Anthony Itu V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Benin Division (hereinafter referred to as “the lower Court”) delivered on 7/11/2013 in which it affirmed the decision of Oritsejafor J of Delta State High Court (the trial Court) which on 13th February, 2012 convicted the present appellant of murder, contrary to Section 319(1) of Criminal Code, Cap 48, Vol.II of Laws of Bendel State, 1976 (then applicable to Delta State). The trial Court having found the accused now appellant, guilty of the offence of murder, it sentenced him to death by hanging.

The facts of the case as presented before the trial Court are that on 9th January 2008, the appellant shot and killed one Godswill Itu, who was his nephew. He was thereupon, arraigned before the trial Court for trial on a charge of murder. At the trial, the appellant pleaded not guilty to the charge of murder, framed against him by the prosecution. Trial thereupon commenced in earnest and the prosecution, now respondent, called six witnesses to prove its case and tendered four exhibits namely Exhibits A and B which were confessional statements made by the

1 accused/appellant to the police after his arrest, while Exhibits C and D are one single barrel gun and cartridge respectively, allegedly recovered from the appellant at the scene of the crime. At the end of the prosecution’s case, the appellant entered his defence by giving evidence and later he called one witness to testify for his defence.

It is however pertinent to state here that in the course of the trial, when the prosecution sought to tender the confessional statements of the accused person (appellant), the latter objected on the ground that the statements sought to be tendered were not made voluntarily by him. Sequel to that, the trial Court conducted a trial – within trial. After conducting the trial within trial, the learned trial judge did not deliver his ruling on the trial within trial he conducted. In order to determine the admissibility or otherwise of the confessional statements, but he instead, admitted the two statements as Exhibits A and B, without evaluating the evidence led at the mini-trial by delivering a ruling thereon. He instead decided to do the evaluation when delivering his final judgment in the case. The appellant challenged that

2 procedure on appeal at the lower Court when he complained that ‘miscarriage of justice’ was occasioned on him and he made it a ground of appeal before the lower Court, albeit, unsuccessfully. It is apt to state here, that the procedure adopted by the trial Court led to division of opinion of the lower Court learned Justices, wherein, one of the justices Lokulo-Sodipe, J.C.A faulted it and departed with the majority Justices regarding the admissibility of Exhibits A and B. Aggrieved with the judgment of the trial Court, the appellant appealed to the Court below. On 7/11/2013, the lower Court delivered its considered judgment dismissing the appellant’s appeal and affirmed the judgment of the trial Court. The appellant obviously became dissatisfied with the judgment of the lower Court, hence he further appealed to this Court. Sequel to that, he filed a notice of appeal containing two grounds of appeal out of which he also decoded two issues for the determination of the appeal. In his brief of argument settled by one Ayo Asala, Esq. the following two issues for determination were proposed, namely:-

1. Whether the lower Court was right in holding that the learned trial

3 judge properly conducted trials within trial before he admitted and relied on exhibits A and B in his judgment against the appellant.

2. Whether having regard to the circumstances of this case and the totality of the evidence on record, the lower Court was right when it affirmed the decision of the learned trial judge who convicted the appellant for murder.

The respondent’s brief of argument on the other hand, was settled by one O.F. Enenmu, a Deputy Director, Delta State Ministry of Justice on behalf of the respondent. Therein, only one issue was formulated for the determination of this appeal, which is set out hereunder:-

“Whether having regard to the evidence before the Court, the Court of Appeal was right in law when it affirmed the conviction of the appellant”

In approaching this appeal, I choose to be guided by two issues raised in the appellant’s brief of argument which, I consider to be apt and are all encompassing and had also adequately captured the two issues raised by learned counsel of the respondent this appeal. The issues will be considered hereunder separately.

On the first issue for determination, the learned counsel for the appellant

4 kick-started his submission by referring to the finding of the Court below on page 147 of the Record of appeal on the propriety or otherwise of the procedure adopted by the learned trial judge by not delivering its ruling on the trial within trial on the two extra-judicial statements allegedly made by the accused person (now appellant) after the close of the trial. In order to determine whether they were voluntarily made or not before admitting them and making them as Exhibits A and B, on condition that it would later expunge them when delivering its judgment if they were found not to have been made voluntarily. The relevant finding of the lower Court on the complaint on the procedure adopted by the trial Court is shown at page 14 of the Record of Appeal where it was stated at page 74 of the record, thus:-

“For these reasons I believe that the confessional statement Exhibit A was voluntarily made by the accused person. The failure to comply with the Judges rule cannot be a ground for the exclusion of a confessional statement voluntarily made.”

Of course, its so obvious from the above excerpts that the lower Court did not specifically rule on the voluntariness or