Dotun Fatilewa Vs The State (2008)

LAWGLOBAL HUB Lead Judgment Report

G, A, OGUNTADE, J.S.C.

The appellant was the 2nd of two accused persons who were arraigned for the offence of culpable homicide punishable with death on 19-4-90 before Kusherki J. at the Abuja High Court. The accused persons were alleged to have caused the death of one Moshudi Atanda Arogundade who was the father of the 1st accused.

At the trial, the prosecution called six witnesses. The appellant elected not to call any evidence. On 12/11/92, the trial court in its judgment found the appellant guilty as charged and accordingly sentenced him to death. The appellant was dissatisfied with the judgment of the trial court. He brought an appeal against it before the Court of Appeal, Abuja (hereinafter referred to as ‘the court below’). On 12-04-06, the court below dismissed the appeal. The appellant has now brought a final appeal before this Court. In the appellant’s brief filed, two issues for determination in the appeal were identified.

The issues are:

“1. Whether the Honourable Court of Appeal having expunged exhibit ‘E’ the purported confessional statement, was right to have relied on any other evidence particularly the PW5’s evidence to affirm the conviction and sentencing of the appellant. (Ground 1).

2. Whether the Hon. Court of Appeal was right to have held that the evidence of PW1 – PW6 proved all the ingredient(s) (sic) of the offence against the appellant contrary to the finding of the Honourable trial court that the evidence of PW1-PW6 proved only the 1st ingredient of the offence. (Ground 4).”

The respondent formulated two alternative issues for determination. The issues are:

“1. Whether from the totality of the facts and circumstances of this case, the court below was right when it affirmed the decision, conviction and sentence of the trial court on the ground of circumstantial evidence.

2. Whether issue No. 1, the sole issue in the appellant’s brief is a fresh issue having not been brought and decided before the lower court.”

Let me observe here that the respondent’s 2nd issue above is a misconceived one in this appeal. The appellant’s issue 1 above is a complaint against the judgment of the court below as to whether the court below was right to have affirmed the conviction of the appellant by the trial court after it had held that exhibit ‘E’ a confessional statement said to have been made by the appellant was inadmissible. The said issue is indeed the major issue to be decided in this appeal and the same arose directly from the judgment of the court below. It is not a fresh issue in the appeal as the respondent contended.

I observed earlier in this judgment that before the trial court, the prosecution called six witnesses. Of these witnesses, only P.W.5 testified concerning the appellant (who was the 2nd accused before the trial court). Because of the importance of the evidence of P.W.5 in the determination of this appeal, I reproduce hereunder a substantial part of it from pages 25-27 of the record of proceedings. P.W.5 said:

“As a routine I went to visit suspects detained by my men in all the police stations. I met him sitting down with his eyes wide open around 2.00a.m. I asked him to know (sic) why he was still awake. He told me he was not able to sleep and that I should help him to pray because whenever he closed his eyes, he was seeing the image of the father whom he killed. I asked him of his religion. He told me that he was a Muslim. I told him that it was late at night. I then asked him whether he really killed his father. He said he was the one who killed him. I asked him why he killed his father. He told me that it was the work of a devil. The matter became interesting so I brought him out of the cell to one of the Police Station officers. I asked him how he killed his father. He said that it was the devil’s work and that he was not alone. I insisted that he should tell me how it all happened; He said that the idea was brought by the 2nd accused. I asked further how they planned it. He said that they went to a Chemist shop to buy sleeping pills. I asked him the name of the pills. He gave me the name as Mogadon. I asked him how he administered it on his father. He said that the father asked him to go and buy him pounded yam and that he should warm the stew they had at home. He warmed the soup and put about 5 tablets in it. Before then he said that the 2nd accused had come to the house. I asked him what 2nd accused was doing. He told me that the deceased had earlier asked the 2nd accused to leave the house as it was getting late. The food was served. At that time the 2nd accused pretended to have left the house, but that he hid himself behind a cupboard. By then, the tablets had started getting (sic) the system of the father and he started dosing. After making sure that the deceased was fast asleep, 2nd accused asked the 1st accused to soak a towel in water. At that time, 2nd accused was holding a club (a wooden handle of a hoe). I asked him why the towel was soaked: He told me that the towel was to be used to cover the mouth of the deceased so that he would not shout whilst being hit. That was what they did according to 1st accused. I asked him that we saw a rope twine round the deceased neck. He told me that they used the rope to strangle the deceased who did not die in time. He then said that the 2nd accused gave him the idea of allowing the 2nd accused to go and that he had forgotten something and that 2nd accused came along with an injection which he used on the deceased and the 2nd accused took the remaining along with him. I asked him the whereabout of the 2nd accused; he told me that 2nd accused was in Abuja. I asked him the house. He identified (sic) the house to me.

I then removed the 1st accused from Nyanya to Garki Police Station. I then asked him to be taken to the house of the 2nd accused where he identified the 2nd accused. 2nd accused was arrested and brought to Police Station where he was detained. I went to the cell and spoke with him. I asked him why he was in cell. He said that he would speak to me privately. I confronted him with what was told to me by the 1st accused. The statements of the 2nd accused were taken under the words of caution. They confessed and I endorsed the statements. I can identify the statement. I then briefed my Commissioner on the case. Investigation then continued.”

It is important to observe here that when P.W.5 had the dialogue narrated in court by him with the 1st accused, the appellant was not present. It was after the said dialogue that P.W.5 caused the arrest of the appellant.

The trial court in the assessment of the evidence against the 1st accused and the appellant said at pages 45-46 of the record:

“Asst. Sup. of Police Abayomi Jones in the cause of his testimony tendered documentary evidence which turned up to be confessional statements made by the 2 accused persons standing trial in this case. They were admitted as exhibit D and E, for the 1st and 2nd accused respectively. They were admitted in evidence when at the conclusion…. (sic)