ADEKUNLE OLUWAFEMI ALO V ADEKUNLE OLUWAFEMI ALO

CORAM

PARTIES

ADEKUNLE OLUWAFEMI ALO APPELLANTS

ADEKUNLE OLUWAFEMI ALO

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Accused/Appellant and two other accused persons were arraigned before an Ondo State High Court sitting in Akure on a two count charge of conspiracy to commit murder and murder contrary to Sections 324 and 316 of the Criminal Code, Cap 30, vol. II Laws of Ondo State, 1978, respectively. At the trial the Accused/Appellant and the two other co-accused persons pleaded not guilty to the two count charge. The Accused/Appellant together with one Segun Oluwole and one Adeoyo Idowu conspired to murder and murdered one Olanrewaju Disu. At the close of evidence and trial, the learned trial judge in a considered judgment found the Appellant guilty of conspiracy to commit murder and murder. The 2nd and 3rd accused persons were however discharged and acquitted. Dissatisfied with the conviction and sentence, the Accused/Appellant filed an appealed to the Court of Appeal which unanimously dismissed the appeal and affirmed the judgment of the trial Court. The Accused/Appellant dissatisfied again with the decision of the lower court has now further appealed to the Supreme Court.

HELD

Appeal Dismissed

ISSUES

1. Were the Learned Justices of the Court of Appeal right in affirming the conviction and sentence of death of the Appellant solely on the Appellant’s confessional statement in spite of the manifest contradictions in the prosecution’s evidence before the trial court? (Grounds 1 and 3 of the Appellant’s Notice of Appeal)?

2. Whether the learned Justices of the Court of Appeal were right in holding that the prosecution proved its case beyond all reasonable doubts at the trial court Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of the appellant on the same and similar evidence on which the co-accused persons were discharged and acquitted?

RATIONES DECIDENDI

CONFESSION – DEFINITION OF CONFESSION – SECTION 27(1) OF THE EVIDENCE ACT CAP 112 LAWS OF THE FEDERATION, 1990

“Section 27(1) of the Evidence Act, defines confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. A confession, if voluntary, is deemed to be relevant fact as against a person who made it only”.

CONFESSIONAL STATEMENT – A VOLUNTARY, CONSISTENT AND PERSISTENT CONFESSIONAL STATEMENT BY AN ACCUSED PERSON CAN GROUND A CONVICTION – DESIRABILITY OF HAVING SOME EVIDENCE OUTSIDE THE CONFESSION WHICH MAKE IT PROBABLE THAT THE CONFESSION IS TRUE

“It is long settled that an accused person can be convicted solely on his confessional statement, if made voluntarily and it is fully consistent and probable; this requirement, although conclusive, it is however desirable to have outside the confession some evidence, be it slight, of circumstances which make it probable that the confession was true”.

CONVICTION ON AN ACCUSED PERSON’S CONFESSIONAL STATEMENT – WHETHER THE COURT REQUIRES CORROBORATION ON AN ACCUSED PERSON’S CONFESSIONAL STATEMENT

“The general application of the law as firmly established is, that the court can convict an accused based on his confessional statement and that such confession does not need to be corroborated if it meets the requirements of the law. Section 27(1) of the Evidence Act (supra) is in point and also the judicial authorities in Hassan v. The state (2001) 6 NWLR (Pt. 709) 286; Kim V. The State (1992) 4 NWLR (PT. 233 at 25 and Amusa v. The State (2002) 2 NWLR (Pt. 50) 90 – 93. See also Ntaha v. state (1972) 4 SC p.1; Ikemson V. State (1989) 3 NWLR (Pt. 110) P. 455 and Saidu v. state (1982) 3 S. C. P. 41”.

PURPOSE OF A TRIAL WITHIN TRIAL – THE PURPOSE OF A TRIAL-WITHIN-TRIAL IS TO SAFE GUARD THE INTEREST OF THE ACCUSED PERSON

“It is pertinent to state also that the whole concept of trial within trial is for the purpose of safe guarding the interest of the accused and which strengthens further the Constitutional Provision of accused’s presumption of innocence until proved otherwise”.

OBJECTION TO THE ADMISSION OF A CONFESSIONAL STATEMENT – APPROPRIATE TIME FOR RAISING AN OBJECTION TO THE ADMISSION OF A CONFESSION STATEMENT

This court has ruled that when an accused person alleges that a confessional statement credited to him was made under duress or was not made voluntarily by him, an objection must be raised as to the admission of the statement when it is sought to be tendered in evidence and not after it had been admitted. See Akpan v. The State (1992) 6 NWLR (Pt.248) 139 and Mohammed v. The State (1991) 5 NWLR (Pt. 192) 438″.

OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT – AN OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT MUST BE RAISED TIMEOUSLY

“It has been long settled that the proper time to raise an objection to the voluntariness of a confessional statement is at the point when it is to be tendered in evidence, in the case of Nwachukwu V. State (2004)17 NWLR (Pt. 902) p. 262 at 273- 290. it was held that:
“A trial within trial is necessary only where a confessional statement is effectively challenged and not where all the opportunities at trial for such denial were never utilized. Thus, only where an issue arises as to whether a confession was made voluntarily should the exceptional procedure of holding a trial within trial be adopted by the court”
The foregoing decision implies that objection to the voluntariness of a confessional statement must be raised timeously and not belated for purpose of conducting a possible trial within trial. See also the case of:- Okoroh v. State (1988) 3 NWLR (Pt. 81) p. 214 and Queen v. Eguabor (1962) ISC NLR 409″.

FAILURE TO RAISE AN OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT TIMEOUSLY –

EFFECT OF FAILURE TO RAISE AN OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT TIMEOUSLY
“Authorities have shown that once an accused fails to object at an early stage, he will be estopped from contesting the voluntariness at a later stage of the proceeding and also on appeal, see Akpan v. State (2008) 14m NWLR(Pt. 1106) p. 72 and Mohammed v. State (1991) 5 NWLR (Pt. 192) 438 at 457”.

GROUND OF APPEAL – THE COURT CAN ONLY REVIEW A PART OF EVIDENCE COMPLAINED THROUGH THE GROUND OF APPEAL

“The law is settled that the only time the court can review a part of evidence complained of must be through a ground of appeal, properly filed and challenging same. See the case of Odeh V. Federal Republic of Nigeria (2008) 13 NWLR (Pt. 1103) 1 at 19 – 20 where this court reinstated the principles of law as follows:-
“Every issue for determination must be formulated from and related to or distilled from a competent ground of appeal, in otherwords, an issue not distilled from any ground of appeal is incompetent and must be discountenanced with the argument or arguments advanced there under.”
See also the case of Kotoye v. Saraki (1990) 6 sc1, Sanusi v.Ayoola (1992) 9 NWLR (Pt. 265) 275 and Owoh V. Asuk(2008) 16 NWLR (Pt. 1112) 113″.

CONFESSIONAL STATEMENT – TEST FOR DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT

“It is also pertinent to state that in as much as the law enjoins a court to act upon a confessional statement for the conviction of an accused person, the veracity of the confession ought to be tested, in other words, the test of determining veracity thereof has been judicially decided in a plethora of authorities. For instance in the case of Ekure V. The State (1991) 13 NWLR (Pt. 635) p. 456 at 470 – 471it was held that a confession of an accused should be tested as to its truth by examining it in the light of the other evidence, to determine:-
a.whether the facts stated in it are true so far as can be tested.
b.whether the accused had the opportunity of committing the offence.
c.whether the accused’s confession was consistent with the facts which have been ascertained and proved.
d.whether the accused’s confession was possible.
e.whether there is anything outside it to show that it is true.
f.whether it is corroborated.” .

MATERIAL CONTRADICTIONS IN THE TESTIMONIES OF THE PROSECUTION WITNESSES – THE COURT IS ENJOINED NOT TO ACT ON THE TESTIMONIES OF THE PROSECUTION WITNESSES WHERE SAME IS TAINTED WITH MATERIAL CONTRADICTIONS

“The principle of law is well settled as laid down in plethora of case laws that, where there are material contradictions in the testimonies of the prosecution witnesses, it will be wrong for a court to act on such testimonies. See Amala v. The State (2004) 12NWLR (Pt. 888) p. 520” .

PURPOSE OF CORROBORATION – THE PURPOSE OF CORROBORATION IS TO CONFIRM AND SUPPORT THE CONFESSIONAL STATEMENT

“The purpose of corroboration is merely to confirm and support the confessional statement which evidence is in itself sufficient, satisfactory and credible, corroboration in this instance is required as a matter of practice but not law”.

DISCREPANCIES OR CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION WITNESSES – NATURE OF DISCREPANCIES OR CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION WITNESSES THAT WOULD LEAD TO A REJECTION OF THE EVIDENCE

“It is not every discrepancy or contradiction in the evidence of the prosecution witnesses that would lead to the rejection of such evidence. It must be shown that the allegation is so material that grave doubts are cast on the case of the prosecution, see the following decided cases which will illustrate the situation. Awopejo v. state (2002)FWLR (87) 772 SC p. 781 – 782, Effia V. The State (1999) 8 NWLR(Pt. 613) 1 at 9 – 10, See also Onubogu v. The State (1974) 1 All NLR(Pt. II) 5,Nasamu v. The state (1968) NMLR86, Ibe v. The State (1992) 5 NWLR(Pt. 244) 642 at 649 and Nanisol v.The state(1993) 5 NWLR(Pt. 292) 129”.

EVIDENCE OF EYE WITNESSES ON THE CAUSE OF DEATH – DUTY OF THE COURT TO INFER THE CAUSE OF DEATH WHERE THERE IS NO DIRECT EVIDENCE OF EYE WITNESSES TO THE CRIME

“The law is also settled that where there is no direct evidence of eye witnesses to a crime, the court can draw inference from proved facts going by circumstances surrounding the cause of death. See Omotola& Ors. vs. The State (2009) 3 SCM 127”.

BURDEN OF PROOF – DUTY ON THE PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT AND REBUT THE PRESUMPTION OF INNOCENCE PROVIDED UNDER SECTION 36(5) 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

“Our constitutional provision vide Section 36(5) 1999 provides also that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty, in principle, the effect is firmly established that a duty lies on the prosecution to prove its case beyond reasonable doubt; and a general burden to rebut the presumption of innocence as constitutionally guaranteed to an accused. See the case of Alabi v. state (1993) 7 NWLR(Pt. 307) p. 511 at 531. Also in the case of Bolanle v.The state (2010) vol. 179 LRCN p. 25 at pages 32 – 33”.

PROOF OF THE OFFENCE OF MURDER – ESSENTIAL INGREDIENTS A PROSECUTION MUST PROVE IN A CHARGE FOR THE OFFENCE OF MURDER

“The law is firmly settled further that there are essential ingredients which the prosecution must of necessity prove in a charge of the offence of murder and are as follows:-
1.that the deceased did die;
2.that the death was unlawful and prohibited;
3.that it was the act of the accused person that caused the death; and
4) that the accused intended to cause the death of the deceased..”

EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE – IT IS WITHIN THE AMBIT OF THE TRIAL COURT TO EVALUATE, APPRAISE AND ASCRIBE PROBATIVE VALUE TO EVIDENCE ADDUCED BEFORE IT

“The trial court has the duty of evaluating, appraising and ascribing of probative value to oral evidence adduced before it. This privilege is solely within its ambit and the appellate court is enjoined not to interfere with the findings of fact of a trial court unless such findings are shown to be perverse having been based on improper evaluation of facts and wrong conclusions. See the cases of Woluchem & ors. v. Gudi & Ors. (1986) 4 SC p. 291; Awoyale V. Ogunbiyi (1986) 4 SC p. 98, Sha (Jnr.) V. Kwan (2002) 8 NWLR (Pt. 670 p. 685”.

CONFESSION – A FREE AND VOLUNTARY CONFESSION IS SUFFICIENT PROOF OF GUILT IF IT IS DIRECT, POSITIVE AND UNEQUIVOCAL WITH REFERENCE TO THE OFFENCE CHARGED

“The law is well settled that a free and voluntary confession is sufficient proof of guilt if it is direct, positive and unequivocal with reference to the offence charged. See: Adio Vs The State (1986) 2 NWLR (Pt.24). 581: (1986) 4 SC 194: Mohammed Vs The State(2007)11 NWLR (Pt.1045) 303: Osung Vs The State (2012) 18 NWLR (Pt. 1332) 256 @ 276 – 277 D – E: The State Vs Jimoh Salawu (2011) 18 NWLR (Pt.1279) 883 @ 920 – 921 G; Okoh Vs The State (2014) 2 – 3 SC 184 @ 205 lines 15 – 23”.

OBJECTION TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT – DUTY OF THE COURT ON THE OBJECTION TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

“Depending on the grounds for the objection, the court would either conduct a trial within trial, if the appellant contends that it was obtained under duress, See: Nsofor Vs The State (2004) 18 NWLR f Pt.905)92: Jimoh Vs The State (2014) LPELR – 22464 (SC) 1 @ 30 – 31: Akoa Vs The State (2008) 14 NWLR (Pt.1106) 22:or it would admit the statement and decide on its probative value at the end of the trial in the course of delivering its judgment where the appellant contends that he did not make the statement at all. See: Madjemu Vs The State (2001) 9 NWLR (Pt.718) 349: Ikpasa Vs The State (1981) 9 SC 35 (5)89.”

OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT – PROPER TIME TO RAISE AN OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT

“The proper time to raise an objection to the voluntary nature of a confessional statement or otherwise, is at the point when the prosecution tenders it in evidence so that the voluntariness or otherwise of the confessional statement would be determined before it is either admitted or rejected. Akpan v. State (1992) 6 NWLR (Pt.248) 139”.

TRIAL-WITHIN-TRIAL – A TRIAL-WITHIN -TRIAL IS RESORTED TO WHERE THE VOLUNTARINESS OR OTHERWISE OF A CONFESSION IS IN ISSUE

“A trial-within-trial, certainly, is resorted to where an issue arises as to whether a confession was made voluntarily or otherwise, where same is tendered by the prosecution to be admitted in evidence”.

EVIDENCE OF AN ACCUSED PERSON AGAINST A CO- ACCUSED – DUTY OF THE COURT TO APPLY THE SAME LAW TO CONVICT AND SENTENCE OR DISCHARGE AND ACQUIT A CO-ACCUSED PERSON WHERE THE EVIDENCE BEFORE THE TRIAL COURT IS SIMILAR TO THAT OF AN ACCUSED PERSON

“Where evidence before the trial court is same or similar which is relied upon by the trial judge to convict and sentence or discharge and acquit some co-accused persons same application of the law must apply to all other accused persons.(if any) in that same case. But where an accused person is charged with other co-accused persons with the commission of a crime and the other co-accused persons are discharged and acquitted on different grounds, as in this appeal, there must be on record, additional and or different set of evidence which incriminates the appellant for criminal responsibility. See: Umani v. State (1988) 1 NWLR (Pt.70) 274 (1988) 1 NSCC 137); Akpan v. State (2002) FWLR (110) 1845”.

CONTRADICTION IN THE EVIDENCE OF PROSECUTION -CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION MUST BE SUBSTANTIAL IN ORDER FOR IT TO BE FATAL

“Contradiction in the evidence of prosecution that will be fatal must be substantial. Minor or miniature contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to substance of the matter. Trivial contradictions should not vitiate a trial. See: Ankwa v. The State (1969) 1 All NLR 133, Queen v. Iyanda (1960) SCNLR 595, Omisade v. Queen (1964) 1 All NLR 233 and Sele v. The State (1993) 1 SCNJ 15 at 22-23, (1993) 1 NWLR (Pt. 269) 276; Musa v. The State (2009) 9 SCM63”.

OFFENCE OF MURDER – INGREDIENTS OF THE OFFENCE OF MURDER

“It is apt to re-state the ingredients of the offences of murder here below as follows:-
(1)that the deceased had died;
(2)that the death was caused by the accused and;
(3)that the act or omission which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was the probable outcome of the action
For the above, the case of Ibikunle v. The State (2007) 2 NWLR (Pt. 1019) 546 at 570 and Idok v. The State (2008) 13 NWLR (Pt. 1104) 225 at 237-238 are clearly in point”.

CASES CITED

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999

Criminal Procedure Act (CPA), 2004,|Criminal Procedure Law, Cap. 31 Vo. II, Laws of Ondo State 1978,

Evidence Act CAP E14 Laws of the Federation of Nigeria 2004

Police Act, Cap P. 19, Special Provisions Act 2006.

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