IN THE COURT OF APPEAL OF NIGERIA
On Friday, the 2nd Day of May, 2014
CA/B/245C/2011
BETWEEN
ANTHONY OMORUYI ................. Appellant
V.
THE STATE .............. Respondent
APPEARANCES
Adaze J.O. for Appellant
Mrs. P.E. Aziegbemin D.C.R.C. Ministry of Justice, Benin City with I. Okungbowa (Miss)/P.S.C., I. Ogidon (Mrs) S.C. for Respondent
MAIN JUDGMENT
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The present appeal is against the Judgment of the High Court of Edo State, holden at Benin Judicial Division, delivered on July 15, 2009 in charge No. B/31/C/2007. By the said judgment, the lower court, Coram E.F. Ikponmwen, J; convicted and sentenced the Appellant to death by hanging for the offence of murder of one Helen Aganmwonyi. The offence is punishable under Section 319(1) of the Criminal Code, CAP. 48 volume II Laws of the defunct Bendel State, 1976 applicable to Edo State. Dissatisfied with the said conviction and sentence passed thereupon, the Appellant filed a notice of appeal on 04/8/09 in the registry of the court below.
BACKGROUND FACTS:
On 28/06/07, the Appellant was arraigned before the court below upon a one count charge to the following effect:
STATEMENT OF OFFENCE
Murder punishable under Section 319(1) of the Criminal Cap. 48 vol. II, Laws of Bendel State of Nigeria, 1976 as applicable to Edo State.
PARTICULARS OF OFFENCE
ANTHONY OMORUYI (M) on or about the 6th day of September, 2006 at No.1 Enobokhare Street, Off St. Saviour, Benin City, in the Benin Judicial Division murdered one Helen Aganmwonyi (f) by stabbing her with a knife.
Not unexpectedly, upon his arraignment before the court below on the said 28/6/07, the Appellant pleaded not guilty to the one count charge in question. Eventually, the case proceeded to trial. In proof of the case thereof, the prosecution called a total of five witnesses and tendered various document which were admitted - Exhibits A, A1, A2, B, C & C1, respectively. On the other hand, the Appellant testified as the sole witness in his own defence. At the end of the trial, the respective learned counsel orally addressed the court below, thereby resulting in adjourning the case for delivery of judgment. Indeed, on 15/7/09, the vexed Judgment was delivered to the conclusive effect thus:
I find from the evidence led by the prosecution that the case against the accused person is proved beyond doubt. The circumstantial evidence coupled with the confessional evidence of accused person which is proved true have conclusively, positively proved the charge of murder as laid against the accused person I have no doubt in my mind, as to guilt of the accused person in view of the available evidence.
Consequently, I find the accused person guilty as charged and I convict him accordingly.
Allocutus:- I plead for leniency. He is a first offender.
Asks court to temper justice with mercy.
RECORD: - Nil.
Sentence: Anthony Omoruyi, the sentence of this court on you is death by hanging by the neck until you be dead. May the Lord have mercy on your soul.
The original notice of appeal dated 04/8/09, is contained at pages 97 to 99 of the Record of Appeal. It is predicated upon four grounds of appeal. However, with the leave of court, the Appellant filed a total of six (6) additional grounds on 02/4/13. The Appellant's brief was filed by J.O. Udaze Esq; on 23/5/13. On the other hand, the Respondent's brief was filed by P.E. Aziegbemwin (Mrs) on 12/6/13, but deemed properly filed on 23/5/13.
At page 3 of the said brief thereof, the Appellant's learned counsel raised a sole issue for the determination of the appeal, viz: -
"Whether from the totality of the evidence, the prosecution proved its case beyond reasonable doubt as required by law."
The sole issue was argued at pages 3 to 17 of the said brief. In a nutshell, it was submitted that the prosecution must prove beyond reasonable doubt the essential ingredients of the murder charge, viz: (a) The death of the deceased; (b) That the Appellant killed the deceased; (c) That the killing was unlawful; (d) That the Appellant had knowledge that the act or omission would result in death or grievous bodily harm; and that (e) The Appellant had intention or motive for the killing. See ONAH VS. THE STATE (1985) 3 NWLR (Pt. 12) 236 @ 237; 241 paragraphs B, C & E.
Regarding the identity or part played by the Appellant, it was posited that there's no positive or direct evidence linking the Appellant to the crime or as to who inflicted the injuries that killed the deceased, and how they were inflicted. That neither was the deceased seen with the Appellant, nor was the body thereof recovered from the Appellant's room. That the evidence of PW1 & PW2 is conflicting in regard to the part played by the Appellant. Thus, the court is urged to disregard their evidence. See OREPOKAN VS. STATE (1994) 14 LRN 99 @ 103.
Further submitted, that the evidence simulated by PW2 that they knocked at (and the Appellant opened and stood by) the door, contradicts his statement to the police. That, the statement of PW2 (made to the police at the earliest opportunity) that they met the Appellant standing by the door of his parlour, was suggestive that they did not knock at (and the Appellant did not open) the door. See NWOSU VS. STATE (1986) 4 NWLR (Pt. 35) 348, 349 - 350.
Thus, it was contended, that the lower court was wrong to have relied on the conflicting evidence of PW1 & PW2 regarding the part played by Appellant in the (commission of) the offence. And that their evidence being circumstantial, ought to have the accuracy of mathematics. See MOHAMMED VS. STATE (2007) 153 LRCN 110 @ 112.
Again, the evidence of PW1 that the Appellant was shaking on being interrogated, had his clothes stained with blood, and one earring was found on him, while the deceased was found wearing one, was not contained in the statement which the PW1 made to the police at the earliest opportunity. Therefore, both the evidence and statement to the police (of PW1) are unreliable. See ONOBOGU VS. STATE ACLR 1 page 67 @ 68.
Allegedly, there is no nexus between the Appellant and the offence. See AZUMAH VS KING (1950) XIII WACA 88; KONO VS STATE (1987) 10 LRN 1 @ 12; UDO VS. STATE (1992) 2 NWLR (Pt.224) 471 @ 473.
It was equally submitted, that the charge indicated that the deceased was stabbed with a knife. But the medical evidence of PW5, accepted by the trial court, shows that the deceased died of stab wounds and a blunt object that fractured the skull. Thus, the evidence is violently at variance with the charge. The Appellant cannot be convicted as charged. See COP VS. ODUSANYA (1982) 2 NLR 28; AKINLEMI BOLA VS. COP (1976) 6 SC 205 @ 222; OYEBODE VS. TIV NA POLICE NMLR 165.
It was posited that the investigation of the case by the police or S.S.S. was improper, lopsided, slipshod, shaky and shoddy. See OFFOR VS. POLICE (1968) NMLR 73 @ 74.
Allegedly, the fact that the PW3 visited the scene of crime and recovered the body of the deceased without the accused person amounts to a failure of justice, and therefore fatal to the prosecution's case. See IKONO VS. STATE (1973) 5 SC 23 @ 245 LINES 26 - 31.
Equally posited, that the police or S.S.S. neither called nor obtained statements from the [alleged] vital witnesses - the landlord, neighbours and passers-by that rushed to the scene where the Appellant allegedly confessed he had killed the deceased. That, the failure to call and/or obtain statements from the said vital witnesses, is fatal to the prosecution's case.
The investigation into the case conducted by the police was allegedly inept. The prosecution's case is deficient of material particulars. Thus, it's incumbent on the court to discharge and acquit the Appellant. See KADA VS. STATE (1991) 6 LRCN 1879.
Regarding the confessions - Exhibits A, A1 & A2, the learned counsel submitted that they were either involuntarily made or not made by the Appellant as he stated in his defence. That, the said confessions were not properly proved, recorded or attested, thereby raising serious doubt as to whether the confessions were true. Thus, it would be unfair and injudicious to convict the Appellant on the basis of the alleged confessions, as the lower court did.
The said police officer, A.I. Amadin, who attested the Exhibits was not called as a witness. As such, the questions and answers in attestation form must be strictly proved and cannot be presumed. See OBUE VS. STATE (1976) 2 SC 151 @ 152 - 153; ALARAPE VS. STATE (2001) 84 LRCN 600 @ 605.
According to the learned counsel, for a conviction to be able to sustain a conviction, it must be voluntary, positive, direct, categorical, unequivocal and properly proved. Those ingredients are allegedly absent in this case. See GINA VS. STATE (1996) 37 LRCN 688; NWOCHUKWU VS. STATE (2002) 102 LRCN 2110.
Further submitted, that the mysterious gaps and loopholes in the alleged confessions of the Appellant are sufficient to cast serious doubts on the voluntary nature of the confessional statements. See ALARAPE VS. STATE (supra).
Conclusively, the court has been urged upon to allow the appeal, set aside the Judgment of the court below, discharge and acquit the Appellant.
On the other hand, at page 2 of the brief thereof, the Respondent's learned counsel has set out two issues for determination, viz:
(1) Whether having regard to the circumstances of this case and the evidence adduced by the prosecution, the Trial Judge was right in convicting the Appellant.
(2) Whether the confessional statement is admissible in evidence against the Appellant.
The issue No.1 is argued at pages 2-7 of the Respondent's brief.
From the outset, the cases of FRIDAY AIGUO REGHIAN VS. STATE (2004) 3 NWLR (Pt.860) 367 and IGEBELE VS. STATE (2006) 5 LRCN 30, were referred to regarding the ingredients of the offence of murder. It was submitted, that all the ingredients of murder were proved beyond reasonable doubt.
Regarding the 1st ingredient of the offence, it was submitted that the evidence on record before the court below shows that one Helen Aganmwonyi, a 20 week pregnant woman, died on or about 06/9/06.
On the second ingredient, it was submitted that the deceased died as a result of the act of the Appellant. That there is a strong, positive and circumstantial link between the deceased and the act of the Appellant. That the circumstantial evidence before the court revealed that the death of the deceased resulted from the singular act of the Appellant. Both PW1 & PW2 testified that the Appellant told them, point black, that he had killed the deceased. He tried to escape but was however caught. That the PW3 also told the court that the Appellant, on being questioned by him, informally admitted killing the deceased. See the evidence of PW1 at page 38, lines 14 - 24; PW2, page 40 lines 29 - 33.
According to the learned counsel, the Appellant's admissions made spontaneously and voluntarily, is relevant and an oral confession which is admissible and an exception to the hearsay rule. See AKINMIJU VS. STATE (2000) 4 SCNJ 179 @ 184 J.
Therefore, the Appellant having resiled from exhibits A, A1 & A2, the lower court rightly admitted them, but considered the weight to be attached thereto. See pages 92, lines 3 - 25; 93 lines 1 - 12. The court is urged to uphold the said findings of the court below.
Further submitted, that the evidence of PW5 (a medical practitioner and Police Force's Pathologist) is that the injuries found on the deceased were consistent with a stab wound, and they were deliberately inflicted. Thus, it corroborates the oral confession and exhibits A, A1 & A2 on record.
It's contended that the circumstantial evidence before the court is unequivocal, positive and point irresistibly to the Appellant. The court is urged to so hold, and accordingly uphold the conviction.
On issue No.2, it was submitted that exhibits A, A1 & A2 were rightly admitted as exhibits by the lower court. See Section 28(2) of the Evidence Act. In view of the objection to the confessional statements, the lower court ordered a trial-within-trial. See IGAGO VS. THE STATE (2001) 2 ACLR 104. The Appellant entered his defence asserting that he did not make any statement. That, what he said was not what the police wrote. But under Section 28 of the Evidence Act, an accused person can be convicted on his confession once it's properly proved and admitted in evidence. See EGBOGHONOME VS. THE STATE (supra), SILAS IKP VS. STATE (supra).
Conclusively, the court is urged to dismiss this appeal and affirm the Judgment of the lower court.
I have critically, albeit dispassionately, considered the nature and circumstances surrounding the instant appeal, the submissions of the learned counsel contained in the respective briefs of argument thereof vis-a-vis the record of appeal, as a whole. I have deemed it expedient to adopt the sole issue raised in the Appellant's brief for the determination of the appeal.
RESOLUTION OF THE SOLE ISSUE:
As alluded to above, the sole issue formulated in the Appellant's brief, raises the fundamental question of whether or not from the totality of the evidence at the trial, the prosecution has proved its case beyond reasonable doubt against the Appellant, as required by law.
(a) That the deceased died.
(b) That the death of the deceased resulted from the act of the Appellant.
(c) That the Appellant caused the death of the deceased intentionally, with the knowledge that death or grievous bodily harm was its probable consequence. See FRIDAY AIGUOREGHIAN VS. STATE (2004) 3 NWLR (Pt. 860) 367; IGEBELE VS. STATE (2006) 5 LRCN 30; ONAH VS. STATE (1985) 3 NWLR (Pt.12) 230 @ 241 paragraphs B - E.
With particular regard to the first ingredient of the offence, the fact that one Helen Aganmwonyi died on or about 06/09/2006, is not in doubt, at all. At pages 89 - 90 of the Record, the lower court was recorded to have rightly found thus:
From the evidence of the five prosecution witnesses, there is sufficient evidence that the deceased died on or about 6/9/2006. The cause of death as given in evidence by the doctor PW5 is from stab wounds and fractured skull by a blunt object...
In this case the deceased body was not recovered on the 6/9/2006 when she was last seen but the following day. The medical evidence cannot determine who caused the injuries that led to the death of the deceased.
Not surprisingly, even the Appellant's learned counsel has conceded to that fact, thus:
"In this case the prosecution called five witnesses.
The prosecution has been able to proved (sic) that the deceased Helen Aganmwonyi is dead." See page 73, lines 19 - 21 of the Record.
Having due regard to the evidence on the records, I think the above finding of the court below is cogent and most unassailable. Thus, it's rather obvious, the fact that the deceased person in question died has been proved beyond reasonable doubt by the prosecution.
The second ingredient of the charge is regarding whether or not the death of the deceased in the person of Helen Aganmwonyi, was as a result of the act of the Appellant.
It is a trite fundamental principle, that the prosecution has the onerous duty (burden) to prove beyond reasonable doubt that the accused person (Appellant) had caused the death of the deceased person. That's to say, the cause of death of the deceased must somehow be linked to the accused person (Appellant). See UDOSEN VS. THE STATE (2007) 4 NWLR (Pt. 1023) 125 @ 142; AZUMAH VS. KING (1950) XIII WACA 88 per Smith Ag. CJ; IKONO VS. STATE (1987) 1 QLRN 1 @ 12 per Nnamani; JSC (of blessed memory) thus:
"An accused person should not be put on his trial if there is no link between him and that offence."
THE VALIDITY OF ALLEGED CONFESSIONAL STATEMENTS OF THE APPELLANT (EXHIBITS A, A1 & A2):
On 25/10/07, in the course of the testimony of the 3rd prosecution witness (PW3), in the person of police inspector Godday Iyamu, the prosecution's attempt to tender in evidence the statement of the Appellant at the trial was vehemently objected to by the defence counsel, Bello-Osagie Esq., on the ground that
"the statement was obtained under duress. He was forced to signed (sic) the statement." See page 43 of the Record.
Not unexpectedly, the lower court ordered a mini trial, notoriously known as 'Trial Within Trial', in accordance with the law. All in all, four witnesses testified for the prosecution in the Trial Within Trial (TWT). The Appellant and two other witnesses, Friday Eguavoen and Dr. Chubuzor Uzvegbe testified for the defence in the TWT. However, in the course of the testimony thereof, the Appellant denied ever making any statement to the police. His evidence is to the effect, inter alia, thus:
[The] police arrested me along with Monday and Dickson Inomwan ... They were asking me to say I killed Helen but I denied killing her that I had not seen her for over six months now ...I was carried from the cell. In that station, they have where they beat and hang people behind the station in a room. I was taken there and asked to say the truth but I still maintained I did not know what happened. They used the leg of chair to beat both of us and latter brought us to the cell. After the torture they said I should say I killed the deceased but I maintained that I did not. I did not make any statement. What I said to the police is not what he wrote.
Not surprisingly, the lower court decided to abort (terminate) the Trial Within Trial at that material stage of the trial for the following reason -
COURT: - In view of the assertion of the accused that he did not make any statement to the police and that the statement written by the police is not his statement, the entire exercise of a trial within trial is unnecessary and it is terminated.... Case is adjourned to 7/2/08 for hearing of the main case. See pages 53-54 of the Record.
Suffice it for me to say firstly, that I share the views of the learned Justices of the Court of Appeal as to the problems surrounding this procedure but secondly, that procedure is now very much part of our law that it cannot be overlooked or decreed into illegality by the Court of Appeal. The learned Justices of the Court of Appeal were, with respect, very wrong to have done so in the fail of decisions of this Court which have made this procedure mandatory, and part of the law. See GBADAMOSI VS. STATE (1992) NWLR (Pt. 256) 465 per Uche Omo, JSC @ 480.
Invariably, the appropriate procedure to be adopted by the trial court to determine the admissibility or otherwise of the confessional statement of the accused person entirely depends upon the nature of the objection raised by the defence. Where the accused person denies ever making and or signing the confessional statement (as in the instant case), the confession is still admissible in evidence against the accused person. However, in the circumstance, the trial court must at the conclusion of the trial determine the veracity and probative value of the said confession. This principle of law was authoritatively reiterated by the Supreme Court in a plethora of authorities, including the case of IKPASA VS. THE STATE, to the effect thus:
It is a well established practice in this Country that where on the production of a confession it is challenged on the ground that an accused did not make it at all the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration and decision. See (1981) NSCC 300 per UDO UDOMA JSC (of blessed memory) @ 309. See also OGUNYE VS. STATE (1999) NWLR (Pt.604) 548 @ 570.
I appreciate the fact that the above principle, aptly enunciated in IKPASA VS. THE STATE (supra), squarely applies to the instant case. Thus, in view of the Appellant's outright denial that he "did not make any statement", and that what he actually "said to the police is not what he wrote." I hereby hold that the court below was right in coming to the abrupt conclusion at that material time in question, to the effect that
In view of the assertion of the accused that he did not make any statement to the police and that the statement written by the police is not his statement, the entire exercise of a trial within trial is unnecessary and it is hereby terminated.
...Case is adjourned to 7/2/08 for hearing of the main case.
And I so hold.
At pages 92 to 94 of the Record, the lower court was recorded to have found, inter alia, as follows-
A careful perusal of the statements of the accused person made to the police on 6/9/2006 and 8/9/2006 and comparing his signatures on Exhibits A3 and D1, I am satisfied that he signed this (sic) statements exhibits A, and A2, I find that the accused person had the accused person had the opportunity to commit the offence. The accused in his evidence stated that his deceased cousin/lover (though he tried to stop the amorous relationship) had been visiting his house...
When all facts are put together, it is not difficult to find that the confession is true notwithstanding the accused resiling from it. The statements are free flowing and I hold that they are made by the accused person.
I think, I cannot agree more with the above cogent, and rather unassailable, findings of the court below. There is every cogent reason for me to believe that the above findings of the lower court, to the effect that the said confessional statements (Exhibits A, A1 & A2) were made by the Appellant, are duly supported by the totality of the evidence on the records. And I so hold.
By virtue of the provisions of Section 28 of the Evidence Act (supra), an accused person can be convicted solely upon the confession thereof, provided it's properly admitted and proved in evidence. Thus, a free and voluntary confession of guilt, if direct, positive and properly established, can undoubtedly sustain a conviction, in as long as the trial court is duly satisfied that the confession is indeed truthful. See SILAS IKPO VS. STATE (1995) 9 NWLR (Pt.421) 540, wherein the Supreme Court aptly held thus:
The law is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the court is satisfied with the truth of such a confession. In the instant case, it cannot be disputed from the tenor of Exhibits F, F2 and G, G1 that they are confessional statements in which both appellants confessed to having killed the deceased, Stephen Biogbo and dumping his dead body into the river at Osochi Village. Per Iguh, JSC @ 554, paragraphs D - E.
In the instant case, the lower court duly put the truth of the confessional statements (Exhibits A, A1 & A2) in question to test, at pages 91 - 93 of the Record. Most particularly, at page 92 of the Record, the lower court alluded to the various requirements for establishing a confessional statement as enunciated in the case of R. VS. KANU (1952) 14 WACA 30.
As rightly found by the lower court at page 92, lines 18 - 23, of the Record, a careful perusal of the said confessional statements of the Appellant (Exhibits A1, A1 & A2) vis-a-vis Exhibits A3 & D1 would make the court to believe that the Appellant did indeed sign the exhibits, and that he had the opportunity to commit the offence.
What's more, the Appellant had told the court below in his defence that the deceased (who was his cousin and lover) had been visiting his house. According to the Appellant (page 67 of Record):
I know Helen Inomwan now Aganmwonyi as my cousin, as her mother and my later mother were sister of full blood. Along the line, Helen and I became lovers to the knowledge of her mother when I grew up I then told Helen that our love affairs was not good as it is a sin. I told her mother the same thing. The mother asked me to continue the relationship, but I told her no.
The Appellant had to leave the village for Benin City. But the deceased traced him to his house in Benin and said her mother sent her to him. He then told her to leave his house. He reiterated under cross-examination, at page 70 of the Record, thus:
"Helen and I were lovers and I had quarrel with Dickson and Monday Inomwan before the 6/9/06. This was because I stopped my love affair with Helen."
It is a settled principle, that although a confessional statement, once properly proved and admitted in evidence can be sufficient to warrant the conviction of the accused person, yet it's desirable to have extraneous to the confession some corroborative evidence, no matter how slight, of circumstances, that makes it possible that it is true and correct. See IKPO VS. STATE (supra) @ 554 paragraphs E - F, where in the Supreme Court, per Iguh, JSC, held thus:
It is desirable to have outside the accused person's confession, some corroborative evidence, no matter how slight of circumstances which make it probable that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof.
See also ONOCHIE VS. REPUBLIC (1966) NMLR 307.
I am not unmindful of the submission of the Appellant's learned counsel, at paragraphs 6.4 - 6.4.4 pages 14 - 15 of the brief thereof, regarding the attestation or otherwise of the Exhibits A, A1 & A2 by attesting (senior) police officer. I think, there is a need to, at this point in time, reiterate the well settled principle, to the effect thus:
See IKPO VS. STATE (supra) @ 554 paragraphs B - C.
In the instant case, its rather obvious that Exhibit A was duly attested to by a superior police officer, a chief superintendent of police, vide Exhibit B1c, on 07/9/06. Under cross-examination, the PW3 testified to the effect, inter alia, thus:
The Superior officer who attested to the statement (Exhibit A) is Mr. V.I. Amadin C.S.P; the D.P.O. Ugbekun police station. I arrested the accused person at about 9pm. He finished making his statement ground 11pm and he was put in the cell.
Thus, in view of the above credibl