Hakeem Fatai V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.S.C

The appellant and one Dare Jimoh were arraigned before the High Court of Justice Ogun State sitting at Ijebu-Ode on a two-count-charge of conspiracy to commit murder and murder contrary to Sections 324 and 319 (1) of the Criminal Code Cap.20 Laws of Ogun State.

The facts of this case briefly are that on 27th day of October 2009, at Madasa Lane Ijebu-Ode, some persons attacked the house of one Kemi David (deceased). The said Kemi David was robbed, raped and slaughtered by the attackers with a knife and left her in the pool of her blood. It was when her siblings who have gone for a night vigil in a church came back that they raised alarm which attracted the neighbourhood vigilante group in the area who came out in search of the people that attacked Kemi David.

P.W.1, who was one of the vigilantees, stated that at the early hours of 28/10/2009; while in search of the attackers saw one Adebayo Odukoya inside a banana farm with his hands stained with blood. He picked him and handed him over to the monitoring group, and when he was questioned he admitted that he was one of the people that killed Kemi David. The said Adebayo Odukoya was said to have been shot by the police while trying to escape from police custody.

P.W.2, is a brother of the deceased. He gave evidence of the death of the deceased and tendered the knife he saw beside the deceased which was used to slash her throat.

P.W.3, is also an elder brother of the deceased and testified as to what he saw after they came back from the night vigil.

P.W.4, was a police officer who was asked to interpret the statement of the accused person in Yoruba into English to the I.P.O, after the interpretation, the accused person signed and he signed as the interpreter.

P.W. 5, the Investigating Police Officer (I.P.O). He took the statement of the appellant who gave his statement in Yoruba language, which was later interpreted to him.

The appellant’s confessional statement was tendered and upon the objection of the defence a trial-within-trial was conducted. In its ruling the trial court admitted the statement as Exhibit 7. In its conclusion the trial court held as follows:-

“In view of the above, I hold that there was no torture meted out to the 2nd accused before he made identification. I hold that the statement is direct, positive and related to 2nd accused acts and knowledge as well as intention and is therefore admissible. I therefore admit the statement made by the 2nd accused on 3/10/09 at Eleweran in evidence and hereby mark it as Exhibit 7.”

Under cross-examination, the witness stated that it was late Adebayo who identified the appellant as one of the people that committed the offence and took the police to the appellant’s house for his arrest. Adebayo’s statement was tendered as Exhibit 6.

The accused person gave evidence in his defence as DW2. He denied knowing the 1st accused person or the late Adebayo. He also denied knowing Kemi David, the victim of the crime. He said that he was not identified by anybody before he was arrested. He stated that he only made one statement to the police and that he did not agree with the total content of Exhibit 7.

After the conclusion of hearing, learned counsel to both parties addressed the court after which the trial court proceeded to deliver its judgment. The accused persons were found guilty of conspiracy to commit murder and murder contrary to Sections 324 and 319 (1) of the Criminal Code Cap. 30 Laws of Ogun State, and sentenced to death by hanging. In his conclusion the trial Judge held thus:-

“Having considered the totality of this case as well as the evidence led by the prosecutor and the defence of the accused persons which is denial and mistaken identity by which is rejected as there is no complainant to identify the accused but it was a comrade in crime that gave them out (sic). I hereby find that the prosecution proved that the two accused persons with others went and robbed at the Madasa Lane, raped Kemi David and also murdered Kemi David. I also find that there is not (sic) defence that could reduce the offence of murder committed by the accused persons to a lesser offence. I therefore find the two accused persons Dare Jimoh and Akeem Fatai guilty of the offence that on 27th October, 1999 they both conspired together to commit murder and actually murdered Kemi David at 4 Madasa Lane Ijebu-Ode in the Ijebu Ode Judicial Division.”

The two appellants were dissatisfied with the decision of the trial court and, unsuccessfully appealed to the Court of Appeal, Ibadan Division hereinafter called the lower court. After considering the case presented by the parties, the lower court dismissed the appeal and affirmed the decision of the trial court. The lead judgment of the lower court delivered by Alagoa, JCA, (as he then was) read as follows:-

“From the totality of the evidence assembled and the evaluation of same is there any doubt that there was indeed a meeting of the minds of the 1st and 2nd appellants manifested by the overt act of killing the deceased I have no doubt in my mind that the 1st and 2nd appellants intended to kill Kemi David and I find the offence of conspiracy to murder Kemi David against the 1st and 2nd appellants proved beyond reasonable doubt. I do not consider the finding of the trial High Court perverse and therefore will not disturb the said finding which was well considered and I therefore dismiss the appeal as lacking in merit.”

The appellants were again aggrieved by the judgment of the lower court and appealed to this court. The parties filed and exchanged their respective briefs of argument. The appellant in his brief of argument distilled three issues for determination as follows:-

“ISSUES FOR DETERMINATION

1. Whether in the light of the facts of this case, the Court of Appeal was right in holding that the purported confessional statement of the appellant (Exhibit 7A) was not only properly admitted in evidence but also properly relied upon by the trial court. This issue is derived from ground 1 of the Notice of Appeal.
2. Whether the identity of the appellant was never an issue and or did not arise having regard to the circumstances of this case. This issue is made in relation to ground 2 of the Notice of Appeal.
3. Whether the prosecution proved the charges of conspiracy to commit murder and murder beyond reasonable doubt to warrant the conviction and sentence of the appellant to death as affirmed by the Court of Appeal.”

The respondent in its brief of argument adopted the three issues as formulated by the appellant, and added the fourth issue, thus:-

“Whether or not the facts enunciated by this appeal justifies the intervention of this Honourable Court to disturb the concurrent findings of the lower courts.”

At the hearing, the learned counsel to the appellant adopted his brief of argument and urged this court to allow the appeal.

On the issue No. 1 the learned counsel to the appellant submitted that in view of the surrounding circumstances to Exhibit ‘A’ particularly the element of torture, it ought not to have been admitted in evidence, let alone being acted upon in convicting the appellant. He submitted that it is only where a confessional statement has admitted all the essential elements of an offence and shows un-equivocal, direct and positive involvement of the accused person in the crime alleged that the court can rely on it to convict the accused person, cites the cases of R v. Kanu (1952) 14 WACA 30; and Odu v. F.R.N. (2002) 2 NWLR (Pt. 761) 613. Thus where the statement is a product of torture, threat and/or inducement the confessional statement would be inadmissible. He referred to Section 28 of the Evidence Act and the case of Ibrahim v. The King (1914) A.C. 599.

In the case at hand, he referred to the evidence of the appellant in the trial within-trial on how he was tortured and the corroborative evidence of the 1st accused person that the appellant was tortured; and this piece of evidence was not properly appraised by the two lower courts. He therefore submitted that Exhibit 7A was wrongly admitted.

On issue No. 2, it was the submission of the learned counsel that the appellant was not properly identified as one of those who killed Kemi David as decided in Ikemson v. The State (1989) 3 NWLR (pt. 110) 4.

It was his submission that the lower court’s conclusion that the identity of the appellant as one of the persons that committed the offence was not an issue based on the evidence of P.W.5 that the late Adebayo Odukoya led the police to the house of the appellant is wrongly perverse and had occasioned miscarriage of justice. He stated that the late Adebayo Odukoya in Exhibit 6 mentioned Akeem Ajayi while Exhibit 7A bears the name of Akeem Fatai, but the lower court treated Akeem Fatai and Akeem Ajayi as the same. The discrepancy in the names contained in Exhibits 6 and 7A was not explained.

On the issue No. 3, it was the contention of the appellant that the burden was on the prosecution to prove the offence against the appellant and the standard of proof is that of proof beyond reasonable doubt, cites Nwosu v. The State (19S6) 4 NWLR (pt. 35) 348 at 359.

It was the counsel submission that the prosecution has woefully failed to prove the ingredients of the offences charged. The ingredients are:-

(i) that the deceased died;

(ii) that it was the act of the accused that caused the death of the deceased; and

(iii) that the said act of the accused is intentional.

He cites the following cases: – Ndukwe v. The State (2009) 2 SCN 147 1167; and Abohede v. The State (1996) 4 SCNJ 223.

In the instant case, learned counsel pointed out that there is no doubt that the deceased died and the evidence that he was slaughtered was not certain. But the issue of whether the appellant’s act resulted to her death is in doubt. The prosecution has failed to link the appellant to the act that led to the death of Kemi David. That without Exhibit 7A there is no other credible evidence linking the appellant to the death of the deceased. That the evidence of P.W.5 concerning the commission of the crime is a mere hearsay evidence.

Learned counsel to the respondent/prosecution adopted his brief of argument and urged this court to dismiss the appeal.

On issue No. 1, learned counsel referred to the decision of the lower court where it affirmed the finding of the trial court that Exhibit 7A was properly admitted and acted on in convicting the appellant and pointed out that no new fact has been added or shown to warrant this court interfering with the concurrent finding of the two lower courts and urged this court to resolve the issue in favour of the respondent.

On issue 2 learned counsel contended that the identity of the appellant was not in doubt, he referred to the decision of the lower court, and therefore urged this court to uphold same.

On issue 3 learned counsel contends that court will not reject a confessional statement which clearly links the accused person with the offence especially where there is concurrent finding of fact by the two lower courts on the point.

On issue No. 4 formulated by him, the learned counsel for the prosecution submitted that this Honorable court will not disturb a concurrent finding of the two lower courts except and unless where it is shown that there is substantive error apparent on the record of proceedings. He cites Onyejekwe v. The State (1992) 3 NWLR 444; Amadi v. Nwosu (1992) 5 NWLR (pt. 241) 273.

He continued to state that the findings being challenged before this court and the appellant have not shown that the said findings are perverse either by reason of misapplication of the law or that the findings were not supported by the evidence adduced before the court.

Before I proceed with the judgment, permit me my lords to state that the respondent’s brief of argument is of little or no assistance to this court. The respondent’s counsel, with respect, only quoted the judgment of the lower court being challenged before this court. No visible industry was put in the preparation of the brief and neither did he point out from the Record of proceeding and fact (s) that supports his stand point that the appeal be dismissed or to affirm the judgment of the lower court. I think I should say this, the duty of the respondent in an appeal is to defend the judgment appealed against. This, he would do by supporting his position with the facts, and/or evidence adduced before the court and marry same with the applicable law. No counsel would be allowed to just throw the judgment of the lower court at this court by mere reproducing same in his brief of argument and urge us to affirm or set same aside without sufficiently supporting its position with the applicable law married with the fact in order to enable us determine the appeal. Definitely the respondent’s counsel would not reasonably expect us to do his work for him. I hope counsel appearing before this Honourable Court would note, as in future, any brief of argument that is unhelpful to this court would not be considered, it will be ignored.

Coming back from this slight digression, I would say that this appeal centered mainly around the admissibility or otherwise of Exhibit 7A (the appellant’s confessional statement) and the reliance placed on it by the trial court in convicting the appellant. The lower court agreed with the trial court. The lower court in its judgment held as follows:-

“Counsel for the respondent has stated in paragraph 6.08 at page 10 of the respondent’s brief of argument that in answering the six questions to determine the veracity of Exhibit 7A the learned trial judge considered the evidence of P.W1, P.W2, P.W.3 and P.W.5. The learned trial judge did more than that. He considered Exhibits 2 and 6 as well and clearly determined areas of consistency. Exhibit 7A was, to my mind, not only properly admitted but also properly acted upon by the learned trial judge.”

My lords, in my view, this finding of the lower court is unassailable. I have carefully perused Exhibit 7A, in it, the appellant gave graphic details of how he, in concert with Adebayo Odukoya and the 1st accused person conspired and killed the deceased Kemi David. Exhibit 6, Adebayo Odukoya’s statement to the police corroborated Exhibit 7; it is instructive to also note that the contents of Exhibit 2, the 1st accused’s statement to the police are in tandem with the contents of Exhibit 7A.

P.W.1 who arrested Adebayo Odukoya and handed him over to the monitoring group who eventually handed him over to the police narrated that he caught Adebayo Odukoya and his confession that they killed Kemi David with his cohorts. It was the Adebayo Odukoya that led the police to the arrest of the appellant and he was identified as a participant in the commission of the crime. Above all, in his evidence at the trial he only told the court that he did not agree with all the content of Exhibit 7A. In his words he said:-

“I only made one statement to the police. I did not agree with the total content (sic) of Exhibit 7.”

I have no doubt in my mind that the lower court was correct in its holding that Exhibit 7A was voluntarily made by the appellant. Exhibit 7A was direct, relevant and un-equivocal about the participation of the appellant in the commission of the offences charged. The court is entitled to act only on the confessional statement of an appellant that is direct and relevant in convicting and sentencing the appellant. See: Mustapha Mohammed v. The State (2007) 4 SCNJ 119; and Golden Dibie v. The State (2007) 33 SCNJ 160.

On the issue of identification of the appellant, the learned counsel to the appellant submitted that the name mentioned by Adebayo Odukoya in Exhibit 6 is Akeem Ajayi and not Hakeem Fatai which the appellant chooses to bear is totally irrelevant to the determination of whether he was identified as a party to the murder of Kemi David. It is on record that the said Adebayo Odukoya led the P.W.5 and its team to the appellant’s house where he was arrested after being identified by the said Adebayo Odukoya. In his evidence the P.W. 5 said:-

“It was late Adebayo that took us to the 2nd accused house where he was arrested. Late Adebayo identified 2nd accused to us before he was arrested. The 2nd accused when he was arrested never gave his name but he called himself Akeem Fatai when his statement Exhibit 7 was being recorded.”

Also Exhibit 2, the 1st accused statement clearly indicted the appellant as a participis criminis in the commission of the offences charged. This is coupled with own confessional statement Exhibit 7A where he admitted the commission of the offences charged. The issue of identification would arise where the identity of the person that committed an offence is not known. In this case all the participants in the commission of the offence clearly identified themselves and also confessed to the commission of the offences charged. It is clear that late Adebayo knew his partners in crime. He did not only know where the appellant lived right down to his room but positively identified him to the team of police men to which the P.W.5 belonged.

It must also be noted that apart from the accused person, the only person, that could have been called to identify the appellant was Kemi David who, unfortunately was murdered in cold blood by the appellant and his cohorts. It’s sufficed to say that where the identity of an accused is not in doubt there will be no need to embark on identification parade. Identification parade is not a sine-qua-nou to conviction. See: Ukpabi v. The State (2004) 34 WRN 133; Ikemson v. The State (1959) 3 NWLR (pt. 110) 455, Abubakar Ibrahim v. The State (1991 5 SCNJ 129.

On the whole, I hold that the lower court was right in affirming the judgment of the trial court. I have no hesitation whatsoever in accepting the decisions of the trial and lower courts in this appeal.

Consequently, this particular appeal is dismissed for lacking in merit. The appeal actually is devoid of any 15 merit. I therefore, without any slightest regret, affirm the judgment of the lower court delivered on the 30th day of March, 2011 in which death sentence handed down by the trial court was affirmed by the lower court.

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SC.257/2011