Inusa Saidu V. The State (1982)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C.

The appellant was first arraigned before Nnaemeka-Agu, J., sitting at Onitsha High Court on a charge of murder of Jeremiah Godwin Ufondu. Nnaemeka-Agu, J., heard evidence from 8 prosecution witnesses and three defence witnesses including the accused persons on 15/2/77 to 17/6/77. He also heard a part of the address of defence counsel before adjourning on the 17/6/77 for the address to continue on 5/8/77. Before the adjourned date, Nnaemeka-Agu, J., was appointed a Justice of the Federal Court of Appeal and lost jurisdiction to continue the hearing to judgment. Thereafter, the appellant was then arraigned before Nwokedi, J., for trial de novo on the same information. Before Nwokedi, J., 7 witnesses called by the prosecution testified while the appellant alone testified in his own defence. Counsel for the defence and counsel for the prosecution addressed the court before Nwokedi, J., delivered a considered judgment on 22/12/78 wherein he found the appellant guilty, convicted him and sentenced him to death. The facts of the case proved and accepted by the learned trial Judge Nwokedi, J., are simple and are briefly as follows:

The appellant, an Hausa man from Yola, Adamawa, Gongola State, and a soldier, serving in the Nigerian Army, stationed at Orlu, after receiving treatment for 13 days as a patient in the Military Hospital at Onitsha was discharged on the 14th day. He left the hospital ostensibly to return to his unit. He walked along Bishop Shanaham Street sucking orange fruit as he moved on. It was 11.00 am on 7/10/75, when he came to 41 Bishop Shanaham Street. At that point and place he threw away the remains of the orange he had sucked dry carelessly and it landed on the deceased on the right cheek. The deceased did not take kindly to such conduct and he remonstrated with the appellant. The appellant retorted, became abusive and poured out of his mouth the words “Da brubanka Nyamirin Banza” which was taken as abuse by the deceased. The appellant, still in a rage, jumped over a gutter, got to where the deceased was and gave him a kick on his private part. A fight ensued but stopped after Adolphus, a son of the deceased, had been detailed to go for the police by P.W.2, the wife of the deceased. There were five Hausamen civilians around who showed sympathy for the appellant. Following the insistence of the 5 Hausamen that the deceased be taken to and handed over to the military police, they (five Hausamen) grabbed and took the deceased and headed for the military police station at Uga Street Onitsha. The appellant also accompanied them and, of course, the relations of the deceased including 2nd PW his wife followed. On the way to the military police station, they beat up the deceased and the appellant drew his dagger and stabbed the deceased on the neck. Mortally injured, the deceased fell to the ground whereupon the appellant and the five Hausamen took to their heels and disappeared from view. The deceased bleeding profusely from the stab wound, got up and rushed to the civilian police station. There he, through PW 2, lodged a complaint before he was taken to Iyienu Hospital where he later died following heavy loss of blood from the stab wound which extended to the oesophagus. The appellant after being identified by 2nd PW to the police was later arrested that afternoon and charged. The appellant after being cautioned, made a statement Exhibit C to the police – Corporal Igbinosun and because it was in part confessional, PW 3, Frank Odita, attested it after the appellant accepted the statement as his. This statement was admitted for identification but it has featured very prominently in the judgment. It reads:

“On 7/10/75 I go Bishop Shanaham Road, them dey drink. Me I buy my drink. One man de there, he begin fight me. They reach like seven people wey they there. Me self I beat them. Them dey cause me, and me I begin dey cause them. One man get up and give me slap and I ask am why he slap me. That time they don gather me dey beat me. They fell me down, they begin they march me say we all be army. When I got up, I take one knife wey I pick from ground and I chuck the man for neck. People wey dey there take the knife and my money the sum of N70 with my shoe and shirt. I no know any of this people before. I nor well na belly dey pain me. Na only neck I cut am. I pick the knife from one girl pan who dey sell orange. I nor know the man before and we nor quarrel. I nor know any of them before. I know the place, but I nor fit know any of the people. I do not know if the man die.” Signed YNKN”

P.W.2, Comfort Ufondu was the only witness who testified as an eye witness among the 7 witnesses who testified at the instance of the prosecution.The conviction of the appellant was founded principally on the confessional statement Exhibit C, and the oral testimony of PW 2 by the learned trial Judge who said inter alia in his judgment:

“On the controversial alleged confessional statement of the accused Exhibit C, I have no doubt in my mind that the accused made the statement. I believe the evidence of PW 3, Mr. Odita that accused admitted before him that he made the statement voluntarily. I am satisfied that all the requirement for admissibility of confessional statements were complied with and that the statement was properly admitted in evidence at this trial.” (Underlining mine).

…..

“Having settled the issue of the confessional statement of the accused, the court could on the basis of that statement convict the accused. But as I said earlier, I believe completely the evidence of the wife of the deceased. I am aware of the fact that PW2 is the wife of the deceased and that her evidence should be received with caution. In the circumstances …… I nevertheless caution myself about her evidence. But her evidence is not the only evidence against the accused. The confessional statement taken together with the evidence of PW2 in my view reinforces my belief that the accused killed the deceased.” (Underlining mine). Aggrieved by the conviction and sentence, the appellant appealed to the Federal Court of Appeal. His appeal was heard by the Federal Court of Appeal (consisting of Ademola, Aseme and Belgore, JJ.C.A) and in a considered judgment, the court (Belgore, J.C.A., dissenting) dismissed the appeal. Still aggrieved, he has brought his appeal against conviction and sentence to this court on 6 grounds.

After reading counsel’s brief and hearing submission of counsel on ground 2, I am of the opinion that the ground raises substantial issues of law, the resolution of which will dispose of this appeal in favour of the appellant. The ground reads: “The majority judgment was erroneous in point of law in so far as their Lordships (majority) failed to uphold the appellant’s complaint about the wrong admission of the alleged confessional statement (Exhibit C) said to have been made by the appellant who denied doing so and on which the trial court relied and which was wrongly admitted as Exhibit ‘C’ despite objection and merely identified by PW 3”. Learned counsel for the appellant submitted that Exhibit C was never admitted in evidence by the learned trial Judge Nwokedi, J., as a confessional statement made by the appellant and so did not form part of the prosecution case against the appellant and should be expunged. That being so, learned counsel submitted, its use by the learned trial Judge was a serious error and since it formed the foundation of the learned trial Judge’s belief (of the evidence of PW2 and) that the appellant killed the deceased, its expunction deprives the evidence of PW2 of its reinforcement, weight and value on which to convict.

Intimately connected with ground 2 is ground 4 which reads: “The majority judgment was erroneous in point of law by failure of their Lordships (who gave majority opinions) to uphold the complaint of the appellant that the prosecution failed to call beside the lone witness (the deceased widow) any of the other witnesses who were alleged to have witnessed the stabbing and despite the written application of the defence for the said alleged eye-witnesses to be made available for cross-examination, a ground that was conceded by the State at the appeal hearing. Thus the evidence was based on the evidence of only an interested witness.” Learned counsel for the appellant’s submission on this ground is that if these witnesses had corroborated the evidence of PW2, it would have made the evidence of PW 2 reliable, and given it sufficient weight and value to establish the truth of the incriminating part of Exhibit C if properly admitted, and constitute a body of unassailable evidence on which to convict the appellant.There is also, in my view, substantial merit in this submission when considered in the light of the evidence given by PW2, denying previous knowledge of the appellant and that the 5 Hausa men beat up the deceased. The testimony on cross-examination reads: “The five Hausa men who were removing the deceased to the military police at a stage beat up the deceased and later accused stabbed him. Accused before this incident I did not know, I got to know his name after his arrest. I mentioned the name of the following Hausa men to the police as the persons who beat up my late husband, viz: (1) Merisa, (2) Umoru (3) Gombe (4) Daraza and (5) Melpha.”

The submissions made in this appeal on the above grounds affect the quantum, quality and weight of the evidence given to establish the identity of the appellant as the murderer of the deceased.

The issues raised in the brief and during the argument of counsel before us are fourfold and give rise to the following questions:

“(1) Was the alleged controversial confessional statement, Exhibit C, admitted for identification only or in evidence as part of the prosecution’s case

(2) If it was admitted in evidence as part of the case for the prosecution is the statement confessional in the fullest extent within the true and full meaning of the word confessional; and