James Igbinovia V. The State (1981)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C. 

My Lords, the appellant was tried and convicted on a murder charge by the High Court (Unurhoro, J.) at Benin City on the 14th day of November, 1977, and sentenced to death. Being aggrieved by the conviction and sentence, he appealed to the Federal Court of Appeal to quash the conviction and sentence. After hearing, the Federal Court of Appeal dismissed his appeal in a considered judgment delivered on the 10th day of May, 1979. He has now appealed to this court on the following grounds:

“(1)The decision of the Federal Court of Appeal in upholding the judgment of the trial court was unwarranted having regard to the weight of evidence.

The Federal Court of Appeal misdirected itself in law when it upheld the reception of the highly prejudicial evidence by the trial Judge by upholding the admission of the alleged confessional statement of the appellant when there was no proof that such a statement was made and this admission has occasioned a serious miscarriage of justice.
Particulars of Misdirection

(i)The mere reception of highly prejudicial evidence per se is fatal to any conviction whether or not the learned trial Judge expressly referred to such prejudicial evidence for whatever purpose in his judgment.

(ii)The reception of prejudicial evidence per se constitutes a miscarriage of justice.

Particulars of Error

(a)The learned appeal court Judges erroneously held at page 100, lines 1-8 that the evidence of P.W.4 “laid to rest any doubt as to the presence together of P.W.5 and the appellant (were together) in the same cell” when it was a fact in issue whether the appellant was locked up in the same cell with P.W.5.

(b)On (a) above, the learned appeal court Judges failed to resolve the contradiction in evidence of P.W.4 and P.W.5 in arriving at their decision; whereas it was in evidence before the trial Judge thus: (page 6 lines 26-28) “when the cell was opened three persons came out of the cell to take their food” again it was also said by P.W.5 on page 8 lines 15-16 “I met five suspects in the police cell.”

(3)The Federal Court of Appeal misdirected itself when it held that the confession has been proved.

Particulars of Error

(a)The learned appeal court Judges erroneously held at page 100, lines 1-8 that the trial judge’s findings that P.W.4 saw P.W.5 and the appellant come out of the same cell made it superfluous to call Johnson Omorege throughout when the alleged confession was made.

(b)The learned appeal court Judges failed to consider that even if it is proved that P.W.5 was present in the same cell with the appellant, the burden rests throughout on the prosecution to prove that the confession was made voluntarily and the onus does not shift on the accused as it is a criminal case (page 99 lines 22-25) except in some statutory offences.

(4)The Federal Court of Appeal erred in law in upholding the decision of the High Court  which did not consider the defence of the appellant adequately or at all and when that court did not make specific findings on points favourable to the appellant.