Segun Akinsuwa V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

The appellant along with two other co-accused persons were arraigned before the High Court of Justice Ondo State (Coram F. O. Aguda – Taiwo J) (the trial Court) on 26th February, 2007 and tried on two count charge of conspiracy contrary to and punishable under Section 516 of Criminal Code Cap 30, Volume II of the Laws of Ondo State of Nigeria and the offence of murder, contrary to and punishable under Section 319 (1) of Criminal Code, Cap 30, Volume II of Laws of Ondo State of Nigeria.

The particulars of the second count are that the appellant on or about the 5th of June, 2003 at Sejire Campina-Ore, did conspire with the other co-accused to commit felony, to wit, murder. The particulars of the second offence are that the three accused persons (the appellant included) on or about the 5th day of June 2003 at Asejin Campina Ore murdered one Silifatu Rahman. Before the conclusion of the trial, the 3rd accused Ayo Omoduyilemi was released on bail on ill-health ground and he later died. The charges were therefore struck out against him, hence the trial continued with the appellant and his

other co-accused Omojola Akinlolu.

Initially when the two count/charges were read to the then three accused persons, all of them pleaded not guilty to the two charges when they were read and explained to them in English Language but duly translated to them in Yoruba Language by the Registrar of the trial Court. The trial thereupon commenced in earnest on 26/2/2007. The prosecution, in order to prove the allegations against them, called four witnesses and closed its case. On their part, both the appellant and his co-accused testified for their own defence as Dws 1 & 2 respectively, without calling any witness. It is apt to state here, that the release of the 3rd accused person was sequel to the recommendation for his unconditional release by the Committee on the Administration of Criminal Justice of Ondo State headed by the Chief Justice of Ondo State who is its chairman, due to the ill-health of the 3rd Accused person.

At the end of the trial, the learned trial Judge in a considered Judgment delivered on 7th day of August, 2010 found the appellant guilty of conspiracy and murder and convicted and sentenced him to death.

Aggrieved by his conviction and sentence by the trial Court, the appellant lodged an appeal to the Court of Appeal, Akure division (the lower Court or Court below) which dismissed his appeal and affirmed the Judgment of the trial Court, vide its Judgment delivered on 7th day of August 2014. Further aggrieved by the Judgment of the lower Court, the appellant appealed to this Court.

Before this Court, the parties, in compliance with the rules and practice applicable in this apex Court, filed and exchanged their briefs of argument.

The appellant’s Brief of argument settled by one Lanre Oliyide was filed on 20/10/2015 and was adopted and relied on, when the appeal was argued before us on 21/2/2019. In the said Brief of argument, three issues were decoded for the determination of the appeal as set out hereunder: –

Whether the learned Justices of the Court of Appeal were right and applied the correct principle of law when they dismissed and or discountenanced the defence of Alibi promptly raised by the Appellant herein. (Distilled from Ground 1 of the Notice of Appeal)
Whether the learned Justices of the Court of Appeal were right and applied the correct

principle of law acting and relying on alleged confessional statement of co-accused (Dw1 and Dw3) respectively as corroborative evidence to sustain the conviction and sentence of death imposed on the Appellant (Distilled from Ground 2 of the Notice of Appeal)

Whether the learned Justices of the Court of Appeal were right and came to the right conclusion when they held that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt in the absence of proof of essential ingredients of the offences of conspiracy and murder by the prosecution against the appellant (Distilled from Ground 3 of the Notice of Appeal).

The learned counsel for the respondent herein, followed suit by also filing his brief of argument on behalf of the respondent on 26/10/2017 which was deemed filed on 11/4/2018. In the said brief of argument, four issues were nominated for the determination of the appeal which I shall set out below:-

A- Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt at the trial Court (Ground 3).

B- Whether the learned Justices of the

Court of Appeal were right when they discountenanced the defence of Alibi raised by the Appellant (Ground 1)

C- Whether the learned Justices of the Court of Appeal were right in holding that the trial Court rightly relied on Exhibits 5, 6 and 7 and expunged Exhibit 10 in view of its inadmissibility (Ground 2) Whether the learned Justices of the Court of Appeal were right in holding that the refusal of the trial Court to wait indefinitely for the Appellant’s address before delivering its Judgment did not amount to lack of fair hearing and miscarriage of Justice (Ground 4).

It would seem to me that Issue 1 in the appellant’s brief is similar to Issue B in the Respondent’s brief of argument. Also Issue 1 in the appellant’s brief is similar to Issue B in the Respondent’s brief while Issue 2 in the appellant’s brief tallies with Issue C in the Respondent’s Brief of argument. They merely differ in the wordings used in couching them. I shall therefore treat this appeal on the guidance of the issues raised in the appellant’s brief of Argument.

SUBMISSIONS ON ISSUES FOR DETERMINATION

Issue no 1 deals with whether the lower Court was right in

rejecting the defence of Alibi raised by the appellant.

The learned counsel for the appellant argued that the trial Court and lower Court misdirected themselves by erroneously placing evidence bordering on disproving Alibi on the appellant, instead of the prosecution. He argued that the Appellant herein, at the earliest opportunity raised the defence of alibi in his extra Judicial statement to the police dated 6/6/03 which was admitted in evidence along with other documents as Exhibits 10 and 10A and frontloaded as part of proof of evidence. He referred to the concurrent findings of the two lower Courts to the effect that although the appellant had timeously raised the defence of alibi, but he did not furnish police with adequate particulars of his whereabouts so as to give room for making full investigation. He argued that this conclusion is grossly erroneous and is at variance with the totality of the evidence before the trial Court. He referred to the statement of the appellant dated 6/6/03 i.e. Exhibit 10 at pages 30-31, 62-63 lines 23-24 of the record where he gave particulars and information as to his whereabouts on the 5th day of June, 2003. He

argued further, that the appellant in that statement stated that he was in OMITUNTUN VILLAGE on the day of the incident with his brother’s wife who put to bed and also with Marna, Juliana, Talabiya Monisola and some of his father’s friends who came to rejoice with the family on the celebration of the newly born baby. He urged the Court to hold that the concurrent findings of the two lower Courts that the defence of alibi raised by the appellant is devoid of necessary particulars.

Issue No 2 deals with whether the lower Court was right in applying the correct principle of law acting and relying on alleged confessional statements of co-accused persons, namely (Dw1 and Dw3).

He argued that the finding of the trial Court and its endorsement by the lower Court clearly shows that the conviction of the appellant was predicated absolutely on the alleged confessional statement attributed to the appellant as allegedly corroborated by the evidence of Dw1 and Dw2 i.e. the 2nd and the 3rd defendants at the trial Court. He therefore submitted that if Exhibits 5, 6, & 7 which are purported confessional statements of the accused persons i.e. the 1st 2nd and 3rd

accused persons are discountenanced for and having not satisfied the legal requirement of confessional statement, the whole case of the prosecution will collapse. He argued further, that Exhibits 6 and 7 relied upon by the trial Court are mere statements of co-accused persons charged along with the appellant

He submitted that an extra Judicial statement of a co-accused can not be used in law, to convict another accused person charged with the same offence. He urged this Court to resolve this issue in favour of the appellant.

With regard to Issue no 3, it deals with whether the lower Court was right when it held that the prosecution had proved its case beyond reasonable doubt.

The learned appellant’s counsel argued that the prosecution has not been able to establish that the appellant caused the death of the deceased. He submitted that the prosecution, having failed to prove this essential ingredients of the offence has therefore failed to prove its case beyond reasonable. He urged the Court to resolve this issue in favour of the appellant.

Issue no 4 deals with whether the lower Court was right when it held that the trial Judge did not

infringe the appellant’s right to fair hearing. The learned counsel to the appellant submitted that he was not accorded fair hearing to the appellant having not been given him any opportunity to call additional witnesses and for the request of his counsel to address the Court in conclusion of his defence before the trial Court. He referred to the proceeding of the trial Court held on 11/11/2008, where the Court granted him last adjournment after the two earlier adjournments at the instance of the defence to enable it call its last witness. He then submitted that the appellant could not call his last witness because of the persistent absence of the prosecution from the proceedings despite issuance of and service of hearing notice on it.

He argued that the manner and the entire circumstances leading to the sudden closure of the appellant’s case is questionable. He argued that trial Court ought to have exercised extreme restraint before it proceeded to deliver its Judgment in this case when it was supposed to be for further hearing of the defence and address by counsel of the appellant. He submitted that the right of counsel to make final address at the

conclusion of a matter or a trial was given Judicial recognition in the case of UZOWULU VS AKPOR (2015) All FWLR (pt 763) p.1958. He urged the Court to also resolve this issue in favour of the appellant and to allow the appeal.

In response to the argument of the appellant’s learned counsel, the learned Counsel for the respondent also submitted for issues for determination.

Issue no 1 deals with whether the Court below was right in holding that the prosecution proved its case beyond reasonable doubt.

The learned counsel for the appellant argued that the extra Judicial statements of the appellant and those of other co-accused persons disclosed evidence of the offence of conspiracy among them by luring the deceased to the 3rd accused person’s farm. He argued further that in the exhibit it is established that the appellant and the other accused persons had settled somewhere for the purpose of raping the deceased. He argued that Exhibit 9 i.e. the medical report equally established the death of the deceased and its cause. (pages 48-55) of the record. He submitted that from the evidence of PW 4. It would be rightly deduced that the deceased died from the

combined effect of injuries inflicted on her by the appellant in the process of raping her.

He argued that it leaves no one in doubt, that the appellant killed the deceased having admitted strangulating the deceased’s neck and throat with a view of concealing the crime. He urged the Court to resolve this issue in favour of the respondent.

ISSUE NO.2

This issue deals with rejection of alibi raised by the appellant.

He submitted that it is not enough for the appellant to raise a defence of alibi at large but he must go further to furnish adequate particulars which will assist the police to make meaningful investigation. He cited the case of NJOVENS V THE STATE (1973)1 NWLR 331. He referred to Exhibit 10 dated 6/6/2003 and argued that a critical look of the said exhibit will reveal that the appellant failed to mention the specific time he left the locality where the said crimes in question were committed at Omituntun as it would have assisted the police to investigate the alibi. He submitted that a vague and porous alibi like the one set up by the appellant in the instant case, is devoid of sufficient facts to warrant investigation and that

defence therefore cannot avail the appellant. He argued further, the Alibi raised in the course of appellant’s examination in chief is not expected to be investigated by the police for the Court to sustain it. He cited the case of NJOKUMANI V STATE (2001) 14 NWLR 96. He urged this Court to discountenance the defence of alibi raised by the appellant

Issue No 3

Issue no 3 deals with whether the Court below was right in holding that the trial Court rightly relied on Exhibits 5, 6, & 7.

Respondent’s learned counsel stated that Exhibits 5, 6 & 7 are confessional statements of the appellant, 2nd and 3rd accused persons respectively and he argued that the appellant or his counsel did object to the admissibility of Exhibit 5 when it was tendered in evidence but it was during the appellant’s evidence in chief that he retracted the said statement. He submitted that an accused person can be convicted on his true and positive confession alone, even where he has retracted same. He cited the case of YESUFU V THE STATE (1976) 6 SC. He submitted that all that the law requires is that such statement must pass the test laid down in R V SKYES CAP, 113

which said decision has been adopted by the Supreme Court in plethora of decided authorities. He referred to the case of STEPHEN V THE STATE (1980) 8-11 SC 236.

He argued further, that it is not in every case that evidence of a co-accused person will be inadmissible against other accused person(s). He submitted that where there is a nexus between the contents of a statement of a co-accused with other independent evidence, like in the instant case, the general rule gives way for reality. He cited the case of ADELEKE V STATE (2013) 12 SCM (pt 2) 1. He therefore submitted that the trial Court was convinced that Exhibits 5, 6 & 7 passed the required test. He submitted also that the exhibit which contained the purported alibi was rightly expunged because it lacks necessary particulars and the appellant never adduced any evidence in support thereof, in line with the Supreme Court decision in ALIMU V STATE (2009) 4 SCM 40. He urged the Court to resolve this issue in favour of the respondent.

Issue No 4

Issue no 4 deals with whether the Court below was correct in holding that the refusal of the trial Court to wait indefinitely for the appellant’s

address did not amount to denial of fair hearing. He referred to the proceedings of 11/11/2008 where it is shown that the appellant was still unable to bring his witness despite previous adjournments at its instance. He argued that since the Court could not wait endlessly for appellant and his witness, then it was in order for the trial Court to close the case of the defence. He argued further that the deliberate refusal of the appellant’s counsel to address the Court could not be prejudicial to the opportunity of fair hearing accorded the parties. He urged the Court to affirm the decision of the lower Court and dismiss the appeal.

RESOLUTION OF ISSUES FOR DETERMINATION

As I posited above, the first issue raised by the appellant in his brief of argument relates to the defense of Alibi raised by the present appellant, the appellant queries the resolve by the lower Court to endorse the trial Court’s rejection or discountenance of the defense of Alibi raised by the appellant in his extra- judicial statement (i.e. Exhibit 10) and also in his subsequent defense when he raised it when he testified for his defense. It is instructive to note that in his

extra-judicial statement Exhibit 10, which appeared to have semblance of an alibi defense, the appellant’s statement which was recorded on 6th June 2003, where the appellant stated thus: –

“l went to the said farm yesterday 5/6/3003 at about 12 noon. I returned from the farm and I started doing work but closed around 4pm. I returned to paradise where I am living. From (sic) went to Omituntun camp where my brother’s wife was about to born (sic) and I returned at about 12 midnight to paradise.”

It must be emphasized here, that the word or phrase “Alibi” simply means “Elsewhere”. Whenever it is raised as a defense, all that the defendant or appellant is suggesting is that “as at the time the offence he is charged with was committed, he was somewhere and not at the scene of the commission of the offence or wrongful act”. Therefore, whenever it is raised as a defense by an accused/or defendant, it becomes incumbent upon him to adequately furnish detailed information of his whereabouts at the time the offence charged was committed or the conspiracy was perpetrated. It is only when he satisfactorily provides such vital information of his whereabouts, that

the police will investigate in order to verify whether he was actually at the place he alleged he was at the time of the commission of the offence and that he was NOT really at the scene of the crime. Where he fails to give or provide such detailed information, the police have no obligation to investigate the claim, as the law does not enjoin them to embark of chase of wild goose. However, if such detailed information was given by the appellant/accused at the earliest time, then the police are duty bound to investigate and if they fail to do so the accused/appellant may be acquitted. See Ajayi v State (2013) ALL FWLR (pt.711)1457 at 1462; Udo Ebre v The State (2001) 6 SCNJ 66, Sowemimo v The State (2004) SCNJ 153, Adio v State(1986)4 NWLR (pt.3)143; Adekunle v State (1989)5 NWLR (pt.123) 505.

The law is well settled that if an accused person wants to take advantage of the defense of Alibi, he must give detailed particularization of his whereabouts on the date and time of the commission of the crime or wrongful act which will include not only the specific place or places where he was, but also he must make mention of the people he was in company of and

what transpired at the house and place, and such information must be unquestionable and must also be capable of being verified when investigated by the police if they had wanted to do so. See Udo Ebre v The State (supra). Also, all these information must be furnished at the earliest stage e.g in his statement to the police so as to give investigators enough chance and time to the police to verify or ascertain. See Gachi vs The State (1995) NMLR 333. I must stress here, that a defense of alibi without providing sufficient facts to call for verification is nebulous and porous and it can not avail the accused person or defendant. But where detailed information of the alibi and sufficient particularization of the whereabouts of the accused are given, it then becomes imperative upon the police to investigate because the law does not put a burden on the accused to prove or establish his alibi. See Okosi v The State (1989)1 SCLRN 29; Yanor V The State (1965)1 All NLR 1 & 3. The burden is always on the prosecution to disprove the defense of alibi where it is duly raised timeously with detailed, clear and unambiguous particularisation. See Ogoala v State (2009)7

ALLR 307.

A dispassionate perusal of the defense of alibi raised by the appellant in his statement Exhibit 10 excerpt of which had been reproduced above, clearly shows that the appellant failed to give the specific time he left his locality where the crime was committed ie “Omituntun”. He also failed woefully, to state or furnish the particulars of his so-called brother’s wife or where she was living in Omituntun. All these pieces of information which are supposed to be within his knowledge alone, should have been revealed or furnished to the police timeously for the police to verify in the course of their investigation.

Unfortunately, those details were not given which results to the alibi defense being considered as vague, scanty and insufficient. Some of the facts were also not provided timeously but were rather given by the appellant during his testimony for his defense. They were therefore given at the 23rd hour of the day thereby making it impossible or impracticable for the police to investigate or verify hence it makes the defense untenable.

In the light of my discourse above on this issue, I am inclined to endorse the finding of the

lower Court where it states on page 340 lines of 11 to 14 of the Record as below: –

Therefore, I firmly agree with the reasoning of the learned trial judge that Exhibit 10 was a complete fabrication, a conclusion and an afterthought. I also disbelieve and accordingly reject the contents of exhibit 10. The learned trial judge was therefore in order by expunging Exhibit 10 from the records of the Court. I so hold. It is my candid view that the appellant failed to establish alibi as he did not properly furnish the police with adequate particulars of where particularly and who he was together with at the time of the murder incidence. And as such can not avail him. See the case of Sunday V State (2010)18 NWLR (pt.1224)223 SC.

In view of the aforesaid, I firmly hold the view that the Court below is correct in endorsing the dismissal and discountenancing the defense of alibi raised at the trial Court by the appellant as it is vague and is mere afterthought. I therefore resolve the first issue for determination in favour of the respondent against the appellant herein.

On the second issue for determination, it can be discerned from the

printed record that the appellant made a confessional statement which was tendered at the trial Court and marked Exhibit 5. In that exhibit the appellant had unequivocally admitted that he connived with the 2nd and 3rd accused persons to rape and subsequently kill the deceased. It is pertinent to say that when Exhibit 5 was tendered in evidence by the respondent at the trial, it was not objected to by the appellant’s learned counsel. It was only at a later time during his defense that the appellant retracted or resiled from the contents of his own confessional statement which he voluntarily made when the facts of the case were very fresh in his mind.

The appellant’s confessional statement was corroborated by Exhibits 6 and 7 which were the confessional statements of the 2nd and 3rd accused persons wherein the two accused persons clearly and unambiguously owned up to the commission of the offences along with the present appellant. The law is trite, that where there is a nexus between the contents of a statement of a co-accused with other independent evidence, such corroborative evidence is relevant and admissible and would be regarded to have supported or

confirmed the evidence in question and can be acted upon by the trial Court to convict as in this instant case. The bottom line is that a confessional statement so long as it is free direct, positive and voluntary is enough to ground conviction. See R v Omokaro (1941) WACA 146; Kopa v The State (1971) 1 AUNC RISO.

The learned counsel for the appellant expressed his grudge on the trial Court’s utilization of the evidence of the co-accused persons as per Exhibits 6 & 7 as corroborative of the appellant’s confessional statement and referred to Section 27 (3) of Evidence Act, now Section 29 (4) of Evidence Act 2011, and the cases of Ghohor v State (2013) All FWLR (pt 709) 1061 at 1065 and Suberu v State (2010) 3 SC (pt 11) 105.

With due deference to the learned appellant’s counsel, this Court in the case of Adeleke vs State (2013) LPELR 20971 (SC) clarified the situation when it held thus: –

“On the issue raised by the appellant that the evidence of a co-accused is not admissible against the other co-accused persons is not a general rule that is taken hook, line and sinker without exception.

This is because where as in this case, there

is a link or nexus from the contents of the statement of a co-accused or even from other independent evidence then the exception is accepted as making that general rule aforesaid give way for the reality on the ground.”

See also Oyakhire vs The State (2006) 12 SCM (pt I) 369 at 380 381.

As I stated above, there is link or nexus between the appellant’s confessional statement (Exhibit 5) and those of the 2nd and 3rd co-accused persons besides other independent evidence which had duly corroborated the confessional statement of the appellant. I therefore have no hesitation in endorsing the finding of the lower Court when at page 323 of the record, it stated as follows: –

“It is clear from the above excerpt that the learned trial Judge having evaluated Exhibits 6 and 7 which are purported voluntary confessional statements of 1st, 2nd and 3rd accused persons the evidence before the Court and demeanor of the accused persons arrived at the conclusion that Exhibit 5 which is credited to the Appellant herein, was made on 12/6/2003 and which corroborates Exhibits 6 and 7.”

In the light of all that I posited supra, I am equally convinced that the Court

below is correct in its finding that the trial Court was correct in holding that statements of the co-accused persons have duly corroborated the statement of the appellant and that they were rightly accepted and used in grounding the conviction of the appellant herein. The second issue is therefore also resolved against the appellant.

Issue No 3

Coming to the third issue for determination which has to do with the issue of proof of the offences against the appellant beyond reasonable doubt by the prosecution. In this instant case, ample evidence abound to show that all the three accused persons (the appellant included) had hatched the consensus to commit the offence of rape against the deceased.

The question of who really committed the act of rape in the end is of no moment since all of them had earlier agreed and resolved to commit the offence of rape on their deceased victim before killing her.

On the offence/charge of murder, it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods. The methods are

(a) Through evidence of eye witness or witnesses<br< p=””

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(b) Through voluntary confessional statement of the accused or accused persons, and

See Agboola v The State (2013) LPELR 20652 (SC). Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the underlisted ingredients of the offence of murder, namely:-

(1) The death of a human being

(2) That the death was caused by the act or commission of the accused person/and

(3) That the act of the accused was done intentionally or with Knowledge that death or grievous bodily harm was the probable consequence.

See Okeke v The State (1999) 2 NWLR (pt 590) 246 at 273.

Now in this instant case, there is adequate evidence showing that their victim Silifat died as confirmed by the medical report Exhibit 9. That piece of evidence was further supported by the pathologist report which confirmed that there existed male sperm cells, forceful strangulation and bruises on her body and neck.

Therefore, death can be said to have been established which was caused by grievous harm. Naturally, the dastardly act of the appellant and his other

co-accused persons can be said to have resulted in the death of the deceased and I must add that such sexual attack, the strangulation and evidence of existence of bruises on the body of the deceased must have been inflicted on her intentionally by the appellant and other co-accused persons with the intention to kill her or with knowledge that death could be the probable cause of their act. See Orisakwe v The State (2004) 12 NWLR (pt. 2007) 5; The State v Babangida John (2013) 11 SCM 172; The State vs Babawuro Usman (2007) 5 ACLR 34 at 41/42.

Thus, from the circumstances of this case and in the light of these pieces of evidence adduced by the prosecution/respondent there is no doubt that all the ingredients of the offence of murder had also been duly proved by the prosecution beyond reasonable doubt, as there was no evidence controverting or contradicting them.

The prosecution, as rightly found by the trial Court and endorsed by the lower Court, had proved the offences of conspiracy and murder against the appellant beyond reasonable doubt. The lower Court was therefore right in so holding. The third issue for determination raised by the appellant is

hereby also resolved against him (the appellant).

It is worthy of note, that in this instant case, there are concurrent findings of two lower Courts which this Court hardly interferes with or disturbs except on special circumstances such as where the findings are perverse or there exists misapplication or misapprehension of substantive or procedural law.

None of these viruses exists in this case, hence this Court has no business tampering with the findings of the lower Court in any respect. See Dibiamaka v Osakwe (1989) 3 NWLR (pt 107) 101; Ibuluya v Dikibo, Omotola & Ors vs The State (2009) 8 ALLR 29 at 78.

In the result, having resolved all the three issues raised and argued in the appeal by the appellant against the appellant, this appeal is adjudged unmeritorious. It fails and is accordingly dismissed. The Judgment of the trial Court which had been affirmed rightly by the Court below, is hereby further confirmed. Appeal dismissed.

SC.586/2014

Segun Akinsuwa V. The State (2019) LLJR-SC

Segun Akinsuwa V. The State (2019)

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