David Obue V. The State (1976)
LawGlobal-Hub Lead Judgment Report
S. SOWEMIMO, J.S.C.
The appellant has appealed to this court from a judgment of the Western State Court of Appeal, Ibadan, which confirmed the conviction for murder and sentence of death passed on him, by the High Court of the Western State at Ado-Ekiti on 25th March, 1974.The case for the prosecution is that the incident on which the charge is based took place on 1st May, 1973.
The evidence of two prosecution witnesses which was relied upon is that of the 6th and 2nd prosecution witnesses in that order. The 6th prosecution witness in his evidence said:”………. I know Chief Emmanuel Ogunmola, he has since died. On 1/5/73 I went to the farm that morning. On my way home at about 9 a.m. I met the deceased on the way. He was working in his farm by the road side. At his request I loaned him 50K…………………..
“XXd:- When I saw the deceased he wore only singlet with which he worked in his farm…………………………………………
2nd P. W. on the other hand stated inter alia as follows:”…I know Chief Emmanuel Ogunmola. He was a chief in my village. He has since died. One day two years ago I went to Gbeduku farm. On my way I found the deceased lying on the road. I called on him he could not answer, later he answered me. I examined his body and I noticed he was covered with dried blood … …
XXd:- The deceased had a singlet and a pair of trousers on. There was no other clothes on him. I know the farm of the deceased. I found the deceased in his farm. His farm is adjacent to the motor road. The farm contained hill rocks.”
These are the only two witnesses who gave direct evidence of the clothes the deceased had on, on 1/5/73. No evidence was available as to what clothes the deceased wore and what articles he carried when going to the farm on 1/5/73. If the prosecution had thought or intended to rely on the evidence of the wearing apparel of the deceased and articles carried by him to the farm, this could easily have been obtained from the inmates of the deceased chief’s residence.
It is also surprising that the prosecution did not investigate from either the 2nd or 6th prosecution witness whether apart from the singlet and pair of trousers they said the deceased had on, on 1/5/73, they also saw any torn garment, dane gun, cutlass (matchet) and bag lying anywhere in the farm. Even the witness who gave out a loan of 50 kobo to the deceased did not see any other person working with the deceased in his farm. Neither of the two witnesses saw any recently-dug heaps ready for the planting of yams. We shall refer to the absence of these material facts when we come to consider the tests applied to verify the truth of the “confessional” statement admitted in evidence as exhibit H.
The prosecution next proceeded to prove the arrest of the appellant. The 5th prosecution witness stated inter alia:
“I know Chief Emmanuel Ogunmola. He has since died. One day sometime in 1973 I was returning from farm towards evening I saw the accused in the bush. I noticed he wore a garment which the deceased used to wear, he also carried dane gun, a cutlass, and a small bag of salt, (Exhibits A, B, C, & D identified as the articles I saw with the accused). I recognised them as belonging to the deceased.”
The 7th prosecution witness in evidence said inter alia:
“I know the accused. One Sunday last year in consequence of a direction of the Olishua of Ishua, myself and members of my society were sent out in search of the accused. On our way we received information from school children regarding the whereabout of the accused . We followed the direction, we saw the accused and we approached him and took him before the Olishua. When I first saw the accused, he was carrying a gun, cutlass and a bag, and was wearing a garment. Ex.E identified as the garment the accused wore, and exhibits A, Band D identified as the articles he carried. The accused was standing by the road side.”
No other member of the society who went with this witness gave evidence.
The other witness, the investigating police constable, is the 3rd prosecution witness and he stated inter alia:
“I know the accused in May 1973 ……………………………….On the 9/5/73 while on duty at the P.C.B. Akure, the accused was brought to the P.C.B. under police escort together with the exhibits. I took custody of the exhibits which were a dane gun, one matchet, one torn garment, one empty salt bag containing a quantity of gun powder in a small bottle, an empty bottle of Nivaquin and piece of nail. These are the exhibits I took custody of as the investigating constable ………………………… I took the exhibits from the police escort. ” .
This latter evidence indicates that the garment, dane gun etc. were not worn or carried by the appellant at the time he was brought to the investigating constable.
The next stage in the prosecution’s case was the production of exhibit H, the statement made by the appellant to the 3rd prosecution witness. Objection was taken that it was not signed by the appellant. The trial judge gave a two-line ruling admitting the statement. As it was considered to be a confessional statement, and in view of the objection raised, the nature of which is not clear on the record, the police should, as we shall later show, have investigated the veracity of the facts alleged in the statement in order to enable the trial court to decide the weight to be attached to it.
The learned trial judge said that the case for the prosecution depended ‘heavily’ on circumstantial evidence to prove the commission of the crime. We hereby set out the state of the whole case at its close.
The prosecution on its own side led evidence on the following:
(a) The deceased was seen alive earlier on 1/5/73 by two prosecution witnesses at his farm wearing a singlet and a pair of trousers and was loaned 50K. As at that time the witnesses did not see either the garment, dane gun, cutlass or bag containing salt on any part of the farm.
(b) When the deceased was found later lying on the ground, a witness observed dried blood on some lacerations on the body.
(c) The appellant was first seen in the bush and was arrested wearing a torn garment and carrying a dane gun, cutlass and bag Exhibits A, B, C, & D identified to be that ofthe deceased.
(d) A confessional statement was tendered, the veracity or otherwise of the contents on material particulars was never investigated by the police.
The accused in his defence led evidence:
(a) Retracting the confessional statement exhibit H and specifically denied that he signed it. He even stated that he could not write.
(b) He denied that he ever wore any garment, or carried a gun, cutlass or bag i.e. exhibit A, B, C, & D.
(c) He was a total stranger to the area and came to see an in-law, which was found to be true.
The accused at the trial set out the circumstances under which he was arrested and taken to the police station and there it was alleged that some articles were found on him. This piece of evidence was confirmed by the investigating police officer – 3rd prosecution witness – that when accused was brought to him, the garment, dane gun, matchet and bag containing salt etc. were brought by another police constable along with the accused. It is curious that no evidence was led by the prosecution as to who collected the exhibits supposed to be worn and carried by the accused at the time of his apprehension in the bush. The police constable who brought the exhibits to the 3rd prosecution witness – the investigating officer – was not called to give evidence.
The learned trial judge, in his judgment, proceeded to examine the facts before him by dealing with what he regarded as “proved facts”. These comprise the evidence that accused was found wearing a garment and carrying other articles identified by one witness as that of the deceased and the evidence of another witness wherein he stated that he and others arrested the accused under the same circumstances.
It did not occur to the learned trial judge that it was necessary that there must be sufficient and satisfactory proof that the articles the exhibit A, B, C & D were those of the deceased. Moreso there must be evidence of the relations of the deceased who lived with him, that the articles actually belonged to the deceased and that he had them with him when going to the farm that day. There was evidence before him that some of the relations of the deceased joined in the search for his assailant. The learned trial judge stated that one of the witnesses knew the deceased well but there was no evidence before him of the nature of such knowledge.
In a criminal case it is essential that proof of material facts should necessarily be beyond reasonable doubt. The identification of exhibits A, B, C & D to say the least is unsatisfactory. Secondly, it must be repeated that the articles were never found to be with the deceased at any time on that day so that their possession by the accused could only have been intended to prove that the accused must have had some contact with the deceased. If the learned trial judge had carefully examined these facts he would not have regarded as “proved facts” the evidence that the accused was found in possession of exhibits A, B, C & D belonging to the deceased and impliedly removed by’ the accused after he had committed the crime.
The learned trial judge, having fallen into this initial error, proceeded unconsciously to presume as a sign of guilt anything the accused stated contrary to exhibit H. When the accused objected to the statement exhibit H, the learned trial judge thought that this was an after-thought because the accused did not do so at the preliminary inquiry, the evidence at which was not before him. The Western State Court of Appeal agreed that the learned trial judge was wrong in arriving at that conclusion. This observation also affected his comparison of signatures which we shall deal with next.
According to the prosecution the appellant in this case made a statement exhibit H which was regarded as confessional. It was a long statement of four pages. The judge considered the testimony of the appellant that he did not sign the statement as untrue basing his conclusion on his own comparison of the signatures purported to be that of the appellant on exhibit H. He did not realise that there was no genuine signature of the appellant before him with which he could compare the signatures which the appellant challenged on exhibit H. There is no doubt that if he had had a genuine signature of the appellant to compare with, he might have come to some other conclusion. Having failed to do so his conclusion that the appellant signed exhibit H could not be correct.
The learned trial judge also considered whether the retraction of the appellant was genuine. He held that under cross-examination the appellant admitted most of the things that were contained in exhibit H. With the greatest respect the learned trial judge could not have come to this conclusion, if he had properly considered the evidence of the appellant in his defence both in chief and under cross-examination. It is apparent in this case that the judge did not consider what this court had to say in the Queen v. Obasa (1962) 1 All Nigeria Law Reports IV page 651 at page 657.
“The court would like the police witnesses in this case, as well as other members of the police, to bear in mind that they have a duty to test the truth of the facts stated in a confession as far as they can, and should not rest satisfied when it is made” .
No evidence was led before the learned trial judge by the 3rd prosecution witness, the police investigating officer, who recorded exhibit H, that he investigated the facts alleged in exhibit H especially that portion of it admitting the commission of the offence and found them to be correct. He merely recorded the statement and tendered it. There was a portion of this statement in which the deceased was recorded as holding conversations in Yoruba with passersby whilst he was working in his farm with the appellant.
Now the appellant is an Urhobo man and there is nothing in the evidence to show that he understands Yoruba. It is not in dispute also that that was the first time the appellant visited that part of the country. It should occur to anybody reading the statement to enquire how the Urhobo man understood the Yoruba conversation to the extent, as alleged in the statement, of causing a quarrel between him and the deceased. Although it was alleged that 200 heaps of yams had been dug in the farm by the appellant (for 2/-) (sic) the 3rd prosecution witness who visited the farm in his evidence stated that he saw nothing. There was the other evidence which was not challenged in which the appellant said that he could not write. How then if all these facts were not investigated could it be said that the retraction of the accused of his previous statement was an afterthought or that it was not genuine
We have taken into consideration that this statement was stated to have been read to the appellant before a superior police officer. It is not disputed that there is a standard form which a superior police officer has to fill in when an accused person is brought before him with a confessional statement for the purpose of confirmation or otherwise. Certain questions are inserted in the form, which are to be put to an accused person, and his answers recorded, but this was not done in the case of exhibit H. The Deputy Superintendent of Police only wrote out in red ink on the side of the remarks of the 3rd prosecution witness that the accused had confirmed the statement as correct.
This is not satisfactory. The questions in the form and the answers when obtained might have lent weight to such confirmation. We wish to observe that where the court is expected to attach some weight to a confessional statement purported to have been confirmed before a superior police officer the laid down procedure for such confirmation should be followed.
The reason for this is obvious because the questions set out in the standard form were deliberately intended to test whether the accused made the confession alleged or not to the recording officer. It is also essential that the superior police officer should be satisfied that the accused person understands the language used by him.
It is because of the weight that will be attached to a confessional statement confirmed by an accused person before an independent and responsible person, namely, a superior police officer, that care should be taken that the laid down procedure is strictly followed. The weight to be attached to the evidence on confirmation of such confessional statement will depend to some extent on whether there had been compliance with the provisions of the standard form. It is peculiarly necessary where the confessionsal statement is the main proof of the prosecution’s case.
We are not satisfied beyond all reasonable doubt that the confessional statement was proved to have been made by the appellant. We have drawn attention to some of the matters which were not thoroughly examined when the appeal came before the Western State Court of Appeal. We are satisfied that, besides the alleged confessional statement, there is no other evidence that connects the appellant with the commission of the offence. In the circumstances the appeal succeeds and it is allowed.
The judgment of the Western State Court of Appeal, confirming the conviction and sentence of death passed on the appellant in the High Court of the Western State, is hereby set aside. We enter instead a finding of not guilty and order of an acquittal. The conviction and sentence of the appellant by the High Court, confirmed by the Western State Court of Appeal, are hereby quashed. The appellant is hereby ordered to be discharged.
Other Citation: (1976) LCN/2324(SC)
