Moses Jua V. The State (2007)

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MORONKEJI OGUNWUMIJU, J.C.A.

This is an appeal against the conviction of the Appellant for the offence of culpable homicide punishable with death by the High Court of justice, Kwara State presided over by Honourable Justice R.O. Elelu – Haleeb. The trial court found the Appellant GUILTY and sentenced him to death by hanging on 27/2/2006.

The Appellant and three other Accused persons were arraigned before the trial court on a two count charge for the offence of Culpable Homicide punishable with death contrary to section 241 of the Penal Code and causing disappearance of evidence, an offence contrary to section 167 of the Penal Code.

In the course of the trial before the lower court, two of the accused persons namely, Sebastian Tule and Joseph Sebastian died while the Appellant and one James Yaji (alias Apolo) survived the trial.

To prove the offence against the Appellants, the prosecution called a total number of six (6) witnesses and tendered eight (8) exhibits. The summary of the prosecution witnesses’ evidence was to the effect that the Appellant with others charged killed one PC Rotimi Jeremiah who was detailed to follow the Appellant to Ipee to bring the particulars of the Suzuki Motorcycle suspected to have been stolen by the Appellant.

The Appellant’s Counsel filed five grounds of appeal and there from identified two issues for determination. They are set out below:

1. Whether it was proper for the (lower court to admit the alleged confessional statement of the Appellant without concluding the trial within trial and rely on same to convict.
2. Whether the case against the Appellant was proved beyond reasonable doubt.

The Respondent’s Counsel also identified 2 issues couched in the following terms.

1. Whether the trial court was right to have admitted the confessional state made by the Appellant (grounds 1 and 2);
2. Whether the conviction of the Appellant for, the offence of culpable Homicide was based solely on the Appellant’s confessional statement.

(grounds 3, 4 and 5).

I will adopt the issues as distilled by the Respondent’s counsel since they seem to me to more comprehensively cover the complaints of the Appellant’s Counsel as adumbrated in the grounds of appeal.

Issue one is whether the trial court was right to have admitted the confessional statement made by the Appellant. On this issue, learned Appellant’s Counsel Mr. Toyin Ladipo Esq. argued that without the conclusion of the trial within trial, it was wrong of the learned trial judge to admit at the judgment stage, the confessional statement, as Exh. F. He submitted that a confessional statement of an accused person which is challenged on grounds of voluntariness can only be admitted after a trial within, trial has been conducted and concluded. The trial within trial was abandoned mid way.

He cited Solola v. The State (2005) 2 NWLR Pt. 937 Pg. 460 at 498, Ekure v. the State (1999) 13 NWLR Pt. 635 Pg. 456 at 467, Obidiozo v. The State (1987) 2 NSCC Vol. 18 (Pt. 11) Pg. 1239 at 1246.

He argued that as the prosecution prematurely cut short its case during the trial within trial, the Appellant did not have an opportunity of making his own case for the rejection of the confessional statement. He submitted that the procedure adopted by the lower court in admitting the alleged confessional statement was one that could not ensure fair hearing. Up to the 19th day of July 2005 when the prosecution adopted its final address and the Court adjourned for judgment, the alleged confessional statement was not in evidence. It was only admitted in evidence in the course of writing the judgment. So the Appellant did not get to know that the alleged confessional statement was evidence considered by the Court in finding him guilty until the judgment was being read. A fair hearing envisages a procedure where the accused person is confronted and well aware of all the evidence against him before he enters his defence. The lower court ought not to have acted on the alleged statement because it was not legally admitted in the course of either the prosecution or the defence case. He argued that it is most improper for the lower court to have admitted the statement at the time it did so.

He further submitted that the evidence of the Appellant that he was physically abused and tortured was never contradicted by way of cross-examination.

Thus it should have been deemed an admission on the part of the prosecution by the learned trial judge. He cited Nigeria Gas Co. Ltd v. Onwubuya (1998) 10 NWLR pt. 569 Pg. 322 at 335; Bello v. Fayose (1994) 2 NWLR pt. 327 Pg. 404 and Amadi v. Nwosu (1992) 5 NWLR Pt. 241 Pg. 273 at Pg. 284.