Legalpedia Citation: (2014-03) Legalpedia (SC) 11151
In the Supreme Court of Nigeria
Fri Mar 14, 2014
Suit Number: SC. 372/2011
CORAM
PARTIES
DARE JIMOH APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Accused/Appellant and one Akeem Fatai were charged before the trial court for the murder of one Kemi David. The Appellant and the co-accused were convicted and sentenced to death by hanging. Dissatisfied with the trial court’s judgment, the Accused/Appellant and the co-accused appealed to Court of Appeal where the appeal was dismissed. Still dissatisfied with the decision of the Court of Appeal, the Accused/Appellant appealed to Supreme Court.
HELD
Appeal Dismissed
ISSUES
1. Whether the admission of Exhibit 2 by the trial court without conducting a trial within trial in the face of the objection raised by the appellant did not occasion a miscarriage of justice to the utter detriment of the appellant?
2. Whether the prosecution was able to prove the ingredients of the offences of conspiracy to commit murder and murder of the deceased Kemi David against the appellant based on the peculiar facts and circumstances of the entire case?
3. Whether the conviction and sentencing of the appellant for murder alone can be sustained, without a verdict on the offence of conspiracy to commit murder with which the appellant was also charged?
RATIONES DECIDENDI
TRIAL WITHIN TRIAL-WHEN WILL NOT BE NEEDED
“Where an accused person objects to the tendering of his statement because it was not made by him and that the signature thereto is not his own, this denial being without an allegation that any of the vitiating factors of confession as contained in Section 28 of the Evidence Act was applied to him to extract the statement, there will be no need for a trial within trial”. PER ARIWOOLA, JSC
OFFENCES-MURDER- DUTY ON THE PROSECUTION
“In a charge of murder, it is a duty the prosecution is bound to discharge by proving the death of the victim, responsibility of the accused by act or omission, intentional act or omission of the accused with knowledge that it could cause grievous bodily harm or death. It must be established by the prosecution that the said act or omission indeed caused death but not that it could have caused death”. PER ARIWOOLA, JSC
OFFENCES-MURDER-CIRCUMSTANCES WHERE IT CAN BE COMMITTED
“An offence of murder is committed when a person unlawfully terminates the life of or kills another under any of the following circumstances, that is to say;
– If the offender intends to cause the death of the person killed, or that of some other persons;
– If the offender intends to do the person killed or to some other persons some grievous harm;
– If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;
– If the offender intends to do grievous harm to some persons for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit such an offence;
– If death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
– If death is caused by willfully stopping the breath of any person for either of such purposes;
In the second case above, it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case, it is immaterial that the offender did not intend to hurt any person. In the three last cases, it is immaterial that the offender did not intend to cause death or did not know that death was likely to result”. PER ARIWOOLA, JSC
CONFESSION-MEANING OF
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”. PER ARIWOOLA, JSC
OFFENCES-CONSPIRACY TO COMMIT MURDER AND MURDER-INGREDIENTS OF
“1. That the deceased died;
2. The act of the accused resulted in the death of the deceased, and
3. That the act of the accused person was intentional with the knowledge that death or bodily harm was its probable consequence.
In the light of those ingredients therefore, it need be noted that the evidence in proof of those offences especially murder would either be direct, confessional or circumstantial with the rider that the proof is beyond reasonable doubt no less”. PER PETER-ODILI, J.S.C
CONFESSION-CONFESSIONAL STATEMENT OF AN ACCUSED-WHETHER CAN BE USED AGAINST A CO-ACCUSSED
“The law is that where more persons than one are charged jointly, with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct”. PER ARIWOOLA, JSC
MURDER-BURDEN OF PROOF-ON WHO LIES
“The law is trite that in a charge of murder, the burden of prove is squarely on the prosecution, to establish that the deceased died; that the death was caused by the accused; that the accused intended to either kill the victim or cause grievous harm on him”. PER ARIWOOLA, JSC
CONFESSION-WHEN CAN WARRANT CONVICTION
“It is trite that before a confession could be used to convict an accused, it must be voluntary, positive, direct, pungent and consistent with other facts as proved. PER ARIWOOLA, JSC
CONFESSION-WHEN DOES A STATEMENT BY AN ACCUSED PERSON BECOMES CONFESSIONAL
“It is the law that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional”. PER ARIWOOLA, JSC
CONCURRENT FINDINGS OF LOWER COURTS-ATTITUDE OF APPELLATE COURT THERETO
“There is no doubt, the above show the concurrent findings of the two courts below on the confessional statement of the appellant and the role he played in the whole episode that led to the death of the deceased. As there is nothing to show any perversion or miscarriage of justice, this court will not disturb the said clear findings”. PER ARIWOOLA, JSC
OFFENCES-CONSPIRACY-WHETHER THE BARE AGREEMENT BY PARTIES SUFFICES
“On the matter of conspiracy which is really a meeting of two or more minds to plan to carry out an unlawful act which is an offence, the bare agreement to commit the offence is sufficient”. PER PETER-ODILI, J.S.C
CONSPIRACY-WHETHER EVIDENCE ADMISSIBLE AGAINST ONE CONSPIRATOR IS ALSO ADMISSIBLE AGAINST A CO-CONSPIRATOR-HOW ESTABLISED
“Once conspiracy is proved to exist, evidence admissible against one conspirator is also admissible against the other or others. And it is not necessary in order to establish conspiracy that the conspirators should know each other or like those who murdered Julius Ceaser, of Shakespares play, that they should be seen together coming out of the same premises at the same time. Even, conspirators do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. PER ARIWOOLA, JSC
MURDER-WHETHER EXISTENCE OF AN EYE WITNESS IS REQUIRED TO SUSTAIN A CHARGE OF MURDER
“Generally, and this is trite that it is not a condition or even a legal imperative that there must be an eye witness before a murder charge can be sustained and proved beyond reasonable doubt. Proof of the commission of the offence may proceed on circumstantial evidence. In other words, in homicide cases, the prosecution can discharge the onus of proof as to the cause of death by direct evidence or by circumstantial evidence that creates no room for doubt or speculation”. PER ARIWOOLA, JSC
TRIAL WITHIN TRIAL–WHEN NECESSARY TO CONDUCT SAME
“A trial within trial is said to be necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making the statement but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence or torture, then a trial within trial will be conducted in order to determine whether or not the statement was voluntary. However, when the trial court is satisfied that the statement was voluntary, the court is entitled to admit it as an Exhibit in the evidence before the court. PER ARIWOOLA, JSC
CASES CITED
Ahmed vs. State (2001) 18 NWLR (pt 746) 622;Alarape V. State (2001) 2 SC 114,Akpan vs. State (2001) 7 SC (pt 1) 124;Anta vs. State (1975) 4 SC 125;Basil Akpa v. The State (2008) 8 SCM 68 at 78;Daniels v. State (1991) 8 NWLR (pt 212) 715;Effiong vs. State (1998) 8 NWLR (pt 562) 362.Eyisi vs. State (2000) 15 NWLR (pt 691) 555;Francis Durwode vs. The State (2000) 15 NWLR (pt 691) 467; (2001) FWLR (pt 36) 950;Gbadamosi & Ors. v. State (1992) 9 NWLR (pt 266) 465;Godwin Igabele vs. The State (2006) 3 SCM 142 at 151; (2006) 6 NWLR (pt 975) 100.Igabele vs. State (2006) 3 SCM 143; (2006) 6 NWLR (pt 975) 100;Igwe V. State (1982) 9 SC 174;Lori vs. state (1980) 8 – 11 SC 81Sabina C. Madu vs. The State (2012) 15 NWLR (pt 1324) 405) (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt 641) 1416; (2012) 6 SC (pt 1) 80.Musa v. State (2009) 9 SCM 63Nathaniel Mbenu & Anor Vs. The State (1988) 3 NWLR (pt 84) 615; (1988) 7 SC (pt 111) 71Ndike vs. State (1994) 8 NWLR (pt 360) 33;Nwachukwu V. State (2002) 7 SC (pt 1) 124;Ogunsanya vs. The State (2011) 9 SCM 5.Onuoha vs. The State (1987) 4 NWLR (pt 65) 331.Patrick Ikemson & Ors V. The State (1989) 1 CLRN 1; (1989) 3 NWLR (pt 110) 455Sule v. State (2009) 8 SCM 177;Titus Oyediran & Ors. V. The Republic (1966) NSCC 252 at 257.Wakala v. The State (1991) 8 NWLR (pt 211) 552State v. Sadu (201) 15 NWLR (pt 735) 102; Sabina C. Madu vs. The State (2012) 15 NWLR (pt 1324) 405) (2012) 6 SCNJ 129; (2012) 50 NSCQR 67; (2012) All FWLR (pt 641) 1416; (2012) 6 SC (pt 1) 80.Ubani & Ors. V. State (2004) FWLR (pt 191) 1533; (2003) 18 NWLR (pt 851) 224;
STATUTES REFERRED TO
Criminal Code Laws of Ogun State of Nigeria, Cap 29, 1978