Juliana Ode V. The State (1974)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

This is an appeal against the conviction of the appellant for the murder of her newly born baby by Adewuyi, J., at the High Court Makurdi, contrary to section 221 of the Penal Code.

The prosecution case was that the accused was at the material time living with some other tenants in a house at Wadata, Makurdi. On October 27, 1973, some women tenants, who were sitting outside the house, heard the cry of a child and one of them went inside to check if it was her sleeping child but found that this was not the case.

The women then went to knock on the door of the bathroom from which the child’s cry was coming, but the door was not opened to them by the person inside. They, however, continued to hear the crying child being knocked against a”pan and being beaten until the crying stopped. Later, the accused emerged from the bathroom with a pan bowl in her hand which she took into her room.

One James Okpe, a Military Policeman, had the incident reported to him by the women, including his wife Alice, on his return to the house about 8 p.m. the same day. When he went to the accused and questioned her about what had happened in the compound on that day, the accused denied the report that she had been delivered of a child in the bathroom.

Okpe then went to the bathroom and saw blood. Okpe again asked the accused who then replied that she had been menstruating for three “days and nothing more. When one Augustine Adoga (P.W.2) returned to the compound later. Okpe”reported the matter to him, and both of them went to the “accused whom they found lying at her door. As the accused continued to deny the story about the delivery of a child, both of them demanded to search her room. She took them-in and, after bringing out certain boxes, a basin full of blood and containing the corpse of a child wrapped in her cloth was found. It was then, that the accused agreed she had given birth to the child and that she killed it because she did not want to lose her job as a nurse in the General Hospital, Adoga was then sent to bring in the Police who came and took away the accused with the dead child to the Police Station.

In her own story, Alice, the wife of P. W.1 (James Okpe) stated that when the accused emerged from the bathroom, she challenged them about the story of someone delivering a child in the bathroom and later after putting some water into the pan, the accused went back into the bathroom and locked the door again from the inside. The third of the three women did not give evidence because her whereabouts could not be traced.

In her defence, the accused adopted the two statements she made to the Police (Exs. 1 and 3). In Ex. 3, she stated that she was born on June 19,1957, and that she never told James Okpe (P.W.1) that she was delivered of a child and had killed it. In Ex. 1, however, the accused admitted that she was delivered of the child at Wadata Ward, that the child did not cry, that she therefore put the child inside the room, and that she later told Okpe that she had been delivered of a child in the bathroom but that the child died. The father of the accused gave evidence that she was born on June 17, 1957.

Counsel for the defence submitted that the whole prosecution evidence amounted to no more than mere suspicion of the accused, and further said that the prosecution case rested on the alleged confession to James Okpe (P.W.1). Counsel submitted that there was no such confession made by the accused and that, if at all such confession was made, it was not voluntary, because James Okpe to whom it was allegedly made was in the position of someone in authority over the accused at the relevant time: Queen v. Viabong (1961) N.N.L.R..47; Queen v. Kwaghbo (1962) N.N.L.R. 4. The last important submission of the defence was that nobody had identified the corpse of the deceased baby child to the doctor who conducted the post mortem, but who did not mention in his report the name of the Police Constable who identified the deceased to him.

It was counsel’s submission that, considering the date of the receipt of the corpse to be October 27,1973 and the doctor’s examination was’ conducted ‘on October 30, 1973, there was every likelihood of the corpse having been mixed in the meantime with other child Corpses, thus making it relatively certain that the corpse on which the medical doctor performed his post mortem. was in fact that of the child allegedly killed by the accused. The alleged trial judge accordingly convicted the accused of the murder of the child; It was against this conviction that the present appeal has been brought from the fellow of our ground:

“1. The judge erred in law in holding that James Okpe, an Idoma elder and Military Policeman, was not a man in authority over the appellant.

2. The judge erred in law, in holding that the purported confession of the appellant to James Okpe was induced contrary to section 28 of the Evidence Law.
3. The judge erred in holding that the deceased was sufficiently identified to the doctor.
4. The decision is unwarranted unreasonable and cannot be supported having regard to the evidence.”

Mr. Anyebe, learned counsel for the appellant, submitted that the statement made to James Okpe was not voluntary because the latter was a person in authority, in that a Military Policemen need not purport to have authority over an accused person; this is because section 4(a) of the Armed Forces and Police (Special Powers) Decree 1967 provides in effect that every member of the armed forces shall have the powers and immunities of a Police Officer. It was his submission that, before the appellant made the statement to Okpe, the latter did not caution her, and that there is no record that the Judges’ Rules had been followed: See Madu Fatumani v. R. (1950) 13 W.A.C.A. 39. Learned counsel submitted that the relevant question to consider in this connection is that when in the course of investigating a crime, a Police Officer has made up his mind to charge an accused person, as in the instant case, caution must be administered before a statement is taken from the accused person. In this connection it is relevant to refer to the following provision of section 28 of the Evidence Act.

“A confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the coon, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”

It seems to us reasonable to suppose that James Okpe, to whom everybody would appear to be deferring and who was regarded with some measure of awe as a kind of paterfamilias of the compound, was a person in authority over the appellant for the purposes of this section.