Samson Emeka Vs The State (2001)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The appellant, Samson Emeka, also known as Samson Madu Emeka, was arraigned before Oyetunde J, in the High Court of Plateau State, sitting at Jos for culpable homicide punishable with death under S. 221 of Penal Code. He was jointly charged with two others. After all the evidence the appellant and the two others, to wit, Barnabas Idakula and Asota Otis Fortunatus, were found guilty and convicted whereby they were sentenced to death by hanging. On appeal to Court of Appeal, the conviction and sentence of the appellant were affirmed but his two co-accused were discharged and acquitted as their conviction and sentence were set aside. The appellant has therefore appealed to this court against the decision of Court of Appeal.
The evidence before the trial court was that the appellant was frustrated as his life was not a success. To him, success meant acquisition of money and wealth. It was in the course of discussing his frustration that he met Barnabas Idakula and Asota Otis, Fortunatus, and later with Idi Abdullahi and Mashodari Chiroma. It was Idi Abdullahi that introduced the appellant and his two homicide co-accused to Mashodari Chiroma who lived at Kura Falls, some distance from Jos. Chiroma was introduced as a juju man who would concoct some potions for making money. He told the appellant, as promised him already by Idi Abdullahi, that the main ingredient for the potion was human eyes. It had to be real human eyes plucked from the victim, not the ones stolen from graveyard or cemetery. The appellant was apparently convinced about the efficacy of such potion and he went about seeking how to obtain human eyes. In the anxiety of the appellant and his friend, one Samuel who is at large, the PW5, Boniface Okeke, was asked for help. PW5 informed the Police who, incredible as the story was, took steps to monitor the accused and his friends. The Police helped the PW5 to procure from the abattoir a goat head whose eyes were plucked, but they were rejected because it was alleged it came from somebody who died naturally.
On or about 14th January, 1986 the appellant went to a beer parlour called “Gentle Man Beer Parlour” at 68 Laranto Katako, Jos where he met the deceased, Salamatu Mohammed, a prostitute, already drinking beer. He approached her and they decided to take a room for the night. PW1, Miss Elizabeth Amagbaronu, was the receptionist at the beer parlour and she knew Salamatu as a prostitute and a regular visitor. Meanwhile the appellant, between early and second week of January, 1986 went to medicine shop run by PW3, Fabian Adinna, to buy a drug whose trade name is “Atvan”. The appellant bought ten tablets of this drug, “Atvan”. According to Victor Okpomo PW7, a government analyst at Government Chemist Kaduna, “Atvan” is a very potent tranquilizer and that the chemical name is “Lorazepan”. He said it could send anybody taking it into deep sleep within minutes of taking it.
The appellant, having secured a room into which he and Salamutu were to spend the night sent to PW 1 to bring more beer. He dropped same tablets of “At van” into Salamatu’s drink and in no time she was fast asleep. This is contained in the voluntary statements the appellant made. The next morning, the door to the room at the beer parlour occupied by appellant and Salamatu had to be forced open. The appellant was nowhere to be found but the lifeless body of Salamatu, with her eyes no more there, was found. The appellant and others were arrested, except Samuel who had disappeared.
The appellant and his co-accused made statements to the Police, in some cases the statements were confessions. The appellant during trial resiled from his statements, claiming they were involuntary. The trial court convicted and sentenced the appellant and his co-accused. Court of Appeal allowed the appeal of the co-accused persons. As the State has not appealed against the discharge and acquittal of the co-accused, I need not advert to them. The appellant, on his grounds of appeal, formulated the following issues for determination:
“1. Whether from all the evidence adduced at the trial, there was any material upon which it can be conclusively held, as was done by their Lordships, the learned Justices of the Court of Appeal that it was the act of the appellant alone that caused the death of the deceased as to make the circumstances of his case to be different, and to be so differently treated from those of the other acquitted persons.
- Whether or not the decision of the Court of Appeal confirming the appellant’s conviction and sentence for culpable homicide punishable with death is not, unreasonable, unwarranted and manifestly unsupportable in the circumstances of this case when the major plank upon which the same is based was the several extra judicial statements made by him and later on retracted at their trial.”
The matter before the trial court is not as difficult as the issues formulated seem to indicate. Did any act of the appellant contribute to the death of the deceased The voluntary statement of the appellant clearly showed how he procured the tranquilizer, ‘Atvan’ and how he dropped the potent tablets into Salamatu’s drink. It is his voluntary statement that seems to incriminate others as those holding down the deceased and using screwdriver to gouge out her eyes. The appellant’s statements clearly show he was at least an active participant in the killing of the deceased. It does not matter in law who did what, what is important is the common purpose. The desire to have the deceased eyes gouged out after stupefying her is grievous enough and could lead to death which is what happened in this case. The appellant fulfilled his desire: he had the human eyes and he was responsible for administering the tranquilizer on the deceased. Whether it was he that removed the eyes is immaterial. What is certain is that the appellant alone entered into the room with the deceased. He procured the tranquilizer and left the room after obtaining the eyes he wanted. R. v. Nwobiko Obodo & Ors. (1958) 4 FSC 1; Obodo v. Queen (1959) 4 FSC 1, (1958) SCNLR 464. The confession of the appellant is against him and his incrimination of the co-accused, unless corroborated by other evidence, is not against them.
The appellant resiled from his statement of the Police contending they were not voluntary. There was trial within trial to establish the voluntariness of the statements. Learned counsel to the appellant faulted the procedure whereby the burden was placed on the appellant to prove involuntariness of the statement because he was called upon first to testify before the police. Learned counsel seems to overlook the evidential burden of proof. The duty of the prosecution in criminal cases is to prove the guilt of the accused beyond reasonable doubt. But in cases where the accused proffers a reason where some evidence pertinent to the prosecution’s case should not be admitted due to some irregularity known to him, then that is within the knowledge of the accused and it is then the burden shifts to him to prove those facts. This is because whoever asserts must prove. Section 135(1), section 139 Evidence Act and S.141(1) Evidence Act. Thus it was the assertion of the appellant that he never made statements containing the confessions voluntarily, but in this case the prosecution called evidence to disprove that assertion in the trial within trial.
The sum total is that there is no substance in this appeal. I dismiss the appeal and affirm the decision of Court of Appeal which upheld the conviction of the appellant and sentence of death passed on him under S.221 of the Penal Code.
SC.7/2000