Ozana Ubierho V. The State (2005)
LAWGLOBAL HUB Lead Judgment Report
KATSINA-ALU, J.S.C.
The appellant, Ozana Ubierho and seven others were arraigned before the Warri High Court on a one count charge of murder of one Miemie Uwarah contrary to section 319(1) of the Criminal Code, Cap. 48, Volume II, Laws of Bendel State of Nigeria.
Before the trial commenced, four (4) of the accused persons died in custody while three (3) others were discharged on a no case submission. The trial proceeded against the 4th accused alone.
At the trial, the prosecution called four (4) witnesses. The accused person gave evidence in his defence. At the close of trial, the learned trial Judge found the charge against the accused proved. However, because he was only 14 years old at the time he committed the offence with which he was charged, the learned trial Judge ordered that he be detained in prison at the pleasure of the Military Administrator of Delta State.
Ozana Ubierho’s appeal to the Court of Appeal was dismissed on 18th December, 2003. The present appeal to this court is against the dismissal of his appeal by the Court of Appeal. Both parties filed their respective briefs of argument. Based upon the grounds of appeal filed, the appellant submitted three issues for determination and they read as follows:
i. Whether the learned Justices were right in affirming the ruling of the trial court which rejected the no case submission made on behalf of 4th accused person
ii. Whether on the totality of evidence adduced, the learned Justices were right in holding that prosecution proved the case beyond reasonable doubt
iii. Whether the learned Justices were right in holding that the prosecution proved the culprit and cause of death of the deceased
For its part, the respondent raised two issues which are similar or identical with the appellant’s issues one and two.
I think the real question for resolution in this appeal is the parties issue No.2 which is whether the prosecution proved its case against the appellant beyond reasonable doubt.
Now the short facts of the case as related by the prosecution witnesses are these. PW1 Rowland Uwarah was the son of the deceased and was living in Warri at the time of the incident. He told the court that he was informed that his mother who had a hunchback, was missing. He made a fruitless search for her. Thereafter, on enquiry, he was informed that Okpako Ebe and Isaac Osiki (both deceased) had been seen in their compound. He went to their compound but could not see them. Subsequently, he reported to the police which led to their arrest and the arrest of one Anthony Oboh (3rd accused) by PW3 the investigating police officer. The arrested suspects then led the police to the bush where the corpse of the deceased was found. PW1 said he identified his mother’s corpse. He testified that he observed that his mother’s hunchback had been removed. PW2 Joshua Kubi, a native doctor testified that he was consulted by four boys who wanted medicine to promote their trade and to protect them from witches and wizards. He further told the court that he saw a bag containing meat which the 3rd accused put inside a hole outside his house. He disclosed that he was arrested by the police who took him and the 3rd accused to 3rd accused person’s compound where the piece of meat buried in the ground was recovered.
PW3, the investigating police officer, confirmed that the PW2 and the 3rd accused took him to where the hunchback was buried. He recovered it and sent it to the Forensic Laboratory, Oshodi for analysis and report. He testified that 1st and 3rd accused persons later took him to a bush where he recovered the corpse of the deceased and took it to the General Hospital, Warri where PW4 carried out post mortem examination on it. He said he later arrested the 4th accused, appellant herein, who volunteered a statement in pidgin English which he recorded in pidgin English. The said statement was received in evidence as exhibit K.
PW4, Dr. Macaulay Azebokhai confirmed that he performed post mortem examination on the corpse of the deceased after it had been identified to him by PW1. The corpse, he said, was in a decomposed state. He added that he saw no hunchback.
In his defence, the 4th accused, Ozana Ubierho denied that he killed the deceased. He also denied making exhibit K.
As I have earlier indicated, the question that calls for resolution is whether the prosecution proved its case against the appellant beyond reasonable doubt. The case for the prosecution, as developed at the trial, depended entirely on exhibit K, the statement the appellant gave to the police. It was the basis of the proceedings against the appellant. Exhibit K, it must be noted, was tendered without objection from the defence. Exhibit K is without doubt, the evidence supplied by the appellant himself, that linked him with the commission of the offence with which he was charged. Exhibit K reads in part as follows:
” … Anthony come tell me say Okpako tell am say one woman got hunch back for Ekrota village. He come tell me say when he drop me finish, he got check am for Ekrota when I de come from court, naim Anthony see me, he come tell me say he don see the woman say since all these days, he no say such person de Ekrota. Anthony come ask me say which solution we go take get the woman He come tell me say them Joshua Aweyu, Isaac Osiki and Albert Obadere them go come today 12/7/95 come perform Oracle from one man take call the woman from her house for afternoon of that day, the boys them come. Them come got meet the man wey won do the Oracle for them for Ukpeibheie but them no meet the man for house. Them come meet me for my house say them no see the man say them won go now. When them won go them come tell me, Ikpako and Anthony say make we find one way take kill the woman wey de Ekrota say them de go Oto-Ido go draw rain. Say if the rain de fall make we go kill the woman. For evening of 14/7/85 when the rain de fall, we come go the woman house. The woman name na Miemie. When we reach the woman house, Okpako Ebe come climb the house from backyard come enter house. When we enter the house, the woman de sleep. Anthony come hold the neck, Okpako come hold the leg them come carry am go outside. Anthony come tie rope for the woman neck, I come hold the hand we come carry am go bush. When we reach where we won kill the woman, Okpako come hold the neck come carry am up raise am up take neck ground then the woman come die. Anthony come de cut the woman hunch back with cutlass wey Anthony bring. As Anthony de cut the hunch back, he no fit cut an finish naim Okpako come take the cutlass from Anthony come cut the woman comout. When them cut am finish, Anthony come take left hand carry the hunch back put for paper bag before he come put am inside bag wey Okpako bring. I come carry one slippass, Okpako carry the cutlass and Anthony come carry the bag wey the hunch back de. I come de front, Okpako follow me and Anthony de back. Anthony come talk say he nor go use the cutlass again say make Okpako give am the cutlass then he come throw way the cutlass for inside bush. Na Anthony fit show where the cutlass de. We come carry the hunch back go Udu road go give them Joshua Aweyu alias Shegbelegbe, Isaac Osiki and Albert Opadere …”
It will be seen clearly that exhibit K gave a graphic description of how the deceased was dragged out of her house and how she was killed in a nearby bush and dumped there after removing the lump on her back. It gave a detailed account of events that could only be recounted by an active participant in the killing of the deceased on that fateful day.
Now, a confession is an admission made at anytime by a man charged with a crime stating or suggesting that he committed the crime – Saidu v. The State (1982) 4 SC 41; Sunday Onungwa v. The State (1976) 2 SC 169. It is now settled law that a man may be convicted solely on his confession. There is surely no law against it. It is however, desirable to have some evidence of circumstances which make it probable that the confession was true. The principles upon which a man may be convicted on his own confession alone were enunciated in the English case of R. v. Sykes (1913) 8 CAR 233. At p. 236 of the report the court of criminal appeal said:
“A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police, and then by you and us in court, and the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true Is it corroborated Are the statements made in it of fact so far as we can test them true Was the prisoner a man who had the opportunity of committing the murder Is his confession possible Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us”
These principles have been adopted and followed in this country: See Ntaha v. The State (1972) 4 SC 1; Yesufu v. The State (1976) 6 SC1 167; Achabua v. The State (1976) 12 SC 63; Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455.
Both the trial court and the Court of Appeal held that exhibit K is clearly a confessional statement.
The appellant, however, in his defence retracted his confessional statement, exhibit K. He said in his evidence that he did not make exhibit K. He denied killing the deceased. He reasoned that he was implicated in the murder of the deceased because of the previous quarrel between the Ekrota Community and his grand mother who founded Saint Joseph’s Anglican Church, Okrota over the worship of Juju called Ojiri.
I dare say that there is nothing sacrosanct about a retraction of a confession. The law is that a man may be convicted on his own confession alone provided that there is anything outside it to show that it was true. Exhibit K gave a detailed and graphic description of how the deceased was killed. The account of those events could only be recounted by a person who was an active participant of what happened on the fateful day.
Now the evidence of PW1, PW2 and PW3 corroborate the account given in exhibit K. A few examples will suffice. PW1 testified that his mother – the deceased, had a hunchback. When the deceased’s corpse was recovered, the hunchback had been removed. PW2 witnessed the burial of the hunch by the third accused in the third accused’s compound. PW3 recovered the buried hunch and sent it to the Forensic Laboratory, Oshodi. In exhibit K, the appellant recounted how he and his companions in crime killed the deceased and cut off the hunch.
The appellant in exhibit K spoke of how they dragged the deceased to a bush near her house where she was killed. The 1st and 3rd accused persons led PW3 to this bush where he recovered the body of the deceased.
The appellant spoke of how they dragged the deceased into the bush. The police found pieces of her clothes in the bush near her house. In exhibit K, the appellant stated that the other accused persons went to consult a native doctor but that the man was not at home. The native doctor turned out to be PW2. He gave evidence and said that when they came he was not at home. They left a message with his son that he should meet them at the compound of the 3rd accused which he did. In this regard, the learned trial Judge said:
“I have to state that there was abundant evidence to link the accused with the commission of the crime especially the evidence of PW1, PW2 and PW3 that the deceased had hunch back but was not seen by PW4 who examined her. The requirement of the law that it is desirable to have outside the confession, some evidence of circumstances which make it probable that the confession was true was amply satisfied in this case. See Paul Onochie & Ors. v. Republic (1966) NMLR 307. In the instant case, taking the confessional statement of the accused with other evidence against him, I am quite satisfied that he took part in the commission of the offence with which he was charged. I accept and believe the evidence of the prosecution witnesses. I totally reject the defence of the accused that this offence was trumpted up against him because of the previous quarrel between his late grand mother and the people of his village, Ekrota.”
For its part the court below was in total agreement with the trial court. In its judgment the court below per Muntaka-Coomassie, JCA observed as follows:
“In the instant case, and from the findings of the trial court quoted above, it is evident that the trial court adequately tested the truth of the statement as contained in exhibit K before acting on it. He had also looked outside the statement for some corroborative evidence like the evidence of PWl, 2 and 3, which make it probable that the facts therein stated are true. No doubt the learned trial Judge gave exhibit K close consideration along with the guidelines prescribed by law and found it to be free and voluntary.”
From the foregoing, it can be seen clearly that exhibit K is a free and voluntary confession. It is direct and positive. The evidence of PW 1, PW2 and PW3 shows plainly that it was true.
One more point. It has been contended for the appellant that it was not proved that it was the act of the appellant that caused the death of the deceased. It was further said that in murder cases, the burden is not discharged unless the prosecution established not only the cause of death, but also that the act of the appellant caused the death of the deceased.
The evidence before the trial court shows clearly that there was a common intention to cause death to the deceased Miemie Uwarah. It must be observed here that the appellant, in exhibit K stated the part he played in this dastardly act. He said:
“Anthony come tie rope for the woman neck, I come hold the hand we come carry am go bush. When we reach where we wan kill the woman … We come carry the hunch back to Udu road …”
This court has held 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, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence; See Muonwem v. The Queen (1963) 1 All NLR 95; Ofor v. The Queen (1955) 15 WACA 4.
In the English case of Rex v. Grant and Gilbert (1954) 38, Cr. App. R. 107 it was held that if several persons embark on an enterprise to commit a felony and have also the preconceived common intention to use violence of any degree, if necessary for the purpose of overcoming resistance, and death results from such violence, all are guilty of murder.
In Rex v. Betts and Ridley 22 Cr. App. R. 147 it was held that in the case of a common design to commit robbery with violence, if one prisoner causes death while another is present aiding and abetting the felony, as a principal in the second degree, both are guilty of murder.
In my judgment, the prosecution has proved the case against the appellant beyond reasonable doubt. In the result this appeal fails and is dismissed. The appellant’s conviction and sentence are hereby affirmed.
SC.54/2004