WILLIAMS OWODO V. THE STATE (2012)

WILLIAMS OWODO V. THE STATE

(2012)LCN/5690(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of November, 2012

CA/L/148C/2005

RATIO

EVIDENCE: WHETHER THE COURT CAN RELY ON RETRACTED CONFESSIONAL STATEMENT WHICH WAS NOT CORROBORATED

it’s a trite fundamental principle, that where, as in the instant case, an accused person retracts the extra judicial statement thereof, which turns out to be confessional in nature, the trial court owes it a duty not to rely upon that confessional statement, unless there are other pieces of evidence that tend to make the confession rather plausible. In essence, in the prevailing circumstances of this case, the trial court ought not to have convicted the Appellant in the absence of any corroborating evidence supporting the confession in question. See MUMUNI VS. THE STATE (1975) 6 SC 79 at 94; OSAKWE VS. AG BENDEL (1991 1 NWLR (pt. 167) 315; EGBOGHUNONLE VS. STATE (1993) 9 SC SCNJ 1; KASA VS. THE STATE (199 4) 6 SCNJ (Pt. 1); HASSAN VS. STATE (2001) 6 NWLR (pt. 709). PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: HOW SHOULD THE ISSUE OF DOUBT BE RESOLVED IN A TRIAL

Instructively, the principle is very well settled, to the effect that where the evidence of the prosecution is characterized with such contradiction as to cast any doubt on the guilt of the accused person, the trial court has an onerous duty to resolve the doubt in favour of the accused. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

EVIDENCE: DUTY OF THE COURT TO CONSIDER THE CIRCUMSTANCES WHICH A CONFESIION WAS MADE

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. PER AMINA A. AUGIE, J.C.A.

EVIDENCE: APPROACH TO BE FOLLOWED IN ASSESSING THE QUALITY OF A CONFESIONAL STATEMENT

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;

(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. 893) 257; Shande V. The State (2005) 1 NWLR (pt. 907) 218 CA. PER AMINA A. AUGIE, 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

WILLIAMS OWODO Appellant(s)

AND

THE STATE Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is one of the five sister appeals filed against the judgment of the High Court of Ikeja Judicial Division Lagos State, which was delivered on December 5, 2003 by the Honourable Justice J. A. Oduneye in charge (suit) No. ID/2BC/96. By the judgment in question, the Appellant and four co-accused persons thereof were convicted and sentenced to death (by hanging) for the murder of one Daniel Obi in February 1995, contrary to section 319 of the Criminal Code Law of Lagos State of Nigeria, 1994, as amended.

THE FACTS AND CIRCUMSTANCES SORROUNDING THE APPEAL:
On February 1, 1995 at Ajegunle, Lagos, one Daniel Obi was allegedly murdered by the Appellant and other persons. The four other co-accused persons were Ikechukwu Nwaogu, Anefok Okpa Tony Ataloye; and Amaike Doripolo, who are the Appellants in the sister appeals Nos. (1) CA/L/300/05,zzz (ii) CAIL/301/05, (iii) CA/L/302/05 and (iv) CA/L/303/05, respectively.
At the trial, the prosecution called four witnesses: (i) PW1: Mr. Obed Obi, (ii) PW2: Emmanuel Obi, (iii) PW3: Police Inspector Musafiu Lasisi, and (iv) PW4: Dr. A. O. Omotobora. The alleged confessional statements of each of the five accused persons were also admitted by the trial court as exhibits A, B, C, D, & E, respectively.
On February 28, 2002, the defence counsel made a no case submission, which was, however, overruled by the lower court on October 24, 2002 to the 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.
In consequence where upon, the Appellant and other co-accused persons testified in their respective defence. Thereafter the respective learned counsel addressed the court. On December 5, 2003, the trial court delivered the vexed judgment to the conclusive effect thus:
The 4th accused admitted and confessed that he stabbed the deceased on the right arm. Other accused persons made statements which corroborated with the statement of the 4th accused. 1st accused (Appellant threw a native lamp “atupa’ which hit the deceased at the back of the head. 1st accused made a statement admitting this fact but he said he threw the lantern to separate Bobosa and Tony who were fighting the deceased.
…
I hold that there is a common purpose or common intention by all the accused. This will make the act of one accused the act of the other as the offence committed is in furtherance of the prosecution of their unlawful common purposes…
The other four accused (a) William Owodo 1st accused; (b) Ikechukwu Nwaogu – 2nd accused; (c) Anefok Ukpa – 3rd accused; and (d) Amaike Doripolo – 5th accused are also guilty of the charge of murder of Daniel Obi as they are caught by section 8 of the criminal code. They had a common purpose to prosecute an unlawful act.
Therefore I sentence all the five accused persons to death by hanging. May the good Lord have mercy on their souls.
As alluded to above, it’s against the conviction and sentence thereof in question that the instant appeal has been filed by the Appellant. The original notice of appeal was filed on December 29, 2003. However, pursuant to the leave granted thereto, the Appellant filed an amended notice of appeal.
The Appellant’s brief was filed on February 10, 2009, pursuant to leave granted on January 26, 2009. The Respondent’s brief was filed on May 6, 2011 but deemed properly filed on June 15, 2011.
At page 6 of the brief, thereof the Appellant has raised a total of six issues for determination of the appeal, viz:
1. Whether the Appellant is guilty under section 1 of the Criminal Code Laws of Lagos State for the death of the deceased. Grounds 1 & 2
2. Whether the learned trial judge was right in relying only on Exhibit A in convicting the Appellant when Appellant retracted the statement, and there was no other evidence, direct or circumstantial, to support the confessional statement Grounds 6, 7 & 8
3. Whether the contradictions in the case of the prosecution justified the conviction and sentence of the Appellant. No ground.
4. Whether the Appellant was denied fair hearing at the lower court? Ground 5
5. Whether the lower court was the appropriate and competent court to try the Appellant, in view of the provisions of the Children and Young Persons Law of Lagos State, the Appellant being 16 years old at the time the offence was committed. No ground!
6. Whether the sentence of death on the Appellant by the lower court was not unlawful in view of the fact that the Appellant was 16 years old at the time the offence was committed. No ground.
In a nutshell, the submission of the Appellant’s learned counsel on issue No. 1 is to the effect, inter alia, that the trial Judge misdirected himself when he found the Appellant guilty of the offence of murder on the basis of section 8 of the Criminal Code. It was contended, that the Appellant and others in the group thereof were neither armed, nor contemplated violence or that any of them would use such weapon as a broken bottle on the deceased. The court has been urged to resolve the first issue in favour of the Appellant, and hold that the Appellant did not have common intention to kill the deceased, – to bring him under section 8 of the Criminal Code.
On the issue No. 2, the Appellant’s learned counsel submitted, inter alia, that in the instant case, it’s in evidence that the PW3 did not visit the scene of the crime until 11 days, after he had concluded the case with alleged confessional statement of the appellant. And that according to the Appellant, the PW3 tore the statement he made in which he denied involvement in the murder of the deceased. That, the PW3 wrote another statement and forced the Appellant at a threat of being shot, to sign it. It was contended, that these circumstances should have alerted the trial judge of the danger of convicting on the retracted confession of the Appellant alone, and would have sought other evidence in the case before convicting on the confession. It is further contended, that once there is no other evidence to give credence to the retracted confession, as in this case, and the circumstantial evidence or withholding of evidence by the prosecution, putting doubt on the veracity of the confessional statement, the learned trial judge should have resolved the doubt in favour of the Appellant. The court is urged to so hold.
On the issue No. 3, it’s submitted, inter alia that the contradictions in the testimony of PW3, the absence of any other supporting evidence, and failure of the prosecution to explain the conflicts in the case thereof diminished the credibility of the prosecution’s case, so as to warrant reliance on the retracted confession to convict the Appellant for murder. The court is urged to resolve issue No 3 in favour of the Appellant.
On issue No. 4, it was submitted that the learned trial judge lost his judicial discretion in the case when he made detailed findings of fact in aspect of his guilt in the ruling on no case submission made by the Appellant. That, the legal advice of the Director of Public Prosecutions denied the Appellant, as a young man, the benefit of the proper forum for his trial. And thereby denied him fair trial, guaranteed under section 36 of the 1999 Constitution, and Article 7 of the African Charter on Human and People’s Rights (Rectification and Enforcement) Act, CAP 10 laws of the Federation of Nigeria 1990.
On issue No. 5, the Appellant’s learned counsel submitted, inter alia, that the Appellant was 16 years old when the offence was committed, thus, the Children and Young Persons law of Lagos State was applicable to him, as a young person for criminal trial.
On issue No. 6, it was equally submitted, that the Appellant should not have been sentenced to death, because he was under 17 years when the offence was committed. See section 319 of the Criminal Code and Section 368 of the Criminal Procedure Law of Lagos State, section 16 of the Children And Young Persons Law of Lagos state and the case of AUDU VS. STATE (2003) 7 NWLR (Pt.820).
It was further contended, that the passing of death sentence on the Appellant has resulted in excessive trauma bearing in mind the age thereof.
The court has been urged upon to set aside the sentence of death on the Appellant, and commute his sentence of death to a term of imprisonment not exceeding 5 years, including the years he has already stayed waiting to be tried.
On the whole, the court was urged upon to set aside the conviction and sentence, and acquit the Appellant.
On the other hand, the Respondent has formulated four issues for determination at page 5 of the brief thereof, to wit:
1) Whether the Appellant is guilty under section 8 of the Criminal Code Law, Laws of Lagos State, for the death of the deceased. This issue is tied to grounds 1 & 2 of the Notice of Appeal.
2) Whether Exhibit A was properly admitted in evidence by the trial court and if reliance on it is lawful when the Appellant retracted such and there was no other evidence, direct or circumstantial, to support the confessional statement.
This issue is tied to ground 6, 7 & 8 of the notice of appeal.
3) Whether the contradictions in the case of the prosecution justified the conviction and sentence of the Appellant.
This issue is tied to grounds 11, 12 & 13 of the notice of appeal.
4) Whether the Appellant was denied fair hearing at the lower court?
This issue is tied to ground 5 of the notice of appeal
On issue No. 1, it was submitted by the learned counsel that section 8 of the Criminal Code, Laws of Lagos State does not apply to the instant case.
And that, there was sufficient evidence before the trial court to conclude that the Appellant and his cohorts were the principal offenders pursuant to sections 5, 7 & 8 of the criminal code. They had a common intention to prosecute an unlawful purpose. Thus, the court is urged to so hold, that the Respondent had proved the commission of the offence beyond reasonable doubt.
On issue No. 2, it’s also submitted, inter alia, that the evidence of the Appellant and grounds 6, 7 & 8 of the notice of appeal thereof are contradictory. That, while in grounds 6 & 7 it’s asserted that the (confessional) statement was retracted, ground 8 alleges that the statement was not made under caution. See IKEMSON vs. STATE (1989) NWLR (pt.110) 455; SAIDU VS STATE (1952) 4 SC 4. The court is urged to hold that the Appellant was not able to establish how the decision of the trial court in admitting and relying on the Exhibit has over reached the defence in any way.
Regarding issue No. 3, it was submitted that the alleged contradictions in the prosecution case do not relate to any material fact that goes to the root of the case, to make them substantial. The court is urged to therefore, discountenance the Appellant’s argument on the issue, and hold that the evidence of the prosecution was not contradictory, thus justified the conviction of the Appellant.
On issue No. 4, the Respondent’s learned counsel submitted that the trial court was right in relying on the evidence before it to convict the appellant, thus it did not amount to a denial of fair hearing to the appellant. The court is urged to so hold.
On the whole, the Respondent’s learned counsel contended that the appeal lacks merit, thus should be dismissed.
Having accorded an ample, albeit dispassionate consideration upon the submissions of the learned counsel, contained in the respective briefs thereof vis-a-vis the record of appeal, as a whole, I am of the paramount view that the appeal can conveniently be determined upon the six issues raised in the appellant’s brief of argument.

ISSUE NO 1
The issue No. 1 raises the vexed question of whether, or not, the appellant is guilty of the charge of murder of the deceased under section 8 of the Criminal Code Laws of Lagos State. I have critically adverted my mind to the finding of the learned trial judge, at page 160, lines 1 -15, of the record copiously reproduced herein above, and at page 11 of the appellant’s brief. I have equally addressed my mind to the further finding by the learned trial judge at pages 164 – 165 of the said record. Most particularly, the finding the court of below at page 164 lines 9 – 13 of the record is to the effect thus:
There were nine boys involved in the crime. All of them were at the scene. They were playing gamble and they placed dried cornflower on the road as a bait to pounce on anybody who stepped on it with the aim of robbing such a person of his property.
One man passed and stopped on the dried cornflower but he apologized and was left off. Then the deceased huge in size came holding a nylon bag, which was thought to contain money. He stepped on the cornflower and Bobosa who could not be arrested and not one of the five accused engaged the deceased in a fight Tony Ataloye 4th accused joined in the fight and was trying to remove the nylon bag from the deceased who held on to his clothes. The 4th accused then saw a bottle which he broke and he stabbed the deceased on his right hand.
Again, at page 165, lines 18 – 21 of the record, the learned that judge holds thus:
I hold that there is a common purpose or intention by all the accused persons. This will make the act of one accused the act of the other as the offence committed is in furtherance of the prosecution of their unlawful common purpose. See case of OGUOFOR VS. THE QUEEN (1955) 15 WACA.
with due respect to the learned trial judge, I do not appreciate, let alone up hold, the above finding; in as much as it relates to the present Appellant.
And the reason is not farfetched! First, there is no evidence establishing that the broken bottle allegedly used by the 4th Accused person, which resulted in the unfortunate fatal injury of the deceased, was contemplated by the present Appellant. As aptly submitted by the Appellant’s learned counsel, the use of the broken bottle by the 4th Accused person, was an unforeseen spontaneous action or use of a weapon by one member of the group in the joint enterprise thereby taking the incident outside the scope of section 8 of the Criminal Code.
Second, there was no evidence adduced at the trial court, to the effect that the Appellant, or indeed any member of the group thereof for that matter, was armed with any weapon prior to the fight that resulted in the death of the deceased.
Third, there is no mens rea (intention) to kill, or inflict grievous bodily injury upon the deceased by the Appellant or any of the members of the so called group thereof, at the material time of the incident.
Fourth, it’s obvious from the findings of the lower court, as alluded to above, that the present Appellant, (the 1st accused) did not participate in the fight that resulted in the death of the deceased.
The provision of section 8 of the criminal Code Laws, of Lagos state (supra) is to the effect that –
when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and in the prosecution of such purpose committed of such a nature that its commission was a probable consequence of the prosecution of such unlawful purpose, each of them is deemed to have committed the offence.
In the present case, in the light of the foregoing far-reaching postulations, there is no gain-saying the fact, that the finding of the trial court, to the effect, that the Appellant had a common intention or purpose with the 4th Accused person to cause the death of the deceased person is erroneous, and not duly supported by the evidence adduced by the prosecution at the trial. And I so hold.
Resultantly, issue No. 1 ought to be answered in the negative, and same is accordingly resolved in favour of the Appellant, against the Respondent.

ISSUE NO. 2
The issue No. 2 raises the question of whether or not, the learned trial judge was right in relying on Exhibit A in convicting the Appellant when the Appellant had retracted the said statement, and there was no other evidence, direct or circumstantial, to support the confessional statement in question.
In the instant case, it’s not at all in doubt, that the Appellant had retracted Exhibit A, the alleged confessional statement in question. In the absence of any eye witness evidence linking the death of the deceased person with the Appellant the conviction thereof by the trial court was essentially predicated upon Exhibit A alone. At page 165, lines 2-4 and 23-26 of the record, the trial court was recorded to have found thus:
1st accused (Appellant) made a statement admitting this statement thus fact but he said he threw the lantern to separate Bobosa and Tony who were fighting the deceased …
…
As to whether confessional statement made by the accused can on its own ground a conviction. See the case of ADIO VS. THE STATE (supra) which is to the effect that in the said statement is held to be reluctantly made it will ground a conviction.
The testimony of the Appellant (as DW1-), is contained at pages 149 -151 of the record. The Appellant has insisted, both in examination in chief and under cross examination, that he “did not know anything about any fight”, and that he “did not write any statement for the Police.” That, the statement he wrote for Lasisi was rejected by the later and that-
Police Lasisi started to beat me. He used an object to hit me on the forehead and I started bleeding.
He then gave me a biro to sign. I told him that he should allow me to go through. He did not agree.
He said he would shoot me and then signed.
Under cross examination, the Appellant told the court that he was playing football with Jude, Joel, Muyiwa, Salla, Stephen and others when he was arrested on February 1, 1995. He insisted that:
I was never at the scene, I only saw the crowd from the football field. I was arrested at 6 pm.
After my statement was taken I was not taken before any other officer.
I signed only once and that was before the IPO when he wrote my statement for me.
… I was handcuffed and I was bleeding when I signed the statement.
Considering the above evidence of the Appellant, there is no doubt that the Appellant has denied making the statement, admitted as Exhibit A.
Regrettably, the trial court failed to deem it appropriate to conduct a trial-within- trial with a view to verifying the veracity, or otherwise, of the Appellant’s sturning allegations in question.
Yet, it’s a trite fundamental principle, that where, as in the instant case, an accused person retracts the extra judicial statement thereof, which turns out to be confessional in nature, the trial court owes it a duty not to rely upon that confessional statement, unless there are other pieces of evidence that tend to make the confession rather plausible. In essence, in the prevailing circumstances of this case, the trial court ought not to have convicted the Appellant in the absence of any corroborating evidence supporting the confession in question. See MUMUNI VS. THE STATE (1975) 6 SC 79 at 94; OSAKWE VS. AG BENDEL (1991 1 NWLR (pt. 167) 315; EGBOGHUNONLE VS. STATE (1993) 9 SC SCNJ 1; KASA VS. THE STATE (199 4) 6 SCNJ (Pt. 1); HASSAN VS. STATE (2001) 6 NWLR (pt. 709).
Thus, the ultimate answer to issue No. 2 is in the negative, and same is hereby resolved in favour of the Appellant.

ISSUE NO. 3
The issue No. 3 raises the very vexed question of whether, or not, the contradictions in the case of the prosecution justified the conviction and sentence of the Appellant.
Instructively, the principle is very well settled, to the effect that where the evidence of the prosecution is characterized with such contradiction as to cast any doubt on the guilt of the accused person, the trial court has an onerous duty to resolve the doubt in favour of the accused.

In the instant case, three prominent contradictions inherent in the prosecution evidence relate to the testimony of the pW3, the so-called prosecution’s star witness (the IPO). As aptly highlighted by the Appellant’s learned counsel, the following are some of the series of contradictions inherent in PW3’s testimony:
i. The evidence of PW3, at page 58 lines 11-12 of the record, is to effect that –
“It was the 3rd accused person (ie Anefok Ukpa) that stabbed the deceased before 5 suspects realized that there was no money inside the nylon bag.
However, Exhibits A-E, the alleged confessional statements of the five accused persons, are to the effect that it was indeed the 4th accused person who stabbed the deceased person and not the 3rd Accused person.
ii. The said Exhibits A-E disclosed that it was only the 4th accused and one Robosa (who was said to be at large) that engaged the deceased in a fight which resulted to the death of the deceased.
There’s no evidence that the Appellant did participate in the fight or attempted to drag the bag of the deceased contrary to the PW3’s testimony.
iii. At page 59 of the record the PW3 testified examination under cross to the effect thus:
“I visited the scene of the crime after 5 days of the production of the 5 accused at panti.”
However, it’s evident that the accused person (including the Appellant) were taken to special Intelligence Investigation Bureau (SIIB) Panti on February 6, 1995 i.e. at least five days after the incident took place on February 1, 1995. Thus, the PW3 must have visited the scene at least ten or eleven days after the crime was committed. Yet, the PW3 curiously testified (at pages 57 lines, 19 – 22) that at the time he visited the scene of crime he-
“Saw blood stain on the ground at Amechi lane Ajegunle.”
Rather unbelievably, however, the PW3 shamelessly admitted under cross examination that his source of information was the former IPO. See page 59, lines 19-21 of the record thus:
There was particles (sic) of dried blood where the deceased fell down when he was stabbed. It was the former IPO Cyril John who told me this.
Thus, in view of the above far-reaching highlighted contradictions inherent in the PW3’s testimonies, there is every compellingly cogent reason for the trial court to have come to the most inevitable conclusion, that the PW3 was far from being a witness of truth. His testimony is tainted; not credible at all. His conscience is warped! yet it’s a fundamentally biblical truism, that CONSCIENCE IS AN OPEN WOUND: AND ONLY THE TRUTH CAN HEAL IT!
In my considered view, the unreliability of the PW3, as a witness of truth, is not in doubt at all. Not surprisingly, the Appellant, and indeed each of the four co-accused persons thereof, alleged in their evidence in chief and under cross examinations, that the PW3 forced them, at gun point, to sign the so called confessional statements in question.
Thus, there is no gainsaying the fact, that in the present circumstances, if indeed the PW3 could be so morally debased as to lie on oath about the investigation trips thereof to the scene of crime, there is every basis for the court to question the credibility or veracity of his evidence, regarding the confessional statement of the Appellant in question. As rightly submitted by the Appellant’s learned counsel –
“There is no basis to believe that he also was not lying about the voluntaries of the confessional statements.”
In view of the obvious contradictions inherent in the evidence of the prosecution, most especially regarding the PW3, the trial court ought to have been more circumspect in evaluating the evidence adduced at the trial. The evidence of pw3 is to large extent predicated on hearsy and blatant, if not callous’ falsehood. There was a need for such evidence to have been creditably corroborated by the evidence of Sgt Cyril John, the alleged former IPO, who was never called by the prosecution, for reasons best known thereto.
Thus, in the light of the above postulation the answer to the issue No 3 is most inevitably in the negative, and same is hereby resolved in favour of the Appellant.

ISSUE NO.4
The fourth issue raises the most pertinently fundamental question of whether, or not, the Appellant was denied fair hearing by the trial court. This issue relates to the decision of the lower court on the no case submission, wherein the learned trial judge made findings of guilt upon the Appellant and co-accused persons thereof. Regrettably, the learned trial judge made copious findings of guilt in the ruling on the no case submission in question, especially at page 91, lines 10-17; 93 & 94, lines 21-28 of the record, respectively.
Particularly, at page 91, the learned judge held, inter alia, thus:
There was conspiracy between all the accused Persons. They had a common purpose to use the dried cassava as a bait to pounce on anybody who stepped on same with the same of robbing such a person of his property.
The deceased Daniel Obi was a victim of this plan.
The accused fought with him. It was the 4th accused that actually stabbed the deceased with a broken bottle the 1st accused threw a native lamp that hit the deceased at the back of the head. It was the stab wound that resulted in the loss of blood that killed the deceased.
That’s not all! The learned trial judge went further to hold, pre-judiciously albeit most that –
All the five accused persons were acting with common intention to prosecute an unlawful purpose and in doing so the deceased was killed. All the five accused persons are caught under section 8 of the Criminal Code, See the case of AKPAN VS. STATE (1994) 1 NWLR (Pt. 361) pages 226 …
Having proved that the deceased Daniel Obi died and that the death of the said Daniel Obi has resulted from the acts of the accused persons and that the acts of the accused person were intentional with knowledge that death or grievous bodily harm was the probable consequences, I am of the view that a prima facie case has been made out against the accused person.
Undoubtedly, the findings of the learned trial judge are pre-judiciously outrageous, and rather antithetical to the well cherished fundamental doctrine of fair hearing. Indeed, it’s a trite fundamental constitutional principle, that every person who is charged with a criminal offence shall be presumed to be innocent, until he is proved guilty. See section 36 (5) of the 1999 Constitution, as amended.

In the instant case, it’s rather obvious, that by the above highlighted clear and conclusive findings in the ruling on the no case submission in question, the learned trial judge has grossly abused the discretion thereof.
What’s most curious about the ruling on the no case submission, is the fact that the learned trial judge has from the outset (rightly) cautioned self on the implication, or danger, of making detailed, and conclusive factual findings in the case at that preliminary stage. At page 93, lines 9-13 of the record, the learned trial judge had alluded, thus:
I will like to follow the advice of the Supreme Court in the case of AJIBOYE VS. STATE (1995) 1 NWLR (Pt.414) page 408 that at the stage the court be brief in his ruling so as not to too much which at the end of the case might fetter the court’s discretion.
Ironically, however, the learned trial judge failed for reasons best known thereto, to heed the very authoritative exhortation of the Apex court he alluded to in the ruling thereof.
In the circumstances, the answer to issue No. 4 is inevitably in the affirmative, and same is hereby resolved in favour of the Appellant.

ISSUE NO. 5
The issue No. 5 raises the question of whether the lower court was the appropriate court to try the Appellant in view of the provisions of the children and Young Persons Law of Lagos state, (supra) the Appellant being 16 years old at the time the offence was committed.
It was contended by the Appellant’s learned counsel, that at the time the offence was committed (in 1995), the Appellant was 16 years of age. Therefore, by the provisions of the children And young persons law of Lagos state (supra) the Appellant –
“should not have been charged or tried at the High court.”
Instructively, by virtue of the provisions of section 2 of the Criminal Procedure Law of Lagos State, (supra) the term a young person has been defined as –
“A person who has attained the age of fourteen and has not attained the age of seventeen years …”
The provision of section 413 of the Criminal Procedure Law of Lagos State is equally to the effect thus:
Where a child or young person is brought before the court or a magistrates court charged with an offence, the charge shall be inquired into in accordance with the provisions of the Children and Young Persons Act and not in accordance with the provisions of the Act.
In the instant case, the fact that the Appellant was 17 years of age, at the material time the alleged offence was committed in February 1995, is not at all in doubt. Exhibit A is the alleged confessional statement of the Appellant (1st accused), and it’s to the effect inter alia, thus:
EXHIBIT “A”
THE STATE VS. W. OWODO & 4 ORS
Sgd .. 18/10/2001
THE NIGERIAN POLICE
STATEMENT OF WITNESS /ACCUSED
SIIB YABA STATION ….
NAME WILLIAMS OWODO
NATIONALITY/TRIBE
NIG/DELTA
AGE 17 …
…
I was born at Ajegunle since 17 years ago to the family of Owodo’s from Delta State …
It is so obvious that the Appellant has from the outset made his age (17 years) an issue in Exhibit A in question. However, in the testimony, both examination in chief and under cross examination, the Appellant did not refer to the age thereof. Thus, granted that the Appellant was 17 years old at the time the offence was committed in February 1995, it goes without saying that he ought to have been 20 years as at the time the trial commenced three years later in 1998.
Contrary to the highly preposterous postulation of the Appellant’s learned counsel, the trial of the Appellant before the court below was proper, and not in contravention of the provisions of the law in question. Of course, it would have been different, if the Appellant had been tried soon after the commission of the offence before he attained the age of 18 years. In the circumstances, the said issue No. 5, is resolved against the Appellant.

ISSUE NO.6
The issue No. 6 raises the question of whether the sentence of death (passed) on the Appellant by the lower court was not unlawful, in view of the fact that the Appellant was 16 years old at the time the offence was committed (in 1995).
Reference was made to the case of AUDU VS. STATE (2003) 7 NWLR (Pt.820), to the effect that an accused person under the age of 17 should not be sentenced to death. That, the trial court has the responsibility under section 262 of the Criminal Procedure Law of Lagos State to make further enquiry regarding the age of an accused, whether or not the issue is raised by the defence.
However, contrary to the erroneous contention of the Appellant’s learned counsel, at pages 50 and 51 of the brief thereof, it’s obvious that the Appellant was 17 (and not 16) years of age when the offence was committed in February 1995. Under issue 5 above, I had a course to copiously allude to Exhibit A (the Appellant’s alleged confessional statement), establishing that the Appellant was actually 17 (and not 16) years old in February 1995, when the offence was committed.
The provision of section 2 of the Criminal Procedure Law of Lagos state has defined a Young Person as –
“A person who has attained the age of fourteen and has not attained the seventeen years.”
In the instant case, the Appellant having already attained the age of 17 years of age, at the time the offence was committed in February, 1995, he could not rightly be described as a young person within the purview of section 2 of the Criminal Procedure Law (supra).
In any event, in view of the fact that issues 1, 2, 3, & 4 have been resolved in favour of the Appellant, the 6th issue has become rather academic.
And I so hold.
Hence, in the light of the foregoing far-reaching postulations, resulting in resolving issues 1, 2, 3 & 4 in favour of the Appellant, there is every cogent reason for me to hold that the present appeal is rather meritorious, thus ought to be allowed by this court. Thus, the appeal ought to be, and same is hereby allowed by me.
Consequently, the conviction and sentence perversely passed upon the Appellant by the court below, in charge No. ID/28C/96, are hereby quashed.
Accordingly, the Appellant is 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. 893) 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) 626. 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 reading in draft the judgment read by my learned brother, I.M. M. Saulawa, JCA. I agree with the reasoning and conclusions contained therein which I also adopt as mine.
Accordingly, I too will allow the appeal and it is hereby allowed. The conviction and sentence passed on the appellant are hereby set aside. The appellant is hereby discharged and acquitted.

Appearances

Obiagwu with Pamela NwaneFor Appellant

AND

Abiola Adeyinka [Mrs) CSC, Lagos StateFor Respondent