Nasiru V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Judicial Division, delivered on the 15th day of May, 2020 Coram: Tsammani; Okoronkwo; Ojo; JJCA wherein the appeal by the appellant herein was adjudged lacking in merit and was dismissed. The judgment of the trial Court was then affirmed.

The appellant had earlier been charged with the following one count.

“That you Yusuf Abiodun Nasiru ‘M’ on the 12th March, 2014 at about 3p.m. at Isale Awero, Moniya, Ibadan within the Ibadan Judicial Division did unlawfully caused the death of one Glory Oladayo ‘F’ aged 6 years by strangulating and matcheting her to death thereby committing an offence under Section 316 and punishable under Section 319 of the Criminal Code, Cap.38, Vol. II, the Laws of Oyo State of Nigeria, 2000.”

​Upon arraignment, the accused pleaded not guilty to the charge. At the trial, the prosecution called four (4) witnesses while the accused person only testified in defence but called no other witness. The prosecution tendered the extra judicial statements of the accused person which were admitted as Exhibits when there was no objection by the defence. At the close of evidence, counsel to both parties addressed the trial Court and in its considered judgment delivered on the 17th day of May, 2017, the accused was found guilty as charged. He was convicted and accordingly sentenced to death by hanging for murder.

The appellant was dissatisfied with the judgment of the trial Court, hence he appealed to the Court below. The appeal was adjudged lacking in merit and was dismissed, which again led to the instant appeal.

The Notice of Appeal to this Court was filed on 28th May, 2020. Pursuant to the rules of this Court, parties filed and exchanged briefs of argument. The appellant’s brief of argument which was settled by J. T. Ogunniyi Esq. was filed on 24th November, 2020 while the respondent’s brief of argument was filed on 24/12/2020. Upon service of the respondent’s brief of argument, the appellant filed a Reply brief of argument on 15th December, 2020. Learned counsel for the appellant referred to both briefs of argument. He adopted and relied on same to urge the Court to allow the appeal and set aside the decision of the Court below.

​Mr. B. B. Lawal of counsel for the respondent referred to his preliminary objection filed on 4/12/2020 which is argued in the brief of argument filed on 4th December, 2020 on pages 6-8, paragraphs 3.04 to 3.9. He finally urged the Court to dismiss the appeal and affirm the judgment of the Court below.

In arguing the preliminary objection, learned counsel referred to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and contended that subject to Section 233 (3) of the Constitution of the Federal Republic of Nigeria, an appeal lies from a decision of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court. He contended further that the said provision is mandatory and so the leave to be sought and obtained assumes a condition precedent status for the filing of a valid or competent appeal. He submitted that failure to seek leave automatically deprives the Court of jurisdiction to hear the appeal. He relied on Bestman Vs. Whyte (2020) 6 NWLR (Pt.1719) 136 at 154; Adili vs. The State (1989) 2 NWLR (Pt.103) 305 at 330-331.

​Learned counsel took the grounds of appeal one after the other and came to the conclusion that all the grounds of appeal ventilated in the notice of appeal are all grounds of appeal challenging the findings of fact made by the Court below or involves issues of mixed law and facts that can only be validly argued with the leave of either the Court below or this Court. He submitted that the leave to litigate grounds of appeal on fact and/or mixed law and fact must be sought and obtained before the notice of appeal is filed. He relied on B.A.S.E Nigeria Ltd Vs. Faith Enterprise Ltd. (2010) 4 NWLR (Pt. 1183) 104 at 128-129. He urged the Court to strike out the Notice of Appeal filed on 28th May, 2020.

In his response to the preliminary objection, learned counsel to the appellant contended that since the respondent failed to specifically raise any issue for determination on the preliminary objection, he raised the following issue-

“Is the instant appeal competent?”

Learned counsel submitted that the appeal is competent and the preliminary objection raised is misconceived and misplaced in law.

​He referred to the complaint of the respondent on the provisions of Section 233 (3) of the 1999 Constitution and conceded that indeed the law requires that leave of Court is required to be sought and obtained before an appeal is made to the Supreme Court from the decision of the Court of appeal. He however submitted that the said requirement is qualified in Section 233 (3) of the said Constitution which deals with appeal as of right.

Learned counsel contended that the instant appeal is one of the exceptions where leave is required. The appeal is against the affirmation by the Court below of the sentence of death appealed against which is as of right and does not require leave of Court. He urged the Court to hold that the preliminary objection lacks merit and should be dismissed.

There is no doubt, Section 233 (3) of the 1999 Constitution of the Federal Republic of Nigeria as amended prescribes leave of Court before an appeal is filed against the decision of the Court of appeal.

It reads thus:

“Section 233

Subject to the provisions of Subsection (2) of this Section, appeal shall lie from the decision of the Court Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”

​It is clear from the above provisions of the Constitution that there are exceptions to the requirement of leave of Court to be obtained before an appeal is filed against decisions of the Court of Appeal to the Supreme Court. The exceptions are circumstances when appeal shall be as of right. In other words, the party seeking to appeal decision of the Court of Appeal to this Court does not require leave to appeal. He is entitled to appeal straight to this Court. Subsection (2) of Section 233 of the 1999 Constitution of the Federal Republic of Nigeria states, inter alia, as follows:-

“An appeal shall lie from the decision of the Court of Appeal to the Supreme Court as of right in the following cases :-

…

(d) decision in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other Court.”

​The appellant herein was sentenced to death by hanging, by the trial High Court and on appeal to the Court below, the death sentence was affirmed with his appeal dismissed. In the result, he is entitled to right of appeal to this Court without seeking or obtaining any leave to so appeal.

In other words, without any further ado, the respondent’s preliminary objection is unmeritorious and vexatious, to say the least. It is accordingly dismissed.

On the main appeal itself, the appellant distilled two issues from the grounds of appeal as follows:

Issues for determination:

1. Whether the Court below was right to have affirmed the judgment of the trial Court on the ground that the learned trial Judge was right to rely on the extra-judicial statements (Exhibits C1 and C2) of the appellant in coming to the conclusion that the appellant and no other, killed the deceased – Glory. (Distilled from Grounds 1 & 3 of the grounds of Appeal).
2. Whether the Court below was right to hold that although the actual killing was done in an uncompleted building near the house in which the appellant was renting a room, there are clear evidence that the appellant removed the head and some parts into his room. (Distilled from ground 2 of the grounds of appeal).

​In arguing the issues, learned counsel to the appellant took the issues seriatim. On issue No. 1, he answered the question in the negative and submitted that the Court below was in clear error to have decided that the trial Court was right to rely on extra-judicial statements of the appellant and that the appellant and no other, killed the deceased.

Learned counsel contended that in our accusatorial system of criminal justice, the onus of proof of guilt of the appellant on the one count charge of murder lies on the respondent. He relied on Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria. He contended further that the standard of proof expected of the Prosecution is proof beyond reasonable doubt. He relied on Section 135 (1) of the Evidence Act, 2011; Uche Williams Vs. The State (1992) 10 SCNJ 74 at 75; Kim Vs. The State (1992) 4 SCNJ 81 at 84; Dr. Oduneye Vs. The State (2001) SCQR 1 at 3; Ubangi Vs. The State (2004) 1 MJSC 92 at 95.

​Learned counsel gave three ingredients the prosecution is required to prove to establish the guilt of the appellant in a charge of murder. These are:

(a) That the deceased died;

(b) That the unlawful act or omission of the accused caused the death of the deceased and;

(c) That the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequences.

Learned counsel contended that the totality of the evidence led by the prosecution shows that there was no direct eye witness evidence at the trial against the appellant. He contended further that the learned trial Judge confirmed this position hence based the conviction of the appellant on the extra-judicial statements of the appellant that were admitted as Exhibits C1 & C2.

Learned counsel conceded that the law is now settled that a Court of law can convict on a retracted confessional statement of an accused where such confessional statement is found to be relevant, positive, true, unequivocal and consistent with other relevant facts outside the confessional statement. He relied on Bature Vs. State (1994) 1 NWLR (Pt.320) 267 at 283, Fasinu Vs. State (2016) 12 NWLR (Pt.1527) 414 at 434.

​Learned counsel contended that the alleged confessional statements credited to the appellant which were admitted as Exhibits C1 & C2 were worthless and no evidential value ought to have been placed on it by the trial Court, as well as the Court below in convicting and affirming the conviction of the appellant for murder.

Learned counsel contended further that the alleged statement having been recorded in the language not understood by the appellant cannot be relied on by the Court and should have been discountenanced.

He conceded that his contention was not on admissibility of Exhibits C1 and C2 but whether the trial Court and the Court below ought to have placed evidential value on extra-judicial statements of the appellant even after they were admitted as exhibits, in view of the fundamental flaws in the procedure adopted in taking and recording same.

Learned counsel contended further that Exhibits C1 & C2 which were retracted confessional statements credited to the appellant did not satisfy the basic fundamentals of a valid statement before the trial Court and the Court below placed reliance on them. He relied on Ogudo Vs. State (2011) LPELR 860 (SC). He submitted that Exhibits C1 and C2 cannot be said to have been made by the appellant. He urged the Court to hold that there is doubt on whether or not the statements credited to the appellant as extra-judicial statements were made by him, hence urged the Court to, on this ground, allow the appeal. He relied on Ihane Vs. COP (1977) 6 SC 78.

On the rules that a Court must apply to determine the weight to be attached to a retracted confessional Statement, he relied on Nwaebonyi Vs. The State (1994) 5 SCNJ 86. He submitted that Exhibits C1 & C2 in this case did not pass the test and urged the Court to so hold.

Learned counsel referred to the testimonies of PW1, PW2, PW3 and PW4 relied on by the trial Court to corroborate the retracted confessional statements and contended that they are mere statements that are not direct, cogent or point to the fact that the appellant committed the offence. He urged the Court to resolve the issue in favour of the appellant and hold that both the trial Court and the Court below are in error to have solely used Exhibits C1 and C2 in convicting and affirming the conviction of the appellant. He urged the Court to allow the appeal on this ground.

​In the respondent’s brief of argument settled by B. B. Lawal Esq. a sole issue was distilled from the grounds of appeal filed by the appellant as follows:-

“Whether the Court below was right to have affirmed the judgment of the trial Court on the ground that the learned trial Judge was right to rely on the extra-judicial statements (Exhibits C1 and C2) of the appellant in coming to the conclusion that the appellant and no other, killed the deceased. (Distilled from grounds 1,2 & 3 of the Notice of Appeal).”

In arguing the issue which is the same as the appellant’s issue No. 1, though couched differently, learned respondent’s counsel referred to the complaint of the appellant in paragraph 4.34 of the appellant’s brief of argument, that Exhibits C1 and C2 which the Courts below relied on in convicting and affirming the conviction of the appellant did not satisfy the basic fundamentals of a valid Statement and the Courts below wrongly relied on them.

​Learned counsel contended that the issue raised by the appellant in this appeal on the alleged fundamental flaws associated with the confessional statements of the appellant, that is, Exhibits C1 and C2, is a fresh issue of law which the Courts below were not afforded an opportunity to pronounce on. He relied on Gaji Vs. Paye (2003) 8 NWLR (823) 583 at 599. He submitted that the appellant’s issue No.1 is incompetent and liable to be struck out. He urged the Court to so hold.

On the merit, learned counsel contended that the appellant’s attack against Exhibits C1 and C2 is the nature of a retraction. He submitted that where an accused wishes to resile out of his confessional statement, he must establish that his earlier statement cannot be true or correct by showing that:

(i) the statement was not correctly recorded;

(ii) he in fact did not make the statement;

(iii) he was unsettled in mind at the time he made the statement, or,

(iv) that he was induced to make the statement.

He relied on Kazeem Vs. The State (2009) All FWLR (Pt.465).

Learned counsel submitted that where a party intends to challenge a confessional statement, the party must be sure of the basis of his objection and when to raise the objection. For an objection touching on the voluntariness or otherwise of the confessional statement, the appropriate time to raise the objection is at the time the Prosecution attempts to tender the document.

​Learned counsel contended that, the appellant, upon entering his defence only alleged that he was beaten and told to confess that he killed the deceased. He did not raise an issue on the incorrect recording of the confessional statement. He submitted that the defence touching on the alleged Procedural defects associated with Exhibits C1 and C2 is an afterthought. He urged the Court to discountenance same. He relied on Sheidu vs. The State (2014) 15 NWLR (Pt.1429) 1 at 24.

Learned counsel contended that the appellant did not retract Exhibits C1 and C2 at the point at which the Exhibits were being tendered or, at the time he entered his defence. He submitted that the attempt now to retract Exhibits C1 and C2 on the basis of alleged procedural defects in the recording of the statements is an afterthought and he urged the Court to so hold. And that he was properly convicted on his voluntary confessional statements. He relied on Fasinu Vs. The State (2016) 12 NWLR (Pt.1527) 414 at 434; Nwaebonyi Vs. The State (1994) 5 NWLR (Pt.343) 138 at 157.

​Learned counsel referred to the testimonies of PW1, PW2, PW3 and PW4 which were used to corroborate the extra-judicial statements of the appellant by the trial Court. He urged the Court not to disturb the concurrent findings of the two Courts below on the point that the appellant killed the deceased for ritual purposes.

He urged the Court to resolve the issue against the appellant and dismiss the appeal in affirming the judgment of the Court below which had earlier affirmed the conviction and sentence of the appellant by the trial Court.

From the three grounds of appeal filed by the appellant the two issues distilled by the appellant can safely be condensed to the following:

Whether the prosecution proved the charge against the appellant beyond reasonable doubt relying on the extra-judicial statements of the appellant – Exhibits C1 and C2 to convict and sentence him.

​As I stated earlier, the appellant was charged with the offence of murder of 6 years old girl on the 12th day of March, 2014 in Moniya, Ibadan. It is already established by plethora of cases by this Court that in order to secure conviction in a charge of murder pursuant to the relevant provisions of the Criminal Code, Laws of the State, the prosecution must prove the following:-

(a) that the deceased had died;

(b) that the death was caused by the accused; and

(c) that the act or omission of the accused was intentional with the knowledge that death or grievous bodily harm is its probable consequences.

See; Uguru Vs. The State (2002) 9 NWLR (Pt.771) 90; Ubani Vs. The State (2003) 18 NWLR (Pt.581) 224; Igabele Vs. The State (2006) 6 NWLR (Pt.975) 100.

It is also the established law that in a charge of murder, the Prosecution is required to prove beyond reasonable doubt, not only that the act of the accused person could have caused the death of the deceased but that it actually did. But if there is any possibility that the deceased died from other causes than the act of the accused, the prosecution has then not established the case against the accused person that stood trial. See; Uguru Vs. The State (supra); Adebiyi Famakinwa Vs. The State (2016) LPELR-40104 (SC).

​Generally, on the quality of evidence to be relied upon by the prosecution, to establish the charge of murder, the evidence may either be direct or circumstantial. However, whether the evidence is direct or circumstantial, it must indeed establish the guilt of the accused person beyond reasonable doubt. See; Aruna Vs. The State (1990) NWLR (Pt.155) 125.

In the instant case, the accused person/appellant herein was said to have made statements to the police upon his arrest. The said statements were found to be confessional in nature and when there was no objection from the defence, they were admitted and marked Exhibits C1 and C2.

PW1 was one Mary Olaniran- the mother of the deceased school girl. She reported the case of her missing child to the Police when the girl did not return home from school. The school the deceased was attending was about three houses to the appellant’s house. During investigation by the police, the remains of the deceased were found in a bowl inside the locked up room owned by the appellant who was then nowhere to be found. He was later traced to Sokoto where he was arrested and brought to Ibadan for interrogation.

​PW3- Dauda Animashaun, a Police Officer was the investigation Police Officer who handled the case. The statements of the appellant were tendered by him and admitted in evidence. The records show that the statements were said to have been signed by the appellant. The trial Court found that the Investigation Police Officer counter-signed the statement and later took the appellant before a Superior Police Officer who endorsed the said statements.

Under cross-examination by the defence counsel, the PW3 testified, inter alia, as follows:

“Some other people were arrested and interrogated. There were initially two suspects in the case …

The accused person confessed that himself and one other killed the deceased when they strangulated her and twisted her neck.”

Murder is defined as the taking of human life by a person who either:

(a) Has a malicious and willful intent to kill or do grievous bodily harm; or

(b) Is wickedly reckless as to the consequences of his act upon his victim.

See; Yekini Afosi Vs. The State (2013) 13 NWLR (Pt.137) 329; (2013) 12 SCM (Pt.2) 23.

​Generally, as required by the Evidence Act – Section 138, in proving its case against a suspect, the prosecution may make use of either of the following:

(a) Evidence of an eye witness;

(b) Confessional Statement of the accused person which must be free and voluntarily given;

(c) Circumstantial evidence. See; Adio Vs. The State (1986) 2 NWLR (Pt.24) 581.

In the instant case, there was no evidence of an eye witness who can account for what exactly transpired or the role played by the accused person. But the trial Court relied on the alleged confessional statements of the accused, which was said to have been resiled or retracted during trial. It is noteworthy that the statements of the appellant were said to have been admitted in evidence when tendered before the trial Court without any objection by either the accused or his counsel. The trial Court after quoting from the admitted statement of the accused stated on page 73 of the records as follows:

“It is pertinent to note that the confessional statements of the accused person Exhibits C1 and C2 were tendered by the Prosecution and admitted in evidence without any objection by the accused person or his counsel.”

It is clear from the records that the trial Court relied on the confessional statements of the accused person which were admitted in evidence and marked Exhibits C1 and C2.

​In the said admitted statements of the appellant, the trial Court found that the accused admitted that he killed the deceased Glory of 6 years old by strangulating her and later dismembered her body. The said dismembered body were said to be packed in a bowl and kept in the room of the appellant.

​On pages 72-73 of the record, the trial Court quoted the alleged statement Exhibit C1 of the accused, inter alia, as follows:

“…my first wife (sic) name is Sukurat. She gave birth to the fourth child at Moniya area. She was the one that hire (sic) house at Moniya where myself, Chinyere and two others jointly killed one Glory, a six year old girl but I did not know the location of other Ibo boys but truly on the day the community discovered unusual odour inside my room, Baba Awo was the first person to approach me and he told me that people have detect (sic) that an odour (sic) is been percife (sic) inside my room that I make sure (sic) I ran away to prevent been (sic) arrest (sic) by the police… I ran away; My landlady ran away. My wife name (sic) Sikurat is fully aware that I was in possession of dead body and a human head. The body was in my possession for about three days before the secret link (sic) out. I quiet (sic) agree that I am the one that killed Glory… The very day I ran away to Lagos where I spent ten days. Later I relocate (sic) to Sokoto to find job doing and the very day I arrived Sokoto I was arrested by Police.”

​The statement admitted by the trial Court as Exhibit C2 was said to be additional Statement of the appellant. The said statement was quoted, inter alia, as follows on page 73 of the record:-

“…I wish to state that one Waheed Azeez alia Baba Awo who is residing beside where I am living at Isale Awero, Moniya area Ibadan called me sometimes on Tuesday in the month of February 2014 that he wanted to do money ritual for me and his son Wasiu Awo. That I should bring human being but his son Wasiu on that faithful (sic) day brought a little girl into an uncomplete (sic) building behind our house at [sale Awero … .Me and Wasiu Awo strangulated the little girl to death thereafter Awo Wasiu started matchething the little girl while I was watching road in case somebody is coming (sic) while Baba Waheed Azeez Awo too was watching around for us. After the killing, I took the head to my room also I carry (sic) the intestine put (sic) inside bowl before I took it to my room but when I carried the remaining body flesh entered inside room my wife saw it. As she saw the dead body she ran away from the room before people in the area detected the unusual odour Biodun Yusuff Nasiru was the one who killed the little I did not i know her name before but when his (sic) parent was searching, shouting around I got to know that the little girl I killed for ritual is Glory by name. I only tell lies (sic) about some Ibo. No Ibo send (sic) me any ritual.”

The trial Court found the above statements of the appellant voluntary and true. Indeed, the said statements were corroborated by the testimonies of PW1, PW2, PW3 and PW4.

It is on record that after the appellant gave his statement and it was found to be confessional in nature, it was taken with the appellant to a superior police officer before whom the appellant confirmed that he made the said statement. The senior Police Officer then counter-signed as required. It is equally noteworthy that even at this stage, the appellant did not complain that he did not make the statements voluntarily.

​There is no doubt that the above quoted extra-judicial statements which were admitted and marked by the trial Court as Exhibits C1 and C2 were not objected to by the accused who was duly represented by counsel. The said statements conformed and satisfied the requirements of a confession as enshrined in Sections 28 and 29 of the Evidence Act.

On page 151 of the records of appeal the Court below upon review of the above two extra judicial statements found as follows:

“The above reproduced extra-judicial statements of the appellant are clear, unequivocal and point to no other conclusion than that the appellant intended to and did admit to having killed the deceased – Glory. Though the actual killing was done in an uncompleted building near the house in which he was renting a room, there is clear evidence that the appellant removed the head and some other parts into his room. The two extra-judicial statements show clearly that the appellant and his wife were occupying the room at the time the crime was committed.”

​I certainly cannot agree less with the Court below that the learned trial Judge rightly and properly relied on the said statements to come to the conclusion that the appellant and no other person killed the deceased Glory.

As I stated earlier, it was rather too late for the appellant to challenge the voluntariness of the extra-judicial statements at the time he did, not having done so when they were being tendered by the prosecution. This Court had in several decided cases reiterated that the time to object to the voluntariness of a confessional statement is at the time of tendering same by the prosecution but not when the accused person opens his defence or during that defence. It will amount to an afterthought. See; Ogudo Vs. The State (2011) 18 NWLR (Pt.1278).

There is no doubt and the law is trite that an accused person can be convicted on his own confession alone and there is no law whatsoever against it. The law is clear on this point, that if a suspect makes a free and voluntary confession, as earlier stated, in his extra-judicial statement to the police, which confession is direct and positive and the Court is satisfied with its truth, such confessional statement alone is sufficient to ground and support conviction without corroboration. See; Asimiyu Alarape & Ors Vs. The State (2001) 5 NWLR (Pt.1705) 791 (2001) 2 SC 114 (2001) LPELR 412 (SC); Ozana Ubierho Vs. The State (2005) 5 NWLR (Pt.919) 644; (2005) 2 SC (Pt. 1) 18. Indeed, there is no evidence stronger than a person’s own admission or confession. See; Akeem Agboola Vs. The State (2013) 11 NWLR (Pt.1366) 619; (2013) 8 SCM 157.

In plethora of cases of similar facts and circumstances, the apex Court has stated clearly over and over again, that where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker retracted it altogether at the trial, as in this case. See; Agboola Vs. The State (supra); Egbogbonome Vs. The State (1993) 7 NWLR (Pt.396) 383; Osetola Vs. The State (2012) 17 NWLR (Pt.1329) 251 at 278.

From the way the appellant himself described the way and manner he strangulated and matchetted the victim – Glory to death and dismembered the six year old girl, shows clearly that he is not fit to be alive. The law should remove him also in accordance with the law.

​In the final analysis, I am satisfied that the trial Court was right in its conclusion that the prosecution proved the charge of murder against the appellant beyond reasonable doubt, and he was appropriately convicted and rightly sentenced to death. In the same vein, the Court below was correct in affirming the conviction and sentence by the trial Court. In other words, the instant appeal is not only lacking in merit but vexatious and annoying to say, the least. It is liable to dismissal. The judgment of the Court below which earlier affirmed the judgment of the trial Court is affirmed. This appeal is accordingly dismissed.

Appeal dismissed.

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SC.CR/766/2020