereof.
ISSUES 1 & 2
The first and second issues are relative, thus shall be determined together. Issue No. 1 raises the question of whether the trial court was right in holding that the prosecution had proved the charge (of murder) against the Appellant beyond reasonable doubt, despite the manifest lack of evidence. The issue was stated to have been distilled from grounds 9 & 10 of the notice of appeal. On the other hand, the issue No. 2 raises the question of whether the trial court was right in convicting and sentencing the Appellant to death on the purported confessional statement, which was challenged by the Appellant as being involuntary, same having been extracted under torture and duress. The said issue is distilled from grounds 2 & 3 of the notice of appeal. As alluded to above, this is a case of murder for which the present Appellant, along with four others, had been found guilty (convicted) and sentenced to death by hanging, in accordance with section 319 of the Criminal Code Law, Laws of Lagos State 1994, as amended. And the provisions of the said section 319 of the Criminal Code Law are to the following effect:
“319 (1) Subject to the provisions of this section any person who commits the offence of murder shall be sentenced to death.”
Instructively, it’s a trite fundamental principle, that any person who is alleged to have committed a crime (offence), he shall be presumed to be innocent until proved guilty. That is the purport of the provision of section 36 (5) of the constitution of the Federal Republic of Nigeria, 1999 as amended.
It is also, equally provided in section 138 (1) of the Evidence Act, CAP. E114 Laws of the Federation, 2004, as amended, that if the commission of an offence by a party to a proceeding (whether civil or criminal) before a court is directly in issue, it must be proved beyond reasonable doubt. This trite, and rather fundamental, doctrine has been enunciated in a plethora of authorities by both the apex court (Supreme Court) and this court. See ALAKE V. THE STATE (1991) 7 NWLR (Pt. 205) 567; UKPE V. THE STATE (2001) 18 WRN 84; ATAN V. THE STATE (1991) 2 NWLR (Pt. 172) 127; BAKARE v. STATE (1987) 1 NWLR (Pt. 52) 579; EDET V. FRN (2000) 18 WRN 13; CHUKWU V. STATE (2007) 13 NWRL (Pt. 1052) 430, respectively.
Most particularly, in the notorious case of CHUKWU V. STATE (supra), this court was reported to have aptly held, inter alia, thus:
The combined effect of section 135 (1) of the Evidence Act and Section 36 (5) of the 1999 Constitution is that under the Nigerian (adversarial) judicial system, the prosecution has a fundamental duty of proving its case beyond reasonable doubt against an accused person, otherwise the trial is vitiated and the accused person ought to be discharged and acquitted. Per Saulawa, JCA at 456 paragraphs E – G, & 456 – 457 Paragraph G – B, respectively.

A fortiori, it so happens that whenever a charge of murder is in issue in any given case, the prosecution is required to prove, beyond reasonable doubt, three fundamental elements or ingredients viz:
(i) That the deceased person has died;
(ii) That the death of the deceased person was occasioned by the act or omission of the accused person; and
(iii) That the act or omission in question was intentional and with knowledge that death or grievous harm was its probable consequence.
See CHUKWU V. STATE (supra) at 457 – 458 paragraphs E – A, 460 paragraphs E – E, & H67 paragraphs E – H; UGWU V. STATE (2002) 9 NWLR (Pt. 771) 90; OGBA V. STATE (1992) 2 NWLR (Pt. 222) 164 at 194, et al.
(i) THE DEATH OF THE DECEASED
Regarding the first ingredient of the charge, there is no doubt at all that one Daniel Obi had in fact died on the said February 2, 1995. Undoubtedly, the circumstances surrounding the case vis-a-vis the evidence adduced at the trial as a whole have attested to that fact in this regard. I think, the lower court was correct in coming to the conclusion, as it did at page 159 lines 16 -21 of the Record, to the effect, inter alia, that –
There is evidence that Daniel Obi died. This was confirmed by PW4 -Dr.Omotobora and PW2 Emmanuel Obi who identity his corpse to Dr. Omotobora – PW4. PW4 the doctor conducted a post mortem and his conclusion was that death of the deceased was due to a severe hemorrhaged.
PW2, Emmanuel Obi, was the deceased person’s senior brother,who incidentally had the unique privilege of identifying the corpse of the deceased at the General Hospital to Dr. Omotobora (PW4). According to PW2 –
The deceased is my junior brother. He died on February 2, 1995 at Ajegunle in an hospital… The body was taken to the General Hospital Lagos. I followed the body to the General Hospital and identified the body of the deceased to the doctor as Daniel Obi. See page 31 of the Record.
On the part thereof, the PW4, Dr. Olufemi Adegboyega Omotobora, had told the trial court, inter alia, thus:
I did carry out post mortem exam in respect of the Daniel Obi on February 2, 1995… I carried out the examination on February 4, 1995 at about noon on a corpse named Obi Daniel. He was 30 years old mare. The summary of my findings are as follows: I found a moderately severely pale gong man. There was a transverse deep laceration about 5 centimeter wide in the right orbital fossa. That is pit of the elbow point. The neck also appeared costed and my conclusion was death as a result of severe hemorrhage.
The corpse was identified by one Emmanuel Obi.
Thus, having regard to the evidence of PW1, PW2, PW3 & PW4, there doubt the death of the said Daniel Obi had been occasioned on 02/02/95. And I so hold.
(ii) THAT THE DEATH OF THE DECEASED PERSON RESULTED FROM THE ACT OR OMISSION OF THE ACCUSED (APPELLANT).
As alluded to above, the second ingredient of the charge requires the prosecution to prove, beyond reasonable doubt, that the death of the deceased, Daniel Obi, had resulted from the act or omission of the Appellant.
As a matter of fundamental general principle, the prosecution has the onerous duty of establishing, with reasonable degree of certainty, that it was the act or omission of the Appellant that had resulted in the death of the deceased person in question. See ADEKUNLE V. STATE (1939) 5 NWLR (Pt.123) 505, wherein the Supreme Court authoritatively held, inter alia, that –
It is indeed trite law that the prosecution has to establish the cause of death with certainty to show that it was the act of the accused person that caused the death. Per Nnamani, JSC (of blessed Memory) at 515.
In the instant case, the prosecution had called a total of four witnesses, who testified as PW1, PW2, PW3 & PW4, respectively. The prosecution would have had five witnesses to its credit if not for the unexplained abscondment of Nnanna Obi who initially testified as PW3 on 10/02/2000. For reasons best known thereto, he failed to turn up for cross examination. Not surprisingly, on 18/10/01, when the case came up for continuation of hearing, the defence counsel urged upon the trial court thus:
“Adetiba: I apply that the evidence of PW3 who gave evidence but ran away for cross examination should be expunged from the records.”
However, the prosecution counsel Mr. Bakare, was of the view that the evidence of the PW3 should be kept in abeyance, rather than being expunged. However, the court ruled otherwise thus:
Court: I am in support of the view that the evidence of the 3rd Plaintiff witness be expunged if he shows up in future, his evidence will be taken afresh and as a new witness. The next witness will be witness No.3.
The evidence of the PW1, Obed Obi, was to the effect that he was the junior brother of the deceased, Daniel Obi. In his examination in chief, the PW1 did not at all link the Appellant with the death of his senior brother, the deceased person. And under cross examination, he merely stated the obvious, thus:
“I am not an eye witness. I was told by the IPO that a gang of boys killed my brother. I cannot remember the name of the IPO.” See page 30 of the Record.
Certainly, the testimony of the PW1 is of little, if any, significance to the prosecution’s case.
The Pw2 was Emmanuel Obi, who merely testified that he followed the corpse of his younger brother, Daniel Obi, to the General Hospital, where he identified same to the Medical Doctor (PW4). Thus, the PW2, like the PW1, did not link the Appellant with the death of the deceased person in question.
The PW3 was Police Inspector Musafiu Lasisi of Oduduwa Police Station. He was formally attached to Panti CID (SIIB) Yaba Homicide Section. The evidence in chief of the PW3 spans pages 54 – 58, while the cross examination thereof spans pages 59 – 60 of the Record of appeal. The testimony of the PW3 is to the effect that-
On the 6/2/95 I was on duty at Panti CID Yaba when a case of murder and petition was referred to me from Ajeromi Police Station Ajegunle for further investigation. The case was referred together with the three accused persons. I took the statement from the complainant and the witnesses with particular regard to the Appellant (3rd Accused) the PW3 merely stated thus:
This is the statement of the 3rd accused. (Tendered. No objection and is marked Exhibit “C”)….
Exhibit “C” was recorded by me on 7/2/95 when the accused were brought from Ajegunle.
Exhibit “C” has two signatures of the 3rd accused. The 1st signature was made on 21st February 1995 when the ASP Enagbano read the statement over to the 3rd accused who confirmed it to be correct and signed it…
On both dates the 3rd accused confirmed that his statement that I took was correct.
Under cross examination, the PW3 reiterated, infer alia, that –
They (the accused persons) speak English language. I wrote down the actual words used by the accused persons. The accused authorized me orally to write for them. I did not write down what pleases me. I visited the scene after 5 days of the production of the 5 accused at Panti. The object of my visit is to prove the case of murder. There was particulars of dried blood when the accused (sic) fell down when he was stabbed. It was the former IPO Cyril John who told me this. A photograph of the deceased was taken at that particular spot.
The former IPO was present when the photograph was taken. I saw the traces of cassava powder used as bait for the accused to stab the deceased.
The PW3 equally testified under cross examination that –
The people around the scene told me that the accused persons were bad boys terrorizing people in the area. The other 3 people mentioned by the accused persons are still at large. We are still looking for information to arrest the other 3 boys.
The broken bottle used by the accused was registered at Panti and is with the exhibit keeper. I am a witness of truth…
The confessional statements referred to by the PW3 in his testimony were those tendered by the prosecution, and accordingly admitted by the trial court, as exhibits A, B, C, D & E, respectively. Most particularly, exhibit “D” relates to the present Appellant (4th Accused). I have critically gone through the said exhibit “D” vis-‘E0-vis the testimony of the Appellant on oath.
Consequent upon the ruling of the lower court, thereby over-ruling the no case submission of the defence counsel, the Appellant proceeded to testify in the defence thereof as DW4. This testimony is contained at pages 99 – 100 of the Record. According to the Appellant –
On 02/2/95, I went to my mother to collect money on my way, I saw people running and a man in mufti just stabbed me and others and dragged us in to a vehicle where I saw so many people. We were then driven to the police station. I was bailed out by my mother…
…I was taken to Panti police station where I was detained. I was questioned about the murder case and I told the police that I know nothing about the case. I wrote a statement but it was torn by the IPO who slapped me and asked me to write another statement which I did. This statement was torn again by the IPO who said I should write for the 3rd time. The IPO again torn the statement and started to beat me. He brought out a baton and handcuffed my hands. He used the baton to hit alt my joints. I fall on the floor. The IPO started to write and then asked me to sign. I wanted to read what he wrote but he insisted that I should sign but I refused. He started again to beat me and he said that if I refused to sign, I would die. I insisted that I would not sign. He then brought out a gun and he said he would kill me if I refused to sign and r was afraid. He asked me what this is. I told him it was a gun. He said he would use it to kill me and tell my parents that I was trying to escape and that was why I was killed. I then started to beg him not to kill me. He cocked the gun. He opened the door and told me that was the way he was going to kill me.
He asked me to sign and then I signed. I was not taken before any officer.
Under cross examination, the Appellant had vehemently denied writing or making exhibit “D”. According to him-
The only thing I told the IPO was my age and address. I can read and write… my signature is in Exhibit “C” both the front page and the back page. If I am asked to sign under duress or pressure my signature would be different from that in Exhibit “C”.
Exhibit “D” (the alleged confessional statement of the Appellant) is to the effect, inter alia, thus:
“Name: Tony Ataloye alias Shaba…
Age: 16, Occupation: Applicant…”
On the 1st day of February 1995 at about 8pm I was playing gamble with eight other boys at Amechi Street Ajegunle. The boy’s names were:
(1) Williams (2) Ikechukwu (3) Anthony (4) Wasiu (5) Enefist (6) Amaike (7) Boboba and (8) Wasiu
Suddenly the said Boboba went to meet a man passing along a huge man wearing shirt and trouser. The said man was holding a nylon bag. Bobosa was struggling with the man to take his nylon bag. They were both fighting. As we see that the man was fighting Bobosa the rest eight of us went to help my cloth. I saw a bottle in a nylon nearby I took the man held my cloth. I saw a bottle in a nylon nearby I took it, and broke the bottle. I used it to stab him on the right hand, and blood started gushing out. William then but take the man at the back of his head with local made lantern called otupa.
The said exhibit “D” is also to the effect that:
Before we all gathered to garble, all nine of us had argued to rob people if opportunity comes. We used the peel of yam dried by a woman in the area to find trouble. That, if any one disturbs it. We will call him back and regroup it. When that man whom I stab with broken bottle disturbed the yam selling, Bodosa challenged him but he refused to come back as he was holding a nylon. We thought it was money. That is why we fought him to take it. But it is clothes. The statement I made at Ajegunle was planned by the others to carrying the blame because I stab him on the arm and died. This is our first time of doing it.
Regarding the alleged confessional statement of the Appellant admitted as exhibit “D”, the trial court has found at pages 162 lines 20 -21 and 164, lines 22-23 of the record, respectively to the effect thus:-
I therefore hold that exhibit “A, B, C, D and E” were voluntary made and properly admitted in evidence…
The 4th accused admitted and confessed that he stabbed the deceased on the right arm. Other accused persons made statement corroborating the statement of the 4th accused.
The Appellant’s learned counsel, however, urged on the court to hold that the lower court was in grave error in convicting and sentencing the Appellant, as it did, on the purported confessional statement (exhibit “D”) thereof.
Instructively, the term confession is a criminal suspect’s oral or written acknowledgement of guilt, often including details about the crime allegedly committed. According to John H. Wigmore: Evidence in Trials at common law, 4th revised edition, 1970 at 308:
“A confession is an acknowledgement in express words by the accused in a criminal case of the truth of the main fact charged or of some essential part of it.”
See also BLACK’S LAW DICTIONARY, 8TH edition 2004 at 317.
Invariably, by the provision of section 27 of the Evidence Act, the term Confession is defined as:-
“An admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

It is a trite principle, that a confessional statement must admit the circumstances of the crime, including doing of an act or omission constituting an offence in law. See NWOBE V. STATE (2000) 11 NWLR (Pt. 678) 271 at 279; DAWA V. STATE (1980) 12 NSCC 334 at 346.
It is equally a trite fundamental doctrine, that for any confessional statement, so called, to be capable of admitting the guilt of an offence, it must be seen to be voluntary; not resulting from any form of inducement, threat, or pressure. See Section 28 of the Evidence Act.
In the circumstances surrounding the present case, as established above, there is no justification for the findings of the lower court, at page 164 lines 22 – 23 of the Record, to the effect that:-
“The 4th accused (Appellant) admitted and confessed that he stabbed the deceased on the right arm. Other accused persons made statements corroborating the statement of the 4th accused.”
And the reason for my entertaining that view is not farfetched, at all! It is predicated upon a trite fundamental principle, which has been duly enunciated in a plethora of well settled authoritative decisions of both the Apex court and this court. Indeed, the principle is well settled, that where the admissibility of a confessional statement, or the weight to be attached thereupon, is challenged on the ground that the statement was not made or obtained voluntarily, then it behoves upon the trial court to direct the prosecution to establish the voluntariness of the statement, vide a procedure known as a trial-within trial. See OGUNYE V. STATE (1999) 5 NWLR (Pt. 664) 548 at 570.
In the present case, as copiously highlighted above, the Appellant has in the testimonies thereof, both examination in chief and under cross examination, consistently challenged the purported confessional statement as having been obtained under duress (at gun point), and a product of an undue inducement by the prosecution, vide the PW3. In essence, the alleged confessional statement in question was not obtained voluntarily. Thus, necessitating the trial court to have opted for a trial within-trial, with a view to confirming the veracity or otherwise, of the allegation of the defence. Alas, the veritable, and rather authoritative, guide lines clearly enunciated in OGUNYE V. STATE (supra) and other similar authorities have been wantonly disregarded by the trial court in the instant case. Thus, there is no doubt that the Appellant, in the circumstance, is entitled to the benefit of doubt. And I so hold.
What’s more, I think the trial court’s finding and relying on the purported confession of the co-accused persons to pin-down the Appellant is equally erroneous, to say least. At page 164, lines 22 – 23, of the Record, the trial court, most regrettably, was recorded to have held thus:-
“Other accused persons made statements corroborating the statement of the 4th accused.”
Most regrettably, the trial court came to the above conclusion, despite the well established statutory provision under section 27 (2) of the Evidence Act, as amended, to the effect that:-
“Confessions if voluntary are deemed to be relevant as against the persons who made them only.”
In any event, the trial court is in law precluded from according any credence to a confession of an accused person in convicting a co-accused person. The provision of section 27 (3) of the Evidence Act (supra) is very much emphatic on that point. See Section 27 (3) of the Evidence Act thus:-
27 (3) where more persons than one are charged jointly with a criminal offence and a confession made by one of such person in the presence of one or more of the other person so charged is given in evidence, the court or a jury were the trial is one with a jury shall not take such statement in to consideration as against any of such other accused persons in whose presence if is made unless he adopted the same by word or conduct.
I agree with the contention of the Appellant’s learned counsel, that the phrase, “the court…shall not take such statement into consideration,” as couched in section 27 (3) of the Evidence Act, is mandatory, and not discretionary. It is a trite general principle, that the word “shall” when used in a statute, usually conveys a command, a compulsion; thus, it is peremptory in nature. See BUHARI V. INEC (2008) 19 NWLR (Pt. 1120) 246 at 366.
THE OBVIOUS CONTRADICTORY TESTIMONIES OF THE PW3:
(POLICE INSPECTOR MUSAFIU LASISI)
I think, one very fundamental reason which ought to have compelled the trial court to exercise an extra caution in relying upon the purported confessional statement (Exhibit “D”) in question, was the inherently contradictory testimonies of the PW3. Most ironically, the lower court erroneously drew inferences of common intention from the purported confessional statements of the four co-accused persons – Exhibits “A, B, C & E”, despite the very obvious lack of cogent evidence proving the guilt of the Appellant vis – a – vis the existence of a common intention (purpose).
Undoubtedly, if the lower court had disposed itself to a reasonable degree of circumspection, it would not have failed, as it did, to consider the manifest contradictions that are so inherently obvious in the testimonies of the PW3. In the instant case, there was nothing outside the purported confessional statement (Exhibit “D”) that would have warranted the conviction and sentence so perversely passed upon the Appellant by the trial court.
Yet, the principle has cherishingly been well settled by the Apex court that:-
It is however desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight of circumstances which make it probable that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof.
See NWAEBONYI V. STATE (1994) 5 NWLR (pt.343) 138, per Iguh, at 157.

I think, it may not be farfetched to state that the locus classicus on the principle regarding the weight to be attached to a confession vis – a – vis corroborative evidence is that of REX V. SKYES (1913) 8 CR. APP. Report 233. Incidentally, that English authority was cherishingly followed in the case of KANU V. THE KING (1952) 14 WACA 30. Most remarkably, the Supreme Court of Nigeria followed suit in applying the said principle in a plethora of authorities, including the following: DAWA V. STATE (1980) 8 – 11 SC 236; THE QUEEN V. OBIASA (1962) 1 AWLR 651; OBOSI V. STATE (1965) NWLR 127; ONOCHIE V. THE REPUBLIC (1966) NWLR 307, et al. In all the above and other similar authorities, the general guidelines that have been laid down in determining the weight to be attached to confessional statement are as follows:-
(a) Whether there is anything extraneous to the confession to show that it’s true and correct;
(b) Whether it’s corroborated;
(c) Whether there are relevant statements of facts made therein true as far as they can be tested and verified;
(d) Whether the accused has had the opportunity of committing murder;
(e) Whether the confession is possible:
(f) Whether the confession is consistent with other facts which have been as curtained and proved?
In the instant case, there is nothing extraneous to the purported confessional statement (Exhibit ‘D’) to confirm the veracity or accuracy thereof. What’s even more worrisome, is the manifestly contradictory testimonies of the so called prosecution’s star witness – the PW3, Inspector Musafiu Lasisi in question. Most regrettably, the PW3 had presented himself as an unrepentant, untruthful, and rather unreliable witness. In the examination in chief thereof, PW3 had testified, inter alia, that:-
I then visited the scene of crime…
At the scene of crime I found cassava that is being dried. I saw blood stain on the ground at Amechi Lane Ajegunle which is a pedestrian lane…
I found that there was conspiracy between the accused persons for common purpose to use cassava I mentioned earlier as a bait to rob suit persons of their belongings. The five accused persons were near the scene gambling with others at large. The deceased was coming with a nylon bag with his trouser in the said bag which the accused persons thought was money was then attacked by the accused persons. It was the 3rd accused that stabbed the deceased before the 5 suspects realized that there was no money inside the nylon bag.
However, under cross examination (pages 59 – 60 of the Record), the PW3 was recorded to have testified inter alia, thus:-
I visited the scene of crime after 5 days of the production of the 5 accused at Panti. The object of my visit is to prove the case of murder. There was particulars of dried blood where the accused (sic) fell down when he was stabbed. It was the former IPO Cyril John who told me this. A photograph of the deceased was taken at that particular spot. The former IPO was present when the photograph was taken. I saw some traces of cassava powder used as bait for the accused person to stab the deceased. The people around the scene told me the accused persons were bad hoys terrorizing people in the area. The other three mentioned by the accused persons are still at large. We are still looking for information to arrest the other 3 boys.
The broken bottle used by the accused was registered at Panti and is with the exhibit keeper. I am a witness of truth.
From the above account given by the PW3 himself, it’s rather obvious, that he’s far from being “a witness of truth”, as he shamelessly claimed to be. His testimony is to a large extent predicated on hearsay. The account given by the pw3 regarding the scene of crime, was attributed to what he was told by one Cyril John, the former IPO. Undoubtedly, those pieces of evidence are hearsay, thus in admissible, and rather grossly unreliable. The former IPO, Cyril John, in question was never called to testify in the case. The broken bottle allegedly used by the accused in stabbing the deceased person was said to have been kept with the exhibits keeper at Panti Police Station. Ironically, however, that broken bottle was never tendered in the trial court, talkless of same being admitted as an exhibit. What’s more, the sample of the blood allegedly seen by the PW3 at the scene of crime was never taken to any credible hospital laboratory for analysis, to confirm whether, or not, it corresponds with the blood (DNA) of the deceased person.
In essence, the evidence of the PW3 was more or less a narration of the verbatim account of the confessional statement (Exhibit “D”) written by the PW3 himself.
Thus, there is every cogent reason for me to up hold the contention of the Appellant’s learned counsel, to the effect that the lower court was in error in holding that the confessional statements in question were each corroborative of one another. And I so hold.
Resultantly, issues 1 & 2 are accordingly resolved in favour of the Appellant.
ISSUE No.3
The 3rd issue raises the vexed question of whether the trial court was right to have convicted the Appellant to death by hanging, despite his age having been 16 at the time of the commission of the offence. The issue was stated to have been distilled from ground 5 of the notice of appeal.
I have accorded an ample regard upon the submissions of the learned counsel contained in the respective briefs thereof. Exhibit “D”, as alluded to above, is the alleged confessional statement of the Appellant. It is, inter alia, to the following effect:
THE NIGERIA POLICE STATEMENT OF WITNESS/ACCUSED*
POLICE D19
S11B YABA STATION… province
Name Tony Ataloye, alias Shiba Nationality…
Age 16, Occupation Applicant, Religion Christian…
Address No. 18, Agugu Street, Ajegunle Lagos.
From the above statement of the Appellant (Exhibit ‘D’), it’s so obvious that he had put his age at 16 at the time of the commission of the alleged offence. Undoubtedly, by virtue of exhibit “D”, the age of the Appellant had become in issue.
However, with regard to the testimony of the Appellant, contained at pages 155 – 157 of the Record, there is no where the age of the Appellant was raised, either in examination in chief, or under cross examination by the prosecution. It was submitted by the Appellant’s learned counsel in paragraphs 5, 3 & 4 of the brief thereof thus:
5.3 The Appellant adduced at the trial that he was sixteen (16) at the time of the alleged offence (2nd February 1995) (page 10 of the Record). The trial court did not however make a finding on this but proceeded to convince the Appellant in the offence of murder.
5.4 As observed above, the Appellant adduced evidence that he was sixteen (16) at the time of the alleged offence of murder. This was never controverter, neither was it considered by the trial judge.
As alluded to above, the age of the Appellant having been put at 16 at the time of the commission of the offence, being so raised in exhibit “D”, it then became an issue. Thus, the trial court ought to have adverted its mind thereto, and accordingly invite the learned counsel to address it thereon.
The position of the law is very much emphatic, regarding the issue in question. By virtue of the provision of section 208 of the Criminal Procedure Law, Laws of Lagos State it has been provided that:
208. Where a person is before any court and it appears to the court that such person is an infant, or a child, or a young person, or an adult, the court may make due inquiry as to the age of that person and for that purpose may take such evidence as may be forthcoming at the time, or at the time to which the inquiry may he adjourned but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of that person shall for the purposes of this Law be deemed to be the true age of that person.
In the case of OKARA V. STATE (1994) at 547 it was held, inter alia, thus:-
“To be on the safe side, the provisions of section 208 of the Criminal Act (which is pari material with Section 208 of the Criminal Procedure Law of Lagos State) must be adhered to strictly in order to prevent a miscarriage of justice.”

It is equally a well settled principle, that where an offender had not attained the age of 17 years at the time the offence was committed, has been found guilty of murder, he shall not be sentenced to death, but shall be ordered to be detained during the pleasure of the Governor, and upon such an order being made. See Section 319 (2) of the Criminal Code Law of Lagos State, 1994.
In the instant case, it’s so obvious, that the lower court was in a flagrant violation of the unequivocal and well set out, provisions of both sections 208 of the Criminal Procedure Law of Lagos State, 1994, and Section 319 (2) of the Criminal Code Law of Lagos State 1994 respectively. Thus, the doubt raised in the Criminal trial in the instant case must be resolved in favour of the Appellant. See YOUNG V. COP (1992) 8 NWLR (Pt 257) 36. And I so hold.
Resultantly, issue No. 3 is equally resolved in favour of the Appellant.
ISSUE No.4
The 4th issue raises the question of whether it was right for the trial court in sentencing the Appellant, and thereby violating his right and dignity of human person under the provisions of 1999 constitution and other international charters, to which Nigeria is signatory. The issue is distilled from ground 6 of the Notice of Appeal.
Regarding this issue, I think the starting point is section 33 of the constitution of the Federal Republic of Nigeria, 1999 as amended, which provides thus:
“33 (1) Every person has a right to life and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”
As aptly postulated by the Appellant’s learned counsel, the above provisions affirm the commitment made by the Nigerian Government to fully realize the goals (and objectives) articulated under the universal declaration of Human Rights, 1948, and the African Charter on Human And Peoples’ Rights (Ratification And Enforcement) Act CAP 10, Laws of the Federation of Nigeria, 1990, as amended.
Equally, the Fundamental Rights (Enforcement Procedure) Rules, 2009, made pursuant to the Act in question, accord recognition to the African Charter (supra), equating the rights therein to the rights enshrined in Chapter 4 of the 1999 constitution. See Order 11 Rule 1 of the Fundamental Procedure Rules, 2009; JOHNSON V. LAFADEJU (2002) 8 NWLR (Pt. 768) 192 at 120 – 221.
It is also not at all in doubt, that the provisions of the African Human Rights (supra), form part and parcel of the Nigeria’s municipal Law. See ABACHA V. FAWEHINMI (2000) 6 NWLR (Pt. 660) 228 at 292. Thus, the courts are enjoined to religiously give effect thereto.
Most particularly, the provisions of Articles 4 & 5 of the African Charter (supra), have been commended to the court in determing the instant issue. They are to the following effect:
Article 4:
Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person No one may be arbitrarily deprived of his right.
Article 5:
Every individual shall have the right to the respect of the dignity inherent in a human being and to the degradation of man particularly, slavery, slave trade, torture, cruelty, inhuman or degrading punishment shall be prohibited.”
However, in my considered view, having regard to the fact that issues 1, 2 & 3 have been effectively resolved in favour of the Appellant, any extensive and far reaching determination of the instant 4th issue would tantamount to a sheer academic exercise. And I so hold. The said issue No. 4 is accordingly hereby resolved in favour of the Appellant.
ISSUE NO. 5
The 5th issue raises the question of whether the defence of alibi was available to the Appellant in the circumstances of this case. The issue is said to have been distilled from ground 4 of the Notice of Appeal.
Instructively at pages 101 – 102 of the Record, the Appellant was recorded to have testified to the effect, inter alia, thus:
On February 2, 1995 I came back from school and I was on my way to my mother’s shop with my sister when he saw people pushing men inside a vehicle and raiding them. Myself and my sister were held from behind and we were pushed into the second vehicle. We found ourselves in the cell but separated. My mother came the following day to bail my sister out but I could not be bailed out in that there was not enough money to bail me, the following day I was taken to panti. I gave my particulars to the police at Panti where I wrote my statement. The police read the statement and tore it and then slapped me.
I have not seen the other accused persons before the date of the incident.
The Appellant had denied having been at the scene of the crime, at the time the offence was committed. He had raised an alibi, to the effect that he was not at the scene of crime when the offence of murder was committed. Invariably, the term alibi is a Latin derivative, literally meaning “elsewhere”. Alibi is a defense based upon the physical impossibility of a defendant’s guilt by making him in a location other than the scene of the crime at the relevant time the crime was allegedly committed. See BLACK’S LAW DICTIONARY, 9TH edition 2009, at 84.
In the case of EZE V. STATE (1976) SC 125, the Supreme Court interpreted alibi as meaning that:
The accused was present at another place other than at the scene of the crime at the time the crime was alleged to have been committed. The law is that when an accused sets up the defence of alibi, he means that he was elsewhere at the alleged time of the commission of the offence. Per Obaseke, JSC.
See also ESANGBEDO V. STATE (1989) 20 NSCC (pt. 111) 23 at 31 per NNAEMEKA, AGU, JSC; OZAKI V. STATE (1991) 21 NSCC (Pt. 1) 79 at 101.
Most especially, in the case of OZAKI v. STATE (1991) 21 NSCC (pt. 1) 79 at 101, the Supreme Court held, inter alia, that:
“Where the prosecution fails to investigate the alibi once the accused has discharged his evidential burden then they have left a room for doubt of which ought to be given to the accused.” per NNAEMEKA AGU, JSC (of blessed memory) at 101.
In the instant case, the Appellant having raised the veritable defence of alibi, it behoves upon the trial court to cause to be investigated the veracity or otherwise of the allegation. Undoubtedly, the failure to conduct an investigation upon the defense of alibi raised by the Appellant has left a room for doubt, of which ought to be resolved in favour of the Appellant. And I so hold. The 5th issue is resultantly hereby resolved in favour of the Appellant.
Typically, the instant appeal exemplifies one of the several cases in which the fundamental right of accused persons has been brazenly breached by the trial courts or tribunals. As alluded to above, the right to fair hearing is one of the inalienable and most fundamental rights cherishingly provided under the 1999 constitution.
Arguably, the cherishable doctrine of inalienable and fundamental rights of man was not merely traceable to the British Bill of Rights of 1688, talkless the American Declaration of Independence, 1776; or the French Revolution, 1789; or even the Universal Declaration of Human Rights (proclaimed by UN General Assembly Resolution 217 III of 1948.
Rather, I would want to believe, that the so called fundamental and inalienable rights to fair hearing are divinely traceable to the Almighty, the omnipotent and the omnipresent creator of man himself. Recall the amazing scenario surrounding the circumstances resulting from the creation of Adam. The Almighty commanded the Angels to prostrate to Adam. And they prostrated, except the Satan (Devil or Iblis) who arrogantly refused to do so. Then God said:
“Why did thou refuse to prostrate to Adam, when I commanded thee? And Satan said: I am better than him (Adam), you created me from fire, and him you created from (a mere) clay.”
Secondly, when Satan misled Adam and Eve with deception to taste the forbidden fruit, their Lord called out to them:
Did I not forbid you that tree and tell you: verily, Satan is an open enemy to you?
And they said: Our Lord! We have wronged ourselves. If you forgive us not and bestow not upon us your mercy, we shall certainly be of the losers.
The rest is now history; as God made Adam and Eve to vacate the paradise and descend the Earth. Thus, marking the genesis of human procreation on the Planet Earth!
Thus, the whole essence of the concept of justice is predicated upon the equitable doctrine of fair hearing, which has been characterized by God’s benevolent dispensation of justice to mankind.
Hence, in the light of the foregoing far reaching postulations, and having resolved all the five issues in favour of the Appellant, there is no gain-saying the fact that the present appeal is meritorious. Without any further hesitation, I hereby allow the appeal. Consequently the conviction and sentence of the Appellant by the trial court, in charge No. ID/28C/96, are hereby quashed. Accordingly, the Appellant is hereby discharged and acquitted.

AMINA A. AUGIE, J.C.A: I have read the lead Judgment just delivered by my learned brother, Saulawa, JCA, and I agree with him that the appeal is meritorious. He has addressed all the Issues raised in this appeal, and I will only comment on that of confession.
It is settled that it is the duty of a trial Court to consider the circumstances under which a confession is made and decide what weight to attach to it – see Nwachuku V. State (2002) 12 NWLR (pt. 782) 543 SC. It has also been held the approach to be followed in assessing the quality of a confessional statement, whether it is retracted or not, is to ask the following questions –
(a) Whether there is anything outside the confession which shows that it may be true;
(b) Whether it is corroborated in anyway;
(c) Whether the relevant statement of fact made in it are most likely true as far as they can be tested;
(d) Whether the accused had the opportunity of committing the offence;
(e) Whether the confession is possible; and
(f) Whether the alleged confession is consistent with other facts that have been ascertained and established – See Ubierho V. The State (2005) 5 NWLR (pt. 919) 644 SC Dibie V. The State (2004) 14 NWLR (pt. 593) 257; Shande V. The State (2005) 1 NWLR (pt. 907) 218 CA.
So, the trial Court must look for evidence to corroborate the confession, and the evidence must be independent and capable of implicating the accused in relation to the offence charged – see Iko V. The State (2001) 14 NWLR (pt. 732) 221, Ugheneyovwe V. The State (2004) 12 NWLR (pt. 888) 625. In this case, the lower Court failed to consider the need for corroborative evidence, and ought not to have convicted the Appellant on his confession, without more.
Thus, I also allow the appeal. I set aside the conviction and sentence of death imposed on the Appellant, and in its stead, I discharge and acquit him.

ADAMU JAURO, J.C.A: I have had the advantage of a preview of the judgment just delivered by my learned brother, I. M. M. Saulawa, JCA, and I agree with his reasoning and conclusion.
The appeal is meritorious and is hereby allowed. The conviction and sentence on the appellant are hereby set aside and a verdict of discharge and acquittal is made in favour of the appellant.

Appearances

1. OLUWAKEMI BALOGUN
2. OBIORA EZIKE
3. M. ONAH
4. ADENIKE ELEKEFor Appellant

AND

1. ABIOLA ADEYINKA CSC LAGOS STATEFor Respondent