Aghoro Ejenavwo Vs The State (1972)

LawGlobal-Hub Lead Judgment Report

COKER, JSC. 

We now give our reasons for dismissing this appeal at the hearing on the 22nd November, 1971. The appellant was charged along with another man with the murder on the 24th June, 1970, at Ovworigbala Village in Warri of one Aghoghovbia Tebu. Seven witnesses gave evidence for the prosecution at his trial, including one Ephromare Igbilele (P.W.1) who was an eye-witness to most of the events leading to the killing of the deceased.

The accused persons, one of whom was the appellant, had on the 24th June, 1970, dragged Aghoghvbia Tebu (later deceased) into the house of one Avwekerho Eruteya and in the presence of a large number of people already gathered there demanded of him their gun which they alleged Aghoghovbia Tebu had stolen. The accused persons were dressed in Army uniform.

The 1st accused, now appellant, in particular demanded the return of the gun and stated that if the gun was not returned they would kill Aghoghovbia Tebu. The latter denied having stolen their gun and, according to the 1st P.W. –

“When the deceased Aghoghovbia Tebu denied stealing the accused’s military gun, the accused persons took him away to the river side and killed him. …they later returned to our compound in the village. Accused 1 then told us that they had killed Aghoghovbia Itebu and that anyone who considered himself courageous enough should come out to “ask them question”

It was given in evidence by the prosecution that the villagers later discovered by the riverside the corpse of Aghoghovbia Tebu. They decided to keep watch over the corpse until the following morning but the two accused persons together later emerged, beat up the other villagers and compelled them to run away from the scene of the murder. Another witness for the prosecution was Irhivwen Eruteyan, an uncle of the deceased.

He testified to having seen both accused persons in Army uniform, that they brought Aghoghovbia Tebu to him and reported that he had stolen their gun and stated that as he continued to deny the theft, they were going to kill him. Irhivwen Eruteyan was the 2nd P.W. and at the request of the accused persons and in their presence he asked his nephew about the gun but the nephew denied ever having stolen the gun. The witness testified further that thereafter the two soldiers, i.e., the accused persons, led him away. Another prosecution witness Ukuete Okorojeje (P.W.4), testified as regards the discovery of the corpse of the deceased.

“I was told certain things. In consequence of this I went to the waterside and there I saw the corpse of Aghoghovbia tied to a stick driven into the bank of the river. The stick was on the bank but very close to the river.”

This witness also testified that both accused persons later came to the riverside and beat up the villagers watching over the corpse of the deceased. In due course, the appellant and his confederate were arrested by the Police. Soon after their arrest, both made statement to the Police. The statement were produced in evidence at their trial and the following notes were made in the record by the learned trial Judge who tried the appellant and in the course of the evidence of the 6th P.W., Pius Ahonkhai, the Police Provincial Criminal Officer, before whom both accused had confirmed their confessional statement. “I countersigned. I attested the statements made by each accused under caution. I produce the statement under caution by accused 1 and his confessional statement form. EDUVIE seeks to tender it. AKPEDEYE: We are not objecting to the admissibility of this statement but wish to say that we did not make it. COURT: Tendered, admitted and marked Exhibits “B” and B1” are read.” In Exhibit “B1” the appellant stated that he and the 2nd accused had attacked Aghoghovbia Tebu using their belts and boots on him until he died. At his trial he gave evidence. He denied killing Aghoghovbia Tebu but admitted making a later statement, Exhibit “F” in which he had stated that he knew nothing whatsoever about the killing of Aghoghovbia Tebu and indeed that he was not in the village on the 26th June, 1970, the date of the alleged killing. He denied making the confessional statement Exhibit “B” (and “B1”) and stated that whilst he was in detention with the Police “two big policemen” came and forced him to sign some papers already prepared and that he was not aware of the contents of Exhibit “B” (and “B1”)

In a reserved judgment, Atake, J., extensively reviewed the whole evidence, discharged the 2nd accused and convicted the appellant. The learned trial Judge then commented thus on the confessional statement of the appellant:-

“I have considered the evidence as to these confessional statements. When they were tendered defence counsel said he did not object to their admissibility but said the accused persons did not make them. I understood him then to mean that they did not sign them at all. But as shown above the defence actually is that though they signed them, they had not done so knowing the contents thereof and that they had been tricked into signing them and/or that they signed out of fear. I have tested the contents of these statements against other facts adduced in evidence that I have no hesitation whatsoever in coming to the conclusion that their retraction by the accused persons is an afterthought. I cannot for one moment believe that Mr. Ahonkhai lied to this court.”

He then convicted the appellant as stated and sentenced him to death. This appeal is against that conviction. Only one ground of appeal was argued on behalf of the appellant and it reads thus:-

“The learned trial Judge misdirected himself in law on the voluntariness of the alleged confessional statement of the appellant by looking for corroboration in the evidence of the prosecution and thereby erred in the application of R. v. Kanu 14 WACA.30”

In support of the ground of appeal, learned counsel assigned to argue the appeal for the appellant submitted that the Judge wrongly applied the principles of law laid down in R. v. Kanu (1952) 14 WACA 30 in that instead of ascertaining whether the statement, Exhibit “B” was the statement of the appellant, he was looking for matters in the evidence which would, as laid down in R. v. Philip Kanu, supra, make the confessional statement, Exhibit “B”, more probable. We do not think that the argument is well founded. We have already quoted that part of the records of the learned trial Judge in the course of the trial where the statement Exhibit “B” was received in evidence. Learned counsel who appeared then for the appellant did not object to the admissibility of the statement. Indeed, he stated that he had no objections to its admissibility. The 6th P.W. (Pius Ahonkhai) who produced Exhibit “B” clearly produced it as a statement made by the appellant to the Police and confirmed by the appellant before a superior Police Officer. That was the only basis on which it was admissible and admitted in evidence and we cannot conceive of such a statement being admissible and admitted on any other basis.

We think that the learned trial Judge was right to take the view that the statement Exhibit “B” was always the free expression of the appellant reduced into writing by the Police, that he unsuccessfully sought to resile from it at his trial and that in Exhibit “B” (and “B1”), the appellant had voluntarily confessed to the killing of the deceased by himself.

The learned trial Judge, rightly in our view, proceeded to test the consistency and genuineness of the confessional statement against the entire background of the case as he should do. (See R. v. Phillip Kanu (1952) 14 WACA 30, esp. per Coussey, JA., at p. 33).

The learned trial Judge concluded, also rightly in our view, that the statement by the appellant to the Police was corroborated in material particulars involving the appellant by evidence outside that statement. The ground of appeal failed and so we dismissed the appeal.

Other Citation: (1972) LCN/1561(SC)