Igbinewka Owie V. The State (1985)
LawGlobal-Hub Lead Judgment Report
O. COKER, J.S.C.
On the 31st January, 1985, I dismissed this appeal and indicated my reasons for the decision will be given today.
The Appellant, Igbineweka Owie, was convicted by the Bendel State High Court sitting at Benin, for the murder of one Clement Etomi of Obanyanton Village, in the Bendel State and sentenced to death by hanging. His appeal to the Court of Appeal was dismissed on the 23rd March, 1984 and he appealed to this Court.
The facts are straight forward and there was not much in dispute. Clement Etomi was a boarding student of the Obayantor Grammar School Benin City, where the appellant was employed as a night guard. On the 28th January 1984, the teachers of the school were on strike and most of the students who were boarders were sent to their respective homes leaving some few male students and the female students. The deceased, Clement Etomi, was not present at school when the order was given requesting the students to vacate the school premises.
On his return to the school premises, he joined the few students who remained behind and there was no evidence that the school authorities opposed his stay or that the appellant had any specific instruction to prevent him from remaining in the school compound. On the fateful day, at about 8.30p.m., some of the students after the evening meal preceded to walk out of the compound. Clement Etomi was one of such students. He met the appellant at the school gate and he and others were halted by the appellant. There was no suggestion that he or any of them refused to stop or that the appellant mistook them as intruders or thieves.
He knew they were students. The evidence of 1st, 2nd and 3rd P.W.s who were present at the scene, was that the appellant accused the deceased of previously insulting him and threatened that he would shoot him with the double barrel gun he was carrying. The 1st P.W. testified that he pleaded with the appellant not to carry out his threat, but that the appellant refused. He testified that the deceased did not reply nor did he engage the appellant in any struggle. The appellant was adamant and pointed his gun, first to the leg of the deceased, and later took a cool short at his chest and fired the gun. The deceased slumped down and died on the spot almost immediately.
The appellant then fled and reported the incident to the Police at Benin City, where the other students later met him. From the Police Station, the appellant and the other students together with a Police Inspector. P.W. 7. proceeded to the school premises where the corpse of Clement Etomi was lying covered in his blood. They all removed the corpse to the Specialist Hospital in Benin City where it was deposited.
At the Police Station later the appellant was charged with the murder of Clement Etomi and he voluntered a statement after caution, which was recorded by the 7th P. W. in pidgen English and signed by the appellant. The witness, P.W 7, testified he read it over to the appellant before he signed it as correct. When the statement was sought to be tendered in evidence, Mr. Iyi-Eweka. learned Counsel for the appellant, objected to its admissibility. The ground of objection was recorded by the learned trial judge as follows:-
“Mr. Iyi Eweka objects to the statement being tendered on the ground that his client indeed made the statement to the Police which was signed by the accused, the accused identified his signature on the document but maintains that it was not read over to him before he signed it.”
The trial judge overruled the objection, holding that the objection was misconceived in view of the admission of accused that he made the statement and identified his signature on it. He therefore admitted it in evidence and marked it as exhibit “A”.
Mr. Akinrinsola, learned Counsel for the Appellant, has raised the same point before this court. His argument was that the trial judge ought to have held a trial within a trial in order to determine its admissibility. He argued that the prosecution did not prove that the statement was made freely and voluntarily by the appellant. He cited a number of authorities, which in my view were not germane to this case. Amongst the cases cited by learned Counsel was Queen v. Igwe (1960) 5 F.S.C. 55 p.56. It is my view that this case did not support the case for the appellant. Hubbard Ag. F.J. said:-
‘we see no reason to extend the scope of the rule to cases where a confession is challenged, not because it is alleged that it is not voluntary, but because it is alleged that the accused never made it at all…. and the alleged confession can properly be admitted as part of the evidence when it is tendered by the prosecution.’
The point in this ground of appeal was not taken before the Court of Appeal. And although Mr. Akinrinsola made a lot of weather about it, the appellant himself gave entirely different reason in his evidence before the trial Court. He said in his evidence in chief:-
‘I made a statement to the police (Exhibit A); I was not myself so I did not know what was written down’.
And under cross-examination he said:-
‘I made Exhibit “A” to P.W. 7; P.W.7 did not read exhibit “A” to me. I signed Exhibit “A” but I did not know its contents’.
It is quite clear therefore that the issue of duress or voluntariness did not arise. On the other hand. P.W. 7 testified that he formerly charged the appellant with murder, cautioned him before he voluntered the statement which he recorded and read over to the appellant and he agreed that the contents were correct before signing it. He was not cross-examined on the point and it was left to the trial judge therefore to decide what weight to place on it. The statement in my considered view, was properly admitted in evidence.
The next question is that of considering whether there was other evidence adduced by the prosecution in proof of the charge to support the conviction of the appellant, in addition to the statement of the appellant himself.
The incident took place in the presence of three of the students who testified as P.W. 2. Gabriel Iyawe P.W. 3. Faluyi Itota and P.W. Ifeayinchukwu Onyediako whose evidence the learned trial judge accepted. Gabriel Iyawe testified that after supper on the 28th January, 1981, Clement Etomi who was away from the school when other students were sent home on account of the teachers’ strike, returned to the school premises, he and some of the students went out to relax. At the school gate they met the appellant who was on night duty. The appellant refused to allow them to pass through the gate on account of the biggest boy in their company, whom he alleged had earlier insulted him. He was referring to the deceased Clement Etomi. In his own words, the witness said:-
‘As soon as the accused saw the late Clement amongst the others, the accused started to prepare to use his gun and asked Clement what he said the other day. Clement did not reply, but stood. The accused then pointed his gun at the leg of Clement. We started begging him not to shoot, but instead, the accused raised the gun and pointed it at Clement’s chest and he fired the gun, hitting Clement on the chest. Clement shouted and fell down. After this incident, the accused pointed the gun at us, so we took to our heels. We ran to the Odien men of the village and reported.’
The distance between the accused and Clement when he fired the gun was about six feet according to the witness. The other two eye witnesses substantially corroborated the evidence of this witness. They all confirmed that the deceased said nothing while the appellant was challenging and threatening him. It was not a case of the appellant suspecting them to be thieves. The 7th P.W., Ahmed Fakorede, the Police Inspector who immediately accompanied the appellant and the other witnesses to the scene observed that there was a big wound on the right side of the deceased’s chest, as the corpse was lying on the school ground “with blood soaked towel”.
He charged the appellant, cautioned him and he voluntered a statement in pidgen English which he recorded and read over to him before the appellant signed it and he countersigned as the writer. In the statement, (Exhibit A) the appellant admitted he fired the gun when he saw person come from inside compound de come for gate. When I say who be that he run na im I open fire. I no know the place way the gun meet am. I look am now he be school children. I look up and down I want carry am I not fit carry am.
The boy serious……….. In his evidence in Court, the appellant admitted that P.W.2 was amongst the four students who came to the gate that evening. He admitted that one of them was begging him to be allowed to pass, the three others came. Two of them moved towards him and the third who was on his left side moved towards him with force and tried to hold his gun. During the struggle with him the butt of the gun hit the ground and it exploded and the person who was struggling with him was hit by the explosion; he staggered away for a few yards before he dropped down. He denied telling the 2nd P.W. that the biggest boy had once insulted him. He denied knowing the biggest boy before that day and had no previous quarrel with him.
The trial judge reviewed the whole evidence and after accepting the evidence of the prosecution witnesses on the account of how the deceased Clement Etomi was killed, he found that their evidence supported a finding of murder. He found that the appellant intentionally and unlawfully fired at the deceased within a distance of six feet with intent to do grievous harm which resulted in the death of Clement Etomi. He rejected the defence as an after thought. He also considered the defence of accident and self defence.
The Court of Appeal considered the defence of accident, self defence or negligence set up by the appellant. It rejected them and dismissed the appeal.
Before this Court the two grounds which were argued relate to the evidence and the statement of the appellant to the police. I have earlier considered the point regarding the admissibility of the statement and have come to the view that a trial within a trial was not necessary in the circumstance. If the objection had been based on the issue that the statement was not made voluntarily or was made under duress, then a trial within a trial would have been imperative before its admission. But that was not the case here. The appellant admitted he made it and signed it, but that he was not himself at the time but later, he said it was not read over to him. Neither of the two reasons called for a trial within a trial. The evidence of the prosecution that he intentionally fired the gun at the chest of the deceased was overwhelming. I see no reason to disagree with the decision of the trial judge.
For these reasons, I dismissed the appeal and I further affirm the conviction and sentence.
G. S. SOWEMIMO, C.J.N. (Presiding): In the reasons for judgment set out by my learned brother, Coker, J.S.C., there is no doubt that he has considered all the points worth of consideration in the appeal. I agree with his reasons, and have no further comments to make.
M. BELLO, J.S.C.: The High Court of Bendel State convicted the Appellant of the murder of one Clement Etomi, a student of Obasuyi Grammar School, Obayantor, where the Appellant was employed as a security guard. The Court of Appeal dismissed his appeal against that conviction. He further appealed to this Court. We dismissed the appeal on 31st January, 1985 and reserved our reasons for doing so to be given today. I now state my reasons.
It was not in dispute that the deceased died of a gun shot at the gate of the school on 28th January, 1981 at about 8.00 p.m. The prosecution’s case was that the Appellant intentionally caused the death of the deceased by aiming his gun at the chest of the deceased within a range of 6 feet and shot him apparently because the deceased had been rude to the Appellant before the fatal incident.
Three eye-witnesses testified for the prosecution.
PW2 testified as follows:
“We all had our supper together in the school dinning hall, thereafter we started reading together. Other girls who waited behind also read together with us. At 8 p.m. I left to go to bed as I was getting tired. The others followed almost immediately. At the school gate I saw the night watchman, the accused with a gun. After exchange of greetings he said he would not let me pass. He said he was refusing because of the biggest boy in our midst. The biggest boy was the late Clement Etomi. When I asked the accused why, he said the Late Clement had earlier insulted him that he (the accused) could not do him (Clement) anything. While I was still pleading with the accused the other 3 including late Clement came to meet us. As soon as the accused saw the late Clement among the others the accused started to prepare to use his gun, and he asked Clement what he said the other day. Clement did not reply, he merely stood. The accused then pointed his gun at the leg of Clement. We started begging him not to shoot, but instead, the accused raised the gun and pointed it at Clement’s chest and he fired the gun, hitting Clement on the chest. Clement shouted and fell down. After this incident the accused pointed his gun at us, so we took to our heels.
The evidence of two other witnessess, PW3 and PW4, corroborated the testimony of PW2. Both witnesses had joined PW2 in begging the Appellant not to shoot when he was aiming his gun at the deceased but, in spite of their entreaties, the Appellant fired when the deceased was about 6 feet from him. The deceased fell down and died on the spot.
In his statement to the police, Exhibit A, which was produced at the trial by the prosecution, the Appellant stated that a person had come to the gate of the school and when he challenged the person to identify himself the person took to his heels and the Appellant fired at him; that it was after the person had fallen down that the Appellant realised he was a student.
However, he changed his defence at the trial. He put up the defence of accident. His evidence in court was to the effect that when the deceased together with three other boys had come to the gate he, the Appellant, refused to let them pass that while the three boys were begging him to let them pass, the deceased forcibly attempted to cease his gun and in the ensuing struggle the butt of the gun hit the ground and the gun exploded and thereby killing the deceased.
In a well considered judgment the trial judge believed the evidence of the prosecution witnesses. He found that the Appellant deliberately aimed at the deceased within a close range and shot the deceased who slumped unto the ground and died. He disbelieved the Appellant and rejected the defence of accident and self-defence or negligence. He considered the defence of provocation. though it was not raised, and concluded that the alleged insult previously given by the deceased to the Appellant was so trivial that it could have hardly merited a slap on the deceased, let alone shooting him to death. He held such previous insult was not sufficient provocation in law to reduce the offence to manslaughter.
Although there was no medical evidence as to the cause of death, the trial judge relied on Bakuri v. The State (1965) N.M.L.R. 163 at 163, Kumo v. The State (1968) N.M.L.R. 227 and Lori & Anor v. The State (1980) 8/11 SC. 81 at 87 and inferred that the wound inflicted by the gun caused the death of the deceased.
Among the grounds of appeal argued in the Court of Appeal was ground 7, which reads:
“7 The learned trial judge erred in law when he dismissed and regarded the sworn evidence of the accused unmeritorious after rejecting Exhibit “A” on the decision of R. v. Golder 45 C.A.R. 5 without considering the decision in Joseph Aderemi v. The State (1975) 9/11 Sc. 115 at pages 121-124.”
In his argument in the Court of Appeal under ground 7 learned counsel for the Appellant submitted that the trial judge should not have rejected the Appellant’s evidence and his statement to the police, Exhibit A. He submitted the judge should have shown why he rejected the evidence for the defence. In the lead judgment, with which Okagbue and Pepple, JJ.C.A. concurred, Ete, J.C.A. – after stating that it was not quite clear to him what ground 7 was supposed to convey – stated:
“In regard to ground 7, I should say that the learned judge dwelt at length with his reasons for rejecting the evidence for the defence. He said that in view of the evidence of P. W. 2, P.W. 3 and P.W.4 which he believed, he found it difficult to believe the defence of accident, self-defence or negligence which the Appellant set up in court. The learned judge then considered the Appellant’s statement – Exhibit “A” which is at variance with his evidence in Court. He also found Exhibit “A” to be without merit and so rejected it too. I see no reason why both the statement and the evidence in court of the Appellant should not have been rejected if neither of them went nowhere near the truth of what happened. There is no merit in ground 7 and I also dismiss it.
The only complaint to this Court against the judgment of the Court of Appeal is confined within the above quoted paragraph of the judgment. It may be pertinent to set out the two grounds of appeal –
The Honourable Court of Appeal erred in law and misdirected itself when it concluded in page 91 of the Record thus:
“I see no reason why both the Statement (Exhibit A) and the evidence in Court of the Appellant should not have been rejected if neither of them went nowhere near the truth of what happened”, as per S.J. Ete, J .C.A.
(i) Exhibit “A” was inadmissible in law ab initio and ought to have been rejected when it was sought to be tendered. The failure so to do has resulted in the trial court rejecting both Exhibit “A” and the testimoy on Oath of the Appellant which is perverse.
(ii) Had the trial court held a “trial within trial” to determine the truth or otherwise of the content of Exhibit “A”, it would have been placed in a much better, impartial position to refuse to admit Exhibit ”A” and would, in the interest of justice have heard the evidence in Court of the Appellant independent of Exhibit “A”. In the result, the bay was thrown out together with the birth-water with consequential prejudice to the case of the Appellant.
The learned Court of Appeal erred in law when it agreed with the finding of the trial Court that the defence of accident, provocation and mistake were not available to the Appellant.
(i) Independent of Exhibit “A”, which in any case ought not to have been admitted, the testimony on Oath of the Appellant sufficiently disclosed the defence of accident, mistake and provocation such that the Respondent ought to have discharged the onus of proof beyond reasonable doubt and which onus the Respondent failed so to do.
(ii) These defences thoroughly negatived intent to commit murder.
The facts relating to the admission in evidence of the statement, Exhibit A. at the trial may be summarised. During his testimony P.W. 7, a police officer, stated that the Appellant had made a voluntary statement which the officer recorded, read it over to the Appellant who signed it as correct. The prosecution then tendered the statement. Learned counsel for the Appellant objected to the admissibility of the statement simply on the ground that it had not been read over to the Appellant by the Police Officer. The trial judge over-ruled the objection and admitted it in evidence as Exhibit A.
Although it appears that learned counsel for the Appellant put up a lot of industry and research in the preparation of his brief to expatiate the two grounds of appeal. I would respectfully say the whole effort was misconceived and was an exercise in futility. Under ground 1, relying on Ekpo v. The State (1982) 6 Sc. 22 at 29-30 and other cases relating to voluntariness or otherwise of confessions, learned counsel submitted that the trial judge ought to have conducted a trial within a trial before admitting Exhibit A in evidence. Surely, this submission is based on a misconception of the rule of practice relating to a trial within a trial. The rule only applies to the determination of voluntariness or otherwise of a confession. It does not apply to the question of weight of evidence or evidential value which is always decided at the end of the trial against the totality of the evidence adduced before the court. As has been shown earlier, learned counsel did not raise the issue of voluntariness of Exhibit A. His objection dealt with the issue of weight and not of voluntariness. The trial judge was right in over-ruling the objection and admitting the statement.
Ground 2 and the lengthy submission of learned counsel on it were also founded on wrong premises, to wit, the evidence of the Appellant which the trial judge totally rejected. Since the trial judge found the Appellant unreliable and his evidence unworthy of belief. there is not an iota of evidence to support any of the defences of accident, provocation and mistake. I agree with the view of the Court of Appeal that this is a straight forward case of pre-meditated murder.
These are my reasons for dismissing the appeal.
A. G. KARIBI-WHYTE, J.S.C.: On the 31st January, 1985, I dismissed the appeal of Igbineweka Owie, the appellant in this Court, from the judgment of the Court of Appeal, Benin City Division, dismissing his appeal against his conviction for murder of one Clement Etomi, a student of Obasuyi Grammar School, Obayantor by Moje Bare J. of the Bendel State High Court, sitting at Benin City on the 20th July, 1982.
The facts of this case are fairly simple and straightforward, although appellant in his oral testimony in Court attempted to raise issues which were not in the evidence of the prosecution witnesses or his statement to the Police. Appellant was at all material times a night watchman employed at the Obasuyi Grammar School, Obayantor. The deceased, P. W.2, P.W.3, P.W.4, were at all material times students at the Obasuyi Grammar School, Obayantor, where appellant was working; and were together on the fateful night when Clement Etomi died from the hands of appellant. It is not disputed that Clement Etomi died as a result of gun shot wounds. The evidence of P.W.2, P.W.3 and P.W.4, who were eye witnesses to the incident, was that appellant intentionally aimed at Clement Etomi and shot at him, at the time they were all, with the exception of Clement Etomi, begging him not to do so. The statement of appellant to the Police which was admitted in evidence (despite objection by his counsel) as Exhibit A, was slightly different. It was however an admission that he shot at a person who started running away when appellant challenged him. His oral testimony in Court was that he did not shoot at any person, and that the deceased, Clement Etomi, met his death, when he was struggling for the gun appellant was carrying. The butt of the gun hit the ground, the gun exploded hitting the deceased fatally in the chest. In his judgment finding appellant guilty of the offence of murder, the learned Judge helieved the eye witness account of the incident given by P.W.2, P.W.3, P.W.4, and disbelieved the defences of accident, self defence and/or negligence raised in the oral testimony of appellant in Court. The trial judge also rejected the defence in Exhibit A.
Although the defence of provocation was not raised, the learned Judge considered it and rejected it. He held that the evidence that the deceased had insulted appellant on a previous occasion was very tritling to support a defence of provocation; and that there was nothing said or done by the deceased which could have provoked the appellant into losing the self control of an ordinary man. Appellant appealed to the Court of Appeal. Eight grounds of appeal were there filed and argued. Grounds 1 to 5 which were argued together was a criticism that the learned Judge did not consider all the evidence before him, but merely accepted the evidence of the prosecution witnesses. It was submitted that the Judge said there were no contradictions in the evidence of the prosecution witnesses whereas there were several. It was also submitted that the learned Judge did not make any specific findings. On ground 6, which complained of the absence of medical evidence, to establish the nature and extent of the injury inflicted on the deceased from the gun shot wounds. Ground 7, dealt with the rejection in toto of the defence of the appellant, since the statement to the Police Exhibit A. was irreconciliably in conflict with his oral testimony in Court. Ground 8 was also a criticism of the words used by the learned Judge before coming to his finding of guilt. The Court of Appeal considered all these grounds of appeal and rejected them and dismissed the appeal.
Appellant now appealed to this Court. There were three original grounds of appeal, and with leave of this Court, two additional grounds of appeal were filed. Only the two additional grounds were argued, the original grounds having been abandoned were struck out. The two grounds of appeal argued are as follows:-
The Honourable Court of Appeal erred in law and misdirected itself when it concluded in page 91 of the Record thus:
“I see no reason why both the Statement (Exhibit A) and the evidence in Court of the Appellant should not have been rejected if neither of them went nowhere near the truth of what happened, as per S.J. Ete, J.C.A.
(i) Exhibit A was inadmissible in law ab initio and ought to have been rejected when it was sought to be tendered. The failure so to do has resulted in the trial Court rejecting both Exhibit A and the testimony on Oath of the Appellant which is perverse.
(ii) Had the trial Court held a ‘trial within trial’ to determine the truth or otherwise of the content of Exhibit A, it would have been placed in a much better, impartial position to refuse to admit Exhibit A and would in the interest of justice have heard the evidence in Court of the Appellant independent of Exhibit A. In the result, the baby was thrown out together with the birth-water with consequential prejudice to the case of the Appellant.
The learned Court of Appeal erred in law when it agreed with finding of the trial court that the defences of accident, provocation and mistake were not available to the Appellant.
(i) Independent of Exhibit A which in any case ought not to have been admitted, the testimony on Oath of the Appellant sufficiently disclosed the defences of accident, mistake and provocation such that the Respondent ought to have discharged the onus of proof beyond reasonable doubt and which onus the Respondent failed so to do.
(ii) These defences thoroughly negatived intent to commit murder.”
This was the crunch of this appeal. In sum these grounds cover the scope of ground 7 of the grounds of appeal in the Court below.
The contentions of Counsel for the respondent were summed up at p.2 of his brief, in his question for determination, where he posed the following questions –
Question for Determination
The main questions for determination in this appeal are as follows:
(I) Are the trial, conviction and sentence of the Appellant by the trial court Benin and affirmed by the Court of Appeal Benin safe, and should the Supreme Court not set it aside on the ground that:
(i) the trial judge wrongly rejected totally both Exhibit A and the testimony of the Appellant on Oath thus leaving the Appellant defenceless for no legal cause assigned.
(ii) Exhibit A the purported Appellant’s Statement to the Police was in law clearly inadmissible.
(2) Was the trial Court justified and did the Court of Appeal Benin not err in law in affirming the rejection by the trial Court, the testimony on Oath of the Appellant
(3) Taking into consideration the totality of the evidence and facts disclosed on the face of the Record, is the Appellant not entitled to the defence of accident, mistake and provocation which were rejected by the two lower Courts thus rendering perverse the conviction and sentence of murder of the Appellant
(4) Was the killing of the deceased by the Appellant intentional”
It seems indisputable that if the questions 1 and 2 are answered in the affirmative, it is obvious that the 3rd question must be in the negative, and the 4th question in the affirmative. For the sake of completeness, I set out ground 7 of the ground of appeal in the Court of Appeal. It is as follows –
“7 The learned trial Judge erred in law when he dismissed and regarded the sworn evidence of the accused unmeritorious after rejecting Exhibit A on the decision of R. v. Golder 45 C.A.R. 5. without considering the decision in Joseph Aderemi v. The State (1975) 9/11 Sc. 115 at pages 121 – 124″
In the Court of Appeal, Ete, J.C.A., reading the judgment of the Court concurred in by Okagbue Pepple, JJ.C.A.. said,
I regard to ground 7. I should say that the learned Judge dealt at length with his reasons for rejecting the evidence for the defence. He said that in view of the evidence of P.W.2., P.W.3 and P. W. 4. which he believed, he found it difficult to believe the defence of accident, self-defence or negligence which the Appellant set up in Court. The learned Judge then considered the Appellant’s statement ”80″ Exhibit ”80′”, which is at variance with his evidence in Court. He also found Exhibit A without merit and so rejected it too. I see no reason why both the statement and the evidence in Court of the Appellant should not have been rejected if neither of them went nowhere near the truth of what happened. There is no merit in ground 7 and I also dismiss it.
This passage seems to me clearly the only complaint against the judgment of the Court of Appeal. as was formulated in the two grounds of appeal argued before us. The question now is whether the trial Judge was right in rejecting the defence in Exhibit ‘A’, and the oral testimony of appellant in Court, and whether the Court below was right in affirming the rejection. It is pertinent for an understanding of the basis for rejecting the defence in Exhibit ‘A’ and the oral testimony of appellant to turn to the evidence contained therein. Exhibit ‘A’ is the statement of the appellant to the Police, where he stated voluntarily after caution, that he saw a person from inside the compound coming towards the gate and he aimed at and shot at the person, after he had asked who the person was, and that the person started running away without replying. He said he later discovered it was the deceased, and was so sorry that if he knew the deceased would die, he would have killed himself. In his evidence in Court, he said that it was when the deceased was struggling with him for the possession of gun he was carrying, that the butt of the gun hit the ground, exploded and hit the deceased in the chest resulting in his death. When Exhibit ‘A’ was tendered in the trial court, counsel for the appellant raised an objection to its admissibility which was rightly overruled. The ground for objection was not that this statement was not that of the accused or was not signed by him, hut that it was not read over to him. It is well settled that where the objection to the admissibility of accused’s statement, merely that it was not read over to him, and not on the ground that he did not make it, not that it was not voluntarily made, he was coerced, or induced to make it, the statement is voluntarily made and admissible. See Chan Wei Keung v. The Queen (1967) 2 WLR. 552. Exhibit ‘A’, was therefore admissible. See R. Itule (1961) 1 All NLR 462. Mr. Akinrinsola, has spent considerable effort in his submission to show that Exhibit ‘A’ was inadmissible in law and for its admission a trial Within a trial, or voir dire, should have been conducted. The rule with respect to conducting a trial within a trial operates only in cases questioning the voluntariness or otherwise of confessions. It does not apply to questions of weight to be attached to admissible evidence admitted. The question of weight of evidence is always decided, as in this case. at the end of the trial in relation to the totality of the evidence adduced before the Court. See R. v. Nwigboke & Ors. (1959) 4 FSC. 101, 102, and section 91(1) Evidence Act. Cap. 61.
There is sufficient evidence to show that appellant has in this case stated previously something contrary to what he later swore at his trial in evidence before the Court, and has not given any reason for doing so; accordingly the weight to be attached to such evidence depends upon what view the learned Judge takes of it considering the totality of the evidence before him. See Agwu & Ors. v. The State (1965) NMLR. 18 at p. 20. The approach which the Court should adopt in such cases has been stated and restated in several cases of this Court. It is this, that when a witness has made a previous statement irreconcilable with his oral testimony before the court at his trial, such evidence given at the trial should not only be regarded as unreliable, but the previous statement should be regarded as evidence on which it cannot act. See Queen v. Joshua (1964) 1 All NLR. 1 at p. 4, Aderemi v. The State (1975) 9/11 SC. 115. This was precisely what the learned trial judge did, and the Court of Appeal affirmed. Exhibit ‘A’ was irreconcilably in conflict with the oral testimony of appellant in Court. In determining what weight to be attached to them, the learned Judge believed the eye witness account of the incident given by P.W.2, P.W.3 and P.W.4, and rejected the defence of the appellant. In the circumstances, there was no evidence other than the uncontradicted evidence of the prosecution witnesses which are unequivocal as to the intentional shooting with gun at the deceased by the appellant, which resulted in the death of the deceased.
I agree entirely with the view of the Court of Appeal that this is a case of pre-meditated killing.
These are my reasons for dismissing the appeal.
S. KAWU, J.S.C.: We dismissed this appeal on 31st January 1985 and reserved our reasons for doing so to be given today. I have had the privilege of reading, in draft, the reasons for judgment just given by my learned Brother, Coker, J.S.C., I am in entire agreement with him and will respectfully adopt these reasons as mine.
Conviction and sentence affirmed.