Kwenev v. State (2022) LLJR-SC

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

AMINA ADAMU AUGIE, J.S.C. (Delivering the Lead Judgment)

The Appellant, and one other Accused Person, Justine Terdoo Ishor, were arraigned before the High Court of Benue State, Makurdi, on a 3-Count Charge of conspiracy, armed robbery, and culpable homicide punishable with death.

They allegedly conspired to rob “Keghtor lgyel” (the deceased) of his motorcycle, while armed with a cutlass, and caused the death of the deceased by cutting off his head with the cutlass. They pleaded not guilty and at the trial the Prosecution called three witnesses, including one Inspector Peter Abuma the Investigating Police Officer (I.P.O.I, with the State C.I.D, Makurdi, as PW3.

PW3 testified that the case was transferred to State C.I.D from Tarka Police Station, and after it was assigned to his team, he interviewed the I.P.O from Tarka Division, who gave him “an explanatory statement”; and that the Appellant “volunteered a Statement, which he recorded in English language”

When the Prosecution applied to tender the Statements made by the two Accused Persons in evidence, Defence Counsel objected on the ground that “the Accused Persons informed me that they were obtained under duress”, and he applied for a Trial-Within-Trial (T-W-T) “to determine their voluntariness”.

PW3 testified as PW1 at the T.W.T. He denied the allegations of torture made by Appellant. The Appellant, who testified as DW1 gave details of his alleged torture, including that PW1 “used a nail to pierce his right heel“. Upon the application of the Defence Counsel, the Appellant showed the Court a scar on his left leg as the scar left by the baton. Also shows a scar on his heel as that left by the nail. Under cross-examination, he stated as follows:

“I signed the Statement. The words of caution were not read to me. On that night, I appended my signature in only one place on the Statement. I have looked at the Statement, I signed in only one place after the endorsement in red ink, the signature after the words of caution is not mine. That after the Statement is also not mine. I signed the Statement in only one place. I was tortured by PW1 and Gabriel.”

In his ruling delivered on 23/5/2012, the learned trial Judge, held as follows:
“Clearly, the Statement allegedly signed by the 1st Accused Person (Appellant) after his torture is not the one sought to be tendered in Court. This is clear when his evidence-in-chief and under cross-examination are taken side by side. He has denied signing the Statement sought to be tendered. He has denied the signatures on the Statement attributed to him except that after the endorsement. Having denied his signature on the Statement, the issue of its having been obtained under duress no longer arises.

It is only an Accused (sic) accepts singing (sic) a Statement that an inquiry can be made into the circumstances leading to his signing it. There was, therefore, no need for a T-W-T in respect of the Statement. As for his signature after the endorsement, 1st Accused in his evidence-in-chief said – “l was never taken before PW2 upstairs”. The issue of his having been tortured to sign the Statement after the endorsement does not, therefore, arise. The issue raised in respect of the 1st Accused goes to the weight to be attached to it and not its admissibility. The objection to its admissibility is, therefore, overruled. The Statement dated 31-3-06 is admitted in evidence as EXHIBIT 2.”

​Thereafter, PW3 continued with his testimony, and the Medical Report issued to him was admitted in evidence as Exhibit 4. The Prosecution closed its case.

The defence opened with the Appellant as DW1. He denied knowledge of the incident and testified that he was working for one “Mr. Ange” somewhere else when four Policemen from Wannune arrested him. At the close of the trial, the learned trial Judge, Kpojime, J., delivered judgment on 8/5/2013, wherein he reproduced the entire Confessional Statement of the Appellant (Exhibit 2), and that of the second Accused Person (Exhibit 31, and then stated as follows:

“I wish to point out that the facts stated in Exhibits 2 and 3 can only be known by a person, who participated in the act or witnessed the act. The assertion by the Accused Persons that they were told what to say by PW3 who was not at the scene cannot, therefore, be true. I have found evidence, outside Exhibits 2 and 3 to show that the facts contained therein are true:
1. PW1 testified that the deceased took out his motorcycle on 25/3/2006 for commercial purposes. The evidence of PW2 shows that on 25/3/2006 the deceased was at the Okada stand and the 1st Accused hired his services. Accused Persons in Exhibits 2 and 3 confirm that the deceased was a cyclist The 1st Accused stated in Exhibit 2 that he hired the services of the deceased person on 25/3/2006.

2. It is the evidence of PW1 that when he saw the corpse of his son, he noticed that the head had been cut off from the body but was stitched back to hold it in place. Exhibit 4 the medical report also states: “Partially decapitated head, attached by a loose skin to the trunk from the neck.” Both Exhibits 2 and 3 states that the deceased’s neck was cut but it was held by the skin.

3. Mother of the 1st Accused Person, upon arrest by the Police gave them the address in Taraba State, where the 1st Accused Person would be found. This is at No.2 Dooshima, Ibi Local Government Taraba State. The 1st Accused stated in Exhibit 2 that he was arrested at Dooshima No.2.
I find Exhibits 2 and 3 positive and direct to the offence charged. I am also satisfied with the truth of contents of these Exhibits.

In the long run, the learned trial Judge concluded as follows in his judgment –
“Having held that I find Exhibits 2 and 3 positive and direct, and I am satisfied with their truth… I hold that I can convict on them alone. I find evidence of criminal conspiracy in Exhibits 2 and 3. Before the Accused Persons went out, one Terlumun had told them that he wants them to help him deal with the deceased. They saw him with a cutlass. Certainly, they knew they were not going for a party. They consented to help Terlumun and they all went out to deal with the deceased. l, therefore, hold that based on Exhibits 2 and 3 which I believe, the Prosecution has proved the Count of criminal conspiracy against the Accused Persons beyond reasonable doubt.