Daniel Nsofor & Anor. V. The State (2004)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J,S,C

The appellants were two of the four accused persons arraigned before the Benin High Court of Edo State upon an information for conspiracy to commit murder and murder contrary to sections 324 and 317(1) respectively of the Criminal Code Law of Bendel State of Nigeria Cap. 48 applicable in Edo State. Before the said High Court, the 1st and 2nd appellants were the 1st and 4th accused persons respectively. At the close of trial, the trial Judge Idahosa J. on 19th June 1996 discharged and acquitted the 2nd and 3rd accused persons on the two counts. The appellants were each found guilty of the offence of murder and sentenced to death.

Dissatisfied with their convictions the appellants brought an appeal before the Court of Appeal Benin (hereinafter referred to as the court below) and that court (Coram Ba’aba, Ibiyeye and Akaahs, JCA) in a unanimous judgment delivered on 8th March, 2002 dismissed the appeals. The appellants have come before this court on a further appeal. In their notices of appeal they each raised three grounds of appeal. They have from those grounds of appeal distilled four issues for determination in a joint brief, namely these:

1. Whether the confessional statement upon which the appellants were convicted were proved to have been made voluntarily.
2. Whether there was any credible evidence outside exhibits A and E linking the appellants to the scene of the crime and with the crime to justify their conviction.
3. Whether the Court of Appeal was right in the circumstances in convicting the appellants on the strength of their alleged confessions.
4. Whether the guilt of the appellants was proved beyond all reasonable doubt by the prosecution.

The respondent in its brief adopted the issues as formulated. The appellants’ 4th issue above would appear to be the same with their 2nd issue. Proof beyond reasonable doubt as raised in issue 4 above connotes sufficiency of evidence as raised in the 2nd issue. The appellants’ counsel, it must be observed has needlessly proliferated the issues.

Before I consider the issues, it is important to examine the broad facts as presented by the prosecution before the trial court. The appellants and the two accused persons charged along with them lived in the same village called Ekpan with the deceased Maria Imariagbe in Edo State. The deceased was a trader. She was known to have travelled in the same vehicle with the appellants from Ekpan on 29th November, 1992 to a nearby village called Ehor. The appellants and the two other accused persons (before the trial court) disembarked from the vehicle at the same spot in Ehor as did the deceased. The time was about 7.15p.m. The appellants and two others then set upon the deceased. They attacked and strangulated her. They dispossessed her of the money she had with her. The corpse of the deceased was found in a bush near the road at Ehor village. The appellants made a hurried departure from Ekpan village the same night they were seen to have travelled in the same vehicle with the deceased. The 1st appellant ran away to his native town Awomama in Imo State. The 2nd appellant ran away to a place called Emese in Mbano Local Government of Imo State. When 1st appellant was next seen by PW3 with whom he lived at Ekpan, it was discovered that he had freshly acquired “a very big radio cassette player, some new trousers and shoes”. The appellants later made “confessional” statements to PW7. In the statement it was revealed how the plan to kill the deceased was hatched and the manner of the execution of the plan. The statement of the 1st appellant was received in evidence as exhibit ‘N whilst that of the 2nd appellant was tendered as exhibit ‘E’.

In the appellants’ brief before this court, it was argued that the confessional statements alleged to have been made by the appellants were not shown to have been voluntarily made. It was submitted that the prosecution had a duty to show that the statements credited to the appellants were voluntarily made. Counsel referred to section 27(1) of the Evidence Act, 1990; R v. Sykes (1913) 8 CAR 233; Adekanbi v. A.-G., Western Nigeria (1966) 1 SCNLR 75; (1966) 1 All NLR 47. It was further submitted that the trial Judge ought to have conducted a trial within trial when the prosecution sought to tender in evidence the appellants’ statements in order to determine whether or not they were voluntarily made. Counsel argued that the prosecution needed to show that there were other established facts outside the alleged confessional statements, which would show that the contents of the statements were true. Finally, appellants’ counsel argued that even if the prosecution was relying on statements allegedly confessional, it was still not relieved from the burden of establishing the guilt of the appellants on the standard beyond reasonable doubt – Kareem v. F.R.N. (No.2) (2002) 8 NWLR (Pt. 770) 664 at 682 – 685; Mbenu v. The State (1988) 3 NWLR (Pt.84) 615; Kanu v. R. (1952) 14 WACA30; R. v. Omokaro (1941) 7 WACA 146; Kopa v. State (1971) 1 All NLR 150 and Akpan v. State (1986) 3 NWLR (Pt. 27) 225.

The respondent in its brief argued that once there was evidence from the prosecution that the confessional statements exhibits A and E were voluntarily made, the onus shifted to the appellants to show that the statements were not voluntarily made and it was when the defence had done this that the court would be disposed to conduct a trial within trial; R v.Onabanjo (1936) 3 WACA 43; R v. Kassi (1939) 5 WACA 154; R v. Eguabor (1962) 1 SCNLR 409; (1962) 1 All NLR 287; Nwangbomu v. The State (1994) 2 NWLR (Pt.327) 380; (2001) ACLR 9 at 12; The State v. Obidiozo (1987) 4 NWLR (Pt.67) 748; (1987) 12 SC 74; Felix Okoro v. The State (1993) 3 NWLR (Pt. 282) 425 at 429. Counsel submitted that a confessional statement did not become inadmissible just because an accused denied making it. Queen v. Nwango (1963) 1 All NLR 330; (1960) 5 FSC 55; Queen v. Itule (1961) 2 SCNLR 183; (1961) ANLR 462 and Madjemu v. State (2001) 9 NWLR (Pt.718) 349; (2001) ACCR 445. Respondent’s counsel further argued that when an accused person objected to the admissibility of a confessional statement on the ground that it was not read over to him or that he did not make it as against an assertion that the statement was not voluntarily made, the court would still receive the statement in evidence: Owie v. State (1985) 1NWLR (Pt.3) 470; (1985) 4 SC (Pt. 2) at 22. It was finally argued that a confessional statement even if retracted was still admissible; Ikpo v. State (1995) 9 NWLR (Pt.421) 540; (1995) 33 LRN 587 at 589; Egboghonome v. State (1993) 7 NWLR (pt. 306) 383 at 387.

I observe here that the alleged confessional statement of the 1st appellant was received in evidence in circumstances different to that of the 2nd appellant. It is, therefore, desirable for clarity to consider each of the two statements exhibits ‘A’ and ‘E’ separately.

Exhibit ‘A’, that is, the statement of the 1st appellant was tendered on 26th May, 1995. The relevant proceedings at page 19 of the record read:

“On 22/12/92, I now brought out 1st accused person having earlier arrested him. I now charged him with the offence of murder, cautioned him in English language and he volunteered a statement in English language which I recorded. I read it over to him and he signed it as correct. I signed as the recorder. This is the statement now shown to me.

Ohiowele: I seek to tender it.

Akinyele Esq.: I am objecting to the admissibility of the statement on the ground that it was not made by the accused person.

Ohiowele: The statement was made by the accused who was cautioned before he made it. He signed the statement. He has not said that it was made under threat or promise. He merely said he did not make the statement. See Nwangbomu v. The State (1994) Nig. app. Cases Report 91 at 92. The issue of voluntariness has not been raised. I urge the court to admit this statement.

Court: The situation has been stated and restated by the Supreme Court and Court of Appeal that the question whether the accused made the statement in issue sought to be tendered does not really affect the admissibility but goes to weight. The objection is therefore overruled. The statement of the 1st accused made on 22/12/92 is admitted and marked as exhibit ‘A’.”