Igbinewka Owie V. The State (1985)

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O. COKER, J.S.C.

On the 31st January, 1985, I dismissed this appeal and indicated my reasons for the decision will be given today.

The Appellant, Igbineweka Owie, was convicted by the Bendel State High Court sitting at Benin, for the murder of one Clement Etomi of Obanyanton Village, in the Bendel State and sentenced to death by hanging. His appeal to the Court of Appeal was dismissed on the 23rd March, 1984 and he appealed to this Court.

The facts are straight forward and there was not much in dispute. Clement Etomi was a boarding student of the Obayantor Grammar School Benin City, where the appellant was employed as a night guard. On the 28th January 1984, the teachers of the school were on strike and most of the students who were boarders were sent to their respective homes leaving some few male students and the female students. The deceased, Clement Etomi, was not present at school when the order was given requesting the students to vacate the school premises.

On his return to the school premises, he joined the few students who remained behind and there was no evidence that the school authorities opposed his stay or that the appellant had any specific instruction to prevent him from remaining in the school compound. On the fateful day, at about 8.30p.m., some of the students after the evening meal preceded to walk out of the compound. Clement Etomi was one of such students. He met the appellant at the school gate and he and others were halted by the appellant. There was no suggestion that he or any of them refused to stop or that the appellant mistook them as intruders or thieves.

He knew they were students. The evidence of 1st, 2nd and 3rd P.W.s who were present at the scene, was that the appellant accused the deceased of previously insulting him and threatened that he would shoot him with the double barrel gun he was carrying. The 1st P.W. testified that he pleaded with the appellant not to carry out his threat, but that the appellant refused. He testified that the deceased did not reply nor did he engage the appellant in any struggle. The appellant was adamant and pointed his gun, first to the leg of the deceased, and later took a cool short at his chest and fired the gun. The deceased slumped down and died on the spot almost immediately.

The appellant then fled and reported the incident to the Police at Benin City, where the other students later met him. From the Police Station, the appellant and the other students together with a Police Inspector. P.W. 7. proceeded to the school premises where the corpse of Clement Etomi was lying covered in his blood. They all removed the corpse to the Specialist Hospital in Benin City where it was deposited.

At the Police Station later the appellant was charged with the murder of Clement Etomi and he voluntered a statement after caution, which was recorded by the 7th P. W. in pidgen English and signed by the appellant. The witness, P.W 7, testified he read it over to the appellant before he signed it as correct. When the statement was sought to be tendered in evidence, Mr. Iyi-Eweka. learned Counsel for the appellant, objected to its admissibility. The ground of objection was recorded by the learned trial judge as follows:-

“Mr. Iyi Eweka objects to the statement being tendered on the ground that his client indeed made the statement to the Police which was signed by the accused, the accused identified his signature on the document but maintains that it was not read over to him before he signed it.”

The trial judge overruled the objection, holding that the objection was misconceived in view of the admission of accused that he made the statement and identified his signature on it. He therefore admitted it in evidence and marked it as exhibit “A”.

Mr. Akinrinsola, learned Counsel for the Appellant, has raised the same point before this court. His argument was that the trial judge ought to have held a trial within a trial in order to determine its admissibility. He argued that the prosecution did not prove that the statement was made freely and voluntarily by the appellant. He cited a number of authorities, which in my view were not germane to this case. Amongst the cases cited by learned Counsel was Queen v. Igwe (1960) 5 F.S.C. 55 p.56. It is my view that this case did not support the case for the appellant. Hubbard Ag. F.J. said:-

‘we see no reason to extend the scope of the rule to cases where a confession is challenged, not because it is alleged that it is not voluntary, but because it is alleged that the accused never made it at all…. and the alleged confession can properly be admitted as part of the evidence when it is tendered by the prosecution.’

The point in this ground of appeal was not taken before the Court of Appeal. And although Mr. Akinrinsola made a lot of weather about it, the appellant himself gave entirely different reason in his evidence before the trial Court. He said in his evidence in chief:-

‘I made a statement to the police (Exhibit A); I was not myself so I did not know what was written down’.