Michael Edhigere Vs The State (1996)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J .S.C.
In the High Court of Bendel State, holden at Oleh (now in Delta State), the appellant and three others were arraigned for the offence of murder, contrary to section 319(1) of the Criminal Code. The other three accused persons were; Josiah Eghagha, Passman Ugbogbo and Lucky Otunu. They were all charged of having murdered one Okpako Eghagha, on 2nd March, 1984, at Ivu bush, Enwhe, in Oleh Judicial Division.
The facts of the case for the prosecution were given in the testimony of P.W.1, Onoita Okpako. He told the trial court that on 2/3/84 while he was sitting in a hut in Ivu bush together with his father (deceased) and two sisters, the 2nd-4th accused, in the company of one, Onomeroso, came to the hut. The appellant was the 2nd accused at the trial court. The accused told the deceased that the father of Onomeroso had died and that they wanted the deceased to follow them to Enwhe.
P.W.1 said that he observed that all the three accused persons were holding matchets. The witness continued with his testimony thus:
“The deceased then followed them and left me with my junior brothers in the camp. The following day he did not come back I carried my small brothers and went to Enwhe. When we got to Enwhe I asked my aunt the whereabout of the deceased and she told me that she did not see him. The name of my aunt is Omotoware. She raised an alarm. We then went to ask Onomeroso the daughter of the 1st accused the whereabout of the deceased. She told us certain things.
As a result of what Onomeroso told us, we went to ask the 1st accused the whereabout of the deceased. He admitted that he sent the 2nd – 4th accused persons and Onomeroso to invite the deceased from the bush and kill him. Omotoware Eghagha went to lodge a complaint at the Police Station, Igbide. I was at home when she went to Igbide. She later returned with two police men and arrested the accused persons and Onomeroso. It was Onomeroso who identified them to this police.”
P.W.2 in his evidence told the trial court that Onomeroso who was the daughter of the 1st accused led the police to a fish pond in Ivu bush where the corpse of the deceased was found, covered with leaves. It was conveyed from there to the police station. The body was examined by one Dr. Felix Omon Oribator who testified as P.W.4. The doctor told the trial court that he observed a visible cleft on the head of the deceased extending to the occiput and multiple lacerations. The incised wound went through both the skin and skull. In the doctor’s opinion, the death was caused due to severe head injury resulting from the incised wound.
The trial court considered the evidence adduced including, most importantly, the confessional statements made voluntarily by the accused persons and, in a considered judgment the court convicted the 2nd and 3rd accused persons of murder and sentenced each of them to death. The 1st and 4th accused died in prison custody while awaiting trial.
Monday Edhigere, the appellant, appealed to the Court of Appeal. The court considered all the submissions made by counsel and, in a unanimous decision, dismissed the appeal.
On further appeal before this court the single issue canvassed by the learned counsel for the appellant is as follows:
“Whether the conviction and sentence of the appellant on Exhibit C was proper on the facts of this case and the nature of evidence produced by the state”
The learned counsel for the appellant, Mr. Olisa Agbakoba, made heavy weather of the learned trial Judge’s reliance on the confessional statement, Exhibit C, made by the appellant. It is relevant therefore to reproduce that statement in full before I consider the grouse of counsel against the Court of Appeal’s decision upholding the learned trial Judge’s finding in respect of the confessional statement.
The confessional statement reads:
“On the 2/3/84 at night time, at Enhwe, myself (1) Man-Pass-Man Ugbogbo, (2) Lucky Otunu (3) Ighovuamofa Enuekpe were sent to go and killed (sic) Okpako Eghagha by the following persons (1) Asanimo, Chairman of the deceased’s family, (2) Okpoumofa Eghagha Chairlady of the family, Enuekpe Eghagha (5) Omorte Owore, (6) Mowe Okpoumofa, (7) Asvoma Otunu, (8) Mathar Ebiyese, (9) Boy Edhikamaka, (10) Efamana Egeyese and (11) Ariakpomura Ighomraha. The above mentioned persons ordered us to go and bring Okpako Eghagha before them, and burn him with fire. They instructed us that if Okpako Eghagha refused to come with us we should killed (sic) him on the way.
They said he is a wizard, that he has destroyed the family. It was one girl by name Ighovuamofa Enuekpe who told us that (sgd) Monday Edhighere, 6/3/84. Okpako Eghagha is a wizard. As we were bring (sic) the Okpako Eghagha he refused to come with us. Myself, Man-passman Ughogho, Lucky Otunu and Ighovuamofa Enuekpe started to fight with the man and we used our matchets to cut Okpako Eghagha on the head and the neck, Okpako Eghagha fell down and died, at the spot.
We left the deceased on the spot at Enwhe bush and went to report the situation to those who sent us. When we arrived to the place we met Okpomofa Eghagha, Enuekpe Eghagha, Boy Edhikpamaka and Efamana Egeyese while the rest people had gone away. We reported to them that we have killed Okpako Eghagha at the bush. We left to our houses. On the 5/3/84, I was arrested from my store at Ughelli. I will help the Police to get the remaining persons. That is all about my statement. The matchets were given to those who sent us.”
The learned trial Judge said in his judgment that he was quite satisfied on the evidence before him that Exhibit C made by the appellant under caution was free and voluntary and that the appellant was fully conscious of the facts set out in that confessional statement. Further in his judgment, the learned trial Judge opined that there was no doubt from Exhibit C that the appellant intended to kill the deceased when he cut the deceased with a matchet on the head. His motive, according to the finding of the judge, was borne out of malice that they were sent to kill the deceased because he was a wizard who had destroyed their family.
Mr. Olisa Agbakoba submitted, in the appellant’s brief which he wrote, that even though this court had held in Egboghonome v. The State (1993) 7 NWLR (Pt.306) at 383 that retraction of a confessional statement does not render it valueless, it is not the law that the appellant’s evidence of retraction should be discarded and become valueless once the confession was admitted. But with respect to the appellant’s counsel’s submission the learned trial Judge did not discard the evidence of retraction. He considered the evidence of alibi that the appellant was at Ughelli on 2/3/84 when the deceased was reported missing and quite rightly, rejected it. The Court of Appeal referred to the evidence of P.W.1, the eye witness who was together with the deceased in Ivu Bush when the appellant, while in company of the 1st, 3rd and 4th accused came to the hut where the witness was staying with his deceased father. They invited the deceased and he followed them. He was not seen until the following day when his corpse was found in a fish pond.
There is no conflict, in my view, between the evidence in Exhibit D and Exhibit C. The appellant had admitted using the matchet in cutting the deceased on the head. A matchet was discovered in the house of the 1st accused. The fact that no traces of blood had been found when the matchet was examined by the Government Chemists does not establish any discrepancy between Exhibits C and D. It is safe to infer that the accused persons had enough time to wash the matchet of all traces of blood. It should be observed that the deceased had been killed and dumped in a fish pond.
The issue about failure to have the confessional statement attested by a Senior Police Officer is another weak argument. This court had said it several times in reported cases that the administrative practice of confirmation of confessional statements before a senior police officer is not a legal requirement which if not complied with would render the confession unreliable. No general rule has been laid out that the practice must be observed. R. v. Nwigboke (1959) SCNLR 248; (1959)4 F.S.C. 101. See also Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383.
The next point argued by learned counsel for the appellant is whether Exhibit C had been corroborated by the evidence of P.W.1 and P.W.4. Without hesitation I will answer the question in the affirmative. The Court of Appeal is quite right to affirm that the confession of the appellant had received adequate corroboration for the trial court to base his conviction on it. P.W.1 testified before the court that the appellant came together with 3 other accused persons to the hut in Ivu bush and requested their father, the deceased, to follow them. In Exhibit C the appellant confessed to have gone, on the instruction of some people, to bring the deceased before them so that he could be burnt with fire since he was a wizard and that if he refused to follow them they should kill him. They came with the deceased and killed him on the way. P.W.1 told the trial court that the appellant was holding a matchet when he came to the hut in the bush.
The doctor who examined the corpse of the deceased testified as P.W.4. The injuries reported by the doctor which, in his opinion, were the cause of the death of the deceased were said to have been caused by a sharp object such as a matchet.
It is trite law that the test applicable to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The respective evidence of P.W.1 and P.W.4 are indeed independent testimonies which positively link the appellant to the crime charged. See Afolabi v. C.O.P. (1961) 2 SCNLR 307; (1961) All NLR 654. The evidence before the court was overwhelming that the appellant and the other accused persons killed the deceased by cutting him
with matchets on the head. The failure of the prosecution to call Onomeroso to testify has not affected the well considered judgment of the trial court which the Court of Appeal affirmed.
This appeal has no merit at all. It is accordingly dismissed. The judgment of the trial High Court which the court below affirmed is hereby confirmed.
KUTIGI, J.S.C.: The appellant was originally charged along with 3 others with the murder of one Opako Eghagha. During the trial in the High Court two of them died. The appellant and one other were however, at the end of the trial found guilty, convicted and sentenced to death.
Dissatisfied with the judgment of the High Court, the appellant appealed to the Court of Appeal at Benin City. In a reserved judgment, the Court of Appeal dismissed the appeal as lacking in substance.
It is against the judgment of the Court of Appeal that the appellant has now appealed to this court.
Mr. Olisa Agbakoba learned counsel for the appellant has in his brief of argument submitted only one issue for determination in the appeal as follows:
“Whether the conviction and sentence of the appellant on Exhibit C was proper on the facts of this case and the nature of evidence produced by the State.”
The appellant had stated in his statement (Exhibit C) to the Police (P.W.5) amongst others that –
“As we were bring (sic) the Okpako Eghagha he refused to come with us. Myself, Man-Pass-Man Ugbogbo, Lucky Olunu and Ighovuamofa Enuekpe started to fight with the man and we used our matchets to cut Okpako Eghagha on the head and the neck. Okpako Eghagha fell down and died at the spot. We left the deceased on the spot at Enwhe bush and went to report the situation to those who sent us.”
The learned trial Judge in his judgment had also observed thus –
“I am quite satisfied on the evidence before me that Exhibit “C” made by him (appellant) under caution to the 5th P.W. was free and voluntary and that at the time he made it, he was fully conscious of the facts set out therein.”
The evidence led at the trial also show that-
- The body of the deceased was recovered by the Police (P.W.5) and others, in a fishing pond in the bush covered with leaves.
- According to P.W.1 the deceased was last seen alive in the company of the appellant and his gang who went to the house of the deceased and invited him to follow them (appellant and his gang.)
- The medical doctor (P.W.4) said the deceased died as a result of severe head injuries from incised wounds which might have been caused by a sharp object such as a knife or a matchet.
I have no hesitation under the circumstances therefore in coming to the conclusion that Exhibit ‘C’ was sufficiently corroborated by the testimonies of the prosecution witnesses as indicated above. It is settled that an accused person may be convicted on his own free and voluntary confession once it is direct and positive (see for example the cases of R. v. Obiasa (1962) 2 SCNLR 402; (1962) All NLR 651; Yusufu v. The State (1976) 6 S.C. 167; Dawa & Anor v. The State (1980) 8 -11 S.C. 236; Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383.). It is for the above reasons and others contained in the lead judgment of my learned brother Mohammed, J.S.C., which I read before now and with which I agree, that I too dismiss the appeal.
OGUNDARE, J.S.C.: I agree with the judgment of my learned brother Mohammed, J.S.C. just read. I have nothing more to add. I too dismiss the appeal and affirm the judgment of the court below.
OGWUEGBU,J.S.C.: I have had the privilege of reading in draft the judgment of my learned brother Mohammed, J.S.C. in this appeal. I am in agreement with the reasoning and conclusion that the appeal ought to be dismissed. I would only emphasize that Exhibit “C” is a free and voluntary confession. It is direct, positive and was properly proved.
The learned trial Judge examined and tested the confession. He found that it was corroborated by the evidence of P.W.1 and P.W.4 (Dr. Felix O. Oributor). P.W.1 testified that the appellant was among the people who came to call the deceased from his hut in Ivu bush on 2:3:84.
The confession was also consistent with the nature of the wounds described by P.W.4. See The Queen v. Obiasa (1962) 2 SCNLR 402; (1962) 1 All NLR (Pt.4) 651 and Kapa v. The State (1971) All NLR 151 (Reprint).
I too will dismiss the appeal. The judgment of the Court of Appeal affirming the judgment of the High Court of the former Bendel State holden at Oleh is hereby affirmed.
Other Citation: (1996) LCN/2665(SC)