Corporal Jona Dawa & Anor V The State (1980)

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OBASEKI, JSC. 

My Lords, the issues raised in this appeal are confined within very narrow limits. Broadly speaking, they are three in number:

(1) whether the confessional statements Exhibit 35 and Exhibit 37, the statements made by the 1st and 2nd appellants respectively to the police admitting the plan to kill and the act of killing were admissible in view of the allegations of threats and torture;

(2) whether during the trial within a trial, the evidence called and adduced by the prosecution in rebuttal of the serious allegations of torture against some police officers was admissible in law and if admissible whether it did not constitute an erosion of the fairness of the trial and the standard of proof required to be satisfied by the prosecution;

(3) whether the confession by the appellants in their confessional statements was unequivocal, direct and positive enough to prove the offence and constitute sufficient evidence to support the conviction particularly of the 2nd appellant.

Before dealing with the submissions of counsel on these issues, a brief reflection on the facts of the case is desirable and will be helpful and I propose to set out the relevant primary facts briefly in the next paragraph.

The scene of crime was the room of the District Head of Lere Mallam Abubakar Bawa in the little village of Tafawa Balewa in Bauchi State. The time was 1.30 in the early hours of the morning of the 19th day of September, 1977 when with a view to having a quiet, restful and undisturbed sleep, the district head, at her request, permitted his second wife P.W.1 Memu Abubakar Bawa, to leave his room for her room where her grand child who was crying needed attention. After her exit (she only shut the door but did not lock the door) he fell asleep and seizing the opportunity, his assailants moved into his room unnoticed after scaling the compound wall to gain entrance to the compound and slew him with a sharp matchet with such skill that no one in the compound knew of their entry and attack till dawn. On completion of their task, they escaped scaling the wall at another end. At dawn when P.W.1 called to pay her morning respect and see that he did not miss his morning prayers, she found him unreceptive and moving closer, found him stone dead in a pool of blood on the bed. The police were called and they immediately swung into action. It was a difficult task as there were no eye witnesses.

Police investigation ultimately led to the arrest and arraignment of the two appellants who made confessional statements of complicity in the conspiracy and commission of the crime together with two others (Lance Corporal Gambo Yarda and John Kyauta who were acquitted by the Federal Court of Appeal) before the High Court (Barreto, J.), at Bauchi for trial on two heads of charges which read:

“(1) that you Corporal Jonah Dawa, Private Ibrahim Maigida, Lance Corporal Gambo Yarda and John Kyauta on or about the 18th day of September, 1977 at Tafawa Balewa Village within the Bauchi State Judicial Division agreed to do an illegal act, to wit, to cause the death of Mallam Abubakar Bawa, the district head of Lere and that you thereby committed an offence punishable under Section 97 (1) of the Penal Code read with Section 221 of the same law and triable by the High Court.

(2) that you corporal Jonah Dawa and Private Ibrahim Maigida on or about the 18th day of September, 1977 at Tafawa Balewa village within the Bauchi State Judicial Division caused the death of Mallam Abubakar Bawa the district head of Lere, by doing an act, to wit, inflicting deep and extensive wound on the skull with a matchet with the knowledge that his death would be the probable consequence of your act, and that you thereby committed an offence punishable under Section 221(b) of the Penal Code read with Section 80 of the same law and triable by the High Court.”

My Lords, the trial was long and tedious, interspersed with 7 trials within a trial. After 32 witnesses testified for the prosecution, 7 witnesses for the defence, several exhibits including the confessional statements of the appellants Exhibits 35 and 37 were tendered with the record of proceedings – running to over 400 pages, the learned trial Judge, Barreto, J., gave a considered judgment convicting all the 4 accused persons of the offence charged in count 1 and the two appellants of the offence charged in count 2. Their appeal to the Federal Court of Appeal against their conviction on count 1 was successful but the appeal of the two appellants against their conviction on count 2 was dismissed. Still aggrieved, the two appellants have come to this court on appeal, their grounds of appeal argued before us being as follows:

“(1) The Federal Court of Appeal misdirected itself in laws when it held at page 534……..that the procedure adopted by the trial court in the reception of rebuttal evidence of the confessional statements of the 1st and 2nd appellants during the trial -within-trial was regular.

(2) The decision of the Federal Court of Appeal is unreasonable and unwarranted having regard to the evidence as it is unsafe and unsatisfactory to convict on such evidence.”

Specifying the portion of the judgment complained of, the ground further reads: