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:

a) That the deceased died as a result of the voluntary act of the accused person.

b) That the deceased died from injuries the accused person inflicted on him and not from other causes.

c) That there was intent to kill the deceased.

See Ozaki vs The State (1990) NWLR (Pt. 124) 92; Omonuju vs The State (1976) 5. SC 1; Ogeke vs The State (1999) 2 NWLR (Pt. 590) 595.

He submitted that it must also be proved that the act or omission of the accused, which led to the death of the deceased, was intentional, with the knowledge that death or grievous bodily harm was its probable consequence.

He noted that the trial Court relied on the evidence of PW1, PW4 and the appellant’s confessional statement (Exhibit B) in convicting him. He contended that the only aspect of PW1’s testimony linking the appellant to the crime was his evidence that he was at the State CID when the appellant, in the company of his lawyer, told the police that it was he who shot the deceased. He submitted that PW1’s evidence in Court was at variance with the statement he made to the police on 23/8/2010 (Exhibit) A), where he named those he suspected to have killed his son.

He argued that PW1 only named those who were having issues with his son and that he did not state that it was the appellant who killed him. He submitted that Exhibit A showed that PW1 had no information as to who actually killed his son. He queried why the appellant did not include the fact of the appellant’s confession in the presence of his lawyer, in his statement made on 25/8/2010 or in an additional statement? He also questioned why PW1 did not confront the appellant in the presence of the police to ask him why he killed his son. He contended that PW1’s evidence amounts to hearsay.

Learned counsel submitted that the only evidence that connected the appellant with the case was the evidence of PW4, ASP Friday Ogboi who testified that when the case was transferred to him on 25/8/2010, a good Samaritan lawyer brought the appellant to his office informing him that he had been on the run because he was alleged to have killed the deceased. He also testified that he obtained the appellant’s statement on 30/8/2010, after cautioning him. He noted that during the trial within trial, the appellant testified that the statement was obtained under duress. He noted that the statement was obtained on 30/8/2010, five days after his arrest. He submitted that the taking of the statement and the attestation thereto (Exhibit C) on 30/8/2010, dealt a blow to the testimony of PW1 that the appellant confessed to the crime in his presence on 25/8/2010.

He submitted that PW4 was not an eye-witness to the crime and he could not therefore testify that he knew it was the appellant who shot the deceased, having testified that he met him for the first time on 25/8/2010. He referred to Ekpo vs. The State (2001) FWLR 59) 454. He submitted that there were inconsistencies in the evidence before the Court which ought to have created some doubt in its mind as to the appellant’s guilt. He referred to Akosile vs The State (1972) 5 SC 332, Onubogu Vs The State (1974) 9 SC 1. Relying on the case Sani vs The State (2015) 15 NWLR (Pt. 1483) 550 B – D, he submitted that the failure of the prosecution to state the time the incident occurred in the charge was a vital omission.

As regards Exhibit B, learned counsel reiterated the requirements for the admissibility of a confessional statement as stated in Patrick Njovens &Ors. Vs The State (1973) 4 SC 17, Gbadamosi vs The State (1992) 11 – 12 SCNJ 269. He submitted that the appellant alleged that he was tortured and that he was not permitted to write his statement himself even though he is literate. He contended that the fact that his statement was obtained five days after his arrest supports the appellant’s allegation that he was tortured for several days.

He submitted further that PW4 was inconsistent as to the day he arrested the appellant, having given both 25/8/2010 and 30/8/2010 as the date of arrest. He also submitted that the appellant’s three witnesses gave credible evidence on his behalf stating that he did not kill the deceased. He maintained that the prosecution failed to discharge the onus of proving that Exhibit B was made voluntarily and argued that the lower Courts were wrong to have relied on it in sustaining his conviction.

In reaction to the above submission, learned counsel for the respondent conceded that in order to prove the charge against the appellant, or any person charged with the commission of an offence, the standard of proof is beyond reasonable doubt. He noted that it is a settled principle of law that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. He referred to Miller Vs Minister of Pensions (1947) 2 ALL ER372; Oreoluwa Onakoya vs FRN (2002) 11 NWLR (Pt. 779) 595: State vs Ekanem (2017) 4 NWLR (Pt. 1554) 85 @ 105 C-D and E-F. He also referred to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Section 135 of the Evidence Act, 2011. He agreed that the burden does not shift. He submitted that the manner in which the burden is discharged depends on the nature of the offence and the circumstances of the case. See Ugwanyi Vs FRN (2010) 14 NWLR (Pt. 1213) 392 @ 409 B-C. He set out the ingredients of the offence of murder as stated by learned counsel for the appellant.

On the first ingredient, he submitted that the evidence of PW1 and PW3 proved that the deceased died. He submitted that PW3’s testimony proved that he died as a result of gunshot wounds to his right upper back which lacerated the heart and lungs and caused severe bleeding or haemorrhage.

On the second ingredient, he referred to the evidence of PW1 and PW4 who testified that the appellant came to the police station in the company of his lawyer and confessed to the commission of the crime in their presence. He also referred to Exhibit B, the appellant’s confessional statement, which was reproduced. He submitted that these pieces of evidence clearly established that the death of the deceased resulted from the act of the appellant.

On the third ingredient, that the act was intentional with knowledge that death or grievous bodily harm was its probable consequence, he submitted that it was evident from Exhibit B that the deceased did not attack the appellant and that the appellant did not shoot him in self-defence nor as a result of provocation. He noted that the appellant intentionally took the gun from where his father kept it and used it to shoot at the deceased. He also referred to the evidence of PW1 and PW4. He submitted that the prosecution proved its case beyond reasonable doubt and the lower Court was right to have affirmed the conviction and sentence. He referred to Adekoya Vs the State (2017) 7 NWLR (Pt. 1565) 353 D-G.

He contended that there was no inconsistency or contradiction in the prosecution’s case such as could raise any doubt in the mind of the Court. He submitted that the evidence of the prosecution witnesses was straightforward and remained uncontradicted under cross-examination. He referred to ASAFA Foods Factory Vs Alraine (Nig) Ltd. (2002) 12 NWLR (Pt.781) 35A3 -C, Ikuomola Vs Oniwaya (1990) 4 NWLR (Pt. 146) 617 @ 624 D-E.

He argued that the evidence of PW1 and PW4 were not hearsay. On what amounts to hearsay, he referred to Section 126 of the Evidence Act, 2011. He submitted that PW1 and PW4 testified as to what they heard directly and not information given to them. He submitted that the authority of Ekpo Vs The State (supra) relied upon by the appellant’s counsel is not apposite in the circumstances of this case. He submitted that the evidence of these witnesses was corroborated by Exhibit B. He submitted that the learned trial Judge carefully examined and evaluated all the evidence before him before coming to his conclusion as to the appellant’s guilt. He submitted that the lower Court was right not to interfere.

​

As regards Exhibit B, learned counsel reiterated the law and authorities on what constitutes a confessional statement and the test of its voluntariness and admissibility. He submitted that once a confessional statement is admitted in evidence, it becomes part of the prosecution’s case.

He referred to Kolade Vs The State (2017) 8 NWLR (Pt.1566) 89 @ 94-95 G-A; Egboghonome Vs The State (1993) 12 CRCN (Pt. A) 701. He submitted that the procedure adopted by the learned trial Judge at the trial within trial is in line with the decision of this Court in Hassan Vs The State (2017) 5 NWLR (Pt. 1557) 28 and Section 29 of the Evidence Act. He submitted further, that the lower Court was right when it held that the appellant failed to prove or show evidence that he was tortured.

He submitted that the retraction of a confessional statement at the trial does not render it inadmissible. See Egboghonome Vs The State (supra). Relying on several authorities, he submitted that a Court can convict solely on the confessional statement of an accused person if it is voluntary, direct, positive and properly proved. See Dibia Vs The State (2017) 12 NWLR (Pt. 1579) 196; Oseni Vs The State (2012) 5 NWLR (Pt.1293) 351 @ 393-394 F-C; Abdullahi Vs The State (2008) 13 NWLR (Pt.1103) 149. He submitted that Exhibit B met all the criteria for admissibility. He submitted that the evidence of PW1, PW2, PW3 and PW4 corroborate the said confessional statement. He also noted that there was no appeal against the ruling in the trial within trial and it is too late in the day for the appellant to complain now. He referred to Hassan Vs the State (supra). He urged the Court to resolve the appeal in the respondent’s favour.

Before delving into the merit of the appeal, it is necessary to address the submission that the prosecution failed to indicate the time the offence was committed in the charge. The appropriate time to complain or object to a charge is at the time it is being read and before the accused makes his plea and not later. It is too late to complain at this stage. The appellant has not shown that he was misled in any way or that the omission has occasioned a miscarriage of justice. See Okewu Vs F.R.N. (2012) 9 NWLR (Pt. 1305) 327, Mumini vs F.R.N. (2018) 13 NWLR (Pt. 1637) 568, Okpa vs The State (2017) 15 NWLR (Pt. 1587) 1.

Both learned counsel have correctly stated the position of the law on the onerous burden placed on the prosecution in establishing the guilt of a person charged with a criminal offence. The prosecution must establish the guilt of the accused person beyond reasonable doubt although not beyond the shadow of a doubt. Proof beyond reasonable doubt means proof as satisfies the judgment and conscience of a Judge as a reasonable man and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. See Afolalu vs The State (2010) 16 NWLR (Pt. 1220) 584 @ 609 – 610 G -A; Oseni Vs The State (2012) 5 NWLR (Pt. 1293) 351 @ 388 F – G; Miller Vs Minister of Pensions (1947) 2 ER 372; Ikpo Vs The State (2016) 10 NWLR (Pt. 1521) 501.

The ingredients of the offence of murder punishable under Section 319 (1) of the Criminal Code of Bendel State applicable in Edo State, which must be proved beyond reasonable doubt are as follows:

1. That the deceased died;
2. That the death of the deceased resulted from the act of the accused;
3. That action of the accused was intentional with knowledge that it might result in death or grievous bodily harm.

See Akpan VS The State (1994) 9 NWLR (Pt. 368) 247; Olaiya vs The State (2017) 9 – 12 SC 86; Simeon vs The State (2018) 13 NWLR (Pt. 1635) 128.

This appeal is against concurrent findings of fact by the two lower Courts. The appellant, in order to succeed, must therefore satisfy this Court that the findings are perverse. He must show that the decision is wrong, not based on the evidence before the Court or that it violates some principle of law or procedure such that if allowed to stand it would occasion a miscarriage of justice. See Abdulmumini Vs FRN (2017) SC (Pt. 11) 37: Atolagbe Vs Shorun (1985) 1 NWLR (Pt. 2) 360: Iwuoha Vs Nigerian Postal Services Ltd. & Anor. (2003) 4 SC (Pt. 11) 37.

As regards the fact that the deceased died, it is not in contention. The learned trial Judge accepted and believed the evidence of the prosecution in this regard. PW1 testified that he identified his son’s corpse while PW3, Dr. Wilson Akliwu (Chief Consultant Pathologist) testified as to the cause of death being “an arm’s length multiple pellet gun shot to the back which lacerated the lungs and heart causing severe bleeding.” In upholding the finding of the trial Court on this issue, the lower Court held:

“The evidence was that the deceased did not suffer any chronic illness before his death. It is therefore certain that the deceased died from multiple gunshots.”

The appellant did not challenge this finding and has not shown it to be perverse. It is supported by the evidence on record.

The second ingredient is proof that the death of the deceased result from the act of the accused person. In resolving this issue, the learned trial Judge relied on the evidence of PW1, PW4 and Exhibit B. As stated earlier in this judgment, it was the testimony of PW1 that he was at the police station when the appellant in the company of his lawyer, informed the police, in his presence that he shot the deceased.

Learned counsel for the appellant argued that the evidence amounts to hearsay and is therefore inadmissible.

Sections 37 and 38 of the Evidence Act, 2011 provide:

“37. Hearsay means a statement –

(a) Oral or written made otherwise than by a witness in a proceeding; or

(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of proving the truth of the matter stated in it.”

38. Hearsay evidence is not admissible except as provided inthis part or by or under any other provision of this or any other act.”

It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to established by the evidence, not the truth of the statement but the fact that it was made. See Utteh Vs The State (1992) 2 NWLR (Pt. 223) 257; Subramanian Vs Public Prosecutor (1956) 1 W.L.R. 965 @ 970; F.R.N. Vs. Usman (2012) 8 NWLR (Pt. 1301) 141. In the instant case, PW1 did not testify as to what somebody else told him. He testified as to what he heard directly from the appellant’s mouth. His evidence was not hearsay.

PW4 testified that the appellant made a confessional statement wherein he confessed that he shot the deceased. He testified that when the appellant made his statement, his lawyer was present and that he made the statement voluntarily. He also testified that he took him before a superior police officer for attestation as to its voluntariness. The appellant retracted the statement at the trial. A trial within trial was conducted after which the Court was satisfied that the confession was voluntarily made. Having so found, the Court was entitled to consider it along with other evidence before it in reaching a determination as to the appellant’s guilt or innocence.

Relying on the case of Osetola Vs The State (2012) 6 -7 MJSC (Pt. Il) 41, the learned trial Judge stated thus:

“The Supreme Court (in that case) held that where an extra-judicial confession had been proved to have been made voluntarily and it is positive and unequivocal, and amounts to admission of guilt, such confession will suffice to ground a finding of guilt regardless of whether the maker resiled therefrom or retracted it altogether at the trial.”

This is no doubt, a correct statement of the law. Nevertheless, His Lordship went further and applied the six-way test laid down in R Vs Sykes (1913) Cr. App R. 233 and followed in many other cases such as Ogudo Vs The State (2012) ALL FWLR (Pt. 629) 111; Mumuni Vs The State (1975) SC 66 (1975) LPELR – 1926 (SC): Nsofor VS The State (2005) ALL FWLR(Pt. 242), to consider other evidence outside Exhibit B to determine if the confession was probable. The Court was satisfied that Exhibit B passed all the tests.

The Court below, in affirming this finding held thus:

“A voluntary confessional statement (Exhibit B has been adjudged one) precedes the trial of the case in respect of which it is made and it therefore forms part of the case for the prosecution. The fact that its voluntariness is challenged at the trial does not affect it admissibility…

I hold that Exhibit B is direct and positive and is enough to convict the appellant as rightly done by the learned trial Judge.

…

There is no need for corroboration where the confession is positive and unequivocal.”

The law is indeed trite that a confessional statement which is voluntary, properly proved, direct and unequivocal, is sufficient to sustain a conviction, even where it is subsequently retracted at the trial. As a mater of practice, the Courts look for some other evidence outside the statement, no matter how slight to establish the truth of the matters admitted therein. The six-way test laid down in R.Vs Sykes (Supra) requires the Court to satisfy itself of the following:

1. Is there anything outside the statement to show that it is true?
2. Is it corroborated?
3. Are the facts stated therein true as far as can be tested?
4. Did the accused have the opportunity of committing the offence?
5. Is the confession possible?
6. Is it consistent with other facts that have been ascertained and proved?

See Akpa vs The State (2007) 2 NWLR (Pt. 1019) 500; Okoh Vs The State (2014) 8 NWLR (Pt. 1410) 502.

In Exhibit B, at page 28 of the record, the appellant stated inter alia:

“I am the youth secretary of Evbuekpen Village. One Smart Amaoku is also our Vice-Chairman of youth in Evbuekpen while Smart Odibo is the youth treasurer of Evbuekpen village. The Evbuekpen youth books are with me as the secretary. On 22/8/2010, at about 9.00pm when I arrived home my mother Mrs. Margaret Okeremute told me that some group of boys… and host of others came to our house to demand for the community youth books from me. … After I have handed over the books, I stayed in their mist (sic) and started listening to the matter they were deliberating on. As I was listening, one Mama Believe came in there and told me some groups of boys have surrounded our house in search of me… There and then I decided to go home and met them but Robinson Odigie and other elders advised me that I should not go home. Then I insisted I must go to my house…

I was already in the middle between these groups and the elders. There and then I ran home while these groups followed me behind. As at the period they were beckoning me to meet them they (sic: there) was no fight or quarrel. As I saw them in my house, I ran into the nearby bush behind our house. While I was in the bush, I notice that they were fighting with my people, namely Lucky Okeremute and Ufuoma Okeremute. I also heard gun shots and wailing that they have killed Ufuoma Okeremute.

When I heard wailing and cry of the people, I came out of the bush and went into my house through the backyard to where my father kept his single barrel gun and took it. After I have armed myself with the single barrel gun, I came out to the frontage of the house and saw that they had started running away. Then I saw somebody running away and I shot at him.

It was later I came to realise that it was Odion Oikhala that I shot. After I had shot at Odion Oikhala, when he was running towards the Church area…

I did not shoot any other person that sustain injuries except Odion Oikhala now deceased. After I had finished using the singe barrel gun. I took it back to the house where I kept it on top of my father’s bed.

I did not plan with anybody to kill Odion Oikhala now deceased. Nobody sent me to use gun to kill anybody. After the whole incident, I and my family escaped into the bush before running to Benin. In a nutshell, I am the person who killed Odion Oikhala with a single barrel gun shot.” (Underlining mine)

The statement reproduced above is a positive and unequivocal narration of the events that took place on the fateful day straight from the horse’s mouth, as it were. There can be no better evidence of the commission of a crime than the eye witness account of the accused himself. Having conducted a trial within trial and satisfied itself that the statement was made voluntarily, the trial Court was entitled to rely on it without further corroboration. Nonetheless, both Courts examined other evidence in the case, such as the evidence of PW3, which confirmed that the deceased was shot in the back and the evidence of PW1 that he heard the appellant confess to killing the deceased at the Police station where he had come to report himself in the company of this lawyer. PW4 also testified that the appellant came to the police station with his lawyer and confessed that he killed the deceased. The testimony of these witnesses was not discredited.

It is pertinent to note that the ruling on the trial within trial was delivered on 11/2/2014. There is no appeal against that decision. It is too late in the day for learned counsel to raise the issue of voluntariness of the statement at this stage. It has not been shown that the findings of the two lower Courts that it was the act of the appellant that caused the death of the deceased, are perverse. They are endorsed by me.

The final ingredient of the offence is that the killing was intentional with the knowledge that death or grievous bodily harm would be the likely outcome.

​PW3 testified that the deceased was shot in the back at close range which led to laceration of the heart and lungs and heavy bleeding. There can be no doubt that in shooting the deceased in the back at close range, even as he was running away, death or grievous bodily harm was the natural consequence. It can therefore rightly be inferred that the appellant intended the natural consequences of his act. In other words, he intended to kill the deceased or inflict grievous harm on him. See Garba vs The State (2000) 4 SC (Pt.II) 157; Ibikunle vs. The State (2007) 2 NWLR (Pt. 1019) 555. Thus, the third ingredient was also proved beyond reasonable doubt. The sole issue in this appeal is accordingly resolved against the appellant.

In conclusion, I am not persuaded to interfere with the concurrent findings of fact made by the two lower Courts, which have not been shown to be perverse. I find no merit in this appeal. It is hereby dismissed.

The judgment of the lower Court delivered on 30/6/2017 which affirmed the appellant’s conviction and sentence by the trial Court, is hereby affirmed.

Appeal dismissed.

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SC.948/2017