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Ayodele Ikumonihan V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant and two others were convicted by the High Court of Ondo State and sentenced to death for the murder of Maria Joseph Erhiyore” (deceased). Her body was found in a pit latrine behind the house of one Francis Omosaye, three days after she left Okitipupa for Ode-Erinje on 2/6/1995, to buy palm oil.

Following his arrest, the said Francis Omosaye roped in the Appellant and the others, and they were subsequently arrested and arraigned with him. But the said Francis Omosaye, who was arraigned as the second Accused, pleaded guilty to the Charge, and was convicted and sentenced accordingly.

The Appellant, who was the first Accused, pleaded not guilty. At the trial, Prosecution called four Witnesses, including Inspector Omojeje John as PW3, through whom the Prosecution sought to tender the Appellant’s Statement to the Police in evidence but he objected thereto on the ground of involuntariness.

The trial Court then conducted a trial-within-trial wherein the said PW3 testified as PW1, and the Superior Police Officer, who endorsed the Statement, testified as PW2. The Appellant also stated his case at the said trial-within-trial.

The trial Court believed the two Police Officers, and held as follows in its Ruling:

The 1st Accused Person is not telling the truth. I hold that he wrote his names as his signature in his own very good handwritings in about seven places in the Statement and the Form – – l also hold that the statements are admissible in law as they are made voluntarily. The Statement and the Form of confessional statement are admitted in evidence and marked Exhibit C1 – C2.

In Exhibit C1, which forms part of the case for the Prosecution, the Appellant confessed that he lured the deceased to the said Francis Omosaye’s house on the pre that he had some palm oil for sale. He sent Francis to call the others, and when they came, he and two others took turns in raping her until she died.

But in his defence as DW1, the Appellant retracted the said confession, and denied the allegation that he participated in the murder of the deceased. He put up an alibi that he was at the farm with his brother at the material time. In its Judgment delivered on 29/9/2006, the trial Court rejected his defence and found Appellant guilty as charged, and convicted and sentenced him to death.

The Court of Appeal, to which he appealed, upheld the findings of the trial Court and dismissed his Appeal. He further appealed to this Court with a Notice of Appeal containing Eight Grounds of Appeal. But he notified this Court that he is abandoning Ground 8 of the Grounds of Appeal, which complained that the learned Justices of the Court of Appeal erred in law when they found that Exhibits F-F5 [photographs and negatives taken of the deceased’s body], were properly admitted in evidence and relied upon by the trial Court, because the said Exhibits F-F5 only relate to proof of the death of the deceased and were not the only evidence relied upon by the trial Court in its finding on same.

The said Ground 8, having been abandoned by Appellant, is struck out. This Appeal will, therefore, be decided on the basis of the Grounds of Appeal in respect of which issues for determination have been distilled, and arguments canvassed in his Brief. The Appellant formulated four issues for Determination:

Whether the Court below did not misdirect itself in affirming the decision of the trial Court by finding that the

Appellant voluntarily made Exhibits C – C2 and that the same were rightly admitted after trial – within- trial.

Whether the learned Justices of the Court of Appeal rightly relied on Exhibits C1 – C2 (which they referred to as Exhibit C-C1) in affirming the decision of the trial Court.
Whether the Court below was right in affirming the trial Courts Judgment in view of the Appellant’s uninvestigated alibi.
Whether the Prosecution proved its case against the Appellant beyond reasonable doubt.

The Respondent adopted the four issues for Determination formulated by the Appellant and I will do same in dealing with the Appeal. Issue 1 questions the admission of the said confessional statements, Exhibits C1-C2, in evidence.

The Appellant conceded that he should not be seen as challenging the validity or otherwise of the Ruling of the trial Court admitting them in evidence. That on the contrary, what he is saying is that his contention before the trial Court was more than the issue of whether the Exhibits were voluntarily made.

He argued that though the reason given for challenging the admissibility of these Exhibits was that they were involuntarily made, a look at his evidence in the trial-

within-trial, and as DW1 in the main trial, shows that his complaint was not as to involuntariness, rather it was that he did not make those Exhibits; that he categorically debunked any insinuation or assertion that he made any statement wherein he admitted committing the offences preferred against him; and that his contention was that they were made by the Police and he was only made to sign them. Thus, “it was a denial of authorship of Exhibits C1-C2”.

He cited Nsofor V. The State (2002) 10 NWLR (Pt. 775) 274, Okoro V. The State (1993) 3 NWLR (Pt. 282) 425, Ehot V. The State (1993) 4 NWLR (Pt. 290) 644 and Ogunye V. The State (1999) 5 NWLR (PT. 604) 548 at 572, and submitted that the trial Court failed to determine whether he actually made the statement before using same to convict him, which is wrong and amounted to grave misdirection on the part of the trial Court; and that the Court of Appeal fell into similar error in upholding its decision by relying on the same Exhibits.

The Respondent argued that a Court is clothed with authority to rely on a confessional statement of an accused in convicting him, particularly as it had evaluated the evidence

before it and found that it was relevant and freely made, citing Section 29(1) of the Evidence Act 2011, Nwachukwu V. State (2002) 7 SC (Pt. 1) 1 24 @ 136 and Olalekan V. State (2001) 12 SC (Pt. 1) 57; and the two lower Courts were right to place reliance on his confessional statements as the trial Court conducted a trial-within trial, ruled that the statements were voluntarily made, and came to a conclusion that the facts were consistent with other facts of the case, so “the Appellant was crying wolf when there was none”.

Furthermore, that evaluation of evidence and ascription of probative value thereto are within the exclusive domain of the trial Court, which is saddled with the responsibility of which evidence to accept and reject, and this Court, being an appellate Court, would not interfere with the primary duties of the trial Court, citing Mkpinang & 4 Ors. V. Ndem & 3 Ors. (2012) 12 SC (Pt. IV) 1; and that a trial Court can rely on an extra-judicial statement that is voluntary, direct, positive and unequivocal in convicting an accused, even if he later retracted same, as long as the Court is able to establish

that they were voluntarily given without fear or duress, citing Lasisi V. State (2013) 9 NWLR (PT 1358) 74.

Apparently, the Appellant’s contention is that although he challenged the admissibility of Exhibits C1-C2 on the ground that it was not made voluntarily, his actual grouse is that he never made the said Statements in the first place.

Different considerations and principles of law govern the admissibility of a confessional statement disowned and one objected to as involuntarily made, see lkpasa V. Bendel State (1981) NSCC 300, where Udoma, JSC, explained:

A distinction is usually drawn as regards practice and procedure in relation to the admissibility of a confession in evidence – – between a confession objected to on the ground that it was not made at all by an Accused, in which case such a confession may be said to have been retracted, and a confession objected on the ground that it was not voluntary in that although an Accused Person agreed to have made the confession, his complaint would be that he was forced or induced to make it. In the latter case, what is attacked is the admissibility in evidence of the confession and, therefore, a trial within trial must be held, the confession having been

challenged on voi dire so as to determine whether or not the confession was voluntary. lf at the end of trial, the Court comes to the conclusion that the confession was not voluntary, then it is not admissible in evidence, and the Court should so rule. In the former case, where the confession is wholly retracted, the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something, which had occurred in the course of the investigation conducted by the Policeand thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not, in all the circumstances, the Accused Person did make the statement as alleged by the Police.

In other words, where the Accused Person contends that he did not make the confession at all, the trial Court is entitled to admit it in evidence, and thereafter, decide whether or not he had made the statement at the conclusion of the trial. A trial-within-trial is therefore, not required or called for in such circumstances.

On the other hand, where the Accused Person agreed

that he made the Confession but complains that he was forced or induced or tortured to make it, this calls into question the admissibility or otherwise of the Statement, and the trial Court must hold a trial-within-trial to determine its admissibility in evidence.

In this case, the trial Court conducted a trial-within-trial, and in its Ruling, it held that the Appellant was “not telling the truth”, and that the said Statements “are admissible in law as they are made voluntarily. At the Court of Appeal, he faulted the manner in which the trial-within-trial was done, which he argued had occasioned a miscarriage of justice, and as the Court of Appeal also noted:

The learned Appellant’s counsel at pages 8-12 – – of their brief mounted an attack of bias on the trial Court based on its Ruling that it did not believe the evidence and testimony of the Appellant at the trial-within-trial, consequent upon which the trial Court admitted the Appellant’s confessional Statement (Exhibit C-C1) in evidence.

In affirming the decision of the trial Court, the Court of Appeal held as follows:

The evaluation of evidence placed before the trial

Court in the trial-within-trial, particularly the testimony of the Appellant that he was not wounded in the hand by the Police and the decision reached by the trial Court therein is not perverse. Rather it is a decision reached after a careful review and assessment of material evidence placed before it. The duty of the Court is to consider the Charge and the evidence and make appropriate findings of facts and law – – The findings of fact by the trial Court that Appellant’s scar was not bigger than a healed boil after having observed the scar as presented to it by the Appellant is reasonable and plausible. It is the opinion of the trial Court, who not only heard but saw with its eyes. This Court is bound to respect it and it so respects it more so as we have seen nothing perverse about the finding. The trial Court does not need to be a medical practitioner or any such expert to reach a decision based on what it saw.

The two lower Courts, therefore, found that the said Exhibits are admissible in evidence as they were made voluntarily. The Appellant acknowledged that he ‘should not be seen as challenging the validity or otherwise of the Ruling of the trial

Court admitting the said Exhibits in evidence’, by which he concedes that the said Exhibits are admissible in law, and he is not disputing that in this Court.

He changed his tune in this Court. He now says that from his evidence at the trial-within-trial and main trial, he categorically debunked any insinuation or assertion that he made any statement admitting he committed the offence. He asked whether having regard to the surrounding circumstances and manner in which the alleged confession was made, can any weight be attached to it

The question posed dovetails into issue 2 – whether the Court of Appeal rightly relied upon the said Exhibits in affirming the decision of the trial Court. The Appellant reiterated his submissions under Issue 1, and cited the following decided cases on the position of the law regarding confessional statements-:

Edhigere V. The State (1996) 8 NWLR (pt. 464) 1 at 13 14: Queen v. Itule (1961) 2 SCNLR 183; Bature V. The State (1994) 1 NWLR (pt.320) 267 at 285- 286; Onochie & Ors. V. The Republic (1966) 4 NMLR 307; R V. Kanu (1952) 14 WACA 30; Tafiya Kpa V. The State (1971) 1 ALL NLR 150; Re: Osakwe (1994) 2 NWLR (Pt.

326) 273 at 300; and: Kareem V. FRN (No. 1) (2002) 8 NWLR (PT. 770) 636 at 656.

He submitted that the lower Courts could not safely rely on the Exhibits without first determining whether he proffered explanations as to why his evidence is different from the contents of the said statements allegedly made to the police; that his evidence that supplied the fundamental explanation for the difference was not contradicted or challenged in any way under cross-examination; that the trial Court did not give the least consideration to any of his explanations, and if it had done so, it would have found that he, certainly, gave good, cogent and verifiable reasons for the retraction of his confessional statement, and that he clearly showed that he had no hand in the said murder of the deceased.

He further argued that aside from the duty to consider his explanation for recanting the statements, which the two lower Courts, wholly failed to consider, the trial Court was also under a duty to subject the said statements to the test for determining the truth or otherwise of extra-judicial confessional statements. The test laid down in the English case of R. v. Sykes (1913)

18 CR App R 233 and adopted and applied by this Court in Nsofor v. State (supra), R. v. Kanu (supra), Dawa v. State (1980) 8-11 SC 236, Bolanle v. State (2005) 7 NWLR (Pt. 925) 431 and Obisi v. Chief of Naval Staff (2002) 2 NWLR (pt. 751) 400.

He acknowledged that the trial Court adverted its mind to the said test, but argued that in attempting to apply the said test to this case, the trial Court “seriously goofed”. For instance, on the need for there to be something outside a confession to show that it is true, he argued that there is no witness called by Prosecution that led evidence in respect of facts that the trial Court referred to as “uncontradicted evidence”; rather that these are purported facts contained in the purported confessions. On the requirement that it must be corroborated, he argued that the facts cited by the trial Court are not of such quality or nature of corroborative evidence required by law, particularly, as he denied authorship of Exhibits C1-C2, and it would not be out of place for the Policemen, who had the opportunity to see PW1s medical report and the information given by PW2, to write all those facts in the statements that they had made him sign,

which is the most plausible inference to be drawn, and he urged this Court to so hold.

As to whether the facts were tested and found to be true, whether they had opportunity of committing murder, whether the confessions were possible, and whether they were consistent with the other facts, ascertained and proved, he argued that the trial Court only used the contents of the said confessions to conclude that he admitted being the arrow-head and master-minded the killing of the deceased; that by so doing, the trial Court unwittingly used statements of Co-Accused Persons to nail him, which is wrong, in the absence of evidence showing that he adopted the contents of the others’ confessional statements; and that the law governing this issue is settled beyond per adventure, citing Ozaki V. State (1990) 1 NWLR (Pt. 124) 92, Titilayo V. State (1998) 2 NWLR (Pt.537) 235, Bassey V. State (1993) 7 NWLR (Pt.306) 469, Section 27 (2) & (3) of the Evidence Act, and Kasa V. State (1994) 2 NWLR (PT. 325) 143.

The Respondent also reiterated its arguments under issue 1, and citing Olalekan V. State (supra), Jua V. State (2010) 1-2 SC 96, Duniya V. Jimoh (1994)2 NWLR (Pt.334) 609,

Lasisi V. State (supra), Nsofor V. State (supra), it added that after a careful examination of the principles enunciated in the said authorities on confessions, the trial Court came up with the following findings:

:The Appellant and Co-Accused Persons all lived at Ode Erinje; the deceased went to Erinje on the morning that she went missing and never returned, and that she was dropped by the taxi driver at the front of Community Bank at Ode Erinje.

: On the issue of corroboration, it found that each of the Accused persons admitted that they tied the deceased person with a piece of cloth around the neck region. This was confirmed by a medical doctor to the effect that the deceased died during the course of strangulation vide a rope tied round her neck region, Also, the deceased husband gave evidence that the deceased left the house with N13, 500, which was corroborated by each of the Accused that they took N13, 500 from the deceased before burying her. Finally, the investigation of the police corroborated the admission with regards to the place that the deceased was buried.

: The confessional statements are relevant in its facts

as far as they can be tested. The Appellant admitted luring the deceased to the house of the Francis Omosaye who being the arrow head invited others. They tied up the deceased around the mouth and neck region, raped her one after the other until she died. The evidence of PW1 is to the effect that the deceased died of strangulation and suffocation as contained in the said exhibits. The fact that the piece of cloth tied around the mouth and neck region was still there when the deceased was brought out is enough evidence that the confessional statements were tested and found to be true.

: The Accused had the opportunity of committing the murder. It was found that the deceased was alone with the Appellant and his co-Accused persons in the house at the time of the offence. This gave them the opportunity to commit the murder.

: The confession was possible as they gave a clear and lucid breakdown of what happened on the date the incident happened. Appellant’s confession left no doubt that it was plausible. It is ridiculous for him to argue that it is possible that another person aside from him and the other co-Accused were the ones at the scene of the incident or that

they were framed up for the crime. The Appellant and the other Accused Persons gave accurate statements corroborating what the other stated.

: Finally, it found that the confessional statements were consistent with other facts, which had been ascertained and proved. The fact that the deceased left for Erinje where they committed the crime, that she also dropped at the Community Bank at Ode Erinje, that she had the sum of N13, 500, that she did not return and her corpse was found a few days later behind the house of co accused (Francis Omosaye) are facts ascertaining that the confession of the Appellant was consistent with the facts.

It submitted that the Court of Appeal affirmed that the trial Court considered all the necessary requirements in determining the voluntariness of the Appellant’s confessional statement before it came to the conclusion that it was voluntary; that the Court of Appeal was satisfied that the retraction of his confession was an afterthought orchestrated to evade justice; that there was enough evidence to prove that the confession was given voluntarily and the Court of Appeal was right to have upheld the Appellant’s

conviction on his confessional statements; and that it had affirmed his conviction based on the corroborating evidence, which shows that he was part of the gang that robbed and raped the deceased.

Now, it is a well-established principle that the statement of the Accused Person to the Police is considered part of the case for the Prosecution, whether it contains a confession or not, and whether the Accused Person resiles it at trial or not – see Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383 SC.

It is also settled that the Court can convict on the retracted confessional statement of the Accused Person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as other evidence adduced. This would entail the trial Court examining the new version of events presented by the Accused Person that is different from his retracted confession, and satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley, J., in the case of R. v. Sykes (supra).

The said tests have been adopted and applied by this Court in a number of decided cases, including Ogudu V. State

(2011) 18 NWLR (Pt. 1278) 1 SC, wherein this Court explained that in determining the weight to be attached to a confessional statement, retracted or not, the Court must ask itself the following:

-Is there is anything outside the confusion, which shows that it may be true

-Is it corroborated in anyway

– Are the relevant statements of fact made in it most likely true as far as they can be tested

– Did the Accused have an opportunity to commit the offence

– Is the confession possible

– Is the confession consistent with other facts, which have been ascertained and established

In effect, although the Court can convict only on the extra-judicial confessional statement of the Accused Person, it is desirable to find independent evidence; that is to say, to have some evidence outside the confession, however slight, of circumstances, which make it probable that the said confession was true – see Queen V. ltule (supra), R. V. Kanu (supra) and Edhigere V. State (supra).

In this case, Appellant is not saying that the trial Court did not apply the said tests; what he is saying is that it seriously goofed when it attempted to, as facts cited

are not of such quality of corroborative evidence required by law.

The meaning of the legal term “corroboration as stated by Lord Reading, CJ, in Rex v Baskerville (1916) 2 KB 658, which was approved and adopted by this Court in Okabichi v. State (1975) 3 SC 96, is aptly captured as follows-

Evidence in corroboration must be independent testimony, which affects the accused by connecting or tending to connect him with the crime- – It must be evidence, which implicate him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. – – Corroborative evidence is evidence, which shows or tends to show that the story… that the Accused committed the crime is true, not merely that the crime has been committed, but that it was committed by him.

In the said Okabichi V. State (supra), Coker, JSC, further stated as follows

Corroboration is evidence, which may be direct or circumstantial but in any case, it is the duty of the Court to ascertain that whatever evidence is used or regarded as corroboration is independent of the evidence to be

corroborated and is such as supports the story of the main evidence to the effect that it renders the story more probable that it implicates the accused in some material particularNo stereotyped category of evidence is envisaged and a great deal depends on the circumstances of each case for what may in a given set of circumstances amount to corroboration may not be so in another set of circumstances.

In this case, the trial Court connected every ingredient of the offence of murder to Exhibit C1-C2, in convicting the Appellant, and his contention boils down to the ridiculous claim that the Policeman could have written the facts it cited, since they had access to the medical report (Exhibit A) and the other evidence relied upon to convict him, and the Court of Appeal, which ought to have found that it was wrong, also failed to fault the trial Court and so, it was equally wrong.

No question, facts of this case are heavily stacked against the Appellant. The evidence adduced by the Prosecution and the lucid details in Exhibit C1 tell a seamless story of how the Appellant and his cohorts killed the deceased.

Her husband, Joseph Erhiyore, testified as PW2 and he

said she left for Ode-Erinje to buy palm oil in the morning of 2/6/95. She had N10,000 and he gave her N3,500, making it a total of N13,5000 that she took with her. She joined a commercial vehicle from Okitipupa Motor Park to Ode-Erinje, and when he got home that evening, he discovered that she had not returned from Ode-Erinje. The next morning, he went to that Motor Park, and saw the driver, who took him to Ode-Erinje, and showed him where he dropped the deceased, opposite the Community Bank, Ode-Erinje. He narrated how he reported the matter to the Police, and the long search for the deceased, until her lifeless body was found three days later stucked (sic) into a pit and covered with soil.

Under cross-examination, PW2 stated that he knew the Appellant before since he was always coming to Okitipupa to collect money from his late wife in his statement to the Police, Exhibit C1, the Appellant stated as follows-

On Friday, 2/5/1995 I was at the front of the Community Bank Erinje when a Peugeot 504 saloon taxi cab, which I cannot remember the Reg No. drop one Urhobo woman, who have been coming to buy some palm oil in our town every five days. As soon as I saw the

woman coming out from this vehicle, I stood up from where I sat down and move towards her and told her that I have some palm oil for sale and that the kegs of palm oil are with my friend named Omosaye. The Urhobo woman then asked that how many kegs of palm oil do I have I told her that is up to Seven Kegs. At this junction (sic) the Urhobo woman agree to follow me to Omosayes house where I told her that I kept the palm oil. Ever before this time I have discuss with Omosaye that I will bring a woman to his house. When myself and Urhobo woman got to Omosayes house, we met him lying down. I told him that he should go and call Alhaji who lives at Odolawe street while myself and the Urhobo woman sat down inside Omosayes house. I also ordered Omosaye to call another friend called Timehin. When Alhaji, Timehin and Sunday came to Omasayes house they met the Urhobo woman while Omosaye later joined us and went straight to the woman, who sat down, and held her by the neck. Myself and two other boys namely Alhaji, Timehin joined him and tied the Urhobo woman by her mouth, nose and neck while Omosaye fell her down

after which I started to have sex with her. Alhaji later took over from me and sex the Urhobo woman. Timehin did not partake in sexing the woman at all as soon as Alhaji finished sexing the woman, she died. Omosaye then loosed the wrapper of the woman and removed the sum of thirteen thousand and five hundred naira only from her N13,500. We then kept the corpse of the woman inside Omosayes house. In the night of 2/6/1995 at about 9.15 p.m, myself and three other boys carried the woman out of Omosayes room and buried her in a pit latrine at the back of Omosayes house. Nobody apart from myself, Alhaji, Omosaye and Timehin have hand in the death of the Urhobo woman. As soon as this woman died, I ran to farm with one of my senior brother named Adeyemi Ikumoniyan. I did not tell my brother anything. The driver of the vehicle that dropped the Urhobo woman did not know anything about the death of the woman. It was around 8.30 am the vehicle dropped the Urhobo woman in front of the Community Bank Erinje. I cannot tell anybody because am afraid of being arrested by the police. Up till now we did not share the money collected from the woman I was in my house when Omosaye

brought Police to come and arrest me. That is all I have to say.

Pieced together, the deceased left Okitipupa for Ode-Erinje with N13,500.00 to buy palm oil. The taxi driver had dropped her opposite the Community Bank, which is where Appellant saw her, and took her to Francis Omosayes’ house. He asked Francis to call the other Accused Persons, and they tied her “mouth, nose and neck, and took turns in raping the deceased, until the deceased died.

The clincher is the evidence of PW1, one Dr. Akinbolaji Dapo Olawande who examined the body of the deceased and he testified as follows in Court-

I remember 4/6/1995. On the said day I was on duty at the then General Hospital. A corpse of a woman was brought to me. The corpse was identified as Mrs. Marie Joseph Erhoyore. The corpse was identified by one Mr. Jopseph Erhiyore. When I examined the body, it was in a state of decomposing. A cloth was tied firmly round her neck as well as the mouth. It was a torn pieces of cloth that was used to tie her. There was also a punctured wound at upper aspect of her left eye. In my opinion, the death was caused by strangulation leading to suffocation.

So, the Appellant confessed in Exhibit C2 that they had tied the deceased by her mouth, nose and neck, and PW1 confirmed that torn pieces of cloth tied firmly round her neck as well as her mouth. He gave the cause of death of the deceased as strangulation leading to suffocation, which is consistent with the narration of events leading to the death of the deceased in Exhibit C2; yet the Appellant wants this Court to hold that the only plausible inference to be drawn form the discrepancy between Exhibit C2 and his testimony is that:

Given that (he) denied authorship of Exhibit C1-C2, it would be out of place for the Policemen, who had the opportunity to see the Medical Report of PW1 and the information given by PW2 as to how much of the deceased left home with on the fateful day, to write all these in Statements, which they made (him) to sign.

Obviously, this line of argument negates the Appellants contention that there was no iota of evidence adduced by the Prosecution to satisfy the said six tests to be applied to a confession. If he is saying that the facts relied upon by the two lower Courts were

gleaned from the evidence adduced by the Prosecution, then his argument that there was no corroborative evidence stands on its head.

But that is not all; in grasping at straws, the Appellant also argued that Exhibits C1-C2 are two distinct documents, yet the Court of Appeal treated them as if they were just one single document, which is a clear indication that it did not look at the Exhibits to know what it was relying on; and that this makes the said decision of the Court of Appeal liable to being set aside by this Court.

But the Respondent countered that the body of the deceased was found in the premises of one of the Co-Accused Persons, who confessed; that there was evidence that the deceased was serially raped and robbed by the Accused Persons, including Appellant. Therefore, his argument that Exhibits C1-C2 was treated as a single document, instead of separate documents goes to no issue; that he has not shown same occasioned miscarriage of justice to warrant setting aside the decision of the Court below; that it is not every error or mistake of the Court below that would require this Court to upturn its decision on appeal; and to do so, such error or mistake must be so fundamental

that it occasioned miscarriage of justice, citing Osolu v. Osolu (2003) 11 NWLR (PT 832) 608.

As I said, the Appellant is merely grasping at straws with this argument. Exhibit C1 is The Admission of Confessional Statement of an Accused Person Made to Police, which is the Form signed by the Appellant, admitting that the Statement was correct, and Exhibit C2 is the Confessional Statement itself, which means that in signing Exhibit C1, he admitted that he made Exhibit C2.

I cannot see how the reference to the Exhibits together has occasioned any miscarriage of justice in this case. As the Respondent rightly submitted, the fact that the Court of Appeal referred to those Exhibits as if they were one, does not affect the contents and import of Exhibit C2, wherein the Appellant actually confessed that he participated in the rape and murder of the deceased.

At any rate, as the Respondent rightly submitted, it is not every error or mistake committed by a lower Court that would lead to a reversal of its decision. To warrant a reversal of a lower Court’s decision on appeal, the error or mistake must be so fundamental and crucial that it substantially affected

the result of the decision in that it occasioned a miscarriage of justice – see Adisa V. State (2014) LPELR-24221(SC) and Kayode V. State (2016) LPELR-40028 (SC).

In this case, even if the Court of Appeal erred in not differentiating one Exhibit from the other, the error does not detract from the confession therein, and considering that the Appellant’s version of events in the said Exhibit C2, tallied with the other pieces of evidence adduced by the Prosecution, it follows that the lower Courts were right to hold that the Appellant made Exhibit C2.

Issue 3 is whether the Court of Appeal is right in affirming the Judgment of the trial Court touching on his defence of alibi. He argued that the trial Court did not consider the content, plausibility and credibility of the said defence and dismissed it peremptorily on the ground that it was not raised at the earliest possible time to enable the Police investigate it. In the words of the trial Court:

The Law is that any Accused Person raising the defence of Alibi must raise same at the earliest possible time to enable the Police investigate the alibi. Such Accused Person must also show sufficient particulars of the defence of alibi

to enable the Police contact the necessary places and persons. In the instant case, the Accused Persons only raised for the first time the defence of alibi during their defence on Oath. The Police had no opportunity of investigating the alibi. In the case of Udoebre V. State (2001) SCM, 127 at 136, the Supreme Court held as follows ‘Furthermore, such defence must be timeously brought to the attention of the Police by the Accused Person, preferably in his extra-judicial statement to afford the Police an ample time to carry out its investigation. For the accused to raise the defence while testifying at his trial is to deliberately deny the prosecution its rights and duty to investigate the defence. Such a play (sic) cannot avail the Accused. From the above analysis, I hold that the defence of alibi raised by each of the Accused Persons and retraction of their confessional statements were fabrications and the defence of each of the Accused persons – had no adverse effect on the burden of proof already established in this case.

He submitted that the Court of Appeal affirmed the Judgment of the trial Court not minding the alibi he

raised, which is wrong, since he informed the trial Court that he was at the Farm with his brothers at the material time and, thereafter, spent the rest of the day in his Aunt’s canteen; that he mentioned their names, gave the exact time he left for the farm, and location of the farm and canteen, therefore, he was saying that he was somewhere else that day and could not have committed the alleged offence, which was an alibi with full particulars, and he referred this Court to the following decided cases on the issue of alibi: –

Ifejirika V. The State (1999) 3 NWLR (Pt, 593) 59 at 78; – lsiekwe V. The State (1999) 9 NWLR (Pt. 617) 43 at 65; – Ikono V. The State (1973) 8 NSCC 352 at 363; – Esangbedo V. The State (1989) 20 NSCC (PT. III) 23 at 31; – Ozaki v. State (supra) at 125; – Balogun V. A-G, Ogun State (No. 2)(2002) 6 NWLR (PT. 763) 512 at 536; – Ibrahim V. The State (1991) 4 NWLR (PT. 186) 399 at 415; – Ikemson V. The State (1989) 3 NWLR (PT. 110) 455 at 463; and Ikwunne V. The State (2000) 5 NWLR (PT. 658) 550 at 560, 565- 666.

He argued that in view of all that he said happened to him at the Police Stations, the principle in Udoebre V. State

(supra), which the trial Court relied upon, and where this Court held that alibi should be stated at the earliest opportunity to enable the Police investigate it, ought not to have been applied in this case; that what is important is what amounts to “earliest opportunity”, and even if he had made his alibi known, the Police would still have suppressed it since they, and not him, had control over what is written or not written; and that the lower Courts had a duty to consider any or all defences open to him as an Accused, no matter how stupid or unreasonable the defence may be, citing Ojo V. State (1973) 8 NSCC 590 at 594, Nse Udo Ntita V. State (1993) 3 SCNJ 28 at 35, Bolanle V. State (2005) 7 (PT. 925) 431 at 438, and Rasaki Oladipupo V. The State (1993) 6 SCNJ 233 at 239 – 241, which the two Courts failed to do.

He further contended that assuming without conceding that he did not raise his alibi at the Police stations, alibi, contrary to the trial Court’s position can be raised for the first time at the trial even if not raised at the Police Station; that it is not the law that failure to raise the alibi during an investigation robs the trial Court or any Court of

competence to entertain the defence; that what the law postulates is that where it was not raised during investigation, the Police would not be under any duty to investigate it at the later stage of trial; and that it does not mean that it cannot be ordered to do so, citing Fatoyinbo V. A.-G., Western Nigeria (1966) WNLR 4 at 6; Ntam V. State (1968) NMLR 86 at 87 – 88, and Onyegbu V. The State (1995) 4 NWLR (ft.391) 510 at 532.

He further submitted that where alibi is raised for the first time at the trial, the proper course for the trial Court to take is to have adjourned the matter to enable the Police investigate it; that it is settled that where an alibi emerges in the cause of trial as part of an accused person’s defence, the Court can adjourn to enable the Police conduct investigation into that afibiordefence, citing Adisa V. State (1991) 1 NWLR (Pt. 168) 490 at 508, Onyebu V. The State (1994) 1 NWLR (PT. 920) 325 at 344, and Ntam v. The state (supra); that if his alibi had been investigated, the two lower Courts would have found that he could not have lured the deceased to Francis Omosaye’s house, let alone participate in the rape and murder of the deceased,

more so in view of the evidence led; that the failure of the Police to investigate his alibi amounts to an admission by the Prosecution of its truth, and raises reasonable doubt that must be resolved in his favour and lead to an acquittal, citing Agbanyi v. State (1995) 1 NWLR (PT. 369) 1, Ozulonye V. State (1981) 1 NCR 35, Onuchukwu V. State(1998) 4 NWLR (PT. 547) 576, 592, Tanko V. State (2008) 16 NWLR (Pt. 1114) 597.

The Respondent also referred this Court to the position of the law on the defence of alibi, and submitted that for the Appellant to raise the said defence for the first time when he was giving his evidence under oath clearly shows that the defence was fabricated and an attempt to mislead and misdirect the Court, which is in tandem with the decisions of this Court in Osolu v. Osolu (supra) and Shehu V. State (2010) SC 23 (Pt 1) 173; that Appellant’s defence of alibi cannot avail him having raised it for the first time during his evidence on oath, a period of about ten years after he was alleged to have committed the crime which makes it virtually impossible for the Police to ascertain the veracity of his defence of alibi, so it was no longer possible to investigate

its truth or otherwise; that it was an afterthought, which runs contrary to the principles and guidelines expected of an Accused Person, who intends to rely on such defence; and that this Issue should also be resolved by this Court in favour of the Respondent.

I agree with the Respondent that this Issue must be resolved in its favour. Alibi is Latin for “elsewhere”‘ It also means the fact or state of having been elsewhere when an offence was committed- Black’s Law Dictionary 8th Ed”.

The defence of alibi is based on the physical impossibility of the Accused being guilty by placing him in another location at the relevant time, and it is trite that once the defence is properly raised by the Accused during investigations, it is the duty of the Police to investigate it. However, it is the duty of an Accused who relies on an alibi, to give details there of to enable the Police investigate it. His duty, involves letting the Police know at the earliest opportunity, where he was at the material time – see Shehu V. State (supra), wherein this Court held that the defence is complete, once the Accused Person discloses to the Police, his whereabouts,

without more, at the time of the commission of the crime.

But it is not in all cases that the failure to investigate an alibi will be fatal. Once there is evidence that the Accused committed the offence, this raises the question of credibility to wit; whether the evidence is believable and if believed, the alibi is logically demolished or fizzles into thin air and so doomed – see Hausa V. State (1994) 6 NWLR (Pt, 350) 281 SC and Ntam V. State (supra).

What is more, to be worthy of investigation, the defence of alibi must be precise and specific in terms of the place that the Accused was and person(s) that he was with, and possibly what he was doing at the material time – see Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57, wherein Tobi, JSC, said:

It is not the law that the Police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the Police. The Accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law…Investigation

is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witness or under cross-examination of the accused or his witness.- – A Trial Judge will not take seriously a defence of alibi which is porous and consmetic.

And Adebiyi V. State (2016) 8 NWLR (Pt. 1515) 456, wherein this Court held that the defence of alibi is not readily conceded to an Accused Person because, when properly established, it has the far-reaching effect of exculpating him from complete criminal responsibility. Nweze, JSC, further stated as follows:

To be entitled to its beneficent effect; such an Accused must raise it at the earliest opportunity, which would, preferably, be in his extra-judicial Statement. This is to offer the Police an opportunity either to confirm or confute its availability to the Accused Person – Above all, the said defence must be unequivocal as to the particulars of the Accused Persons whereabouts and those present with him – – it is only where such an Accused Person raised the defence at the earliest opportunity without any ambiguity that a burden is cast

on the Prosecution to investigate it – – and to disprove same- – Failure to investigate the defence of alibi raised in such circumstance, will lead to an acquittal—

In this case, the Appellant submitted that the trial Court should have adjoumed the matter to enable the Police investigate his alibi, and he referred this Court to Adisa V. State (supra), Onyebu V. State (supra) and Ntam V. State (supra). But these authorities cannot avail him. In Adisa’s Case, Court of Appeal held:

In most cases, the Accused indicates the defence very clear in the investigation or interrogation process. He includes it in his Statement. In such a situation, the Police have a duty to investigate the veracity or authenticity of the defence before the commencement of the trial – – There are instances when the Accused puts forward the defence during trial. In such a situation, the Prosecution can seek for an adjournment to enable the Police to investigate the defence. But where there is enough credible evidence outside the defence of alibi, the Prosecution may not ask for adjournment to investigate it.

In the case of Onyebu v. State (supra), the Court of Appeal also stated that-

If it is put forward for the first time

during the trial the tendency is for the Court to regard the defence as an afterthought – – Where the Accused puts forward the defence during trial, the Proseution can seek for an adjournment to enable the police to investigate the defence. However, where there is enough credible evidence outside the defence of alibi, the Prosecution may not ask for adjournment to investigate it – – In raising a defence of alibi, the Accused has a duty to proffer sufficient facts of his whereabouts at the time of the commission of the alleged offence since it is a matter peculiarly within his knowledge.

Finally, in the last case he cited, Ntam V. State (supra), Brett, JSC, observed:

There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a case such as this where the Appellants were identified by three eye witnesses, there was a straight issue of credibility and we are not able to say that the Judge’s findings of facts were unreasonable or cannot be supported having regard to the evidence. If the alibi had been true, it would have been open to the Appellant to call witnesses in support on them and neither of them did so.

The authorities cited say the same thing, the earliest opportunity to put forward a defence of alibi is when the Accused is making his statement to the Police. Although the Prosecution can ask for an adjournment to investigate it when he raises it at trial, where there is enough credible evidence outside the defence, the Prosecution does not have to ask for an adjournment to investigate an alibi. But the Accused is perfectly at liberty to call his witnesses to establish his alibi.

In this case, the Appellant confessed in Exhibit C2, made on 21/6/1995, about three weeks after the said incident, that as soon as the deceased died, he ran to the farm with one of his senior brothers named Adeyemi Ikumoniyan, and he did not tell his brother anything because he was afraid of being arrested.

He testified at the trial Court on 12/5/2006, just about eleven years later, and it was while he was being cross-examined that the Appellant stated that-

On 2/6/95, I went to the farm. I went to the farm between 7.00am and 8.00am. The farm was at Erinje. I went along with my junior one. The junior ones were Sunday Ikumonihan and Daisi Koredele. – — Adeyemi Ikumonihan is

my uncle i.e. a junior brother to my father. On 3/6/95 I was together with the said Adeyemi Ikumonihan. We were together in his farm.

Clearly, the earliest opportunity the Appellant had to disclose his whereabouts, and who he was with at the material time the deceased was killed on 2/6/1995, was when he was making his extra-judicial Statement to the Police, however, he stated that after the deceased died, he ran to the farm with a senior brother.

What was the Police expected to investigate He confessed to them that he committed the crime, and told them where he went after the deceased died. The key word is after, he did not tell them when he was making Exhibit C2 that he was at the farm when she died; he said he went to the farm “after” she died.

To make his case worse, the Appellant told a different story at the trial. He said he was at the farm with his junior brothers when the incident occurred, but in Exhibit C2, he stated that he ran to the farm after the incident occurred, with his senior brother, whom he later described as his Uncle in his testimony.

Thus, the trial Court was in the right when it concluded that his defence and retraction of his Confessional

Statement were nothing but “fabrications”. The defence of alibi that the Appellant put forward was clearly an afterthought, and the Court of Appeal was justified in affirming the decision of the trial Court.

As to Issue 4, whether Prosecution proved its case against the Appellant beyond reasonable doubt, the Appellant questioned why they were not charged with the offence of conspiracy, which he submitted, is the bedrock on which a claim that more than one person acted together to kill another may be founded. Citing Mulcahy v. R. (1968) 31 1 (sic), Obiakor V. State (2002) 10 NWLR (PT. 776) 612, Oyakhere V. State (2005) 15 NWLR (PT. 947) 159, Majekodunmi V. The Queen 14 WACA 64, he submitted that on this score alone, this Court should set aside the said Judgments of the trial Court and the Court of Appeal.

He also contends that if the Prosecution was sure that he had a hand in the murder, it would have called Francis Omosaye, who was already convicted and was ready and available to be called as a witness, to be its eye-witness; that he was not called because the Prosecution knew that he could not testify against them without being

rubbished under cross-examination since both the Prosecution and the said Francis Omosaye knew that Omosaye alone carried out the dastardly act of killing the deceased. He urged this Court to invoke the presumption in Section 149 (d) of the Evidence Act, and hold that Prosecution withheld evidence that could be against it by preventing him from testifying.

He also argued that in the circumstances of this case, Francis Omosaye is a vital witness, who was in a position to give evidence, which is capable of helping the trial Court to determine the case one way or the other or giving it the true position of the matter, having admitted that he killed the deceased, citing R. V. Adebanjo & Ors (1935) 2 WACA 315, R. V. Essien 4 WACA 112, R.V. Hanis (1927) 2 KB 587; and that failure to call a material or vital witness is fatal to the Prosecution’s case, citing State V. Nnolim (1994) 5 NWLR (PT. 345) 394 and Obiosa V. Nigerian Air Force (2000) 12 NWLR (PT. 680) 112.

The Respondent countered that the Prosecution need not call a host of witnesses to prove its case against the Appellant; that what it is required to do is call sufficient witness(s) who can prove that the Appellant was indeed

guilty; that criminals do not invite eye witnesses when they go about to commit crimes, and the Prosecution was able to lead evidence on how Appellant and others killed the deceased, and when Appellant saw that evidence against him were so overwhelming, he gave a confessional statement, only to retract it at trial; and that it is not a requirement of the law that there can be no conviction unless there is an eye witness to give evidence, citing Ochiba V. State (2011) 12 SC.

It further submitted that there is no law that mandates the Prosecution to charge the Accused Persons for conspiracy to commit murder before charging them for the offence of murder; that what behoves on the Prosecution is to establish that each of them committed the offence for which they are charged; and that the prosecution is at liberty to charge each of them for murder without charging them for conspiracy to commit the murder, as long as it believes that it has sufficient evidence to nail the Accused Persons for the offence of murder.

The Respondent asked “can this Court set aside the concurrent findings of the High Court and the Court of Appeal without it being perverse” And citing Omoregie V. State

(2008) 12 SC (PT III) 97, Adeyeye V. State (2013) 2NMLR (PT 2) 57 @ 72, it urged this Court not to interfere with the concurrent findings of the two lower Courts since the Appellant has not been able to proffer credible arguments on why they should be interfered with; particularly as this Appeal is grounded on disputed facts and not law, and the Court of Appeal affirmed the findings of the trial Court, which saw the witnesses, before it made its findings; so, the circumstances under which those findings can be reversed are absent.

Obviously, the arguments canvassed by the Appellant under this Issue, totally lack merit. To start with, I cannot see where he got the idea that because the Accused Persons were not charged with conspiracy along with the murder, this is sufficient ground for this Court to set aside the lower Court’s Judgments.

There is nowhere in the statute books or in any of the judicial authorities, where such a proposition of law is stated or expounded. Yes, conspiracy is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means, and it is clear in this case

that the Appellant agreed with the others, including Francis Omosaye, to rape and murder the deceased.

Nonetheless, the offence of conspiracy is a separate and distinct offence from the offence of murder, with which Appellant was charged and convicted. In other words, conspiracy to commit an offence is independent of the actual commission of the offence, to which the conspiracy is related – see Balogun V. A.-G., Ogun State (2002) 2 SC (reprint) (Pt. II) 89 of 96, Adamu V. State (2017) LPELR-41436(SC) and Ndozie V. State (2016) LPELR-26067(SC). So, the Accused may be found guilty of conspiracy, even where the commission of the actual or substantive offence is not proved. In the same vein, a discharge on a Count of conspiracy would not automatically translate to a discharge on the Count alleging the commission of the actual or substantive offence see Sule V. State (2009) 17 NWLR (Pt. 1169)33 SC and Adamu V. State (supra).

In this case, I have to agree with the Respondent that there is no law that mandates the Prosecution to charge the Appellant and other Accused Persons for the offence of conspiracy before charging them for the offence of

murder. The Prosecution was well within its rights when it charged the Appellant and other Accused Persons with the offence of murder without adding conspiracy.

He also argued that Francis Omosaye is a vital witness, who ought to have been called by the Prosecution. A vital witness is a witness, whose evidence may determine the case against an Accused Person, one way or the other, and failure to call such a vital witness is likely to be fatal to the Prosecution’s case – see Onah V. State (1985) 3 NWLR (Pt. 12) 236 SC. But the Prosecution is not bound to call all the eye-witnesses or every person present at the scene of crime to testify in order to discharge the burden placed on it to prove its case.

As the Respondent rightly submitted, a single witness, who gives cogent eye-witness account of the incident, will suffice, even in a murder Charge see Ochiba V. State (supra). The Prosecution determines the direction of its case, and has discretion to call any witness to prove its case against the Accused, and once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence.

In other words, an Accused cannot dictate to the Prosecution or demand that a particular person must be called as witness to prove its case against him. In this case, the Appellant is not even in a position to contemplate such a move. Francis Omasaye may have pleaded guilty to the offence, and was convicted, but the Appellant, who pleaded not guilty, had made a Statement to the Police, wherein he confessed that he committed the offence. This was before the trial; why then would the Prosecution need to call Francis Omosaye as its witness.

In such circumstances, the said Francis Omasaye cannot be considered a vital witness, whose evidence may determine the case one way or the other. Also, the Appellant is at liberty to call the said Francis Omosaye as his witness, if he feels so strongly that his evidence would assist his defence in some way- see Ochiba V. State (supra). Thus, his argument on this score lacks merit.

All the four Issues for Determination are therefore, resolved against the Appellant and I will only reiterate the well-established principle that where there is sufficient evidence to support concurrent findings of fact by the lower Courts, such findings are not disturbed unless they are shown

to be perverse, or some miscarriage of justice or violation of principles of law or procedure is shown – see Ogoala V. State (1991) 2 NWLR (Pt. 175) 506 SC. ln this case, I agree with the Respondent that there is more than enough evidence established by the Prosecution to support the concurrent findings of the trial Court and Court of Appeal, and this Court is therefore, not in a position to intervene in any way.

The Appeal lacks merit and it is hereby, dismissed. I affirm the decision of the Court of Appeal, which upheld the Judgment of the trial Court, including the conviction and sentence to death by hanging imposed on the Appellant.

SC.592/2013

Ayodele Ikumonihan V. The State (2018) LLJR-SC

Ayodele Ikumonihan V. The State (2018)

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