Kamaru Yusuf & Anor V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
These two appeals – SC.166/2012 and SC.168/2012 have the same substratum. They emanate from a single trial on the information No. KWS/17C/2008 at the High Court of Kwara State, sitting at Ilorin. Kamaru Yusuf is the Appellant in the appeal No. SC.166/2012; while the Appellant in the appeal No. SC.168/2012 is Adebisi Adesakin. At the Lower Court they were, respectively, the Appellants in the appeals Nos. CA/IL/C.1/2011 and CA/IL/C.52/2011. Judgments in both appeals, dismissing their separate appeals, were delivered on 15th March, 2012: hence, these further appeals.
The Appellants were tried jointly at the trial Court (Halima Suleman, J. Presiding) on information alleging in the four count charge:
That you, Kamaru Yusuf (m) Adebisi Adesakin (m) and Salihu Oyewale (m) on or about the 27th day of August 2007 at Ekosin (a village in Osun State) agreed to cause to be done by the duo of Kamaru Yusuf and Adebisi Adesakin an illegal act at Irra Kwara State within the jurisdiction of this Honourable Court, to wit to kidnap for money making rituals one Omobolanle Moses and
that the same act was done in pursuance of the agreement, and that you thereby committed an offence punishable under Section 97 of the Penal Code.
That you, Kamaru Yusuf (m) Adebisi Adesakin(m) on or about the 27th day of August 2007 at Irra within the jurisdiction of this Honourable Court, did commit an illegal act, to wit you agreed to murder for money making rituals one Omobolanle Moses, 8 years old female child, and the same act was done in pursuance of the agreement, and you thereby committed an offence punishable under Section 97 of the Penal Code.
That you, Kamaru Yusuf (m) Adebisi Adesakin (m) on or about the 27th day of August 2007 at Irra Oyun Local Government Area Kwara State within the jurisdiction of this Honourable Court, did commit an illegal act to wit, you kidnapped one Omobolanle Moses an 8 year old female child in order that the said Omobolanle Moses might be killed and her head be used for money making rituals and that you thereby committed an offence punishable under Section 274 of the Penal Code.
That you, Kamaru Yusuf (m) Adebisi Adesakin (m) on or
about the 27th August 2007 in a bush at Irra within the jurisdiction of this Honourable Court, did commit culpable homicide punishable with death in that you caused the death of one Omobolanle Moses (a female child of about 8 years old) by doing an illegal act, to wit, you strangulated and severed the head of the said Omobolanle Moses with the intention of causing her death and you thereby committed an offence punishable under Section 221 of the Penal Code.
Dated this day of 2008
J. A. Mumini Esq.
Director of Public Prosecution
Ministry of Justice
For Service On
The Accused Persons c/o Ilorin Prison
In these two appeals the Appellants are represented by one Max Ozoaka, Esq. In the summary of facts in paragraph 2.2 of each Brief settled for the Appellants, it is averred, and I agree, that “at the end of the trial (the two Appellants) were found guilty of each of the counts, convicted of all the offences charged and sentenced to death by hanging while the 3rd accused person, Salihu Oyewole, was discharged and acquitted in respect of the entire charge by the trial Court in the judgment delivered on the 7th of July, 2009.”
For each Appellant the learned Appellants’ Counsel raised four (4) issues for the determination of the respective appeal.
All the 4 issues in each appeal are substantially complaints of facts. That is;
- Whether the Lower Court was right in upholding the admissibility of the extra-judicial statement made by each Appellant (Exhibits P11 and P8 respectively) and using the same in the determination of each appeal.
- Whether the Lower Court was right in relying on the legal strength in the case of EGBOGHONOME v. THE STATE (1993) 7 N.W.L.R. (Pt. 306) 383 in placing reliance on Exhibit P11 (for the Appellant in SC.166/2012) and Exhibit P8 (for the Appellant in SC.168/2012) – retracted in determining their respective appeals.
iii. Whether the Lower Court was right in placing reliance on Exhibit P8 (extra-judicial statement of Adebisi Adesakin – SC.168/2012) in convicting Kamaru Yusuf (SC.166/2012), a co-accused; and Exhibit P11 (extra-judicial statement of Kamaru Yusuf – SC.166/2012) in convicting Adebisi Adesakin (SC.168/2012), a co-accused; when none of them adopted the statement made by the other co-accused.
Whether, in view of the evidence before the trial Court, the prosecution proved their case against each of the Appellants beyond reasonable doubt.Issues 1 and 2, in each appeal, was argued together by Max Ozoaka, Esq. of Counsel to the Appellants. Exhibits P11 and P8 were each admitted in evidence upon trial-within-trial, a mini trial to determine the voluntariness of the making of each of the statements following the contention of each maker that his extra-judicial statement was not voluntarily made by him.
The mini-trial, as this Court stated in several decisions, including AUTA v. THE STATE (1975) 4 SC.125; NSOFOR v. THE STATE (2004) 18 N.W.L.R. (Pt. 905) 92; OGUONZEE v. THE STATE (1998) 4 SC 118, is a separate and distinct trial distinct from the main trial. It is conducted majorly to determine the voluntariness or involuntariness of an extra-judicial statement allegedly made by an accused person on trial. The prosecution, in the mini trial, calls evidence to establish that the statement was made voluntarily. The accused person has every opportunity to cross-examine whatsoever the prosecution calls as a witness. Upon the
prosecution’s case, the defence also calls evidence to establish the alleged involuntariness of the making of the statement. The prosecution is also given an opportunity to cross-examine the defence witness(es). Upon the close of evidence both sides are given an opportunity, each, to make final addresses. Thereafter, the Court delivers its decision or ruling on the issue whether the statement was or was not voluntarily made.
The principle of trial within trial, as re-stated by Chukwuma-Eneh, JSC, in AUGUSTINE IBEME v. THE STATE (2013) L.P.E.L.R 20138 (SC)
Is one aspect of dispensing equal justice and fairness under the Rule of Law. By this simple procedure, it is assured that statements of a charge with a criminal offence obtained by a police officer or anyone in authority otherwise afflicted by any inducement, threats or promises, being illegal in law, are expunged from the mainstream of the prosecution’s case at the trial of his cause or matter: and the Court is precluded from acting upon them in dealing with the case. The Procedure is so much used to exclude involuntary statements of an accused person that are contrary to law and it has struck out for now.<br< p=””
The concept of this trial or trial within trial is a design to safeguard the interest of the accused person. It also strengthens the constitutional presumption of innocence, until the guilt of the accused is proved beyond reasonable doubt: ALO v. THE STATE (2015) L.P.E.L.R 24404 (SC). A verdict, upon the trial within trial, enjoys presumption of regularity under Section 168 (1) of the Evidence Act, 2011. It is for this reason that Ngwuta, JSC, stated in BOUWOR v. THE STATE (2016) L.P.E.L.R 26054 (SC) that once the trial Court ruled that the extra-judicial statement was made voluntarily and it is admitted in evidence the accused person, subsequently in his appeal, cannot be heard to argue that he did not make the confession voluntarily without impugning the trial within trial.
The trial Court can convict on such confessional statement admitted in evidence upon trial within trial even without any corroborative evidence so long as the Court is satisfied of the truth of the confession:KALU & ANOR v. KING 14 WACA 30: SUNDAY EFFIONG v. THE STATE (1998) 59 LRCN 13961 AT 13975; BOUWOR v. THE STATE (Supra). The
logic in this reasoning is that every decision of a Court of competent jurisdiction remains valid until set aside: ROSSEK v. A. C. B (1993) 10 SCNJ 20 at 39 -40.
The learned counsel for the Appellants, in both appeals, never complained that either the appellant in SC.166/2012 or the Appellant in SC. 168/2012 were denied fair hearing in the trials within trial. No aspect of the mini trials, culminating in the trial Court admitting Exhibit P11 (in appeal SC.166/2012) or Exhibit P8 (in appeal SC.168/2012), had occasioned any miscarriage of justice to the makers of the two statements.
In the trial within trial, the prelude to the trial Court admitting Exhibit P11 (the statement of Kamaru Yusuf Appellant in SC. 166/2012) in evidence one Abdullahi Hamidu testified as TPW. 1. In the main trial he was the PW.8. In the trial within trial, at pages 159 & 160 of the record, the said Abdullahi Hamidu testified and was cross-examined by the defence. The entire proceeding in the trial within trial is at pages 159 107. The trial within trial was not inconclusive as the appellants counsel had submitted in the misleading manner
at page 7 paragraph 4.6 of the Appellant’s Brief in SC.166/2012. In the Temple of justice equity enjoins that whoever comes seeking justice must come with clean hands. Equity abhors lie telling. It is an iniquitous way of seeking justice.
Mr. Ozoaka of counsel to the Appellants had submitted in the appeal No. SC.166/2012 that because the PW.8, through whom Exhibit P11 was put into the main body of the evidence, did not return to the witness box to be cross-examined or that because the evidence of the PW.8 was inconclusive in the main proceeding the trial Court should not have placed reliance on Exhibit P11 to convict Kamaru Yusuf (appeal No. SC. 166/2012). He cited ASANYA v. THE STATE (1991) 3 NWLR (Pt.180) 442 AND OLADEJO v. THE STATE (1987) 3 NWLR (Pt.61) 419 where trial within trial was conducted. I do not find the two authorities useful or as rendering any good support to this particular submission: that no reliance should have been placed on Exhibit P11 because PW.8, through whom it was admitted in evidence in the concluded proceeding in the trial did not subsequently make himself available to be cross-examined in the main trial.
The same PW.8, testifying as TPW.1, at pages 159 160 of the Record, had concluded his evidence in the trial within trial. He was cross-examined as Section 36 (6) (d) of the extant Constitution requires. The Appellant, Kamaru Yusuf (SC. 166/2012), cannot be heard to say that he was denied fair hearing in the procedure adopted to admit Exhibit P11 in evidence. It also has not been shown in what respects the absence of PW.8 deprived him of the opportunity to discredit Exhibit P11, which upon the trial within trial the trial Court found to have been voluntarily made and therefore admissible in evidence. On estoppel per rem judicatam, I should think, unless there be an aspect of the appeal that frontally challenged the validity of the ruling/decision admitting Exhibit P11 in evidence and there is none, that the appellant Kamaru Yusuf (SC.166/2012) is stopped from saying that “Exhibit P11 (is) inadmissible and unusable in evidence”, and that “its use by the trial Court and subsequent reliance upon it in the determination of the appeal by the Court below occasioned a miscarriage of justice against” him.
Both Appellants made some futile efforts at retracting their
confessions in Exhibits P11 and P8 subsequent to the rulings upon the trial within trial. The decisions/rulings upon which these exhibits were admitted in evidence remain valid until set aside: ROSSEK v. ACB (supra). The decisions having not been impugned the appellants cannot be heard to argue subsequently that they each, did not make their confessions, respectively in Exhibits P11 and P8, voluntarily, the trial Court having decisively stated or determined that they were made voluntarily. Those decisions/rulings were not appealed. They were not also reviewed by any Court superior to the trial Court. They remain binding between the parties therein.
The two Appellants were tried and convicted for conspiring to kidnap and the unlawful killing of one Omobolanle Moses (F), the kidnapping and the unlawful killing of the said Omobolanle Moses. They were tried with the 3rd accused person, said to be the herbalist who told them to bring a human head for money making ritual. The said 3rd accused person testified at the trial. He confirmed in his sworn testimony that the appellants, as the 1st and 2nd accused persons, brought to him a fresh human head which he
rejected for being too fresh. He did not, however, know from where the appellants had brought the fresh human head.
Kamaru Yusuf (appellant in SC.166/2012) in his extra-judicial statement, Exhibit P11, narrated that when he and Adebisi Adesakin (appellant in SC.168/2012) consulted the 3rd accused person on how he could do money rituals for them, the 3rd accused person advised them to bring a human head; that pursuant to this they abducted the deceased, Omobolanle Moses. He further narrated therein that he and the Adebisi Adesakin (appellant in SC. 168/2012) took the deceased to the bush where they jointly strangulated her to death and in his words
I then used my cutlass and cut off her head with the help of Adebisi who held her legs. Before cutting off the head we placed her on a log of wood. We then put the head in a poly bag and left the body in the bush. When we got out of the bush, we stopped a commercial motor-cyclist and instructed him to take us to the herbalist Saliu’s house at Ikosin. On getting to Saliu’s house we told the motor-cyclist to wait for us while we went and met Saliu and told him that we have brought the human head.
He just said we should take it away. He did not even look to confirm what was inside the polybag.
Adebisi Adesakin (Appellant in SC.168/2012), in Exhibit P8, narrated how he and Kamaru Yusuf (Appellant in SC.166/2012) lured the deceased and eventually abducted her, and that the deceased was strangulated and decapitated. In his own words –
When he (Kamaru Yusuf) wanted to cut the head I assisted (him) by holding her legs. He (Kamaru Yusuf) used a sharp cutlass to cut the head twile and the head was severed out of her body. Before the act was done, we approached the man and he said we should bring the head. That was why we went ahead. After the assignment, we took the head to him he then returned it to us that we should look for dry human head. The man rejected it from us.
The evidence of the 3rd accused, Saliu Salawu, corroborates both Exhibit P11 and P8 in materia particular, that the appellants herein brought to him a fresh human head which he rejected and returned to the appellants.
The PW.5, the motor cyclist mentioned in Exhibits P11 and P8, testified that on the material date he conveyed the two appellants on his motor cycle to Ikosin.
He testified, narratively, that he took the appellants to a particular compound in Ikosin that day. He narrated thus in relation to the second visit to that compound
The 2 of them entered a compound. They came out and we went to Irra,- The accused came calling me again that I will take them to Ikosin. Kamaru stopped me when we got to lkosin. He entered a bush and came out with a polythene bag with certain contents which I did not know. He sat at the extreme back while the 2nd accused sat in the middle close to me. I carried them to Ikosin town. They both stopped at the same compound where they had earlier stopped the 1st time I carried them on my motor cycle. When they both came to meet me at where I was waiting they were saying that the Baba they went and met was busy.
In both Exhibits P11 and P8 the appellants narrated that the severed head of the deceased was conveyed to the 3rd accused person, Saliu (Salihu) Salawu in a poly bag (polythene bag). The 3rd accused person also confirmed that the fresh human head was brought to him in a polythene bag. I find some aspects of the PW.5 ‘s and 3rd accused
evidence are corroborative of what Exhibits P11 and P8 contain. In Exhibits P11 and P8 the appellants narrated that after the 3rd accused person’s rejection of the fresh human head of the deceased they brought to him they threw away the same on their way from Ikosin to Iyekun. The PW.5 also confirms this fact that the appellants threw away the polythene bag. The 3rd accused also corroborated his rejection of the fresh human head brought to him in a polythene bag.
PW 2, a Police Officer attached to Ilemona Divisional Police Station, testified, unscathed, that when the appellants were apprehended
Both accused (appellants) confessed to me that after killing Omobolanle Moses, they took her head to one Oyewole Salihu Male of Abadi compound, Ikosin in Osun State for ritual money. Based on this information the 3rd accused was also arrested.
The PW.2’s evidence has not only corroborated Exhibits P11 and P8, as to who killed and decapitated Omobolanle Moses, and the mens rea of the killing; it is also a strong evidence of the confession by the appellants herein.
PW.3, ASP Bello Taofiq, who recorded Exhibit P8 and through whom it was admitted, after trial within trial, was not
discredited by cross-examination on the confessions of the appellants to the conspiracy to kill the deceased for ritual purposes and the killing of the said Omobolanle Moses, the deceased. His evidence also established the active role played by Kamaru Yusuf (appellant in SC.166/2012) in taking the police investigating team not only to the scene of crime but also to where the torso of the deceased was thrown into the river. Kamaru Yusuf, according to the uncontroverted evidence of the Pw.3, took the investigating team to the bush where the head of Omobolanle Moses, in a polythene bag, was thrown and at that spot the head covered with maggots inside the polythene bag was recovered. The PW.3’s evidence corroborates Exhibits P11 and P8 in every material particular.
Messrs Eko and Olotu of Counsel respectively for the Respondent in SC. 166/2012 and SC. 168/2012 made the point that “the evidence/testimonies of PW.2, PW.3, PW.4, PW.5, PW.6 and the 3rd accused person were never challenged nor controverted by the Appellant(s) in the course of trial”. Mr. Eko, in particular, submitted on authority of ELEGUSHI & ORS v. OSENI & ORS (2005) LPELR 1111
(SC); IGHALO v. THE STATE (2016) LPELR 40840 (SC), that the evidence of a witness which is not challenged or shaken by cross-examination, which evidence is not inadmissible by law, must be accepted as correct. I completely agree.
My lords, the overwhelming evidence at the trial Court attested to the guilt of the appellants for the offences they were tried and convicted. The guilt of each Appellant in the offences alleged was proved beyond reasonable doubt. I cannot fault the affirmation of the conviction of each Appellant herein by the lower Court.
The confessions of the Appellants in Exhibits P11 and P8 were corroborated by several other pieces of evidence. I had earlier drawn attention to a number of the pieces of evidence corroborating Exhibits P11 and P8. These pieces of evidence are enough to confirm the veracity of the contents of Exhibits P11 and P8, which the Appellants made some futile efforts to retract. I have painstakingly made efforts to demonstrate that other pieces of evidence, outside Exhibits P11 and P8, attest to their veracity even though this is a mere requirement in practice, and not really of law. When this
Court in SALIU v. THE STATE (2014) 12 N.W.L.R. (Pt. 1420) 65 at 88 stated that: though a confessional statement is enough to sustain conviction, in some cases, however, there may be a need for the Court to test the truth of the statement by some other evidence; it was not making any hard statement of law. It was merely stating what, in the interest of fairness to the accused, is desirable as a matter of practice and in the interest of justice when the accused persisted, even after trial within trial, in the denial that he voluntarily made the confessional statement being used against him.
I have read EGBOGHONOME v. THE STATE (1993) 7 N.W.L.R. (Pt. 306) 383. I have also read the two Appellants Briefs in these appeals. The learned Appellants’ Counsel has submitted, albeit erroneously, that once from the viva voce evidence of an accused person there is a retraction of his extra judicial confession admitted in evidence as part of the prosecution’s case the confessional statement(s), in this case Exhibits P11 and P8, the confession is “rendered valueless”. This is a clear misunderstanding or misconception of the inconsistency rule. This Court had, in
EGBOGHONOME v. THE STATE (supra), re-stated the rule with some clarity. The inconsistency rule does not apply to the confession or extra-judicial statement of an accused person forming part of the prosecution’s case against the accused person, and his defence testimony. Olatawura, JSC, in the EGBOGHONOME case at page 434 of the report, restates the principle that is: when the accused, in retracting his confession, testifies, in his defence, to the contrary of the confession thus –
The position is different in the case of confessional statement voluntarily made but later retracted by the accused. Once a confessional statement is admitted in evidence, and this is done during the case of the prosecution, it becomes part of the case for the prosecution. Until the accused gives evidence retracting the statement, the inconsistency rule does not come into play. But having formed part of the case for the prosecution, the Judge is bound to consider its probative value when considering the retraction made subsequently.
The “inconsistency Rule”, in my view, applies internally either within the prosecution’s case or the defence. That is, when a witness for either side gives viva voce
evidence in contradiction of his previous statement in writing without explanation (ONUBOGU v. STATE (1974) 4 U.I.L.R. 538). That is the occasion rendering both the extra-judicial statement and the viva voce valueless and unreliable (R. v. GOLDER (1960) 1 W.L.R. 1169. The rule does not apply when the evidence of the prosecution is sought to be discredited by the evidence forming part of the defence, as in this case.
When accused retracts his extra-judicial confession forming part of the prosecution’s case, the Court will turn to other facts outside the confession which render it probable that the confession is true. In other words, when the accused person has not retracted the confession no need arises for the Court to look for corroborative evidence outside the confession in order to act on it. In the instant case, Exhibits P11 and P8 retracted in the viva voce testimonies of the Appellants, were corroborated by overwhelming evidence outside the two confessions.
The lower Court’s reliance on Exhibits P11 and 138 to affirm their convictions and the sentences therefor by the trial Court has not occasioned any miscarriage of justice to the Appellants.
The Appellants’ Counsel clearly misconceived the totality of the evidence when he submitted that “it is unfortunate that the only evidence before the Court upon which the Appellants (were) convicted (were) the retracted extra-judicial confessional statement(s) of the Appellant(s)”. From my earlier exercise I had demonstrated that, apart from Exhibits P11 and P8, other pieces of evidence abundantly establish, beyond reasonable doubt, the guilt of each Appellant in the conspiracy to abduct Omobolanle Moses and unlawful killing of her for ritual purpose, and the actual abduction and the unlawful, albeit dastardly, killing of the said Omobolanle Moses. The charges against each Appellant were proved beyond reasonable doubt on the totality of the evidence at the trial Court.
The Appellants were both accomplices or participes criminis. They each made confessional statement(s). I agree, as submitted by the Appellants’ Counsel, that the man’s confession is only evidence against him, and that an accused person making a confessional statement as to his participating in the crime is only confessing as to his own criminality, and not for his accomplices: MBANG v. THE
STATE (2009) 18 N.W.L.R. (Pt. 1172) 157; R. v. ENABOSI (1966) 2 ALL N.L.R. 116; OZAKI v. THE STATE (1990) 1 N.W.L.R. (Pt. 124) 92 at 113; KASA v. THE STATE (1994) 5 N.W.L.R. (Pt. 344) 269. The law, as re-stated by Ariwoola, EC, in JIMOH v. THE STATE (2014) 10 N.W.L.R. (Pt. 1414) 105 at 139, is
that where more persons than one are charged jointly with a criminal offence and a confession made by one of the 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:ALARAPE v. STATE (2001) 2 S.C 114; (2001) 5 N.W.L.R. (Pt. 705); WAKALA v. THE STATE (1991) 8 N.W.L.R. (Pt. 211) 552 – What this rule lays down is simply that, generally, there can be no confession by proxy.
The Appellants’ Counsel made so much fuss about the Lower Court placing so much reliance on the confession of the 2nd accused person in Exhibit P8 to affirm the conviction of the 1st accused person, and on the confession of the 1st
accused in Exhibit P11 to affirm the conviction of the 2nd accused person. The complaint, assault on and/or the criticism of the undoubted intellectual abilities of the judex of the Lower Court are not only completely misdirected; they are recklessly mischievous and unfounded. There is no ratio decidendi in the lead judgment of the Lower Court (per Obande Ogbuinya, JCA) from where this guile phantom could be said to have arisen. A ground of appeal, from which an issue for the determination of the appeal is formulated, must flow directly from the decision appealed. It must relate directly to the decision appealed: EGBE v. ALHAJI (1990) 1 N.W.L.R. (Pt. 128) 546 at 590. A purported ground of appeal, and issue for determination formulated, from a phantom decision or ratio decidendi is not only incompetent; it is reckless and mischievous, and a complete abuse of the Court’s process. This Court, indeed every Court, takes serious exception to frivolous and reckless exercise of the right of appeal, particularly those contrived as assault on the integrity of judicial officers.
Admittedly, the two appeals are directed against the concurrent findings of fact that the prosecution had
proved the guilt of each Appellant beyond reasonable doubt for the offences charged. The Appellants have, each, not established and I have not seen any special circumstances that would warrant my interfering with or disturbing the concurrent findings of fact, or the decisions of the Lower Court affirming the convictions of each Appellant. The only special circumstances warranting this Court disturbing the concurrent findings of fact are upon the Appellant showing that the concurrent findings of fact are perverse or unreasonable, and/or the Appellant establishing that the concurrent findings of fact have occasioned some substantial miscarriage of justice to himself: AGUGUA V. THE STATE (2017) L.P.E.L.R.- 42021 (S.C). Neither of the Appellants has established any such special circumstance warranting our interference with the concurrent findings of facts in relation to each or all of them.
In appeal No. SC.166/2012: KAMARU YUSUF v. THE STATE I find no substance and it is accordingly dismissed in its entirety. The conviction and sentence of the Appellant affirmed by the Lower Court is further affirmed, as I affirm the decision of the said Lower Court in the
appeal No. CA/IL/C.1/2011 delivered on 15th March, 2012.
In the appeal No. SC.168/2012: ADEBISI ADESAKIN v. THE STATE, I find no substance and it is accordingly dismissed in its entirety. The conviction and sentences of the Appellant affirmed by the Lower Court are further affirmed, as I affirm the decision of the said Lower Court in the appeal No. CA/IL/C.52/2011 delivered on 15th March, 2012.