IN THE SUPREME COURT OF NIGERIA
On Friday, the 26th day of November, 1976
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
AYO GABRIEL IRIKEFE….. Justice, Supreme Court
CHARLES OLUSOJI MADARIKAN….. Justice, Supreme Court
1. PAULINUS UDEDIBIA(alias APPOLLO)
2. SYLVANUS OBIEKWE (alias BOB CASH)
3. JOHNSON AJULUCHUKWU
We dismissed their appeals as we were satisfied that they were rightly convicted.
1. CRIMINAL LAW AND PROCEDURE – Confessional statement – Whether sufficient to sustain conviction
Per MADARIKAN, J.S.C. at P. 5, Para. E.
2. CRIMINAL LAW AND PROCEDURE – EVIDENCE – Circumstantial evidence – Need to be narrowly examined –
Per MADARIKAN, J.S.C. P. 4, Para. C.
Five persons were charged in the High Court, Enugu (Charge No.E/13C/74) with the murder of one George Obiesie Obinwa. Twenty-two witnesses testified for the prosecution and all the accused persons, except the second accused, gave evidence at the trial. After considering the large body of evidence, the learned trial Judge (Anyah, J.), acquitted and discharged the 1st and 3rd accused persons; found the 2nd , 4th and 5th accused persons guilty of murder and sentenced each of them to death. These accused persons have now appealed against their convictions; and they will hereafter be referred to as the 1st, 2nd and 3rd appellants respectively.
The deceased was a medical practitioner. On the 29th of April, 1973, he moved with his family from Onitsha to Enugu where he occupied a flat in a block of four flats. The 1st accused, who was a half-brother of the deceased, took the luggage of the deceased to Enugu the same day; and the following day he brought some foodstuffs to the deceased.
The direct evidence relied upon by the prosecution was that at about 2 a.m. on the 31st May, 1973, the wife of the deceased (P.W.1) woke up and whilst she was attending to her children she heard an unusual sound. She then alerted her husband who was asleep. When she peeped through a door she saw a man holding a revolver and torch-light. The man was masked and he later attacked the deceased and fired a shot at him. In the company of the assailant were two persons both of whom were masked and one was holding a revolver. They robbed P.W.1 of some money at gun-point and left.
With the help of her driver, P.W.1 removed the corpse of the deceased to the Specialist Hospital, Enugu and on the same day Dr. S. Ojiyi (P.W.11) performed a post-mortem examination on the corpse. He testified) as follows:-
“I find the body to be that of a well nourished male aged about 39 years and five feet seven inches tall. The only external injuries consisted of a close range bullet entry wound one inch to the right and two inches above the umbilicus. The small exit wound was situated on the left side of the flank one inch above the buttock and two and a half inches from the spine. Internally the abdominal cavity was filled with a clot of veinous blood. The small intestine was wounded in four places. A large vein was ruptured. All the organs of the abdominal and chest cavity were examined and found to be pale but otherwise healthy.”,
and stated that the cause of death was internal bleeding resulting from the wound described by him. He also stated that the range at which the deceased was shot was between one and six feet.
One important feature of the evidence of the only eye-witness (P.W.1) was that she was not able to identify the assailants because they were masked. The evidence implicating the accused persons therefore consisted of confessional statements and circumstantial evidence of interwoven facts.
We shall now consider the case against each of the appellants.
The 1st appellant was the 2nd accused in the lower court. He rested his case on a submission of no case made on his behalf at the close of the case for the prosecution. He did not call any evidence nor did he himself give evidence at the trial.
Confessional Statements made by Co-accused
The learned trial Judge, rightly in our view, accepted the submission of learned counsel for the 2nd accused that the confessional statements of the 4th and 5th accused could not be regarded as evidence against the 2nd accused.
Statement of 2nd Accused:
In his statement to the police, Exhibit “G” the 2nd accused put up a defence of alibi which the learned trial Judge found to be false.
The evidence on which the learned trial Judge based the conviction of the 2nd accused was set out in the portion of the judgment which we now reproduce:-
“As noted earlier, the 2nd accused did not defend. He is, of course, not bound to defend. Apart from the lies he told in his extra-judicial statement to the police (Exhibit ‘G’) which is a pointer to his guilt, there is the evidence of Eleazer Nriama (P.W.10) who said he (the 2nd accused) is a friend of the 5th accused and that he was in the 5th accused’s house on 28/5/73. There is also the same witness’s evidence that on 17/6/73 he was in the 5th accused’s house where he had come on 16/6/73 when the policemen, whose identity the P.W.10 did not then know, came to the compound in a motor vehicle. The 2nd accused jumped out of the house on seeing the armed men, exclaiming ‘it is the doctor’s case they have come for’ and then escaped into the bush and was never caught till a couple of days later.
Apart from suggesting to the P.W.10 that he was a liar during cross-examination, these facts were never controverted by the 2nd accused. The investigating constables confirmed the escape of the 2nd accused from the house of the 5th accused on their arrival there on 17/6/73. The 5th accused in his defence gave evidence during the trial within trial of the issue of the admissibility of his confessional statement. He said in one breath that the 2nd accused who is his friend came to his house on 16/6/73 while returning from a hospital where he had gone to see his wife and on his suggestion (the 5th accused’s) stayed the night so as to lead him to the house of his parents-in-law the next day.
In another breath the 5th accused said he went to Nnewi, where the 2nd accused keeps a hotel to invite him to his house. The 2nd accused did not challenge the 5th accused on these points. He carefully left them and those made by the police and the P.W.10 untouched in his statement (Exhibit ‘G’) which I do not believe.”
Apart from the fact that the 2nd accused escaped into the bush when he was accosted by the police, the evidence against him was in the main similar to the evidence against the 1st and 3rd accused who were discharged. The evidence against the 2nd accused is circumstantial evidence. Where as in the instant case, direct testimony of eye-witnesses is not available, the court is permitted to infer from the facts proved the existence of other facts that may be logically inferred. But in drawing inference of the guilt of an accused person from circumstantial evidence, great care must be taken not to fall into serious error based on fallibility of inference.
Circumstantial evidence must always be narrowly examined, if only because this type of evidence may be fabricated to cast suspicion on innocent persons. (See Teper v. R. (1952) AC 480 at page 489). We have most carefully considered the circumstantial evidence in this case which the learned trial Judge had carefully reviewed in the portion of his judgment quoted above. We are satisfied that at best it did not establish the guilt of the 2nd accused and that there was no safe basis for the inference that the 2nd accused was guilty when, as we have already stated, the 1st and 3rd accused were acquitted on similar evidence. In our view, the 2nd accused (now 1st appellant) was entitled to a verdict of acquittal. It was for these reasons that we allowed his appeal on the 7th October, 1976 and entered a verdict of acquittal and discharge.
The 2nd and 3rd appellants were the 4th and 5th accused persons respectively in the lower court. Each of them made confessional statements (Exhibits “K”, “L”, “F” and “H”) to the police. After quoting copiously from their statements, the learned trial Judge made the following observations in the judgment:-
“Although each of the 4th and 5th accused has not directly and positively admitted the commission of the crime charged, their statements, Exhibits ‘F’, ‘H’, ‘K’ and ‘L’, remain confessional because they admit in them facts suggesting the inference that they committed the crime. S.27(1) of the Evidence Law provides:
‘(1)A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.’
The 4th and 5th accused would still be principal offenders even if their part was merely to assist others who entered the deceased’s house and actually shot him, as they admit, for they would come snugly within the warm embrace of Section 7(c) of the Criminal Code the provision of which is:-
‘When an offence is committed each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:-
(c)every person who aids another person in committing the offence;
(I omit the irrelevant parts of the section).
On their own admissions and the evidence of eleazer Nriama, the 4th and 5th accused cannot escape responsibility for the murder of the deceased. The confession of an accused person alone is enough to convict him; although in practice, there is always generally other independently corroborative evidence – See Maud Kersey’s case (1909) 1 CAR 260 and the case of Walter Sykes (1913) 8 CAR 233. As observed earlier the case against the 4th and 5th accused is not just based only upon their confessions but other circumstantial evidence of the P.W.10, the P.W.17, P.W.21 and the investigating detectives.”, The confession of an accused person alone is enough to convict him; although in practice, there is always generally other independently corroborative evidence –
and found both appellants guilty of murder. The evidence against them is overwhelming. Both learned counsel for the appellants and learned Principal State Counsel had nothing to urge on their behalf. We dismissed their appeals as we were satisfied that they were rightly convicted.
Mr. F.O. Akinrele…..For Appellant
Mr. P.T. Amaizu (Principal State Counsel, Anambra State)…..For Respondent