Okeremute V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

The appellant herein was charged with others at large before the High Court of Edo State on a two-count charge of conspiracy to commit murder and the murder of one Odion Oikhale on or about the 2nd of August, 2010 at Evbuekpen Village in the Benin Judicial Division. The offences are punishable under Sections 324 and 319(1) respectively, of the Criminal Code, Cap. 48 Vol. II, Laws of Bendel State of Nigeria, 1976, applicable in Edo State.

The facts are as follows: on 22/8/2010, there were two parallel meetings held within the Evbuekpen community to resolve a pending dispute between two youth groups. One meeting was held in the compound of PW1, Andrew Oikhale while second meeting was held in the home of the appellant. PW1 is the father of the deceased. He received information that his son had gone missing. While searching for him, two boys, Igbinoba Odigie and Smart Amodu told him that his son had been killed. He received the news in the evening by which time all those who held the meeting at the appellant’s house had run away from the village. A further search at dawn led to the discovery of his son’s corpse.

A report was made to the Police. A team accompanied PW1 to the scene. The body of the deceased was found covered in a plantain plantation. He identified the corpse as that of his son, after which it was moved to Stella Obasanjo Hospital. The following day, he went to make a statement at the Police Station. While there, the appellant arrived with his lawyer, one Barrister Oko. According to PW1, he informed the Police in his presence that he was the one who shot the deceased. Thereupon he was arrested and other suspects were released. He was eventually charged to Court.

In proof of its case, the prosecution called four witnesses and tendered exhibits, which included Exhibit B, the appellant’s extra-judicial statement, which was confessional. The appellant challenged the voluntariness of the statement. A trial within trial was conducted after which the Court ruled that the statement was voluntarily made and admitted it in evidence as Exhibit B.

The appellant testified in his own defence and called three other witnesses.

At the conclusion of the trial and after considering the written addresses of counsel, the Court, in a reserved judgment delivered on 23/9/14, acquitted and discharged him on the count for conspiracy but found him guilty of murder. He was accordingly convicted and sentenced to death by hanging.

His appeal to the lower Court was unsuccessful, hence the further and final appeal to this Court. The Notice of Appeal filed on 25/7/17 contains two grounds of appeal.

At the hearing of the appeal on 18/2/21, J.N. Okongwu adopted and relied on the appellant’s brief filed on 8/12/17 in urging the Court to allow the appeal. Andrew Malgwi Esq., adopted and relied on the respondent’s brief filed on 12/3/18 but deemed filed on 9/10/19 in urging the Court to dismiss the appeal.

On behalf of the appellant, two issues were distilled for the determination of the appeal:

1. Whether the Court of Appeal was right in affirming the decision of the trial Court holding that the prosecution did prove the guilt of the appellant beyond reasonable doubt?
2. Whether the Court of Appeal was right in upholding the conviction and sentence of the appellant on the basis of the purported confessional statement of the appellant?

Learned counsel for the respondent also formulated two issues, which are the same as the appellant’s issues, though worded differently. It is not necessary to reproduce them. The appeal can be conveniently resolved under a sole issue, to wit:

Whether the Court was right in affirming the judgment of the trial Court, which held that the prosecution proved the appellant’s guilt beyond reasonable doubt?

Sole issue

Learned counsel for the appellant submitted that in criminal cases, and particularly in murder cases which carry the death penalty, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt. He submitted further that the onus of proof remains on the prosecution and does not shift. He referred to Morka Vs The State (1998) 2 NWLR (Pt. 539) 294 @ 301, Cyracus Ogidi & Ors. Vs The State (2005) 1 SCNJ 67 @ 85 – 86; Section 138 of the Evidence Act, Cap. 112 LFN 1990. He set out the ingredients required to establish a charge of murder: