Suleiman Olawale Arogundare V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The appellant and one other were arraigned on the 19th of April 1990 at the High Court of Abuja, Federal Capital Territory, on a one count charge of culpable homicide punishable with death under section 221 of the Penal Code for causing the death of his father, Noshude Atanda Arogundade. The trial court convicted them of the offence based mainly on their confessional statements Exhibit ‘D’ and ‘E’, Their appeal to the Court of Appeal was dismissed but their confessional statements were expunged from the record because the Court of Appeal was of the view that the procedure of the trial within trial to determine whether the statements were voluntary or not was irregular. It however, held that there was sufficient circumstantial evidence without confessional statements to support their conviction.

The appellant has further appealed to this Court and the sole issue formulated in the appellant’s brief reads thus:

“Whether in the absence of the confessional statement expunged by the Court of Appeal, the court was right to have confirmed the conviction and sentencing of the appellant on the evidence of P.W. 5 or any other evidence circumstantial or otherwise.”

The learned counsel for the respondent in the respondent’s brief formulated 2 issues for determination as follows:

(1.) “Whether from the totality of the facts and circumstances of this case the court below was right when it affirmed the decision, conviction and sentence of the trial court on the ground of circumstantial evidence.

(2) Whether the court below was right to have affirmed the decision of the trial court in admitting the evidence of PW5 having regard to the hearsay rule.”

There is only one issue in this appeal and that is the sole issue formulated in the appellant’s brief.

The learned counsel for the appellant submitted that without the confessional statement of the appellant which was rightly expunged by the lower court, there was no sufficient circumstantial evidence or otherwise to support the conviction.

He said that the evidence of PW5 which contained the confession of the appellant was hearsay evidence and was inadmissible. He referred to a number of foreign cases such as:

“R. V. Jackson (1953) 1 All ER. 872; R. V. Bathurst (1968) 52 Cr. App. R. 251; R. V. Mutch (1972) 57 Cr. App. R. 196; R. V. Gilber (1977) 66 Cr. App. R. 237.”

With the greatest respect, we have sufficient Nigerian case laws to help the learned counsel in making his submission on the legal principles necessary for a case of this nature and I consider it of no assistance in making a voyage into foreign cases.

The learned counsel submitted strongly that hearsay evidence is evidence which does not derive its value solely from the credit given to the witness but which also rests in part on the veracity and competence of some other person. He relied on the cases of Judicial Service Committee V. Omo 1990 6 NWLR (Pt. 157) 407 Achara V. Attorney-General Bendel State, 1990, 7 NWLR (Pt. 160) 92 and Okhuorobo V. Aigbe. 2002 9 NWLR (771) 39.

The learned counsel for the respondent submitted that there was sufficient circumstantial evidence apart from the appellant’s confessional statement Exhibit ‘D’ to sustain the conviction and the sentence of the appellant. It is his contention that the evidence of PW5 was not hearsay evidence but a voluntary confession of the appellant to the witness that he killed his father with detailed account of the circumstances. He gave his evidence in the presence of the appellant himself and was not cross-examined. Not only that the appellant rested his case on the prosecution case and thus missed the opportunity of countering the damnable evidence given against him.