Deboye Olatunji V. The State (2016)

LawGlobal-Hub Lead Judgment Report

OBIETONBARA DANIEL-KALIO, J.C.A.

This appeal is over the judgment of the Lower Court in a case of murder. The Appellant Deboye Olatunji was charged with murder contrary to Section 316 and punishable under Section 319 of the Criminal Code of Ogun State, 2006. The particulars of the offence indicate that the Appellant on or about the 30th of September, 2008 at Mokola Area of Abeokuta Ogun State, unlawfully killed one Mrs Olabisi Ladipo. The prosecution at the Lower Court called two witnesses both policemen and tendered confessional statements and a medical report which were admitted in evidence. The Appellant testified in his own defence. After reviewing the evidence and considering the submissions of learned counsel, the learned trial judge came to the conclusion that the prosecution had established the guilt of the Appellant beyond reasonable doubt. He therefore found him guilty of the offence and sentenced him to death as mandatorily required. Judgment was delivered by the Lower Court on 8/5/13.

?Dissatisfied with the judgment, the Appellant within one month of the delivery of the judgment, that

1

is to say, on 5/6/13 filed a Notice of Appeal against the judgment. The Notice of Appeal indicated that additional grounds of appeal, aside the one stated in it, would be filed. The Appellant made good his intention by obtaining leave of Court to file additional grounds of appeal and then filed an Amended Notice of Appeal on 30/9/14. The following five grounds of appeal were disclosed in the Amended Notice of Appeal: –
“GROUND ONE
The Decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
GROUND TWO
The Lower Court erred in law and misdirected itself when it convicted the Appellant for the offence of murder contrary to Section 316 of the Criminal Code Law, Laws of Ogun State, 2006 when there was no eye witness account and the credibility of the purported confessional statement relied upon has been impeached.
GROUND THREE
The learned trial judge erred in law when be held that the Appellant’s extra judicial statements corroborated each other in spite of the inconsistency and which error has occasioned a miscarriage of justice.
GROUND FOUR
The Lower Court erred in law and

2

misdirected itself when it convicted the Appellant on the grounds that read that the Appellant was on a fact finding mission or revenge mission.
GROUND FIVE
The judgment is against the weight of evidence.”

The Appellant gave particulars of the errors allegedly made by the Lower Court with respect to all the grounds of appeal except for ground five.

The Appellant’s Brief of Argument was prepared by Mrs Adedoyin Rhodes-Vivour. The Brief was filed on 14/9/15 but by an order of this Court, it was deemed properly filed and served on 15/2/16. A. A. Oyefesu, Chief State Counsel Ogun State Ministry of Justice prepared the Respondent’s Brief. The Brief was filed on 18/2/16. For the purpose of deciding this appeal, the Appellant proffered three issues for determination. The issues are:-
1. Whether from the circumstances of the case and totality of the evidence before the learned trial judge, reasonable doubt has not been established to exonerate the Appellant from the commission of the offence charged, which is void of its ingredients (This issue was distilled from grounds 1 and 2 of the grounds of appeal).
2. Whether or not the alleged

3

confessional statements corroborate each other and whether the learned trial judge exercised due caution in convicting the Appellant of the offence charged based on the inconsistencies in the statements and retraction (This issue was distilled from grounds 3 and 4 of the grounds of appeal).
3. Whether the Lower Court was right when it raised issues suo motu without calling on the parties to address it (This issue was distilled from ground 5 of the grounds of appeal).

The Respondent’s Brief of Argument identified two issues for determination, viz:-
1. Whether from the totality of evidence adduced at the trial the prosecution has proved the charge against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act 2011.
2. Whether the judgment of the learned trial judge was against the weight of evidence.

The issues identified by the Appellant are more tailored towards addressing the grievances of the Appellant as articulated in the grounds of appeal. Those issues will therefore serve as the beacons that will lead to the judgment to be arrived at in this appeal.

?Issue I as will be recalled, is whether

4

from the circumstances of the case and totality of the evidence before the learned trial judge, reasonable doubt has not been established to exonerate the Appellant from the commission of the offence charged which is void of proof of its ingredients. It is my view that issue 1 as formulated by the Appellant is rather wordy. Suffice it that the issue is about whether the case against the Appellant at the Lower Court was proved beyond reasonable doubt.

On this issue, the Appellant’s learned counsel submitted that the prosecution did not discharge the burden of proof of the offence of murder alleged against the Appellant beyond reasonable doubt as to warrant his conviction. It was submitted that none of the prosecution witnesses admitted seeing the Appellant commit the offence. It was contended that even the complainant, one Alhaji Tajudeen Olanipekun was not called to testify and neither was his statement to the police tendered in evidence. Learned Counsel contended further that the evidence of PW1 with respect to the statement made by Alhaji Tajudeen Olanipekun is hearsay and as such, is inadmissible.

?Appellant’s learned counsel argued that the

5

prosecution failed to call the pathologist who carried out the post-mortem examination of the deceased’s body and that the Lower Court did not properly consider the admissibility of the autopsy report, Exhibit P.7 before admitting it in evidence particularly as there was no reference to the provision of Section 55 (1) of the Evidence Act by the trial Court. Furthermore, it was submitted that no evidence was adduced by the prosecution to explain the absence of the pathologist from Court to give evidence even though he was listed as a prosecution witness. Learned Counsel contended that the autopsy Report, Exhibit P7 was admitted in violation of the provisions of Section 39 and 83 of the Evidence Act and that the Report amounted to documentary hearsay and therefore was inadmissible in evidence. It was submitted that in the absence of the autopsy report (assuming that the report is adjudged to be inadmissible) the Court would not have reached the decision that it was the Appellant who caused the death of the deceased through strangulation. While conceding that the prosecution is not bound to call all the witnesses in a case, learned counsel argued that in a case

6

where the testimony of a particular witness is vital to the resolution of the case, that witness becomes a necessary witness and a failure to call him will be fatal to the case of the prosecution. The case of AG. Kwara State v. Olawale (1993) 1 SCNJ P.203 at p.224 was cited in support. It was also contended that the failure to call Alhaji Tajudeen Olanipekun (The Complainant) to testify and the failure also to call the pathologist to testify, robbed the Appellant of the opportunity to cross-examine them thereby denying the Appellant his right to fair hearing.

In his argument in response, the Respondent’s learned counsel took the view that the prosecution proved its case before the Lower Court beyond reasonable doubt, maintaining that the evidence before the Lower Court revealed that the Appellant strangled the deceased. Learned counsel disagreed with the submission that the evidence of PW1 on the statement made by Alhaji Tajudeen Olanipekun is hearsay. It was his contention that the evidence of pW1 was an eye witness account. We were referred in this regard, to page 28 lines 19-23 of the Record of Appeal. PW1, learned counsel contended, was not cross –

7

examined on the material parts of his evidence and as such, the Court was bound to accept his evidence. The case of Oforlete v. State (2000) FWLR Part 12 p.2081 at 2098 and 2099 was cited in support. It was also submitted that where a witness gives account of information heard directly from another person, such information cannot be termed as hearsay. The case of Abokokuyanro v. State (2012) 12 NWLR part 1285 p.530 at 556 was cited in support.

The Appellant’s counsel’s submission on the failure of the prosecution to prove the case against the Appellant beyond reasonable doubt appears to have been based on the following four premises, that is to say:-
(i) None of the prosecution witnesses admitted seeing the Appellant commit the offence;
(ii) The complainant Alhaji Tajudeen Olanipekun was not called to testify;
(iii) The evidence of PW1 in respect of the statement made by Alhaji Tajudeen Olanipekun is hearsay; and
(iv) The pathologist was not called and the autopsy report ought not to have been admitted in evidence.

?With regard to the argument that none of the prosecution witnesses admitted seeing the Appellant commit the

8

offence, it is not the law that there must be an eye witness account before a crime can be proved beyond reasonable doubt. It is trite that a crime can be proved through:-
i. The confessional statement of the accused person;
ii. Circumstantial evidence;
iii. Evidence of eye witness account of the crime.
See Igabele v State (2006) 6 NWLR part 975 p.100.
Therefore, where there is no eye witness account but there is either a confessional statement of the accused particularly one that is corroborated by some other evidence no matter how slight, or circumstantial evidence, such will be sufficient to convict an accused person for an offence.

As regards the argument that Alhaji Tajudeen, Olanipekun, the complainant, was not called as a witness, it is clear from the evidence of PW1 that his role was limited to lodging a complainant about the crime.

As rightly contended by the Appellant’s learned counsel, the prosecution is not bound to call all witnesses. The number of witnesses it wishes to call is entirely up to it. The prosecution does not even have to call all the witnesses listed in the proof of evidence. See Adaje v The State

9

(1979) 6 ? 9 SC 18 at 28 ? 29; Ogbodu v. State (1987) NWLR Part 54 p 20.

On the argument that the evidence of PW1 in respect of the statement made by Alhaji Tajudeen Olanipekun is hearsay, perhaps it is necessary to reproduce that aspect of the evidence of PW1 that is relevant. On 29/11/12 when PW1 gave his evidence-in-chief in Court, he stated inter-alia as follows:-
“I know the accused. I recall that on September 30th, 2008, one Mr. Olanipekun came to Adatan Police Station and reported a case of murder against the accused and same was incidented in the Crime Diary and was referred to me for investigation.”

From the above piece of evidence, the PW1 merely stated the fact that Mr. Olanipekun reported a case of murder to the police. What Mr. Olanipekun said to PW1 cannot therefore be regarded as hearsay. The concept of hearsay was properly described in the case of Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 969 thus:-
“Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the

10

statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement but the fact that it was made.”
See also Arogundare v State (2009) 6 NWLR part 1136 p. 165.

PW1 did not by his evidence seek to establish that the Appellant murdered the deceased, he merely sought to establish the fact that a complaint of murder against the Appellant was made to him. That is not hearsay.

With regard to the Medical or Autopsy Report, Exhibit P7, the Appellant’s learned counsel submitted that the Lower Court failed to call the pathologist who conducted the autopsy and that the Lower Court did not properly consider the admissibility of the Report before admitting it in evidence, particularly having regard to Section 55 (1) of the Evidence Act as well as to Sections 39 and 83 of the Act.
?Now Section 39 of the Evidence Act deals with statements by persons who cannot be called as witnesses while Section 83 deals with admissibility of documentary evidence as to facts in issue. Section 55 of the Evidence Act is a specific provision which makes certificates of specified government officers, to be sufficient

11

evidence in criminal cases. Section 55 of the Evidence Act as rightly pointed out by the Respondent’s learned counsel, is not subject to any other provision of the Evidence Act including Sections 39 and 83 of the Act. It is a well established canon of statutory interpretation that where an issue in a statute is governed by a general provision and a specific provision, the latter will be invoked in the interpretation of the issue before the Court. See per Tobi JSC in Kraus Thompson Org. v. NIPSS (2004) 17 NWLR part 901 p.44. The rationale behind this canon of interpretation as explained in the case of Kraus Thompson Org. just cited, is that the specific provision as against the general provision, will be deemed as having anticipated the issue under reference. Section 55 of the Evidence Act is therefore the governing provision with regard to the admissibility of the Medical/Autopsy Report. That provision states in Subsection (1) therefore as follows:
55 (1) Either party to the proceeding in any criminal case may produce a certificate signed by the Government Pharmacist, the Deputy Government or Entomologist or the Accountant General, or any other Pharmacist

12

so specified by the Director of Medical Laboratories of the Federation or of a State (whether any such officer is by that or any other title in the service of the State or of the Federal Government) and the production of any such evidence of the facts stated in it.
The above provision is virtually a reproduction of Section 42 (1) (a) of the Evidence Act Cap E.14 Laws of the Federation of Nigeria, 2004. It has been held in the case of Amusa v State (2003) 4 NWLR part 811 p 595 that the medical officer in the service of a State for the purpose of undertaking a post-mortem examination is a pathologist and his report is the certificate envisaged by S.41 (1)(a) of the Evidence Act. The Section 41(1)(a) of the Evidence Act referred to in Amusa v State (Supra) is the precursor of Section 42 (1)(a) of the Evidence Act Cap E. 14 Laws of the Federation, 2004 which itself is the precursor of Section 55(1) of the Evidence Act 2011. The Lower Court was therefore right, pursuant to Section 55 of the Evidence Act 2011, to have admitted the report of the pathologist in evidence as Exhibit P.7. From my consideration of issue 1, I hereby resolve that issue against

13

the Appellant.

Issue 2 has to do with whether the confessional statements corroborate each other and also has to do with inconsistencies in the statements as well as retraction of same. On this issue, Appellant?s Learned Counsel submitted that the conviction of the Appellant by the Lower Court was based on the confessional statements, Exhibits P. 6 and P. 8. It was submitted that the confessional statements were retracted when the Appellant gave evidence. We were referred to Page 54 of the Record of Appeal in support of this position. It was submitted that even if it is conceded that the confessional statements were made voluntarily, the learned trial judge still erred in law when he held that the statements corroborate each other. It was contended that each confessional statement must be proved separately and cannot be used as corroborative of each other. On the nature of corroborative evidence, we were referred to R. v Baskerville (1916) All ER 38 at 43 cited with approval in Olabisi v. The State (1975) ANLR 69 at 77; Edhigere v. The State (1996) NWLR part 464 p.1 at p.8. It was argued that the Evidence Act prohibited self-corroboration. We were

14

referred to Section 34(2) of the Evidence Act as well as the case of Hassan v. The State (2001) NWLR part 735 P.184 at 201. While agreeing that Exhibit P.7 (the Medical Report) was also relied upon as being corroborative of the confessional statements, it was submitted by the Appellant’s Learned Counsel that the Medical Report is documentary hearsay and as such is inadmissible. We were called upon to expunge it from the record. Appellant’s Learned Counsel also contended that other evidence outside the confessional statements that could perhaps have been corroborative of those statements, were not before the Court. He noted that the complainant Alhaji Tajudeen Olanipekun and the Pathologist were never called to testify and that the piece of cloth allegedly used to strangle the deceased was not tendered.

Learned Counsel submitted that one of the confessional statements, Exhibit P. B was neither signed nor thumb printed, arguing that an unsigned document is worthless. The case of Omega Bank Plc. v. OBC Ltd (2005) 2 MJSC p. 26 at p.58 was cited in support.

?It was submitted that the Appellant denied making the statements to the Police as he could neither

15

read nor write and that the evidence of the appellant in that regard was neither challenged nor contradicted and therefore ought to have been accepted by the Lower Court. The cases of Okoebor v. Police Council (2003) 13 NWLR part 834 p.444 at 483 and Magaji v. Nigerian Army (2008) 8 NWLR part 1089 page 338 at 395 were cited in support.

On the retraction of the confessional statements, the Respondent?s Learned Counsel submitted that the proper stage to raise the issue of the involuntariness of a confessional statement is when it is about to be tendered in evidence especially in a case where an accused is represented by counsel. Where it is not done at that stage, it becomes too late to deny the statement, it was submitted. The case of Musa v. State (2012) 3 NWLR part 1286 p.59 at p.94 was cited in support. Learned Counsel submitted that the appellant having confessed to the commission of the offence, there was nothing left for the prosecution to prove. The case of Mohammed v. State (2007) 11 NWLR (PART 1045) P.303 at 321 was cited in support. It was contended that the learned trial judge properly and adequately evaluated the appellant’s retracted

16

statement.

On the issue of corroboration, Respondent’s Learned Counsel submitted that Exhibit P. 6 and P. B are distinct and independent of each other and that both carry separate evidential weights. It was submitted that both have inherent and corroborative value and that the learned trial judge was right to have held that Exhibits P. 6 and P. 8 corroborate each other.

On the issue that Exhibit P. 8 was not signed, it was submitted that Exhibit P.8 is a translation of Exhibit P.8A and that Exhibit P.8 was signed by PW2 as the maker. We were urged not to disturb the findings of the learned trial judge as his findings were not perverse.

The learned trial judge, it would appear seemed to be of the view that Exhibits P. 6 and P. 8 corroborate each other. At page 53 of the Record of Appeal the learned trial judge stated thus:-
“The accused unequivocally made the confessions in Exhibits P.6 and P.8 that he used a cloth to strangle the deceased to death and both exhibits substantiate the material confessional evidence in each other.”
?Although the learned trial judge used the word “substantiate” instead of “corroborate” I think what is meant

17

is very clear. The notion that a confessional statement of an accused can be corroborated by another confessional statement of the same accused in respect of the same crime is in my humble view untenable since a person cannot agree or indeed disagree with himself. Corroborative evidence properly so-called is independent evidence that supports the evidence that is sought to be corroborated. The Black’s Law Dictionary Ninth Edition defines corroborating evidence as evidence that differs from but strengthens or confirms what other evidence shows. Such evidence must be a different kettle of fish from the evidence it seeks to corroborate. It has to be evidence that is outside the confession to the police. See Effiong v. State (1998) 8 NWLR Part 562 p.362. Now, if ?A? confesses a crime to police officer B; confesses the same crime to police officer C and yet confesses the same crime to police officer D, it remains the same confession albeit made to three separate individuals. Since the confession is the self-same confession, it remains the veritable confession that requires corroboration. The repeat of the confession cannot therefore be corroborative

18

evidence of the first or any of the repeated confessions. The other confessions in the scenario described are mere echoes. The learned trial judge was therefore wrong to have held as he did in the passage quoted above. That said, the learned trial judge also held that Exhibit P.6 is corroborated by Exhibit P.7 the Medical Report. That finding cannot be faulted. I have already stated in this judgment that Exhibit P. 7 was rightly admitted by the learned trial judge.

Learned counsel further tried to impugn Exhibit P. 7 by submitting that it is documentary hearsay. I have already referred to Section 55 (1) of the Evidence Act, 2011. Under that provision, it is clear that the production of the certificate (Medical Report) may be taken as sufficient evidence of the facts stated in it. Now, pursuant to Section 55 (3) of the Evidence Act the Court, notwithstanding Subsections (1) and (2) of Section 55 has power on the application of a party or by itself, to direct an officer such as a pathologist in this case, to appear in Court and give evidence either for the purpose of cross-examination or for any other reason if the interest of justice so requires. The Lower

19

Court did not consider it expedient to invoke the provision of Section 55 (3) of the Evidence Act and the Appellant also did not consider it expedient under Section 55(3) of the Evidence Act to move the Court to call the pathologist. That being the case, there is no legal barricade to the reliance on Exhibit P. 7 as corroborative of the confessional statement Exhibit P. 6. The learned trial judge cannot be faulted for finding Exhibit P. 7 as corroborative of the confessional statement, Exhibit P. 6.

The Appellant’s Learned Counsel’s argument that the confessional statement was retracted, is one that has been considered and settled by the Supreme Court in a full Court decision in the case of the Stanley Egboghonome v. The State (1993) 7 NWLR Part 306 p.383 where held that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution and having formed part of the case for the prosecution, the judge is bound to consider its probative value when considering the retraction made subsequently. Therefore the retracted evidence remains and its probative value should be considered while the later retraction should also be

20

considered. That precisely was what the Lower Court did. It cannot be faulted.

On the submission that the confessional statement, Exhibit 8 was not signed by the Appellant, I consider the submission as being no more than a storm in a teapot. Appellant’s Learned Counsel did not complain about the other confessional statement Exhibit P.6 which incidentally is the confessional statement that the trial judge relied on and held as having been corroborated by Exhibit 7, the Medical Report. See at page 52 of the Report of Appeal. Issue 2 is also resolved against the Appellant.

?The third and final issue is whether the Lower Court was right when it raised issues suo motu without calling parties to address it. On this issue, the Appellant’s learned counsel submitted that the Lower Court raised an issue that the Appellant was on a revenge mission and another issue of “last seen” suo motu. We were referred to page 53 of the Record of Appeal, Learned Counsel submitted that the doctrine of “last seen” was improperly applied and that the doctrine was developed to apply in cases of unexplained death or disappearance of a deceased person. It was contended that just

21

as the name of the doctrine implies, there must be evidence that the Appellant was the last person to be seen with the deceased and that in this case, there was no such evidence. The cases of Madu v. The State (2012) NWLR (Part 1324) p.405; Haruna v. AG of the Federation (2012) NWLR Part 1306 p.419 were cited.

It was submitted that a Court is not entitled to raise an issue suo motu and decide it without giving the parties an opportunity of being heard. The case of Kuti v. Balogun (1978) 1 SC 53 at p.60; Obawole v. Williams (1996) 10 NWLR part 477 p.146 were cited in support. It was contended that the parties by reason of the issues raised suo motu by the learned trial judge and decided by him without first hearing from the parties, deprived them of their right to fair hearing as provided for by Section 36 of the 1999 Constitution.

In his response, the Respondent’s learned counsel argued that the learned trial judge never raised any issue suo motu. Specifically on the doctrine of ?last seen?, it was submitted that the doctrine was merely invoked and not raised as an issue.

?Now can what the Appellant considered to be issues raised suo motu

22

by the learned trial judge be considered to be issues properly so called? What is an issue in Law? In the case of African Petroleum Ltd v. Owodunni (1991) 8 NWLR (Part 210) p.391, an issue was defined by the Supreme Court thus: “An issue is that which, if decided in favour of the plaintiff, will in itself give a right to relief, or would, but for some other consideration, in itself give a right to relief; and if decided in favour of the Defendant will in itself be a defence.” Did the treatment of the doctrine of ?last seen? or the matter of “revenge mission” by the learned trial judge rise to the level that they can be regarded, considered or characterized as issues? I think not. They do not come within the definition of an issue and so cannot be regarded, as issues raised suo motu by the learned trial judge for which the parties should be allowed to be heard before a decision is taken. What the trial judge said about “revenge mission” and the doctrine of ?last seen? were mere comments and deductions and nothing more. With regard to “revenge mission” the following was what the learned trial judge said at page 53 of the Record of

23

Appeal.
“It is strange that the accused and the deceased would be talking about the bedroom of the father of the deceased whom he said had died since he was a child. The only logical inference from the above statements of the accused under cross-examination is that he was on a fact finding mission or more appropriately, a revenge mission of the death of his father which as stated by him in Exhibits P.6 and P.8 was caused by the deceased.?

?The above reference to a revenge mission is nothing more than what the learned trial judge inferred from the evidence before him. No other spin can be given to it.

With regard to the doctrine of ?last seen?, the following is what the learned trial judge said also at page 53 of the Record of Appeal.
?PW1 told the Court that upon his investigations, he found out that the only woman that was at home with the accused person at the time of the incident was the deceased whom he strangled to death. He said he went to the house and discovered that the deceased was the only woman living there. The accused was not only the last seen with the deceased but also the only other occupant of the

24

deceased’s house.”

Clearly, the above statement with regard to “last seen? was the result of a mere inference or deduction from the evidence before the learned trial judge. Issue 3 is also resolved against the Appellant.

All the issues having been resolved, the inexorable conclusion reached by me is that this appeal lacks merit. I dismiss it. The judgment of the Lower Court is affirmed.

---

Other Citations: (2016)LCN/8635(CA)