Samuel Ojegele V. The State (1988) LLJR-SC

Samuel Ojegele V. The State (1988)

LawGlobal-Hub Lead Judgment Report

A. OPUTA, J.S.C.

The facts of this case are miserable, sordid and morbid but they reflect the moral decay of the age in which we live; the age of unbridled acquisitiveness; of get rich quick at all costs and by any means; even at the expense of human suffering and human life. Samuel Idowu Ojegele, the 1st Appellant and Agboola Amos alias Baba Wale, the 2nd Appellant, caught the spirit of the age and conceived an idea to get rich quick. The 5th accused in the trial Court – Amusa Ishola Yesuff – was at hand to help him.

Amusa Yesuff then introduced the 1st Appellant and the 2nd Appellant to a medicine man, Iwaloye Elero, the 3rd Appellant who was reputed to possess the power to prepare a concoction capable of making people rich. Reminiscent of the witches’ concoction in Shakespeare’s Macbeth, or Robert Burns’ Tam O’Shanter, the 3rd Appellant prescribed the following ingredients:-

(i) The hunch of a hunch-backed man

(ii) Irun ajija

(iii) mercury and rainbow.

The 1st and 2nd Appellants having procured the required irun ajija elicited the help of one Taliatu Ishola and one Bashiru both at large to help them secure the hunch of a hunch-backed man. Bashiru came in very handy because his “brother” Dauda Ishola Alabi – the deceased – was hunch-backed and he Bashiru was quite prepared to “bring him to be used to prepare the medicine for money”.

The 1st and 2nd Appellants in company of Taliatu Ishola and Bashiru then left Kano for Iwo in search of the deceased. At Iwo Bashiru saw “his brother” the deceased and asked him to discharge his passengers and meet them at the Maiyegun Hotel. The deceased was a taxi driver. From that hotel the deceased drove with his brother in his (the deceased person’s) taxi while the 1st and the 2nd Appellants drove in the 1st Appellant’s vehicle No.KNE.5367 a Peugeot 404 Pick-Up wagon along with Taliatu Ishola. This was in the night of 13/10/81. At a point along the Iwo-Gbogan Road the deceased stopped to ease himself. There he was brutally and mercilessly attacked by the 1st and 2nd Appellants. The 2nd Appellant first gave the deceased “a deep cut near the left eye with a cutlass”.

When his own brother Bashiru joined in the attack the deceased shouted – “HAI Bashiru!” This reminds one of Julius Caesar’s despairing shout Et tu Brute! For Caesar that “was the most unkindest cut of all”. So it must have also been for the deceased to see his own brother strike him with a matchet. The deceased died on the spot. His dismembered body cut up into eight parts was dug out from the premises of the 3rd Appellant with the spine at the back bearing the hunch removed as well as the heart, the spleen, the shoulder blades, the tip of the penis and the knee caps – (see Evidence of P.W.1 Dr. William Olufemi Odesanmi).

The Appellants were arrested, charged with the murder of the deceased and each volunteered Statements to the Police. These Statements were recorded by P.W. 9 Sergeant No. 23584, Jacob Aborowa. The P.W.9 seeing that the Statements were confessional in nature took the Appellants to a Senior Police Officer, A.S.P. Moses Aboliwo called as P.W.12. Before the A.S.P. these Statements were read and interpreted to the Appellants by Sergeant Samuel Ojumu, called as P.W. 13. After that exercise, P.W.12, the Assistant Superintendent of Police, endorsed the Statements and Sergeant Ojumu, P.W.13, signed as Interpreter.

At the hearing, the Appellants alleged that those Statements, EXS K. M, E and F respectively, were extracted from them by torture – in other words – that their Statements were not voluntarily made. As would be expected the learned trial Judge, Babalakin, J. (as he then was), held a mini trial within the main trial designed to probe the voluntariness of the Statements the Appellants made to the Police. At the end of this exercise the trial Judge found that the Statements were made voluntarily by the Appellants and then received them in evidence as exhibits.

In a judgment that was very near perfect, the learned trial Judge painstakingly, meticulously and assiduously considered the entire evidence led on both sides, carefully weighed the probabilities of the case, which probabilities were safe pointers to the shrine of truth. He also considered very seriously the confessional Statements of the Appellants. Although he could have justifiably convicted on the confessions of the Appellants, the learned trial Judge, out of an abundance of caution, looked for corroboration from the evidence of other witnesses and from the surrounding circumstances. He found that the confessions of the Appellants were in the main amply corroborated by the evidence of the prosecution witnesses especially the P.W.1 Dr. Odesanmi, P.W.3, Memudu Oyebanji, P.W.5 Emmanuel Olatigbo. P.W.8, Chief Akinluye Omole and P.W.10, Abimbola Arogundade, the Kano Photographer. The trial Judge after all these then believed the prosecution witnesses, preferred the accounts of the incidents resulting in the death of the deceased as told by the Appellants themselves in their own extra judicial Statements (when the matter was still fresh in their minds) to the afterthought account they gave when they testified in their own defences in Court. He specifically disbelieved the evidence of the Appellants in Court. He then found them guilty of the murder of the deceased and sentenced them to death.

Dissatisfied and aggrieved the 3 Appellants each appealed to the Court of Appeal Ibadan Division. That Court upheld the findings, judgment and sentence of the trial Court and described the Appellants’ appeals “as lacking in substance” and dismissed same.

The Appellants have now appealed to this Court. The only Original Ground worth considering is the only ground filed by Samuel Ojegele the 1st Appellant at p.331 of the record of proceedings:-

“(1) The lower Court erred in law and on the facts in confirming the conviction and sentence of the Court of first instance and which is based on a confession made under duress.”

If an extra-judicial Statement of an accused person amounting to a confession was not made freely and voluntarily it cannot even be admitted in evidence. That is the reason why if an accused person admits making the Statement but alleges that he was induced by any threat or promise by a person in authority to make the said Statement in order to gain an advantage or avoid any evil of a temporal nature, then the first duty of the Court is to decide whether or not the Statement was voluntary. The Statement is relevant only when it is admitted or else proved to be voluntary. In any dispute as to the voluntary nature of any given Statement the onus is on the prosecution to prove positively and affirmatively beyond reasonable doubt that the Statement is voluntary. To this end the Court holds a mini trial within the main trial. If satisfied that the Statement was voluntarily made then it will admit same in evidence. This is elementary enough. The trial Judge in this case adverted to the above and held a mini trial. At p.129 Lines 20-25, the learned trial Judge observed as follows:-

“Mr. Ajibola, learned counsel for the 1st accused (here the 1st Appellant) objected to the statement being tendered as he contended it was not voluntarily made. He said that the 1st accused was beaten up before making the statement. In view of this objection, I conducted a trial within trial to test the admissibility of this statement. After the consideration of the evidence before me, I held that the statement was voluntarily made and was admissible.”

This in my view concludes the matter.

Mr. Rhodes for the Appellants at first told the Court he was abandoning the original grounds of appeal. Later on he retracted and said he was arguing both the original and additional grounds. The Brief filed on behalf of the Appellants did not deal with the issue of the Statements of the Appellants being obtained under duress and therefore not voluntarily made. In his oral argument, learned counsel for the Appellants, Mr. Rhodes, never addressed us on the issue of the voluntariness or otherwise of the Statements of the Appellants. The Appellants’ Brief posed Two Questions for Determination. None of these dealt with the Statements of the Appellants having been obtained under duress. Throughout his Brief and his oral submission in elaboration, Mr. Rhodes referred to the Statements as Confessional Statements which is what they are. The only original ground filed by the 1st Appellant therefore fails.

Ground 1 of the Additional Grounds complained that:-

“1. The Court of Appeal erred in law when it affirmed the conviction of the Appellants on the confessional statements of the appellants, when such statements did not conform with the principle laid down in the decision in David Obue v. The State (1976) 2 S.C. 141.

Particulars of Error

1. Apart from the confessional statements being confirmed by a Superior Officer, there was no evidence before the Court that the standard form which the Superior Officer had to fill in answer to the questions put to the Appellants were filled, especially where as in this case the confessional statement is the main proof of the prosecution’s case.
2. There was no evidence before the Court that the veracity or otherwise of the contents on material particulars in the confessional statements were investigated by the Police, namely:

(a) what was iru ajija, mercury and rainbow used for;

(b) there was no evidence whatsoever from all prosecution witnesses that, the deceased when he was alive, had a hunch on his back.”

Some very interesting questions arise from the above ground of appeal namely:-

(i) What is a principle Did the Court establish any principle in David Obue v. The State supra If yes will that principle be followed in every case, its peculiar facts and circumstances not withstanding

(ii) Is it mandatory that Superior Officers before whom accused persons are brought with their confessions should in every case complete the so-called Standard Form, failing which the confessions become inadmissible or if admitted will have no weight attached to them

(iii) When a confession is admitted, will it still be necessary for the Police to investigate “the veracity of the contents on material particulars”

(iv) In this case was it necessary for the prosecution to establish that “the deceased when he was alive had a hunch on his back

I shall deal with the above questions one by one. Principle:-

In Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 N.W.L.R. 617 at p.632 I had an occasion to deal with the difference between a Rule and a Principle thus:-

“A rule is a normative proposition making certain legal results depend upon the establishment of certain factual situations stipulated in the antecedent part of the rule.”

If there is a rule that it is an offence to drive through a built-up area at a speed of more than 30m.p.h., once it is factually established that the defendant drove through a built-up area at a speed more than 30m.p.h. (say 40m.p.h.) then he is automatically in breach of the speed limit rule and he is therefore guilty. Rules therefore determine the outcome of the case in which they apply. It is not so with “principles”.

Principles are broader statements of conduct and they do not necessarily decide the outcome of the dispute. They merely incline the decision one way or the other depending on the facts and surrounding circumstances of the case in hand. The word principle is from the Latin principium, which means the starting point. A principle merely furnishes a basis for the consideration of the case in which the principle is meant to apply. Principles merely incline the decision towards a certain direction but they are not conclusive and they survive intact even if the principle is not followed in that particular case. Rules apply in an all-or-nothing dimension. Either the decision falls within the ambit of the antecedent portion of the rule in which case it must be dealt with as the rule dictates or it does not in which case it is unaffected by the rule. Rules dictate results come what may but principles do not. And that is the main difference to bear in mind when dealing with principles.

Did the Court establish any principle in David Obue v. The State (Supra) with reference to a Standard Form to be filled by Superior Police Officer before whom accused persons are brought along with their Confessional Statements

This Court did not as much as discuss the question of Superior Police Officer filling any form when accused persons who made confessional Statements are brought before them. The issue in David Obue’s case supra was not that the alleged confession was not voluntary, rather the issue there was that the Appellant denied making the Statement at all. In the case now on appeal, the Appellants admitted making the Statements ascribed to them but maintained that they made them after they were beaten up by the Police, they made them under duress. That was why the trial Judge conducted a trial within the main trial. That was not done in David Obue’s case supra. In David Obue’s case at p.154, this Court came to the following conclusion:”

We are not satisfied beyond all reasonable doubt that the confessional statement was proved to have been made by the appellant. We have drawn attention to some of the matters which were not thoroughly examined when the appeal came before the Western Court of Appeal….”

From the above, it is apparent that no “standard form which the Superior Police Officer had to fill….” was in issue. David Obue’s case supra could not have laid down any principle on an issue not before it, an issue it never considered.

The Judges’ Rules and their Application to Nigeria;

The Judges’ Rules are rules made by English Judges for the guidance of English Police Officers. Nobody, however, disputes the wisdom behind those Rules. But having said that, it is necessary to add that the Rules are not Rules of law but merely Rules of administrative practice. They are rules made for the more efficient and effective administration of justice and therefore should never be used to defeat justice. Even in England the Court of Appeal felt bound to observe that “the Court must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth” -R. v. Richardson (1971)2 Q.B. 484 at p.490: (1971) 2 All E.R. 777.

Here in Nigeria there is a consensus of judicial opinion that the practice set out in the Judges’ Rules “accords with prudence and that where it is practicable, especially in serious cases of felony, where the only material evidence against an accused person is his confession contained in his Statement made to a junior police Officer that practice should be followed”. But the Federal Supreme Court in Nwigboko & ors. v. The Queen (1959) 4 F.S.C. 101 at p.102 resolutely held:

“We do not, however, agree with the Judge that where the practice is not followed, the Statement should necessarily be viewed with suspicion… We are not prepared to go to the length of laying down as a general rule that where it (the practice) is not observed the statement should be viewed with suspicion.”

The aim of the Judges’ Rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt. In the case now on appeal, I do not see that there was any breach of the Judges Rules.

In this case the Appellants were cautioned as required by the Rules; they signed or thumb-impressed their confessions, they were taken before a Superior Police Officer, (P.W.12) A.S.P. Moses Aboliwo by Sgt. No. 23584 Jacob Aborowa P.W.9 who recorded their Statements; another Police Officer Sgt. Samuel Ojumu (P.W.13) interpreted their Statements to the Appellants before the Assistant Superintendent of Police: (see Queen v. Nnana Okoro (1960) 5 F.S.C. 134 at p.135); the appellant admitted they made those Statements and signed or thumb-impressed them, the Interpreter signed and the A.S.P. signed. I do not see what else needed to be done which was not done. The only objection now being raised is that the Assistant Superintendent of Police did not fill the Standard Form.

The A.S.P. was in the witness box as P.W.12. The so-called Standard Form was never put to him. It was never suggested to him that he did not complete the Form. Maybe he did, who knows. But whether he did or not does not affect the admissibility of the confessions. The trial Judge held a mini trial within the main trial and satisfied himself that the confessions of the Appellants were voluntary. That concludes the matter. I see no substance in the quarrel over filling or not filling the so-called Standard Form.

At the worst, the spirit, if not the letter, of the Judges Rules was more than amply observed and complied with. This ground of Appeal fails as this case can be easily distinguished from that of David Obue (supra) where Sowemimo, J.S.C. (as he then was), referred to the fact that “the questions in the form and the answers when obtained might have lent weight to such confirmation.”

The Second Additional Ground of Appeal complains that:-

“Ground 11:

The Court of Appeal erred in law in confirming conviction of the Appellants, when the evidence, as are circumstantial and such evidence are not compelling enough to warrant conviction of the Appellants.”

It is not derogatory to refer to evidence as circumstantial. Sometimes circumstantial evidence may prove a case with the accuracy of mathematics. It is not always that one gets the advantage of an eye-witness account of a crime because criminals being allied with darkness perpetrate their crimes not in the open but in secret. But as happened in the case of James Obi Achabua v. The State (1976) 12 S.C. 63 at p.68 in the instant case, the Courts have the confessions of the Appellants.

The dismembered body of the deceased was found buried behind the house of the 3rd Appellant as disclosed in the Appellants’ confessions; also Chief Akinluye Omole, P.W.8, on the midnight of 13/10/86 saw the Appellants, (1st & 2nd and others now at large), carry something in a sack from Peugeot Pick-up wagon No. KNE.5367 belonging to the 1st Appellant to the back-yard of the house of the 3rd Appellant where the quartered and dismembered remains of the deceased were eventually dug out.

This was also mentioned in the confessions of the Appellants. As if these were not enough, Memudu Oyebanji, PW.3 and a co-taxi driver with the deceased found the taxi, which cab the deceased drove on that fateful and fatal night, abandoned along the Iwo-Gbongan Road as was described in the confessions of the Appellants. In the near-by bush PW.3 and the Police recovered the blood-soaked clothing of the deceased. The medical examination of the body of the deceased revealed all the matchet cut injuries described in the confessions of the Appellants. Are all these innocent coincidences

In the Queen v. Chukwuji Obiasa (1962) 1 All NLR 651 the Federal Supreme Court stated the law succinctly as follows:-

(1) If a person makes a free and voluntary confession which is direct and positive, and if properly proved he may be convicted on the confession alone without any further evidence.

(2) A confession of an accused should be tested as to its truth. This can be done by examining it, in the light of the other evidence to determine:

(a) Is there anything outside it to show it is true

(b) Is it corroborated

(c) Are the facts stated in it true as far as can be tested

(d) Did the accused have an opportunity of committing the offence

(e) Is the accused’s confession possible

(f) Is the confession consistent with other facts which have been ascertained and proved

In David Obue’s case supra the Court held that the confession of the Appellant had not been proved and that beside the alleged confession there is no other evidence that connects the appellant. The same cannot be said of this case now on appeal in view of the evidence of P.Ws 1, 3, 5, 8 and 10 connecting the appellants. All that were deposed to by these witnesses were minutely reflected in the confessions of the appellants. If ever there are true confessions of guilty, they are those contained in the Statements of the appellants. There is here no doubt arising from the evidence as was the case in The Queen v. Obiasa supra. Like in James Obi Achabuo’s case supra where there was no eye-witness but there was circumstantial evidence so also in this case, the appeal ought to be dismissed.

Although the appellants could easily have been convicted on their confessions; see the case of Walter Sykes (1913) 8 CR. App. R.233 yet the learned trial Judge thought it wise and desirable to look for corroborative evidence outside the Statements themselves. These he considered from pp.147 to 152 of the record. At the end he was satisfied and rightly too, that the confessions of the appellants were sufficiently borne out and corroborated by other evidence both oral as well as circumstantial, all supporting and supported by the confession and thus lending credence to the confessions.

The learned trial Judge’s treatment of the confessions and search for supportive and corroborative evidence is flawless and has not been faulted in any way.

Finally, the submission that “there was no evidence whatsoever that the deceased when he was alive, had a hunch on his back” does not advance the defence one inch further. Killing the deceased in the circumstances described is murder whether he had a hunch on his back or not.

The mention and relevance of the hunch is merely to establish the motive for his brutal killing. But how can the appellants who removed the spine, – the part of the body which would have indicated the hunch – complain Why did they remove that part of the body unless it was of some use to them The confessions of the Appellants clearly show that Bashiru now at large took the 1st and 2nd appellants to his brother who had a hunch-back. The removal of the spinal region supports the theory that the deceased was hunch-backed. And it was a hunch on the back that the 3rd appellant wanted as one of the ingredients for his concoction.

This appeal lacks merit and ought to be dismissed as all the grounds have failed. It is hereby dismissed. The judgment and sentence of death passed on the appellants by the trial court is hereby upheld. The appeal judgment of the court below is affirmed.

SC.226/1986