Sunday Adeniken V. The State (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Ondo State, Ifon Judicial Division delivered on 1/12/08 convicting the appellant of the offence of murder and sentencing him to death.

The brief facts of the case are as follows: The appellant was alleged to have murdered one Solomon Ebo at Ugboruwen Camp via Ute in Ifon Judicial Division of Ondo State on 31/1/06. He was arrested by the Police and taken to Divisional Police Station, Ifon and later transferred to State CID Akure, Ondo State, After investigation into the matter, he was charged to court. The prosecution called two witnesses (the I.P.O. and the medical doctor who performed the post-mortem examination on the deceased) and tendered several exhibits, including Exhibit A (a confessional statement), Exhibit C, a knife (the alleged murder weapon) and Exhibit D, the medical report of cause of death.

The appellant testified on his own behalf and called one other witness. It was the prosecution’s case that the appellant volunteered a confessional statement wherein he admitted stabbing the deceased to death. A trial within trial was conducted when the appellant objected to the admissibility of the confessional statement on the ground that he did not make it and that it was obtained after intimidation and duress. At the conclusion of the trial within trial the statement was admitted in evidence as Exhibit A.

On his own part the appellant’s case was that he was not at the scene of crime but was with DW2, his employer loading cocoa from 3.30pm on the date of the incident till the following day. He maintained that he did not make Exhibit A. At the conclusion of the trial and after listening to the addresses of learned counsel on either side, the learned trial Judge found the charge of murder proved against the appellant, convicted him accordingly and sentenced him to death.

Being dissatisfied with the judgment the appellant filed a notice of appeal containing five grounds of appeal. On 7/10/09 he filed an amended notice of appeal dated 28/9/09, which was deemed properly filed and served by an order of this court on 4/3/2010. The Amended Notice of Appeal contains six grounds of appeal.

The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 30/01/2012, LAWAL ALABI ESQ., holding the brief of IKENNA OKOLI, ESQ., adopted and relied on the appellant’s brief dated 21/4/11 and filed on 30/4/10. The said brief was deemed properly filed and served on 24/2/11. He urged the court to allow the appeal.

MRS, G.A. OLOWOPOROKU, Deputy Director of Public Prosecutions, Ministry of Justice Ondo State adopted and relied on the respondent’s brief dated 16/5/2011 and filed on 17/5/2011. It was deemed properly filed and served on 13/10/2011. She urged the court to dismiss the appeal and uphold the appellant’s conviction and sentence.

The appellant formulated three issues for the determination of the appeal, which were adopted by the respondent thus:

1. Whether the trial court was right to attach any or much weight to Exhibit A (Appellant’s confessional statement) and consequently convicting the Appellant based on the said Exhibit A?
2. Whether the learned trial Judge was right to admit Exhibit C (alleged murder weapon) in evidence and/or attaching any or much weight to Exhibit C?
3. Whether from the totality of the evidence adduced before the trial court, the prosecution proved the offence of murder against the appellant beyond reasonable doubt?

After a careful perusal of the three issues distilled above, I am of the view that the sole issue for determination is the appellant’s issue 3. Issues 1 and 2 shall be considered under this issue.

In arguing the appeal, learned counsel for the appellant submitted that the learned trial Judge ought not to have placed such heavy reliance on Exhibit A in convicting the appellant for the following reasons:

1. The appellant denied making the statement at the earliest opportunity. That he stated that he only made a statement to the police at Ifon where he was first arrested and his evidence in this regard was not contradicted.
2. The evidence of PW1 regarding the date when Exhibit A was recorded (24/2/06) and the date on the exhibit (13/2/06) are contradictory.
3. Exhibit A was not corroborated and there is nothing outside it to show that it is true.
4. Exhibit A is not cogent, direct and positive.

He submitted that for a confessional statement to ground a conviction it must be subjected to the test laid down in Nwaebonyi Vs The State (1994) 5 NWLR (343) 138 @ 150. He also relied on: Ikpo Vs The State (1995) 9 NWLR (421) 540. He noted that none of the prosecution witnesses listed in the proof of evidence was called to testify to corroborate Exhibit A and no reason given for failure to call them. He submitted that the glaring inconsistencies ought to have been resolved in the appellant’s favour.

In reply to the above submissions, learned counsel for the respondent submitted that the lower court was right when it admitted Exhibit A in evidence, because during the trial within trial the appellant’s position was that he did not make the statement, as opposed to its having been obtained involuntarily. She submitted further that the appellant’s specimen signature (Exhibit B) obtained during the trial was the same as the signature on Exhibit A, showing clearly that he made the statement. With regard to the submission that the appellant’s evidence that he only made a statement at Ifon was not contradicted, learned counsel submitted that the issue was not raised at the stage of tendering Exhibit A during the trial within trial. She maintained that the only objection raised was that the appellant did not make the statement and that it was recorded by the I.P.O. after a lot of intimidation and duress. She noted that it was at the defence stage during the trial within trial that the appellant changed his position. She submitted that he failed to discharge the onus on him to prove that he made a statement at Ifon Police station.

On the discrepancy between the evidence of PW1 and Exhibit A regarding the date it was recorded, she submitted that this is not a material fact and that it was due to the time lag between the commission of the offence and the time the testimony was given. On when contradiction in the prosecution’s case would affect the conviction of an accused she referred to: Ikemson vs. The State (1998) 1 ACLR 80 @ 105 para. 25; also reported in (1989) 3 NWLR (110) 455.