Dare Jimoh Vs The State (2014)
LAWGLOBAL HUB Lead Judgment Report
OLUKAYODE ARIWOOLA, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division, hereinafter called the court below, delivered on 30th March, 2011, wherein it affirmed the conviction and sentence of the appellant to death, for the murder of one Kemi David, by the Ijebu Ode High Court presided over by Oyewole Osidipe, J.
The facts of the case are as follows:-
The appellant and one Akeem Fatai had been charged on two counts as follows:-
Count One
Statement of Offence
Conspiracy to commit Murder contrary to and punishable under Section 324 of the Criminal Code Cap 29 Laws of Ogun State of Nigeria, 1978.
Particulars of Offence
Dare Jimoh “m” Akeem Fatai ‘m’ on or about the 27th day of October, 1999 at No.4, Madasa Lane, off Odutola Street, Ijebu Ode, in the Ijebu Ode Judicial Division conspired together to commit the offence of murder contrary to Section 324 of the Criminal Code Cap 29, Laws of Ogun State of Nigeria, 1978.
Count Two
Statement of Offence
Murder contrary to and punishable under Section 319 (1) of the Criminal Code Cap 29 Laws of Ogun State of Nigeria, 1978.
Particulars of Offence
Dare Jimoh ‘m’, Akeem Fatai ‘m’ on or about the 27th day of October, 1999 at No.4 Madasa lane, off Odutola Street, in the Ijebu Ode Judicial Division unlawfully killed one Kemi David ‘f’ and thereby committed an offence contrary to Section 319(1) of the Criminal Code Cap 29 Laws of Ogun State of Nigeria, 1978.
The two accused persons had pleaded not guilty to the charge and the prosecution proceeded to trial. The State called six witnesses and relied on couple of Exhibits including Statements said to have been obtained by the Police. The appellant and the other accused testified for themselves and called no other witnesses in defence.
The prosecution’s case is that sometime on or about the 27th day of October, 1999, the residence of one Kemi David was attacked by some persons, at Madasa Lane, Ijebu Ode. Her siblings, including her elder brother had gone out on a night vigil. Following an alarm raised, that thieves had invaded the area in question, a neighbourhood vigilante group, as agreed, came out in search of the miscreants. PW1 – Olasubomi Keshinro, a civil servant, in the process saw one person, later known as Adedayo Odukoya, dressed in black, hiding in the banana farm near his house. As he pointed his searchlight on Adedayo Odukoya he found that his hand was stained in blood. He was handed over to the vigilante group who later handed him over to the police. In his Statement to the Police, Adedayo Odukoya confessed to have robbed, raped and murdered the deceased Kemi David. He stated further that he was not alone in carrying out the acts. He gave the names of others and took the police to their respective houses and particular rooms, where they were arrested by the police. Adedayo Odukoya later died in custody from the gunshot wounds he was said to have sustained while trying to escape from police custody. The appellant and the co-accused – Akeem Fatai were thereafter arraigned, tried and found guilty, convicted and sentenced to death by hanging.
The two convicts were dissatisfied with the judgment of the trial Court hence they appealed to the court below which affirmed the decision of the trial court on 30/3/2011.
Still dissatisfied with the unanimous decision of the court below led the appellant to further appeal to this court on six (6) grounds of appeal.
When the appeal came up for hearing on 19th December, 2013, the learned counsel for the appellant referred to their brief of argument filed on 31/10/2011. He adopted and relied on same to urge the court to allow the appeal, set aside the conviction and the sentence passed on the appellant by the trial court, which was affirmed by the court below, and in its place order the discharge and acquittal of the appellant.
Learned counsel for the respondent also referred to the respondent’s brief of argument filed on 17/2/2012. He adopted and relied on same to urge the court to dismiss the appeal and affirm the decision of the court below which had earlier affirmed the conviction and sentence of the appellant.
In the said appellant’s brief of argument, the following issues were distilled for determination of the appeal.
Issues for Determination –
(a) Whether the admission of Exhibit 2 by the trial court without conducting a trial within trial in the face of the objection raised by the appellant did not occasion a miscarriage of justice to the utter detriment of the appellant.
(b) Whether the prosecution was able to prove the ingredients of the offences of conspiracy to commit murder and murder of the deceased Kemi David against the appellant based on the peculiar facts and circumstances of the entire case.
(c) Whether the conviction and sentencing of the appellant for murder alone can be sustained, without a verdict on the offence of conspiracy to commit murder with which the appellant was also charged.
In the respondent’s brief of argument, filed on 17/02/2012, the following two issues were distilled for determination of the appeal:
(a) Whether the admission of Exhibit 2 by the trial Court, without conducting trial within trial has occasioned a miscarriage of justice to the detriment of the appellant.
(b) Whether the prosecution has proved the ingredients of the offences of conspiracy to commit murder and murder of Kemi David against the appellant.
As clearly shown above, issues (a) and (b) by the respondent are the same with Issues (a) and (b) of the appellant. Accordingly, the appeal shall be determined based on the three issues formulated by the appellant.
Issue No.1 –
In arguing this issue, the appellant referred to Section 28 of the Evidence Act, 2011 on what a confession is and contended that Section 29 (2) (a), (b) and (3) of the Evidence Act, (supra) places a clear burden on the prosecution to prove beyond reasonable doubt (not withstanding that it may be true) that the confessional statement was not obtained by oppression or duress or in a manner contrary to the provisions of the Evidence Act. Learned counsel submitted that a confessional statement by an accused person is not admissible in evidence against him unless it appears to the trial court that in making the confession to a Police Officer before trial, the accused person was not offered an inducement, threat or promise having reference to the charge against him. He relied on Egbhonmome V. The State (1993) 7 NWLR (Pt. 306) 382 at 432.
Learned counsel contended that it is on record that the appellant objected to the admissibility of Exhibit 2, primarily on the premise that it was not signed by him neither was it made by him, but that he had signed under threat and great force. He contended further that the learned trial Judge overruled the objection and went ahead to admit the said Statement in evidence without conducting a trial within trial to determine the voluntariness or otherwise of the Statement. He submitted that it was an error on the part of the trial court which was acquiesced to by the court below. He relied on Obidiozo V. The State (1987) 4 NWLR (pt. 67) 748 at 764, per Agbaje, JSC; Gbadamosi v. The State (1992) 9 NWLR (pt. 266) 465 at 495, per Ogundare, JSC.
Learned counsel contended that the very pertinent and fundamental issue to be determined is whether the failure on the part of the trial court to conduct a trial within trial before admitting Exhibit 2 has not occasioned a gross miscarriage of justice and denied the appellant fair hearing as enshrined in Section 36 (1) of the 1999 Constitution.
He submitted that premised on the peculiar facts of this case and the circumstances surrounding the death of the deceased, the procedural irregularity of not conducting the trial within trial occasioned a miscarriage of justice.
Learned counsel referred to the appellant’s said statement and testimony of PW4 and PW6. He contended that the testimony of PW6 contradicts the Statement of PW4. He wondered why the appellant’s statement said to have been made in Yoruba language was not tendered before the trial court. He submitted that for that failure, a miscarriage of justice had occasioned to the utter detriment of the appellant, which said miscarriage is grave enough to empower the trial court and better still, the court below to discharge and acquit the appellant.
Learned counsel contended that in the case in hand, the appellant and a co-accused were charged and tried for offences of conspiracy to commit murder and murder of the deceased Kemi David. While the objection as to the conduct of trial within trial was allowed in the case of the co-accused – Akeem Fatai, it was overruled in the case of the appellant and his alleged statement was admitted without a trial within trial, as Exhibit 2. He submitted that that was a gross violation of the appellant’s right to fair hearing as entrenched in Section 36 (1) of the 1999 Constitution.
Learned counsel contended that since the trial Judge conducted a trial within a trial for the co-accused, the court ought to have done the same for the appellant in a trial where the facts are seemingly one and the same as per the charge and information. He submitted that the immutable justice demands that justice must be even handed and where injustice has been done by unfair adjudication, nobody can set subjective standard of justice for himself by acquiescing to it.
Learned counsel further submitted that the test for determining fair trial is not a question of whether the court had arrived at a fair result. The question is whether the court has dealt fairly and equally with the parties before it in arriving at the result. He cited Okoduwa v. The State (1988) 2 NWLR (pt. 76) 333 at 336.
On the importance of a trial within trial, learned counsel cited Akinfe Vs. The State (1988) 3 NWLR (pt. 85) 729 at 748-749 per Eso, JSC and submitted that the lower court came to a wrong finding when it applied the six (6) tests fashioned out by the courts to which confessional statements are subjected in a bid to determine their veracity or otherwise before any evidential weight can be attached to them.
He urged the court to resolve the issue in favour of the appellant against the respondent.
In arguing issue No.1, learned counsel for the respondent started with the argument of the appellant’s counsel that the failure to tender the Yoruba version of the appellant’s statement admitted as Exhibit 2 occasioned a miscarriage of justice. He submitted that there was never a Yoruba version of Exhibit 2. He stated that the appellant had rendered his statement in Yoruba to Inspector Timothy Olaniyi – PW4 who interpreted it to PW5 – Isaac Udokwu who recorded same in English language. It was PW4 that interpreted the cautionary words from English Language to Yoruba for the appellant before the taking of the statement – Exhibit 2. He submitted that appellant’s statement was volunteered in Yoruba and interpreted into English Language but not that it was first recorded in Yoruba language before being translated into English language.
He referred to the appellant’s argument on denial of fair hearing and submitted that it is not in all instances where trial within trial was not conducted that it can be said that breach of fair hearing has occurred. Learned counsel stated what happened in this case as that the admissibility of Exhibit 2 was not considered by the trial Judge before reliance was placed on it. He submitted that because the appellant had the opportunity to put his case before the court, as regards, the involuntariness and same was considered by the trial court, then there was no denial of fair hearing and no miscarriage of justice occurred, He further submitted that it has long been settled by the courts that failure of the trial court to conduct a trial within trial will not ordinarily affect the substance of the case. He relied on – Rex V. Onabanjo (1936) 3 WACA 43 at 45; Rex V. Bana Kassi & Ors. (1939) 5 WACA 154 at 155 – 156.
Learned counsel referred to the records (pages 64 and 65) where during the trial, the learned counsel for the appellant cross examined both PW5 and PW6 on the said appellant’s statement obtained by them – Exhibit 2. He submitted that the appellant was afforded a fair hearing in respect of the voluntariness or otherwise of the statement before he ever entered his defence and he made use of the given opportunity. On this point learned counsel concluded that failure to conduct trial within trial at the point of admitting Exhibit 2 did not occasion any miscarriage of justice for the appellant since the trial court in its judgment considered his objection and resolved same against him.
As clearly shown above, the first issue raised from the grounds of appeal is hinged on the failure of the trial court to conduct a trial within trial before it admitted Exhibit 2 said to be the confessional statement of the appellant.
The learned appellant’s counsel had argued that the court below established in its judgment that there was a procedural irregularity in admitting the appellant’s confessional statement, Exhibit 2 without holding a trial within trial by the trial Court.
It is clear from the records that during the trial, precisely on the 21st day of June, 2001, PW5 – one Isaac Udokwu – then a Police Corporal No. 141415 attached to State C.I.D., Eleweran, Abeokuta, Ogun State when testifying on oath stated, inter-alia as follows:
“I know the accused person. On 29/10/9, I was on duty at Robbery section, Eleweran. A case of armed robbery and murder with exhibits – N15,025.00, a stained knife, a Philip Iron and a photograph of one Kemi David was transferred from Ijebu Ode and case referred to me for investigation. I charged and arrested 1st accused in English language. I also cautioned him in English language. One Inspector Timothy Olaniyi interpreted the cautionary words to the 1st accused in Yoruba language. The 1st accused volunteered a statement in Yoruba language to Inspector Olaniyi who interpreted to me in English which I recorded in English language. I read it over to Inspector Olaniyi in English language who interpreted to the 1st accused in Yoruba language and 1st accused signed the statement. The 1st accused was later taken with the statement and confessional statement Form to DSP Omyeagoro, the Head of Robbery Section. I read the English statement of 1st accused to Inspector Olaniyi who interpreted in Yoruba language to 1st accused who agreed it was his statement and the DSP Omyeagoro endorsed the confessional statement and signed confessional statement Form. He also signed the confessional statement as well as myself and 1st accused and Inspector Olaniyi.”
The said statement of the appellant was tendered but his counsel, Chief Mamora objected by saying that though the appellant signed the statement, “it was not his making. He signed under threat and duress and great force.” To the objection, Mr. Olukoya, learned counsel for the State submitted that the objection was based upon signature but not the making of the statement, hence it goes to the weight to be attached and not admissibility. He stated further that voluntariness was not in issue. Chief Mamora however, in reply submitted that since duress was raised in signing the statement, it goes to making. See pages 42 – 43 of the printed records.
In its ruling on the objection to the tendering of the appellant’s statement, the trial court found, inter-alia, as follows:
“Denial of making a statement voluntarily is different from being forced to sign a statement. I see the objection of the 1st accused as being that he did not make the statement to be tendered but was forced to sign it. If he had said that it was made under torture that would have gone to voluntariness.”
The court having found the statement admissible admitted it and marked same as Exhibit 2.
There is no doubt, the court did not conduct a trial-within-trial before the alleged statement of the appellant was admitted.
First and foremost, what is the meaning of “trial Jowitt’s Dictionary of English Law describes the meaning as, “finding out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given”. In other words, it is the general term for proceedings, civil or criminal, in a court of first instance, frequently involving the hearing of evidence, leading to the court’s determination of the matter in issue.
Black’s Law Dictionary at p. 1644 of the ninth edition describes “trial” as “a formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” The appellant stood trial with a co-accused before the trial court.
There can be a trial within a trial when an accused person denies making statement voluntarily. Generally and it is trite law that challenge to whether or not an alleged confession is voluntary should be ruled upon first for admissibility before statement could be read. Therefore, trial within a trial must be conducted to ascertain that confession is voluntary.
In a trial within a trial, both parties must be heard, otherwise it is void and any confession admitted thereto would be improperly admitted.
Where an accused person objects to the tendering of his statement because it was not made by him and that the signature thereto is not his own, this denial being without an allegation that any of the vitiating factors of confession as contained in Section 28 of the Evidence Act was applied to him to extract the statement, there will be no need for a trial within trial. See; Akpa vs. State (2008) 14 NWLR (Pt. 1106) 22; (2008) 8 SCM 68 (pt 11) at 72.
A trial within trial is said to be necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person. In otherwords, where an accused person admits making the statement but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence or torture, then a trial within trial will be conducted in order to determine whether or not the statement was voluntary. However, when the trial court is satisfied that the statement was voluntary, the court is entitled to admit it as an Exhibit in the evidence before the court. In Akpa’s case (supra) this court held that a trial within trial should not have been conducted since the appellant only denied making the statement but not that he was forced to make it under duress. See also; Anta vs. State (1975) 4 SC 125; Gbadamosi & Ors. v. State (1992) 9 NWLR (pt 266) 465; Effiong vs. State (1998) 8 NWLR (pt 562) 362.
In the instant case, the appellant’s statement which was obtained by the Police – PW5 and duly endorsed by the Senior Police Officer – PW6, was admitted by the trial court and marked Exhibits 2.
In his oral testimony as DW1, the appellant, during Examination-in-chief, having sworn on Holy Quran and spoke Yoruba stated, inter-alia, as follows:
“I am a Volcanizer and I live at 6, Balogun Kuku Road, Ijebu Ode. I did not take part in the murder of Kemi David. I heard that name for the first time in Court. I remember 27/9/99, I was in my house that night at 6, Balogun Kuku Road. I was arrested by the Police on 30/10/99 in my house while I was going to my daily duty. I do not know one Adedayo Odukoya as well as the 2nd accused. I do not know any Dare Durojaiye as well as Akeem Ajayi. I did not make any statement to the police on this matter. I am illiterate as I can neither read nor write Yoruba or English. I signed a document at Eleweran. I was only brought a document by one of the witnesses who had testified who asked me to write my name on it. The document was never read to my hearing. On 30/10/99 after my arrest at Eleweran. I was asked my name and that of my parent which I readily supplied…
Then I was chained on my hands and legs, carried to a room where I was tied down with a rubber. I was asked to admit knowing the person lying on the ground but denied. They said I am (sic) not telling the truth and they started beating me up. They inflicted wounds on my head and body with matchet. I then fell down covered with blood. I was not giving (sic) any medical attention but was left in the cell…………
The 2nd accused was also in the same room. I would not have signed Exhibit B if not beaten.”
(Underlining supplied for emphasis).
(See pages 67 and 68 of the record).
As clearly shown above in the direct testimony of the appellant on oath, he stated that he did not make any statement to the police. In other words, that the statement contained in the document admitted and marked as Exhibit 2 in Court was written by the Police while he was forced, having been beaten, to sign the said document. It is not and it cannot be said that the appellant meant to say that he only made the statement to the police after he had been beaten and under duress. He was categorical and emphatic that he “did not make any statement to the police on this matter”. Indeed, as clearly recorded on page 43 of the printed record, the challenge to the statement allegedly made by the appellant and the objection of counsel for the appellant – Chief Mamora, was that the document was signed and endorsed by the appellant, but he did not make the statement. In counsel’s words –
“…though signed by the 1st accused, it was not his making. He signed under threat and duress and great force.”
From the above, it is clear that the objection of counsel, raised to the admission of the appellant’s alleged confession was not on the ground that the statement was not voluntarily made but that he did not make any statement at all. That he was only forced under duress to sign a document which was never read to his hearing.
The law is clear, as earlier stated, that where in a criminal proceedings at the trial, an objection is raised by the defence to admission of an alleged confessional statement on the ground that the statement was not voluntary, it is then the prosecution has the burden to satisfy the trial Judge, and this is to be done beyond reasonable doubt, that the Statement in question had been made voluntarily. This is when the court is required to conduct a trial within the trial of the main case, to be satisfied with the condition under which the said alleged confession was made. “The Judge has to determine the issue at that stage as one of fact, and causation.” See; DPP V. Pinglin (1975) 3 All ER 175; Gbadamosi & Ors. V. State (supra).
In Jimoh Dina v. State (1984) LPELR 949 this court, on what is the consequence when an accused does not say a confession is not voluntary, states thus:
“It is clear on the evidence before the learned trial Judge that appellant was not saying that statement was not voluntary in which case the question of admissibility will arise – R vs. Onabanjo (1936) 3 WACA 43. He is saying that he did not make any statement at all. In this latter case it will be proper to receive the statement in evidence, and at the end of the case decide whether it was made by the appellant. R. vs. Igwe (1960) 5 FSC 55. This was the position in this case, and the trial Court was right in so doing. It was held the confession was voluntary. A confession is evidence against the person who made it – S. 27(1). It is sufficient if believed for the conviction of the maker per Karibi-Whyte, JSC.
In the instant case, the issue before the trial court was that, the objection or challenge to the alleged statement of the appellant, not being on voluntariness, did not require the court to conduct a trial within a trial. It goes to the weight to be attached to the said Statement when the circumstances of the whole case were put into consideration. This was to be done when the Judge was writing the judgment at the end of the trial. That was what the trial Judge did in this case and it was in order. The court below was therefore in error to have held that there was a procedural irregularity. There was none.
Before I conclude on this issue, I believe that I should say something on the point taken by the appellant’s counsel on a statement allegedly made by the appellant in Yoruba and why the prosecution failed to produce and tender same. From the records, there was no written statement of the appellant in Yoruba language, which could have been translated into English Language as the official language of the court. What was said to have transpired was that the appellant rendered his statement in Yoruba which he speak and PW4 who served as the interpreter translated the speech in a foreign language as the words were spoken, relaying the translation orally as it is done. This is the work of an interpreter. In otherwords, as there was no written statement in Yoruba that was translated into English language, there could not have been any, to be produced and tendered by the prosecution. The point was, to say the least, misconceived by the learned appellant’s counsel. The Police never recorded the statement of the appellant in Yoruba. Hence, there was none to be tendered other that Exhibit 2.
As a result, issue No.1 is to be and is hereby resolved against the appellant. The alleged confessional statement of the appellant was properly admitted by the court without conducting a trial within trial. It was not necessary in the circumstances of this case and no miscarriage of justice was occasioned in the conduct of the trial of the appellant.
‘The second issue is whether the prosecution was able to prove the ingredients of the offences of conspiracy to commit murder and murder of the deceased, Kemi David against the appellant based on the peculiar facts and circumstances of this case. This issue shall be taken together, being interrelated with the 3rd issue distilled by the appellant.
In arguing these issues, the learned appellant’s counsel referred to what this court has laid down as the ingredients of the offence of murder which the prosecution must prove to secure conviction. He relied on the following cases – Gambo V. State (2009) 6-7 SC 24 at 64-65, Adekunle v. State (2006) 14 NWLR (Pt.1000) 717 at 736-737; Haruna Vs. State (1972) 8-9 SC 174. He contended that a conviction for the offence of culpable homicide can be sustained only where the three ingredients listed in the cases are proved beyond reasonable doubt. He submitted that the said three conditions must co-exist and that where one is missing or tainted with doubt, the charge is not said to be proved. The onus of proof, he submitted, is on the prosecution at all times and does not shift.
Learned counsel contended that in relating the law to the peculiar facts and the evidence adduced in this case, it cannot be said that the prosecution established or proved beyond reasonable doubt the death, in particular, cause of death and that the intentional act or omission of the appellant caused the death of the deceased.
Learned counsel conceded that from the available evidence, in particular, the testimony of prosecution witnesses – PW2 and PW3 that the deceased Kemi David died. He however, contended that the prosecution could not directly establish that it was the appellant who killed or conspired with one Adedayo Odukoya and Akeem Fatai to kill the deceased.
Learned counsel submitted that it is incumbent on the prosecution to prove the cause of death and that unless the cause of death was positively proved either by direct evidence or by circumstantial evidence that leaves no room either for doubt or speculation, the prosecution could not obtain a conviction. He submitted further that to establish a charge of murder, it must be proved not merely that the act of the accused could have caused the death of the deceased but that it did. He relied on – Uyo V. AG Bendel State (1986) 1 NWLR (pt. 17) 418 at 419 & 420; Akpa V. State (1992) 6 NWLR (Pt. 248) 439 at 462.
Learned counsel contended that the issue of direct evidence in this case is completely ruled out since evidence on record showed that there was no eye witness account as to the cause of death. He contended further that in establishing the cause of death, the trial court relied on the extra judicial Statements of Adedayo Odukoya and Akeem Fatai – Exhibits 6 and 7A respectively together with the testimonies of the Prosecution witnesses, in particular, that of the Star witness – PW5. Learned counsel noted that, apart from Exhibit 2, there was nowhere in the record that the appellant clearly admitted killing the deceased. He referred to the appellant’s oral testimony on oath where he denied ever taking part in the murder of Kemi David and that he did not make the document credited to him and admitted as Exhibit 2.
Learned counsel submitted that the appellant was not cross examined by the prosecution as to whether he was taken to the scene of the crime. He submitted further that even though circumstantial evidence is often described as the best evidence, the prosecution must still prove its case beyond reasonable doubt, In other words, circumstantial evidence to support a conviction in a criminal trial, must be cogent, complete and unequivocal. Indeed, it must be compelling and must be such that leads to only an irresistible conclusion that it is the appellant and no one else who committed the alleged act.
On why circumstantial evidence should be sparingly used because of the possibility of fabrication which may cause suspicion on an innocent person, he relied on Archibong v. State (2006) 14 NWLR (pt 1000) 349 at 374 – 375.
Learned counsel submitted that, for circumstantial evidence to ground and sustain conviction, it must meet the following conditions:
(i) It must irresistibly and unequivocally lead to the guilt of the appellant,
(ii) No other reasonable inference could be drawn from it; and
(iii) There must be co-existing circumstances which could weaken the inference.
He cited – Idowu v. State (1998) 11 NWLR (pt 574) 354 at 370; Aigbadion vs. State (2000) 7 NWLR (pt 666) 686.
He reviewed the testimony of PW5, DW2 and Exhibits 2 and 6 and contended that the appellant was not taken to the scene of the crime for proper investigation to be carried out as to who committed the offence. And that the appellant was forced to sign his statement – Exhibit 2. Learned counsel further contended that even though Odukoya who made Exhibit 6, was not a co-accused to the appellant, he submitted that assuming without conceding that he was a co-accused, his alleged statement (Exhibit 6) is a confession of a co-accused and cannot be admitted in evidence against the appellant without corroboration. He relied on Emeka v. State (2001) FWLR (pt 66) 682 at 687. He submitted further that if Exhibits 2 and 6 were expunged from the record there would not be enough materials to enable the prosecution prove the offence beyond reasonable doubt as they were expected to.
Learned counsel contended that in order to secure conviction of an accused for a serious charge such as murder, the prosecution would be bound to produce such evidence against the accused which must be so clear and compelling that guilt is the only inference. He submitted that in the instant case, the prosecution has failed to prove its case beyond reasonable doubt. And that the evidence adduced by the prosecution witnesses were primarily based on mere suspicion and speculation which were incapable of establishing the guilt of the appellant. Hence, any doubt as to the guilt of the appellant should have been resolved in favour of the appellant. He cited Ankwa vs. State (1969) 1 All NLR 133.
As per issue No. 3 whether the conviction and sentencing of the appellant for the offence of murder alone can be sustained without a verdict on the offence of conspiracy to commit murder, learned counsel referred to the charge against the appellant, the findings, conviction and sentence of the trial court but contended that the sentence was only passed on the offence of murder, leaving out a sentence on the offence of conspiracy to commit murder.
He submitted that where there are several counts in the same information, as in the instant case, separate verdict must be entered in respect of the several counts. Otherwise, the entire proceedings would be liable to be set aside on appeal. He relied on Clark vs. State (1986) 4 NWLR (pt 35) 381; Oyediran v. Federal Republic of Nigeria (1967) NMLR 122.
Learned counsel finally submitted that there was a procedural irregularity on the part of the trial Judge when he overruled the objection to conduct a trial within trial but proceeded to admit Exhibit 2 which thereby occasioned a miscarriage of justice and contravened the provisions of Section 36(1) of the Constitution in denying the appellant the opportunity of fair hearing.
He finally urged the court to set aside the conviction and sentencing of the appellant by the trial court as affirmed by the court below. And in its place order the discharge and acquittal of the appellant.
In response, learned counsel for the State gave the three conditions to be met to enable the prosecution establish the offence of murder and sustain the charge. He relied on Sule Vs. The State (2009) 8 SCM 177, Nkebisi & Anor Vs. The State (2010) 3 SCM 170. He contended that the evidence relied upon by the prosecution to prove the ingredients of murder may be direct, confessional or circumstantial, but the offence must be proved beyond reasonable doubt.
On the ingredients to be met on a charge of murder, learned counsel contended that the fact that the victim – Kemi David died is not in dispute. It is clear that she was killed. But as to who killed her, learned counsel referred to the testimony of PW1 – Olasubomi Keshinro, PW2, Exhibits 2, 4 and 6. Exhibits 2 being the confessional statement of the appellant, Exhibit 4 is the knife allegedly used to slaughter the deceased while Exhibit 6 is the confessional statement of one Adedayo Odukoya who led the police to arrest the appellant and the other accused person with whom he was tried and convicted by the trial court.
Learned counsel contended that the testimony contained in Exhibit 2 established the three ingredients of murder. He submitted that a court can convict on a confessional statement alone even if the accused person resiles from it as same is part of the evidence of the prosecution. The denial of the statement does not affect its admissibility. He submitted that the trial court properly admitted the statement and was right in relying on same to convict the appellant.
On the issue of conspiracy to commit the offence of murder and murder, learned counsel referred to the statement of the appellant, Exhibit 2 and contended that the piece of evidence is an indication that there was a meeting of the minds of the appellant, Odukoya and the 2nd accused on their common intention to kill the deceased and their common purpose which was to silence the deceased.
He submitted that the prosecution has established that there was conspiracy and common intention to kill the deceased – Kemi David. He contended that the appellant and the second accused were caught by Sections 7 and 8 of the Criminal Code of Ogun State, 1978 as they had common purpose and are deemed as principal offenders and were properly so treated by the trial Court.
Learned counsel referred to the findings of the trial court on page 103 of the printed record that the appellant and the second accused conspired to murder and indeed murdered the deceased. He submitted that the sentence passed on the appellant by the trial Court was in order and no miscarriage of justice had occasioned.
He urged the court to resolve the issues against the appellant and dismiss the appeal by affirming the decision of the court below which had earlier affirmed the conviction and sentence passed on the appellant by the trial Court.
As earlier shown in this judgment, the appellant was charged along with one other – Akeem Fatai with the offences of conspiracy to commit murder and the commission of the offence of murder.
It had been held that the proper approach to an indictment which contains conspiracy charge and the substantive charge is to first deal with the latter, that is, the substantive charge and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See; Lukman Osetola & Anor vs. The State (2012) 17 NWLR (pt 1329) 251; (2012) 12 SCM (Pt 2) 347; (2012) 50 NSCQR (vol. 2) 598; (2012) 6 SC (pt IV) 148.
As earlier noted, the substantive offence with which the appellant was charged is murder. By the Criminal Code Law, an offence of murder is committed when a person unlawfully terminates the life of or kills another under any of the following circumstances, that is to say;
– If the offender intends to cause the death of the person killed, or that of some other persons;
– If the offender intends to do the person killed or to some other persons some grievous harm;
– If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
– If the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
– If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
– If death is caused by willfully stopping the breath of any person for either of such purposes;
In the second case above, it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person. In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.
However, the law is trite that in a charge of murder, the burden of prove is squarely on the prosecution, to establish that the deceased died; that the death was caused by the accused; that the accused intended to either kill the victim or cause grievous harm on him. See; Francis Durwode vs. The State (2000) 15 NWLR (pt 691) 467; (2001) FWLR (pt 36) 950; Basil Akpa v. The State (2008) 8 SCM 68 at 78; Ahmed vs. State (2001) 18 NWLR (pt 746) 622; State v. Sadu (201) 15 NWLR (pt 735) 102; Sabina C. Madu vs. The State (2012) 15 NWLR (pt 1324) 405) (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt 641) 1416; (2012) 6 SC (pt 1) 80.
In otherwords, in a charge of murder, it is a duty the prosecution is bound to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. It must be established by the prosecution that the said act or omission indeed caused death but not that it could have caused death. See; Ubani & Ors. V. State (2004) FWLR (pt 191) 1533; (2003) 18 NWLR (pt 851) 224; Godwin Igabele vs. The State (2006) 3 SCM 142 at 151; (2006) 6 NWLR (pt 975) 100.
In the instant case, the appellant was said to have been one of those who killed the deceased.
The prosecution’s case was that upon arrest of one Adedayo Odukoya around the area where the deceased was killed inside her house, and upon interrogation and after he volunteered a statement, he led the policemen to the respective houses of the appellant and the other co accused – Akeem, Fatai. The said statement of Odukoya where the appellant was implicated was tendered and admitted as Exhibit 6.
It is note worthy that Exhibit 6 was tendered and admitted through PW5 – Isaac Udokwu when being cross examined by Alhaji Bello of counsel for the 2nd accused. The same witness recorded the statement of the appellant which was admitted as Exhibit 2. Under cross examination by the appellant’s counsel – Chief Mamora, PW5 stated that the appellant was mentioned in Exhibits 6 and 7A – being statements of the deceased suspect – Adedayo Odukoya and Fatai Akeem – the 2nd accused that stood trial with the appellant.
PW6 was one Onyeagoro Ebere, a senior police officer and then the Divisional Police Officer in charge of Ibara. It was before him, PW5 took the appellant and 2nd accused with their respective statements. In his testimony, PW6 stated inter-alia, as follows –
“On 30/10/99 I was O/C Robbery Eleweran. On that day, the accused persons were brought before me by PW5. I read their statements to them in English language while Inspector Olaniyi interpreted it to them in Yoruba language. They agreed that they made the statement voluntarily without fear, favour, promise intimidation or duress. I then endorsed their statement as confessional in red ink”.
I had quoted earlier in this judgment the testimony of the appellant during examination in-chief when he denied ever making any statement to the police on this matter and that he did not take part in the killing of Kemi David. That he was only forced to sign a document already prepared by the police but never read to his hearing.
However, when cross-examined by Mr. Adebayo, the appellant stated inter-alia thus:
“A policeman fair in complexion obtained statement from both myself and the 2nd accused. He testified in this case in this court at Abeokuta and I saw him and heard him. The police that took statement from me was not PW6.”
The learned appellant’s counsel had argued that as there was no evidence of an eye witness to identify the appellant as one of those who killed the deceased, the only link was Exhibit 2 which was said to be appellant’s confessional statement made to the police.
There is no doubt, the issue on the challenge to the statement said to be made to the police by the appellant had been resolved against the appellant. The challenge not having been based on involuntariness was properly admitted without conducting a trial within trial. It was later held to be a confessional statement by the trial court. The appellant was said to have confessed to having been part of those who carried out the act that led to the death of the deceased.
What then is confession It is “a criminal suspect’s oral or written acknowledgment of guilt, often including details about the crime” alleged. In otherwords, a confession is an acknowledgement in express words, by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it.” See; Black’s Law Dictionary, Ninth Edition page 338.
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See; Akpan vs. State (2001) 7 SC (pt 1) 124; Nwachukwu V. State (2002) 7 SC (pt 1) 124; Daniels v. State (1991) 8 NWLR (pt 212) 715; Onuoha vs. The State (1987) 4 NWLR (pt 65) 331.
The law is that where more persons than one are charged jointly, with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct. See; Section 27, Evidence Act; Alarape V. State (2001) 2 SC 114, Wakala v. The State (1991) 8 NWLR (pt 211) 552.
On the effect of confession by an accused person, this court had opined as follows –
“There is a long line of judicial authorities (on the effect of confessions) and we agree with the statement which establish that in Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination before a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the Court is satisfied of the truth of the confession. Edet Obasa v. The State (1965) NMLR 119.”
See; Yesufu V. State (1976) 6 SC 109 per Obaseki. JSC.
In Solomon Thomas Akpan vs. The State (1992) 6 NWLR (pt 248) 439, (1992) 7 SCNJ 22, this court held that a confessional statement does not become inadmissible merely because there is a subsequent retraction of the confession by its maker. The fact that the appellant in that case retracted in his evidence in Chief, the Statement credited to him does not affect the admissibility. It remains admissible and binding. See; Shittu V. State (1970) All NLR 228; Queen V. Itule (1961) 1 All NLR 462, (1961) 2 SCNLR 183; Adamu Vs A. G. Bendel State (1986) 2 NWLR (pt. 22) 284; Aremu Vs. State (1991) 7 NWLR (pt. 201) 1. In the same case, it was held that an accused person can safely be convicted on his confessional statement alone where the confession is consistent with other ascertained facts which have been proved.
What then is the statement credited to the appellant as a confession This was admitted as Exhibit 2 and it is on pages 9 – 11 of the record of appeal. The appellant was said to have stated, inter-alia, as follows –
“I am a native of Owu – Ikija along the road to Ijebu – Imushin in Ijebu. I attended one Primary School in Owu – Ikija. The name of the School is Fatade Primary School. I did not attend Secondary School. When I left primary School I went to become a Vulcanizer apprentice. The name of my Master who taught me how to Vulcanizer (sic) is Ade Bashida. He lives at Areko, Ijebu-Ode. He has his workshop at Old Ede Motor Garage, Ijebu Ode. I am now a jolly man (sic) under him. He pays me the sum of One thousand naira every month. The name of my father is Jimoh Gbangan. He is now late. The name of my mother is Fali Gbangan. She lives at Ijebu Ode. She sells planks at Oke Owa Sawmill; Ijebu Ode. I know Adedayo Odukoya. He is a Motor Mechanic in the same Epe Motor Garage, Ijebu Ode where I work as a Vulcanizer. I don’t know Kemi David. I know Akeem Fatai. I know him through Adedayo Odukoya. I know him to be a farmer. He also lives in the same area with Adedayo Odukoya in Ijebu Ode. On 27/10/99 at about 10.30p.m. Adedayo Odukoya came to my house and told me that there was a certain place where some people want to do burial ceremony and they kept huge amount of money in the house. Akeem Fatai was also there when we were discussing. Adedayo Odukoya suggested that we should go and carry the money from that house. After the arrangement three of us left for the place at about 11.00p.m. when we got to the house at about 11.00p.m. we hid outside the house within the premises. The building is an upstairs building. Adedayo Odukoya asked me to be outside watching if anybody was coming while himself and Akeem Fatai went upstairs…
I later met them upstairs. Three of us then held the girl and Adedayo Odukoya forced her and had a round of sexual intercourse with him (sic)…
At about 2.00p.m. Adedayo Odukoya opened the door and we went to the house where we robbed, raped and later killed one Kemi David…
It was Kemi David who told Adedayo Odukoya that there would be a burial ceremony in their house, because both of them were friends.
After Adedayo Odukoya finished having sex with the girl Akeem Fatai took over from him. As we threatened to kill her, she did not struggle again when Akeem Fatai was sexing her. I later had a round of sexual intercourse with the girl. After I had my own round of sexual intercourse with her I ran downstairs to watch whether anybody was coming…
As both of them met me downstairs Adedayo Odukoya told us that since Kemi David had identified us we must go and kill her or she would expose us. Adedayo Odukoya and Fatai Akeem went back and met the girl and Adedayo Odukoya used his knife and slaughtered the girl. He cut her neck.”
My Lords, I have quoted so much from the statement rendered by the appellant to the police to show how clear and coherent the story was narrated to the police by the appellant. It does not sound as a story made-up by the police for the appellant. In my view, it was his statement rendered by him to the police, and was properly admitted and utilised by the trial court as a confessional statement.
Generally, and this is trite that it is not a condition or even a legal imperative that there must be an eye witness before a murder charge can be sustained and proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence. In otherwords, in homicide cases, the prosecution can discharge the onus of proof as to the cause of death by direct evidence or by circumstantial evidence that creates no room for doubt or speculation. See; Madu v. State (supra) Ndike vs. State (1994) 8 NWLR (pt 360) 33; Igabele vs. State (2006) 3 SCM 143; (2006) 6 NWLR (pt 975) 100; Lori vs. state (1980) 8 – 11 SC 81.
In this case as earlier noted, there was no direct evidence of an eye witness. The case was tried on the circumstantial evidence including the clear testimony of PW1, Exhibit 2, the confessional statement of the appellant, Exhibits 6 and 7A, the confessional statements of others which corroborated that of the appellant materially and substantially.
However, it is trite that before a confession could be used to convict an accused, it must be voluntary, positive, direct, pungent and consistent with other facts as proved.
It is the law that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See Patrick Ikemson & Ors. V. The State (1989) 1 CLRN 1; (1989) 3 NWLR (pt 110) 455.
It is interesting to note that the trial court in its judgment found as follows:
“The confession of the accused persons in Exhibits 2 and 7A are very positive, direct, pungent and proved to be voluntary. They described how they went to rob and actually robbed and also raped Kemi David, The 1st accused alleged only Odukoya raped Kemi David while the remaining two people held her legs. Akeem Fatai, 2nd accused in Exhibit 7A said the three of them raped Kemi David while Exhibit 6 also said the three raped Kemi David while she was held down. The 2nd accused in Exhibit 7A said that they discovered Kemi David could identify them and he used one knife and slaughtered her by cutting her throat and she died.”
The learned trial Judge went further as follows:-
“In her (Kemi David) murder. Who did what is immaterial. At the time they agreed to kill so that she would not be able to identify, they all had a common purpose which was to silence Kemi David so that she would not identify them.”
(Brackets supplied).
On the issue of conspiracy count charge it has been held that once conspiracy is proved to exist, evidence admissible against one conspirator is also admissible against the other or others. And it is not necessary in order to establish conspiracy that the conspirators should know each other or like those who murdered Julius Ceaser, of Shakespares play, that they should be seen together coming out of the same premises at the same time. Even, conspirators do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. See; Titus Oyediran & Ors. V. The Republic (1966) NSCC 252 at 257.
The trial court had found that the appellant and others agreed to rob, rape and murder and they carried out their agreement. They robbed, raped and killed the deceased, Kemi David. This is evident in the appellant’s statement – Exhibit 2.
On appeal, the Court below had found as follows –
“A brief reference must now be made to Exhibit 6 which is the statement of Adedayo Odukoya tendered through the 2nd appellant. Adedayo Odukoya was never charged before the court and as such was never a co-accused but it is the evidence of PW5 which is uncontradicted that Adedayo Odukoya took the police to the houses of the 1st and 2nd appellants where they were arrested.
Adedayo Odukoya had informed the police that the 1st and 2nd appellants were his partners in crime.
… the confessional statements in Exhibits 7A, 2 and 6 are not contradictory but rather complementary of one another.”
There is no doubt, the above show the concurrent findings of the two courts below on the confessional statement of the appellant and the role he played in the whole episode that led to the death of the deceased. As there is nothing to show any perversion or miscarriage of justice, this court will not disturb the said clear findings. See; Igwe V. State (1982) 9 SC 174; Eyisi vs. State (2000) 15 NWLR (pt 691) 555; Ogunsanya vs. The State (2011) 9 SCM 5.
In Nathaniel Mbenu & Anor Vs. The State (1988) 3 NWLR (pt 84) 615; (1988) 7 SC (pt 111) 71; this court, per Nnamani, JSC had this to say.
“It is clear therefore that what we have here are concurrent findings of two courts. It is trite that this court will not interfere with such findings unless there has been a clear error in law or procedure leading to a miscarriage of justice. The court of first instance which has the distinct opportunity of seeing the witnesses and observing their demeanour is obviously in a strong position in these matters. A Court of Appeal will only interfere if the evidence has not been properly evaluated, and as long as it is not evidence relating to credibility it is in as good a position as the court of first instance.
See also; Frank Ebba v. Ogodo (1984) 1 SCNLR. 372
In otherwords, there is no doubt and we are satisfied that with the available evidence the prosecution established that the appellant was involved in the conspiracy to murder and also took part in the murder of the deceased Kemi David on 27/9/1999. The findings of the two courts below were consistent and coherent. Accordingly the two issues are resolved against the appellant.
It is apposite to note that the case of the 2nd accused with whom the appellant was charged, tried, convicted and sentenced – One Akeem Fatai had also been finally put to rest by this court. He was the one who made Exhibit 7A earlier referred to in this judgment. He was a co-accused with the appellant. Same materials and Exhibits were produced and relied upon by the prosecution. The appeal against the decision of the court below which affirmed his conviction and sentence was found by this court unmeritorious and dismissed. See; Hakeem Fatai V. The State (2013) 5 SCM 140; (2013) 10 NWLR (Pt 1361) 1 (2013) 3 – 4 SC (Pt 1) 1.
It is note worthy as earlier stated that the appellant herein and the co-accused, Fatai were both identified to the Police by their cohort in the crime – Adedayo Odukoya who died before the trial began at all. He also vividly explained the role each of them played in his statement – Exhibit 6, produced and admitted under cross-examination through PW5 who obtained the said statement.
In the circumstance, and without any further ado, I find this appeal to be devoid of any merit. It deserves to be dismissed and is hereby dismissed.
The judgment of the court below delivered on 30/03/2011 by which it affirmed the judgment of the trial court of 15/10/2003 is hereby affirmed.
SC.372/2011