Patrick Olufemi Kolawole Ogedengbe V. The State (2014)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Lagos Division of the Court of Appeal, hereinafter referred to as the lower court, affirming the judgment of the Lagos State High Court, hereinafter referred to as the trial court, convicting the appellant and one Olatinwo Nurudeen Bright for the offences of conspiracy to commit murder and murder contrary to Sections 324 and 319 (1) respectively of the Criminal Code Law Cap 32 Laws of Lagos State. The judgment of the trial court was delivered on the 12th February, 2004 while that of the lower court being appealed against was delivered on 9th March, 2010.
The appeal is predicated on a Notice dated and filed on 6th January, 2012 containing seven grounds. The facts of the case that brought about the appeal are briefly stated herein under.
It is respondent’s case that sometime in September, 2009, the appellant, a driver to Navy Captain Yetunde Peters, who is now deceased, conspired with one Olatinwo Nurudeen Bright and murdered the said Navy Captain Yetunde Peters. Though there was no eye witness to the fact of the murder, it is asserted that the appellant and his co-conspirator, DW2, had murdered and wrapped the deceased in a rug, conveyed the corpse in the boot of her car and dumped same in the Adeniji Adele Area part of the Lagos Lagoon. Appellant’s conviction draws largely from Exhibit ‘C’, his confessional statement which admission in evidence the appellant stoutly objected to but failed.
The appellant contended that PW5, ASP Ajibola Osayemen, the investigating Police Officer, had forced him to write his statement. Having admitted the appellant’s statement in evidence and found it to be confessional, the trial court convicted the appellant for the two count charge. The instant appeal is sequel to the dismissal of appellant’s unmeritorious appeal by the lower court.
At the hearing of the appeal, parties adopted and relied on their respective briefs, earlier filed and exchanged, as their arguments for or against the appeal. The three issues the appellant considers to have arisen for determination of his appeal read:-
(a) Whether the trial and indeed the lower courts were both right in convicting and sentencing the appellant primarily on the uncorroborated and retracted confessional statement (EXHIBIT C) of the Appellant.
(b) Whether the prosecution proved the necessary ingredient(s) of the offences of conspiracy and murder against the appellant beyond reasonable doubt as required by the law.
(c) Whether the failure on the part of the prosecution to call witnesses to circumstantially link the Appellant with the murder of the deceased did not amount to a gross miscarriage of justice.
The two issues distilled by the respondent as calling for determination in the appeal are:-
(a) Whether the lower courts were right in relying on the confessional statement of the Appellant (Exhibit C) having been held to have been voluntarily made and admissible in evidence.
(b) Whether the Prosecution/Respondent proved the necessary ingredients of the offences of conspiracy and murder against the Appellant beyond reasonable doubt.
It is my considered view that the resolution of appellant’s first two issues will adequately and justly determine the appeal. After all, it is the quality of evidence rather than the number of witnesses the respondent called to prove its case that counts. The two issues the respondent formulated for the determination of the appeal, it needs to be pointed out, are not dissimilar to the two appellant’s issues preferred for the determination of the appeal.
Now, whether or not the statement the trial court relied upon to convict the appellant and the lower court further invoked to affirm the conviction is confessional is a question of fact.
Again, whether the respondent had led evidence which proved the guilt of the appellant beyond reasonable doubt is also a question of fact.
The two courts in their concurrent findings answered both questions affirmatively. In his two issues suggested for the determination of the appeal, the appellant challenges these concurrent findings of fact of the two lower courts. He sets an onerous task for himself as this court is very hesitant to disturb such findings and obliges an appellant only where he successfully shows that the findings are perverse. The question to answer in resolving the two issues pertinent to the complaints the appellant raises, therefore, is whether the decisions of the two courts are based on the evidence on record or that in arriving at these decisions the courts have wrongly applied the law, substantive or procedural, to ascertained facts and, most importantly, if the lapse, if any is established, has occasioned a miscarriage of justice. See Orisakwe v. State (2004) 12 NWLR (pt 887) 258, Aiguokhian v. State (2004) 7 NWLR (pt 783) 565 and Agbo v. State (2006) 6 NWLR (pt 977) 545.
On the first issue, learned appellant’s counsel submits that only such confessional statement of the appellant that comes within the purview of Sections 28 and 29 of Evidence Act 2011 can legally be used by the trial court against the appellant. In the case at hand, learned appellant’s counsel further submits, the trial judge having not adequately tested the truth of appellant’s statement, Exhibit ‘C’, by reference to any evidence outside the confessional statement, the lower court cannot affirm the trial court’s sole reliance on the statement to convict the appellant. The testimony of PW5 who recorded the statement from the appellant, it is contended, does not provide the necessary corroborative evidence the law requires must exist to render the statement admissible and reliable. The lower court’s affirmation of the trial court’s contrary finding on the point at pages 301 – 302 manifestly occasions miscarriage of justice. Learned counsel buttresses his submissions with inter-alia, Onochie v. the Republic (1956) NMLR 307; Ikpasa v. AG Bendel State (1981) 9 SC 7; Akpan v. The State (1992) 6 NWLR (part 248) 439; Bature v. State (1994) 1 NWLR (part 320) 267; Nsofor v. State (2004) 18 NWLR (part 905) 292 and Shande v. State (2005) 1 NWLR (part 907) 218, and urges that appellant’s first issue be resolved in his favour.
On the 2nd issue, it is contended that nothing outside the appellant’s wrongly admitted extra judicial statement grounds his conviction. The evidence of all the witnesses the respondent called, it is submitted, does not establish appellant’s guilt for the two offences he has been convicted for. For one, it is argued, there is no eye witness account on appellant’s alleged criminal conduct. The circumstantial evidence which ropes in the appellant, it is further contended, is weak and equivocal. The case against the appellant remains mere suspicion which does not take the place of legal proof. Learned counsel relies on Ona V. State (1985) 3 NWLR (Pt 12) 236 and State V. Ogbubunjo (2001) 2 NWLR (Pt 698) 576.
Emphasizing by way of conclusion, learned counsel submits that since the respondent had failed to lead credible evidence in establishing its case the eventual affirmation of appellant’s conviction by the lower court is perverse. Relying further on Idowu v. State (1998) 11 NWLR (Pt 574) 354 at 370, Aigbadion V. State (2000) 7 NWLR (Pt 666) 686 and Amadi V. State (1993) 8 NWLR (Pt 314) 644 at 663-664, learned appellant’s counsel urges that the issue be resolved in appellant’s favour and his appeal allowed.
Responding, learned counsel to the respondent submits that the law is settled that a person can be convicted for an offence solely on the basis of his voluntary confession which is direct and positive. Counsel relies inter-alia on Bature v. The State (1994) 1 NWLR (part 320) 267 at 283, R v. Obasa (1962) 1 ALL NLR 645; Alhabua v. The State (supra) and Obosi v. The State (supra). Appellant’s confessional statement, contends learned counsel further, was admitted in evidence after the trial court had conducted a trial-within-trial following appellant’s objection that the statement was not admissible as same was not voluntary. Having ascertained that the statement was voluntary, the trial court admitted it in evidence and correctly relied on it to convict the appellant. The lower court, submits learned respondent’s counsel, cannot interfere with the trial court’s decision that evolved from the evidence on record. The lower court, contends learned counsel, rightly stated the position of the law on the issue at pages 297 – 298 of the record. He supports his submission with the decisions of this court in Gbadamosi & 8 ors v. The State (1992) 9 NWLR (part 266) 465 at 480, Effiong v. The State (1998) 5 SC 136 and Akpa v. State (2008) 4 – 5 SC (part 11) 1 at 22.
On the aspect of the issue that touches on the reliability of Exhibit ‘C’, the appellant’s confessional statement, it is argued that the totality of the evidence on record determines the weight the statement should attract. The fact that appellant had retracted from the statement does not make the statement less reliable once evidence abound to facilitate that inference. The available evidence, submits learned counsel, makes the inference that the appellant had had the opportunity of committing the offences and that the confession was possible and logical as well. Indeed, learned counsel further submits, the testimonies of PW1, PW2 and PW5 go to show that Exhibit ‘C’ was infact made by the appellant. Supporting his submission with the cases of R v. Itule (1961) 1 ALL NLR 462 (supra), Afolalu v. The State (2010) 16 NWLR (part 1220) 584 at 611, Edoho v. State (2010) 14 NWLR (part 1214) 651 at 693 and Olaiya v. The State (2010) 3 NWLR (part 1181) 423 at 438, learned counsel urges that the issue be resolved against the appellant.
On the 2nd issue for the determination of the appeal, learned respondent’s counsel submits that the issue overlaps with 1st issue. The 2nd issue begs the question whether indeed evidence exists that justifies the lower court’s affirmation of appellant’s conviction and sentence for the offences he stood trial. Relying on Emeka v. The State (2001) 14 NWLR (part 734) 666 at 683, Igbele v. The State (2006) 2 SC (part 11) 61 at 69, Otufale v. State (1968) NMLR 262, learned counsel submits that given Exhibit ‘C’ and the corroborative circumstantial evidence, the lower court’s affirmation of the trial court’s conviction of the appellant for the offences of conspiracy and murder cannot be faulted. He urges that we so hold in resolving the 2nd issue against the appellant and dismissing the unmeritorious appeal.
The terrain the appellant treads in this appeal is a very familiar one. It has gone grey from frequent use. Yet this court has remained resolute on the principles which must govern the two issues in which appellant’s complaints are clothed. Learned counsel for the respondent has, in his submissions, identified with this court’s persistent position regarding the issues under reference. Let us revisit the apex court’s position on these issues.
Firstly, it is undoubtedly the law that voluntary confession which is direct, unequivocal and positive may support conviction. Indeed, this court has held, too, that the voluntary confessional statement of an accused provides the best evidence to herald his conviction. It is thus a trite principle that there cannot be evidence stronger than the accused’s direct, positive and unequivocal confession which alone, on the authorities, may support his conviction. See Alarape & ors v. State (2001) 5 NWLR (part 205) 79 and Ozana Ubierho v. State (2005) 2 SC (part 1) 18.
Secondly, though desirable, it is not a necessity that corroborative evidence outside the confession must exist before the trial court convicts the accused.
The principle remains, therefore, that the voluntary confessional statement of the accused person alone, without any corroborative evidence, suffices and, where solely relied upon by the trial court, will sustain a conviction. An appellate court’s affirmation of the trial court’s conviction of an appellant solely on the latter’s direct, positive and unequivocal confessional statement cannot, therefore, be interfered with on a further appeal. See Akpan v. State (2000) 12 NWLR (part 682) 607 and Osetola v. State (2012) 17 NWLR (part 1329) 251 at 278.
In the instant case, as correctly submitted by learned respondent’s counsel, Exhibit ‘C’, appellant’s extra judicial statement, was admitted in evidence after the trial court had concluded a trial-within-trial and found the statement, contrary to appellant’s objection then, to be voluntarily given. The trial court remains best placed to adjudge whether or not the statement had met the requirements, the law, in Section 28 and 29 of the evidence Act 2011 puts in place.
The issue whether or not Exhibit ‘C’, appellant’s confessional statement, was voluntarily given by the appellant and/or recorded from him is an issue of fact. Decision on the issue touches on the credibility of the witnesses, particularly PW5 who recorded the statement and PW1 and PW2 who supplied evidence outside the confession establishing the fact that the appellant voluntarily made the confessional statement.
Neither the lower court nor this court had had the opportunity of seeing and observing the witnesses the respondent led during the trial-within-the trial, nay the substantive trial, as they testified on these facts. Neither court, therefore, can interfere with the trial court’s finding which the appellant has not otherwise shown to be perverse. See Idowu v. The State (2000) 7 SC (part 11) 50 at 62 – 63 and Ikemson v. The State (1989) 3 NWLR (part 110) 455.
The stratum of appellant’s grudges in this appeal is that even if the lower court is right in affirming the trial court’s sole reliance on Exhibit ‘C’, appellant’s confessional statement, in convicting the appellant, Exhibit ‘C’ does not establish the ingredients of the offences for which the trial court found him guilty. I disagree.
Learned respondent’s counsel is right that, firstly, Exhibit ‘C’ alone divulges all the ingredients of the two offences for which appellant has been convicted and, secondly, the trial court’s finding of appellant’s guilt, beyond Exhibit ‘C’, rests on corroborative evidence outside the confessional statement as well. The lower court’s position, on the facts of the instant case, cannot, therefore, be said to be wrong.
In Bature v. The State (supra), a case wisely cited and relied upon by learned respondent’s counsel, this court restated the principle which should guide trial courts in deciding whether or not to uphold a confession. The truth of the confessional statement, this court has repeatedly held, should be examined in the light of other evidence by determining whether:-
(a) There is anything outside the confessional statement showing that the confession is true;
(b) That the facts contained in the confessional statement are true so far as they can be tested;
(c) That the accused had the opportunity of committing the offence;
(d) That the confession is possible;
(e) That the confession is consistent with other facts which have been ascertained and proved.
In the case at hand, the appellant is convicted for the offences of conspiracy and murder in relation to which he states in Exhibit ‘C’, his confessional statement, inter-alia thus:-
“Mrs Yetunde Peters now went inside her house with Ola. I was still rolling up the classes of the Car when Ola came back to me that Mrs Yetunde Peter said he should ask me if I want to eat and I said to him that I will. He Ola touch me and said come coporate (sic) with me, I want to strike this woman (sic) this knife, I was going after him Ola when he suddenly brought out a table knife and slaughter the neck of the women Yetunde Peters while I hold the woman leg hold he fight till he Ola cut off the neck. I then ask him Ola that now that this woman is dead how do we do the dead body because there are security Official by the main gate to the Ogudu G.R.A. He said I should not worry that he has something in his pocket that he will put in his mouth and nobody will stop us I Patrick and Ola Bright now put the dead body inside the Car and drive down to third mainland bridge, trow kid it, in the water and went back home (sic) and search house where we carted away with two bags, 2AC TV and video Tape recorder, 5,000 france and N4,000 and a C of a certificate and we went awy (sic) with it. We sold the 2 A.C at Lawanson Street Ojuelegba and the video tape recorder was sold at Oshodi market.” (underlining supplied for emphasis).
At pages 64 – 65 of the record PW2 states thus:-
“I know one Monday Eze. No my friend. I also know Sule Musa; I know Taju and Tiri through Monday Eze the time he brought them from Lagos…. Sometimes in the month of October 1999, one of my neighbour (sic) Christoper Oseghale (that is, PW4) brought the 1st Accused (that is, the Appellant) to my house and introduce him to me as Tunde Peters and that they were childhood friends and that 1st Accused lost his mother 2 years ago then. The 1st Accused then brought out a certificate of occupancy of a land. He showed me the original and a photocopy. 1st Accused then told me that he wanted to travel abroad and that he wanted to sell the land belonging to her (sic) mother who was dead then.” (Underlining supplied for emphasis).
At page 80 of the record of proceedings PW5 states inter-alia as follows:-
“Accused (that is, the Appellant) told me that he was not the only person that killed the deceased and that PW4 did not know about the matter but was only interested in the commission he would collect when the land is sold. The 1st Accused then took us to Ejigbo area in Lagos to see the 2nd Accused (that is, DW2).”
The lower court in affirming the trial court’s findings on appellant’s guilt held firstly thus:-
“In this appeal, the C of O which was found in possession of a total stranger who claims a relationship with the owner raises the presumption that he is either responsible for the disappearance of the deceased or he knows the person who caused the disappearance of the deceased. The two convicts said the owner of the C of O is dead…. None of the Appellants has been shown to be in such a close standing with the deceased that they should possess her personal property and attempt to sell it at the time her where about (sic) was unknown. Such is the conduct of a person who knows that the owner is not coming back because they have killed her.’ See pages 303 to 305 of the record of proceedings.”
The court concluded thus:-
“… the evidence of the PW1, PW2 and PW5 provided sufficient materials for the inference that the two Appellants had guilty knowledge of the circumstances leading to the disappearance of the deceased. Their graphic extra-judicial statements were correctly admitted and relied upon by the learned trial judge in addition to the independent evidence put together.” (Underlining supplied for emphasis).
A community consideration of the excerpts of the evidence of PW2 and PW5 vis-‘E0-vis the content of Exhibit ‘C’, appellant’s confessional statement, absolves the lower court from the grudges the appellant urges we ascribe to it. The evidence proffered by the two witnesses justifies the lower court’s inference that appellant did possibly confess in the manner contained in Exhibit ‘C’ and that the content of the said statement had indeed occurred. It is beyond doubt that in Exhibit ‘C’ the appellant does admit not only agreeing with the DW2, the 2nd accused, to kill their victim but the further fact that they did infact kill the said Navy Captain Yetunde. The concurrent findings of the two courts on the guilt of the appellant cannot, therefore, be faulted. On the authorities, the findings must endure. The two issues relevant to the determination of the appeal are hereby resolved against the appellant. The appeal is devoid of any merit. It is accordingly dismissed. The judgment of the lower court is hereby affirmed.
SC.193/2011