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Owolabi Kolade Vs The State (2017)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appeal herein is against the judgment of the Court of Appeal, Ibadan Division delivered on the 18th day of May, 2015 wherein the Court affirmed the conviction and sentence of the appellant to death by hanging. The High Court of Ogun State, Ilaro Division condemned the appellant herein for murder of his father Kolade Olaleye on 3/12/11. The appellant was arraigned on a one count charge of murder.

Being dissatisfied with the affirmation of the said conviction and Sentence by the lower Court the appellant has now appealed to this Court.

In the judgment appealed from, the facts show that the appellant, while his father slept, strangled him by holding him by the neck.

THE BRIEF STATEMENT OF THE FACTS

The facts of this case as testified by the prosecution witnesses at the trial Court are that on or about the 3rd day of December, 2011, the PW1 in this case was on his way to his father’s (deceased) house when he saw the appellant (who is also the PW1’s brother) on the deceaseds motorcycle. The appellant informed the PW1 that the deceased had died. When

the PW1 got to where the deceased was, he noticed marks on the neck of the deceased. The PW1 then went to inform some others of the incident. The PW1 was later informed that the appellant had carried the deceased’s corpse and that the appellant had been arrested by immigration officers.

The appellant confessed to the murder of the deceased. The case was reported to the police and an autopsy was carried out on the deceaseds corpse.

The PW2 was the doctor who examined the corpse of the deceased at General hospital, Ilaro while PW3 named Corporal Oyelakin Segun was the Divisional I.P.O who recorded the statement of the appellant at the divisional police station and admitted in evidence as exhibits B and B1. The statement of the appellant recorded also by the PW4 woman Sergeant Philomena Imhanrio was admitted as exhibits D and E. The said exhibits D and E were however disregarded by the learned trial Judge.

The appellant on his part testified in his defence and denied the charge. In his evidence he stated that he was not with the deceased on the night that he (the deceased) died. Appellant said he slept at his maternal grand-mother’s house in

another village on the night of the incident.

The appellant was found guilty and sentenced to death by the trial Court. His appeal before the lower Court was also dismissed and hence the appeal now before us.

In accordance with the Rules of Court briefs were exchanged between the parties. While the appellants brief of argument was settled by Chief Henry Eshijonan Omu and filed 25th August, 2015, that of the respondent was settled by F. F. Fakolade, Esq and filed on the 23rd November, 2015.

On the 8th December, 2016 the date the appeal was called up for hearing, both counsel adopted their respective brief of argument. The appellants counsel urged in favour of allowing the appeal while the respondents counsel submitted in favour of the dismissal as lacking in merit.

Before this Court, the appellant has raised three issues for determination from the ten grounds of appeal filed and are as specified at paragraphs 3.01, 3.02 and 3.03 of the appellants brief of argument as follows .

3.01 Whether the prosecution proved its case beyond reasonable doubt against the appellant to the effect that the appellant killed his father

Olaleye Kolade to justify the affirmation of the conviction and sentence of death by hanging of the appellant for murder by the learned Justices of the Court of Appeal Ibadan Division. (Grounds 1, 2, 4, 5 and 6).

3.02 Whether the learned Justices of the Court of Appeal. Ibadan Division were right to have affirmed and adopted the learned trial Judges admission of the Appellant’s purported extra-Judicial statements – exhibits B and B1″ as confessional statements in spite of the illiteracy of the appellant, the manner in which the said statements were obtained and the objection of the appellant to their admissibility by reason of the involuntariness of the process of their extraction and relied heavily upon same to affirm the conviction and sentence of the appellant for murder. (Grounds 3 and 8).

3.03 Whether the learned Justices of the Court of Appeal, Ibadan Division were right to have affirmed the conviction and sentence of death by hanging of the appellant for murder when the prosecution failed to disprove the appellants alibi of being far from the crime scene (at his maternal grandmothers village)

at the time of the incident. (Ground 9)

I wish to state quickly that there are no issues formulated on behalf of the appellant from grounds of appeal No. 7 and 10. The grounds in the circumstance are hereby struck out.

On behalf of the respondent the three issues formulated are similar to those raised by the appellants counsel. However and despite the similarity, I would seek to adopt the issues formulated by the respondent’s counsel in view of the precision:-

Whether the learned Justices of the Court of Appeal were right to have affirmed the decision of the trial Court that the prosecution proved the offence of murder against the appellant.
Whether the learned Justices of the Court of Appeal were right to have held that the learned trial judge was right in relying on the confessional statement of the appellant in convicting him.
Whether the learned Justices of the Court of Appeal were right to have held that the defence of Alibi raised by the appellant at the trial of this case cannot avail the appellant.

1ST ISSUE

Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant

by the trial Court. In other words, whether the prosecution did prove the offence of murder against the appellant.

In order to substantiate the issue raised, the appellant’s counsel contends that the prosecution did not prove its case beyond reasonable doubt against the appellant to the effect that he killed his father – Olaleye Kolade. Thus, the learned counsel argues that there was therefore no justification why the lower Court should have affirmed the conviction and sentence of death passed on the appellant by the trial Court; that what the justices of the lower Court did was to summarily accept, adopt and affirm the various findings and conclusions by the trial Court that the appellant killed his deceased father and relied merely on the confessional statements exhibits “B” and “B1”. Counsel submits this as having prejudiced the appellant seriously.

The counsel restated and outlined the three essential ingredients of the offence of murder which must be proved as follows:-

(1) That the deceased died:

(2) That the death of the deceased was caused by the accused and

(3) 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 result.

The following authorities were cited by the learned counsel in support of his arguments. Chukwu V. The State (2013) All FWLR (Pt- 666) 425 at 437; Oshiba V. The State (2011) 12 SCNJ 526; Uguru V. The State (2002) FWLR (Pt. 103) 330 at 343 – 344 and Ogbu V The State (2007) 28 WRN 1 at 8.

While submitting vehemently against the conviction and sentence passed on the appellant, his learned counsel reiterates the absence of any reasonable ground whatsoever, warranting the learned justices of the lower Court in affirming the trial Court’s conviction of the appellant for the murder of his father – Olaleye Kolade, considering the totality of the evidence elicited before the trial Court. It is the submission of learned counsel further that the affirmation of conviction of the appellant is unsupportive in law as it is against the evidence adduced at the trial; that the said judgment is also a clear miscarriage of Justice against the appellant.

Counsel cites the authority in the case of Nigerian Air Force v. Obiasa (2003) 4 NWLR (Pt. 810) page 333 where

the onus is placed on the prosecution always to prove its case beyond reasonable doubt. It is a further contention of the learned counsel that the prosecution at the lower Court failed to prove its case as required by law; that the learned justices of the lower Court in their judgment never carried out any confirmatory review of evidence elicited by the prosecution for the defence to justify the affirmation of the conviction and sentence of the appellant. This, the learned counsel submits is in view of the absence of any eye witness to the purported murder; that the lower Court placed far too much weight on the uncorroborated evidence of PW1.

The following authorities were relied upon by the learned counsel to support the defects in the evidence put forward by the prosecution. See Benson Obiakor V. The State (2002) FWLR (Pt. 113) 299 at 313; Onah V. The State (1985) 3 NWLR (Pt. 12) 236: Oforlette V. The State (2000) FWLR (Pt. 12) 2081 at 2097; Udosen V. The State (2007) 1 NWLR (Pt. 1023) 125 at 162 and Joseph Idowu V. The State (2000) FWLR (Pt. 16) 2672 at 2702 – 2703.

Submitting on the question of medical evidence, the learned counsel for the

appellant argued vehemently that there was no such evidence whatsoever linking the death of the deceased to the appellant. The counsel wasted no time in re-emphasizing the absence of any evidence placed before the Court as to how the deceased actually died.

In view of the preceding arguments the counsel urges this Court to hold that this appeal is meritorious and consequently same should be allowed on the 1st issue and the judgment of the trial Court which was affirmed by the Court of Appeal, Ibadan Division should be set aside and be substituted with orders of discharge and acquittal of the appellant.

In response to the 1st issue raised on behalf of the appellant, the learned counsel for the respondent restates emphatically that the learned Justices of the Court of Appeal rightly affirmed the decision of the trial Court that the prosecution proved the charge of murder beyond reasonable doubt against the appellant; that from the evidence adduced by the PW1, PW2 and PW3, and also Exhibit A (medical report) as well as the evidence of the appellant himself at the trial Court, the fact that the deceased person died is not in issue.

In proof

of the second ingredient, that death of the deceased was caused by the accused, the respondents counsel made copious reference and relied solidly on the testimony of PW1 at the trial Court. In addition to Exhibit A (supra), heavy reliance was also made on the appellant’s statement Exhibit “B”, “B1 and “B2” wherein he confessed to strangling the deceased to death while he (the deceased) was sleeping on his mat. Counsel relied on the decision in the case of Akpa V. State (2008) 8 SCN page 77 at 87 and reiterates that Exhibits B and B1 gave a clear detail of the role played by the appellant in the murder of the deceased which only the appellant himself could have narrated.

The learned counsel urges the Court to hold that the said confessional statement having been admitted satisfies the burden of proof placed on the prosecution; that the Court should not therefore disturb the findings of the lower Court that the trial Court was right to have held that the prosecution proved the second ingredient of murder against the appellant beyond reasonable doubt.

While urging this Court to hold that the trial Court was right to have relied on the medical

report, exhibit A, this counsel submits, is, notwithstanding the absence from the Court, the medical officer who performed the autopsy on the deceased. See the case of Edoho V. State (2010) SCM page 52 @ page 68; that the justices of the lower Court were right by not disturbing the findings of the trial Court in this regard.

In further submission to establish that the appellant intended the death of the deceased, the learned counsel related copiously to the content of exhibits “B” and “B1′, to establish the third ingredient of murder against the appellant by the prosecution.

On the defences of provocation and self defense, counsel submits that same do not avail the appellant in the circumstance of the case at hand. It is the contention of counsel further that even in the absence of any eye witness evidence to the murder of the deceased, the circumstantial evidence against the appellant is overwhelming. Cited in support of the argument is the case ofNigeria Navy & Ors V. Lambert (2007) 12 SCM (pt. 2) page 433 @ 434 – 435. Relying on the confessional statement made by the appellant, same, the learned counsel argues has rendered the evidence of

an eye witness unnecessary because it is sufficiently corroborated by other pieces of evidence led by the prosecution at the trial Court.

In seeking to re-establish the evidence of PW1, the respondent’s counsel argues that it is not hearsay evidence because he only gave evidence of what was within his knowledge during the trial; that the Court should accord credibility to the witnesses’ evidence which was rightly relied upon by the trial judge.

In final submission on the first issue, the respondent’s counsel urges the Court not to disturb the concurrent findings of the two lower Courts but affirm same as having been proved beyond reasonable doubt.

The 1st issue raises the question thus:-

Whether the learned Justices of the Court of Appeal were right to have affirmed the decision of the trial Court that the prosecution proved the offence of murder against the appellant.

As rightly submitted and conceded by both counsel, the law is well settled that in criminal trial cases the onus is placed always on the prosecution squarely to prove its case against on accused person. See the case of Abirifon v. State (2013) 9 SCM page 1 @ 5 where this

Court held that the onus of proof is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt. It is also settled law that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt. See also the case of Nwaturuocha V. The State (2011) 12 SCM (Pt. 2) page 265 @ 269.

In a charge of murder for instance, the prosecution is required to establish the following three essential ingredients before it could secure the conviction of an accused person:-

a) there must be the proof that the deceased died:

b) that the death was in fact caused by the accuseds act; and

c) that the accused person intended to either kill the victim or cause him grievous bodily harm. See the case ofNjokwu V. The State (2013) 2 SCM page 177 @ 180.

On behalf of the appellant, his learned counsel rightly submitted that, for an accused person to be convicted of murder, the prosecution must prove each of the three ingredients listed above. The prosecution has the burden/duty to prove its case by evidence of such quality as to leave the Court or no one in reasonable doubt as to the guilt of the accused person.

It is also expected of the prosecution that all the ingredients of an offence must be proved or co-exist before a conviction could be secured. See Akpa v. The State supra at page 87.

The principle of all inclusive co-existence was also highlighted in the case of Ogbu v. The State under reference supra. It is also pertinent to restate that failure to establish any of the ingredients would result in an acquittal of the accused under the said charge.

On behalf of the appellant, it was submitted that the prosecution did not prove any of the necessary ingredients especially 2 and 3 – that the death of the deceased was caused by the appellant and also that the act or omission of the appellant which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable result.

Without having to belabor the point, I wish to state right away that the proof of the 1st ingredient is not in contention. This I hold in view of the evidence adduced by the PW1, PW2, PW3, Exhibit A (medical report) as well as the evidence of the appellant himself, at the trial Court.

The areas of contention relate to the 2nd and 3rd ingredients.

While taking the 2nd ingredient, I seek to refer to the record wherein PW1’s testimony was relevant. The witness was appellant’s junior (younger) brother. In his evidence before the trial Court he testified that when he saw the deceaseds corpse,

he noticed nail marks on the neck of the body: also to the best of his knowledge, only the appellant was with the deceased in the deceaseds house. It was also the appellant who announced the deceaseds death to the PW1.

It is pertinent to say further that Exhibit A, the medical report which was issued to the police in respect of the deceased’s corpse shows that the deceased’s death was due to respiratory failure as a result of strangulation. Exhibits B and B1 were extra judicial statements made by the appellant to the police, wherein he confessed to strangulating the deceased to death while he (deceased) was sleeping on his mat.

As rightly submitted by the learned counsel for the appellant, there was no independent eye witness to the actual circumstances of the death of the deceased. The evidence given by PW1 was indeed circumstantial. However by the evidence of the said witness, the appellant was, to him, the last person seen with the deceased. The circumstances of the statement will be relevant when taken together with what the appellant himself said in Exhibits B and B1 wherein he confessed to strangling the deceased to death while he

(deceased) was sleeping on his mat.

In my view, on a community reading of PW1s evidence and taken together with the statements of the appellant Exhibits B and B1, there is the strong proof that the appellant must have caused the death of the deceased in this case by strangling him.

By Exhibits B and B1, the detail is clear of the role the appellant played in the murder of the deceased which only the appellant himself could have narrated and no one else. The explanation as to how the deceased met his death has been stated in Exhibits B and B1. The absence of any direct eye witness will not affect in my view the circumstantial evidence already on ground. The learned counsel for the appellant was, I hold, in great error in his argument in that behalf

As rightly submitted by the counsel for the respondent, the confessional statement having been admitted did satisfy the burden of proof placed on the prosecution. The two lower Courts, I hold, were on the right footing when they held that the prosecution proved the second ingredient of murder against the appellant beyond reasonable doubt. In other words for all intents and purposes and taking

together the entire circumstance surrounding the events of this case, there is ample evidence of close link between the act of the appellant in causing the death of the deceased. See the case of Patrick Oforlette V. The State supra at 2104 – 2105.

The 3rd and final ingredient required at the prosecution to prove is the guilty intention or grievous bodily harm as a probable result. See the cases of Chukwu V. The State, Oshiba V. The State and Uguru V. The State all under reference supra.

It is firmly submitted by the learned counsel for the appellant that the conviction of his client borders on mere suspicion which, no matter how strong, cannot constitute a crime or ground a conviction. Counsel submits further that the circumstantial evidence applied by the learned trial judge to convict the appellant was without any legal basis. The learned counsel related copiously to the decision of this Court in the case ofAlake V. State (1992) 9 NWLR (Pt. 265) 260 at 272.

It is the counsel’s submission therefore that there is no evidence elicited by the prosecution to justify the conclusion by the lower Court that the prosecution has proved the third

ingredient of the offence of murder beyond reasonable doubt; that the lower Court relied mainly on the purported confessional statement of the appellant per Exhibit B1 in concluding and holding that the appellant had the intention of killing the deceased.

As rightly submitted on behalf of the appellant, allegation of mere suspicion, no matter how strongly presented cannot displace the heavy duty placed on the prosecution to prove the accuseds guilt.

In his submission further, the learned counsel for the appellant faulted the lower Court in finding the appellant guilty simply because PW1 testified that he was last seen with the deceased; that the doctrine which is centered on presumption is, by nature rebuttable.

The saying is well established and also true that even the devil does not know the state of a mans heart. Rather he alone is the best person fully possessed of his own intention.

This restatement has confirmed the adage why a confessional statement made by an accused person is always rated as the best form of evidence. It is no wonder therefore that the law lays down the three ways to prove the guilt of an accused as

follows:-

1) through d confessional statement made by the accused.

2) by circumstantial evidence.

3) by evidence of an eye witness.

In the appeal now before us, even in the absence of any direct eye witness, the documents Exhibits A, B and B1 taken together and in collaboration with the evidence of PW1 are very weighty and much revealing.

While considering the appellants intention, the reason offered for the act ought to be taken into account alongside all possible defences raised and which may accrue to him. See the case of Al-Hassan Mai Yaki V. The State (2008) All FWLR (Pt. 440) 618 at 647.

Exhibit B1 is the extrajudicial statement made by the appellant to the police. With reference made to same, this is what he had to say:-

“Yesterday 2nd December, 2011 at about 10.00pm, myself and my father were in our house at Bolankale village talking to each other in a harsh voice, so my father said he was going to kill me and I know he could do it that was how I hasten up in my own action and I strangled him to death pressing his neck while he was sleeping on his locally made bed. The bone of contention was because my wife

father (sic) younger brother said it was my father who drove his wife away and he said his elder brother (sic) daughter will not stay in my house also.

I inform my father so as to settle the matter amicably but rather than settling it my father and wife father were just making jest of me, that was what prompt my annoyance with my father and since then he has been saying he would kill me.”

With specific reference to the phrase:

“my father said he was going to kill me and I know he could do it that was how I hasten up in my own action and I strangled him to death pressing his neck while he was sleeping on his locally made bed…….”

It is clear from Exhibit B1 (supra) that the appellant had the intention of killing his father when he pressed his neck while he was sleeping.

Also from the said phrase by the appellant supra, it would appear that he intends to raise the defence of self-defence which in law is a complete answer to a charge of murder.

However, in order to avail himself of this defence the accused person must show:-

(i) that his life was so much endangered by the act of the deceased:

(ii) that the only option

left for him to save his own life was to kill the deceased; and

(iii) that he did not want to fight and was prepared to withdraw.

See the cases of Isaac Stephen v. The State (1986) Vol. 17 NSCC (Pt 2) 1416 at 1421 and Oduak Daniel Jimmy v. The State (2014) All FWLR (Pt. 714) 103 at 118.

On a community reading of the evidence on the record including Exhibit B1, there is nothing to show:-

(i) that the deceased acted in anyway thereby putting the life of the appellant in danger

(ii) that the appellant did not want to fight and was prepared to withdraw; and

(iii) that the only option left for the appellant to save his own life was to kill the deceased.

As a matter of fact it is clearly stated by the appellant himself in his statement exhibit B1 that the deceased was sleeping when he pressed his neck and killed him. It is obvious that the defence of self-defence did not avail the appellant and same therefore rightly failed.

It is pertinent to state further that the appellant by his statement also sought to raise the defence of provocation when he said thus:-

“The bone of contention was because my wife father younger

brother said it was my father who drove his wife away and he said his elder brother daughter will not stay in my house also. I informed my father so as to settle the matter amicably but rather than settling it my father and my wife father were just making jest of me, that was what prompt my annoyance with my father and since then he has been saying he would kill me.

The law is well pronounced on the character of the defence of provocation. In other words, where it succeeds, it has the effect of whittling down the Punishment stipulated from the offence of murder to manslaughter. See Edoho V. The State (2010) All FWLR (Pt. 530) 1262 at 1287 and Ihuebeka V. The State (2000) FWLR (Pt 11) 1827 at 1850.

However, for provocation to constitute a defence in murder cases, it must consist of three elements which must co-exist, namely:

(a) That the act of provocation was done in the heat of passion.

(b) That the loss of self-control was both actual and reasonable, that is to say, the act was done before there was time for cooling down.

Again see the case of Edoho v. The

State (supra) at page 1286.

It is clear from Exhibit B1 that the annoyance of the accused person with the deceased did not start on the night that the accused killed the deceased. Rather it started when the deceased and the accused persons father in-law made jest of the accused person which was not on that particular night of the incident. This is because there is no evidence on the record that the accused persons father in-law came to their house on that night. Also, the statement in Exhibit B1 that-

“since then he has been saying he would kill me”,

shows that the threat from the deceased to kill the accused person was not made just on the night of the incident alone. Assuming for granted that the accused was provoked by the father as alleged, the fact that he waited and only killed him while he slept shows that the act of provocation was not done in the heat of passion while the accused lost his self control. The accused, I hold was in full control of himself and hence the defence of provocation did not avail him.

I hold also that the defence of provocation like self defence did not avail the appellant but fails. The

totality of the 1st issue in the circumstance is resolved against the appellant.

2ND ISSUE

In summary it raises the question whether the learned Justices of the Court of Appeal were in order when they endorsed as right the trial Judge’s finding in relying on Exhibit “B” and “B” as Confessional statements of the appellant and thereby convicting him thereon.

The learned counsel for the appellant submits that the lower Court fell into error when it affirmed and adopted the trial Judge’s admission of the appellant’s purported extrajudicial statements – exhibits “B” and “B1 as confessional statements. This, learned counsel argues is in spite of the illiteracy of the appellant, the manner in which the said statements were obtained and the objection of the appellant to their admissibility by reason of the involuntariness of the process of their extraction that the Court nevertheless relied heavily upon same to affirm the conviction and sentence of the appellant for murder. Counsel submits also that without exhibit B and B1, there would not have been any evidence or material for the prosecution to anchor the

conviction of the appellant thereon. Counsel cites the case of The State V. John Ogbubanjo (2001) FWLR (P. 37) 1097 at 1123 – 1124 in support of his contention.

On the totality of the submission, the learned counsel for the appellant challenges vehemently, the heavy reliance made on exhibits “B” and “B1” which counsel characterizes was purportedly made by the appellant and whose tendering was objected to due to the involuntariness in the process of its extraction. The counsel cites numerous authorities in support of his contention and urges this Court to set aside the affirmation of conviction and sentence of the appellant by the Justices of the Court below.

In response to the appellant’s counsel, an extensive reference was made to the record of proceeding by the counsel representing the respondent. Specific attention was drawn to exhibits “B, “B1, D” and “E”; that the Court did discountenance exhibits ‘D” and “E” because same were not read to the appellant in the language he understands after it was recorded by the PW4 in English language; that exhibits ”B” and “B1 were admitted into evidence without objection; that

although the appellant retracted from making the statements, the effect on same would not affect its admissibility. Counsel cites the cases of Nwachukwu v. State (2007) 12 SCM part 2, page 447 @ 454: that the learned trial judge appropriately dealt with the issue and properly admitted and acted on the confessional statement and corroborative evidence which gave support to the truth of the confession.

On the absence of any eye witness to the actual murder of the deceased, the learned counsel re-iterates that the guilt of an accused person can be established by his confessional statement and circumstantial evidence: that there is sufficient corroboration of Exhibits B and B1 by the strong circumstantial evidence of PW1.

The learned counsel sought to rely on the principle of last seen and argues that it applies in this case where the appellant was the person last seen with the deceased. Counsel cites the case of Archibong v. State (2006) 8-9 SCM page 43 @ 50-51; that the fact that the trial Court disregarded Exhibits D and E does not necessarily mean that Exhibits B and B1 ought to

have been disregarded also.

The learned counsel urges us to affirm that Exhibit B translated into B1 is weighty in the eyes of the law and to affirm the decision of the lower Court in this regard.

It is submitted on behalf of the appellant that the lower Court erred when it relied on the appellants extrajudicial statement to the police which was admitted as Exhibit B and B1 to convict the appellant for murder, that this was in the absence of any independent, credible, cogent and good quality evidence.

The definitions assigned to the word/phrases confession or confessional statement by the Evidence Act and the case law, refer to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. See the case of FRN v. Iweka (2011) 12 SCM (Pt. 2) page 213 @ 218.

The law is well settled in plethora of cases that an accused person can be convicted on his confessional statement alone where same is direct, positive and proved. Again see the case of Akpa v. State under reference supra wherein the principle is

affirmatively restated that what is admitted needs no further proof. At page 74 for instance, it was held that:-

a confession is an admission made by an accused person. The duty of the Court is to decide the weight to be attached to it.

With reference made to the record of appeal, there was no objection to the admissibility of exhibit B and B1, which were the statements of the appellant. The Court placed reliance on the said exhibits. I seek to add also that there was no objection of involuntariness at the time of tendering the exhibits. As rightly submitted by the learned counsel for the respondent, the Court was right in admitting the exhibits and subsequently relying on same in its judgment. As rightly submitted also by the respondents counsel, the retraction of the statement made by the appellant will not affect same adversely once the Court is satisfied as to its truth. See again the case of Nwachukwu v. State supra.

It follows from the foregoing that a confessional statement properly made by an accused person as in the case at hand is the best guide to the truth of the part played by him – see

the case of Salawu v State (2011) 10 SCM 76. Once such statement is admitted therefore, it becomes part of the prosecutions case which the Court must consider as done in the present case. Again, see the case of Nwachukwu v. State (supra) @ 455. In the absence of any objection by the defence of involuntariness or any evidence suggesting that there was undue influence by the police at the time Exhibit B and B1 were being tendered, the lower Court was right in affirming the admission and reliance made on the statements by the learned trial judge.

A confessional statement of this nature regardless of its retraction can ground a conviction. See the case of FRN v IWEKA (supra) @ 218. For purpose of corroborating the confession, there could be direct or circumstantial evidence. SeeDogaya v The State (2006) 2 SCM page 33 at 67.

For the intents and purposes, the Confessional statements exhibits B and B1 made by the appellant have been sufficiently corroborated by the strong circumstantial evidence of the PW1. This I say, because the evidence of the said witness at page 19 to 22 of the record of

appeal was that he was coming from Oja-Odan in the morning at about 7.30am when he met the appellant close to the deceaseds house, where the appellant and the deceased were living. The appellant informed the PW1 that the deceased was dead; when the PW1 got to the deceaseds house, he saw him (deceased) on the mat with nail mark on his neck.

It is the witnesses evidence also that the appellant and the deceased slept in the deceaseds house the night the deceased dies and that there was nobody else with them. PW1 gave evidence of facts within his knowledge and as such his evidence is not hearsay as argued by the appellants counsel.

The foregoing piece of evidence is independent which serves as a corroborative fact to the confession of the appellant in Exhibit B and B1 wherein he said that he strangled the deceased by pressing his neck while he (deceased) was sleeping on his mat.

I seek to draw attention that the evidence of PW1 and Exhibit B1 also corroborate each other that the PW1 met the appellant on the way when the appellant informed the PW1 of the deceaseds death. It

was held in the case of Musa v. State (2013) 3 SCM page 79 at page 85 that corroboration means confirmation or support by additional evidence; the corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witnesses, provided it corroborates the evidence in some respects material to the charge in issue.

It is pertinent also to draw attention that the circumstances of this case suggest that the appellant is the person last seen with the deceased. The law presumes that the person last seen with the deceased bears full responsibility of the death of the deceased. See the case ofArchibong v. State supra.

The appellant in the circumstance of the case at hand had the opportunity to commit the offence for which he was charged and only him was in the best position to narrate the role he played in the murder of the deceased which he unequivocally stated in Exhibits B and B1. The trial Court found that the PW3 followed a proper procedure in recording the said Exhibit B in Yoruba language as volunteered by the appellant and later translated same into Exhibit

B1, the English version.

The extra judicial statements Exhibit B and B1 are very weighty in the eyes of the law because they are confessional in nature. The lower Court was on a firm ground when it held that the trial Court judge was right in relying on the confessional statement of the appellant, Exhibit B and B1 in convicting him.

The said issue two is hereby resolved also against the appellant.

3RD ISSUE

Whether the learned Justices of the Court of Appeal Ibadan Division were right to have affirmed the conviction and sentence of death by hanging of the appellant for murder when the prosecution failed to disprove the appellants alibi of being far from the crime scene (at his maternal grandmothers village) at the time of the incident.

The learned counsel for the appellant submits at great extent that it is wrong for the lower Court to conclude that the appellant killed the deceased simply because PW1 in his evidence testified that he (appellant) was last seen with the deceased; that the doctrine is a mere presumption which, like all other

presumptions, are rebuttable. It is the appellants argument that he slept at his maternal grandmothers house on the day before the deceased was killed; that in this case, the appellant raised the issue in his statement to the police and also in his evidence at the trial but counsel submits it was not investigated.

It is the appellants further contention that the lower Court did not also consider the appellants defence of alibi in its judgment. In support of his submission, the counsel cites the case of Patrick Njoven & Ors v. The State (1973) NMLR 331. The learned counsel argued affirmatively that the lower Court in its judgment at page 140 of the record erred and misdirected itself by affirming the view held by the trial Court on the alibi raised: that the failure to consider the defence had greatly occasioned serious miscarriage of justice to the appellants case. Numerous authorities were cited by counsel in support of his submission; that the prosecution failed to disprove the appellants alibi of being far from the crime scene at the time of the incidence.

On the totality, the appellant urges the Court

to hold that this appeal is meritorious and consequently, same should be allowed and the judgment of the trial Court as affirmed by the Court of Appeal, Ibadan Division should be set aside and be substituted with orders of acquittal and discharge of the appellant.

In response to the appellants submission on issue 3, the counsel for the respondent restates the position of the law regarding the defence of alibi. Learned counsel argues that for the defence to avail on accused person, it must be raised at the earliest opportunity which should be in the interrogation room. This counsel argues, is to enable the police to investigate the alibi. There can be no investigation of an alibi raised for the first time at the trial. Counsel cites the case of Ndidi V. The State (2007) 10 SCM Page 101 @ 105.

The learned counsel opined emphatically therefore that the defence of alibi raised for the first time during the trial in this case cannot avail the appellant. The Court is urged to affirm the concurrent judgments of the two lower Courts and thereby dismiss this appeal as lacking in merit

RESOLUTION OF ISSUE 3

The law is well settled that it behooves a

Court of law to consider any defence available to an accused person which is disclosed in evidence before the Court. This duty is laden on a Court whether or not it is raised by an accused person or his legal practitioner. See the cases of Nse Udo Nuto V. The State (2008) All FWLR (Pt. 397) 1 and Shalla V. The State (2008) All FWLR (Pt. 397) 25.

The defence of alibi connotes the physical impossibility of a Person or an accused to be somewhere else and at the same time at the scene at a crime. As rightly submitted by the learned counsel for the appellant, alibi is a complete defence, which if proved in favour of an accused person, absolves him of any criminal liability.

The defence must be raised timeously at the earliest opportunity of contact with the investigating security agencies. The appellant must furnish the agencies with sufficient particulars about his whereabouts on the day in question. Thereafter, the duty shifts to the prosecution to investigate the alibi and affirm or disprove same. The defence is destroyed by a contrary evidence fixing the accused at the place of crime. However, if successfully disproved the defence fails. See this

Court in Ikemson v. The State (1989) 3 NWLR (Pt. 110) P 455 @ 479 780.

In the instant case, contrary to the submission of the appellant’s counsel, both trial Court and the Court of Appeal found that the appellant raised his alibi for the first time at the trial. He stated in evidence that he was not with the deceased the night he was murdered and that he (appellant) slept in his grandmother’s house but that no one was aware he slept there.

On the question of alibi raised at the trial, this is what the trial Court had to say at pages 61 and 62 of the record of appeal:-

“It is ridiculous for the accused Person to sleep in his maternal grandmothers village without anybody knowing that he slept there more so when it is not part of his case that there was no person at all in his maternal grandmothers house where he slept. What is more, his evidence in-chief reveals that his maternal grandmother is still alive. In the particular circumstances of this case, the accused person ought to, at least call as a witness, Baba Folake, his mother’s junior brother, whom he said saw him the following morning. I do not believe the evidence of

the accused person that he did not sleep in the same house with his father on the night of the death of his father. The evidence is incredible and it is hereby rejected. I believe and accept the evidence of PW1 that the accused person slept in the same house with their father in the night of their father’s death and with the rejection of the evidence of the accused person that he did not sleep in the same house with their father, I hereby draw the inference that the accused person was the one who killed their father, Ololeye Kolade.”

From the foregoing view held by the trial Court, it is obvious that the Court wasted no time in rejecting the defence of alibi raised by the appellant. Same was also endorsed by the lower Court when their lordships held as follows at page 140 of the record:-

“On the last issue of alibi of the appellant set up for the first time at the trial, I agree with the learned trial judge that it was an afterthought as it was not set up before the police to enable investigation but at the trial and after the appellant had earlier made confessional statements as in Exhibits “B”, “B1 “D” and “E”. It certainly was an

afterthought also bothering on the ridiculous as the appellant had to use five year old girls as his security escorts detailed by his maternal relatives. I consider the story in his alibi as not only absurd but incredible.”

For all intents and purposes, I hereby also firmly endorse the findings and conclusions arrived at by the two lower Courts that the defence of alibi sought to rely upon by the appellant is belated and a mere afterthought. The whole concept in conceiving such a concocted story is ridiculous and also incredible as rightly held by the two lower Courts respectively.

The appellants evidence in Court at the trial is very much inconsistent with his earlier extra-judicial statement made to the police. It is trite to state that the inconsistency rule does not apply to an accused person. In other words, it does not cover a case where an accused persons extra-judicial Statement is contrary to his testimony in Court. See the case of Ogudo v. State (2011) 12 SCM (Pt. 1) page 209 @ 223.

I seek to state further that the appellants alibi was not disclosed to the police at the time the appellant volunteered his statement as same is

not contained in the said statement to the police. The appellant therefore failed to afford the police the opportunity to investigate the alibi as requested by law. See the case of Tongo V. C.O.P (2007) 9 SCM page 113.

It is not only incumbent on the appellant to inform the police of his alibi but he should also furnish the police with detailed particulars of his whereabouts so that same could be properly investigated. See the case of Okolo Ochemaje V. State (2008) 10 SCM page 103 @ 107 where it was held that:-

“the police in order to investigate a Plea of alibi must have specific particulars of where the accused was at the material time —-

It is not the law that the Police should be involved in a wild goose chase for the whereabouts of an accused at the time the crime was committed ……… the accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.

It is the findings of both the trial Court and the Court of Appeal that the appellant did not raise any alibi at the earliest opportunity, which should have been at the

investigation stage. His alibi raised only at the trial stage was held as an afterthought and cannot be reckoned with. The lower Court did not also waste time but rightly in my view also endorsed the trial Court’s conclusion. This was based on sound legal principles in the absence of any evidence to disturb the concurrent findings. See the case of Ochibo V. State (2011) 12 SCM (Pt. 2) page 284 @ 289 where this Court in reiterating the well settled principle of law said:,

“where the two Courts below make concurrent findings of fact, as herein, this Court will not interfere unless same is perverse or runs against current of evidence adduced or occasioned miscarriage of justice

Contrary to the submission and the view held by the learned counsel for the appellant, I hold the firm view that the learned justices of the Court of Appeal were right when they affirmed the decision of the trial Court judge that the appellant’s alibi was not raised at the appropriate time and as such same cannot be recognized. The said issue three is also resolved against the appellant.

On the totality of all the three issues raised supra,

same are resolved against the appellant and consequent upon which his appeal is hereby dismissed. The concurrent findings by the two lower Courts are unassailable. The conviction and sentence of the appellant for murder by the lower Court which affirmed the judgment of the trial High Court is hereby also endorsed by me.

The appeal is hereby dismissed while the judgment of the lower Court is affirmed.

The appellant was rightly convicted and sentenced to death by hanging for the murder of his father late Mr. Olaleye Kolade.

Appeal is dismissed while conviction and sentence are hereby affirmed.

SC.579/2015

Owolabi Kolade Vs The State (2017) LLJR-SC

Owolabi Kolade Vs The State (2017)

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