James Igbinovia V. The State (1981)
LawGlobal-Hub Lead Judgment Report
O. OBASEKI, J.S.C.
My Lords, the appellant was tried and convicted on a murder charge by the High Court (Unurhoro, J.) at Benin City on the 14th day of November, 1977, and sentenced to death. Being aggrieved by the conviction and sentence, he appealed to the Federal Court of Appeal to quash the conviction and sentence. After hearing, the Federal Court of Appeal dismissed his appeal in a considered judgment delivered on the 10th day of May, 1979. He has now appealed to this court on the following grounds:
“(1)The decision of the Federal Court of Appeal in upholding the judgment of the trial court was unwarranted having regard to the weight of evidence.
The Federal Court of Appeal misdirected itself in law when it upheld the reception of the highly prejudicial evidence by the trial Judge by upholding the admission of the alleged confessional statement of the appellant when there was no proof that such a statement was made and this admission has occasioned a serious miscarriage of justice.
Particulars of Misdirection
(i)The mere reception of highly prejudicial evidence per se is fatal to any conviction whether or not the learned trial Judge expressly referred to such prejudicial evidence for whatever purpose in his judgment.
(ii)The reception of prejudicial evidence per se constitutes a miscarriage of justice.
Particulars of Error
(a)The learned appeal court Judges erroneously held at page 100, lines 1-8 that the evidence of P.W.4 “laid to rest any doubt as to the presence together of P.W.5 and the appellant (were together) in the same cell” when it was a fact in issue whether the appellant was locked up in the same cell with P.W.5.
(b)On (a) above, the learned appeal court Judges failed to resolve the contradiction in evidence of P.W.4 and P.W.5 in arriving at their decision; whereas it was in evidence before the trial Judge thus: (page 6 lines 26-28) “when the cell was opened three persons came out of the cell to take their food” again it was also said by P.W.5 on page 8 lines 15-16 “I met five suspects in the police cell.”
(3)The Federal Court of Appeal misdirected itself when it held that the confession has been proved.
Particulars of Error
(a)The learned appeal court Judges erroneously held at page 100, lines 1-8 that the trial judge’s findings that P.W.4 saw P.W.5 and the appellant come out of the same cell made it superfluous to call Johnson Omorege throughout when the alleged confession was made.
(b)The learned appeal court Judges failed to consider that even if it is proved that P.W.5 was present in the same cell with the appellant, the burden rests throughout on the prosecution to prove that the confession was made voluntarily and the onus does not shift on the accused as it is a criminal case (page 99 lines 22-25) except in some statutory offences.
(4)The Federal Court of Appeal erred in law in upholding the decision of the High Court which did not consider the defence of the appellant adequately or at all and when that court did not make specific findings on points favourable to the appellant.
Particulars of Error
(a)There was a lapse of at least three days between the discovery of the corpse of the deceased and the locking-up in the same cell of P.W.5 with the appellant. This considerably weakens the veracity of P.W.5.
(b)That the alleged confessional statement of the appellant revealed two things:
(i)That the deceased was hit to death with an iron rod, and
(ii)That the taxi-cab of the deceased was driven to Onitsha where it was sold to an unknown buyer. There was no finding as to what further investigation was carried out by the police in respect of these two revelations in the alleged confession. The iron rod was not looked for nor did the police carry their investigation to the Licensing Authority, Onitsha or Central Motor Registry, Lagos.”
It would have been more helpful to counsel and the court if the above grounds had been more skillfully drafted and the particulars given were in support of the misdirections or errors alleged.
Having heard learned counsel for the appellant in amplification and clarification of his brief of arguments, the issues in this appeal are twofold. The first issue is whether the confessional statement made by the appellant to P.W.5 in the police cell on the 23rd day of April, 1975 in the presence of other suspects is admissible and the second issue is whether in the circumstances in which the confession was made any weight ought to be attached to the confession.
But before examining the submissions of counsel on both sides on these issues, a brief reflection on and recapitulation of the primary facts is desirable.
The appellant and the deceased are of Benin origin, friends and resident in Benin City. The appellant by occupation was a soldier and the deceased a taxi driver. On the 7th day of April, 1975 at between 7.00 p.m. and 8.00p.m., the appellant called at the house of the deceased (Sunday Egharevba, described in the evidence of 1st P.W as Sunday Igbinosun) at Oziegbe Street, Benin City and invited him to come with him to buy petrol (which was scarce at that time). The deceased (a taxi driver) needed petrol to operate or run his taxi. The deceased accepted the invitation, followed the appellant and both drove off in the taxi, the appellant leaving a copy of his photograph with 1st P.W. (widow of deceased) who was doubtful of the success of the mission to assure her that her husband would succeed and she should not be afraid.
At about 8.00p.m., P.W. 2, a sister of the deceased stopped the taxi at Uselu motor park as she saw the deceased drive past. She observed that besides her brother there were 4 passengers including the appellant in the car. The appellant alone sat in front with the deceased while the other three passengers whom she could not recognise sat at the back. The deceased then told her that the appellant invited him to follow him to purchase some quantity of petrol. The deceased did not return either alone or with the car that day. Neither did the appellant who invited him and took him away to buy the petrol call to report to 1st P.W. Having expected the return of her husband in vain, 1st P.W., on the following day informed members of the family of the deceased of the failure of her husband to return since the appellant took him out to an ‘unknown destination’ the previous day. The police were contacted immediately by them. A search for the deceased by both the police and the family of the deceased started. The appellant was arrested (11 days ) later along with other accused persons who were acquitted and discharged in the courts below, i.e 3rd and 4th accused in the High Court and the 2nd appellant in the Federal Court of Appeal. Then on the 20th day of April, 1975, the decomposed body of the deceased was recovered by the police in a bush behind the Bendel Television House after an intensive search for the deceased. The body was found covered with blanket and some other clothes.
In the course of investigation, the police planted Edward Isibor, 5th P.W., one of themselves, disguised as a criminal suspect in the midst of the suspects (in this case) locked up in one of the police cells. His mission was to get information from them that could identify those who perpetrated the crime. He was given a hot reception by the 2nd accused from whom he received a couple of slaps (on his entry into the cell). But when he claimed to be a notorious criminal and murderer claiming 10 murders to his credit, they opened up their mouths and minds to him and made their claim. The appellant was slow at first to trust 5th P.W., but eventually opened up. The dialogue is better set out in the words of 5th P.W. His evidence reads:
“I then told the other persons in the cell of how I killed ten persons in various robbery and burglary cases. The second accused and the other suspects became interested in my stories. Later, the first accused was brought into the cell. The second accused then informed me that the first accused person was the person he had earlier referred to as one who pointed at him and the said Johnson Omoregie to the C.I.D. The second accused questioned the first accused but he refused to answer him. The first accused answered saying to the second accused “is it now you greet me when you have killed me.” The second accused asked the first accused how he had killed him and the first accused answered that the C.I.D had informed him that he the first accused was the first person to hit the deceased with an iron rod. I asked the first accused if he took part in the killing but he kept silent. I told him that criminals do not hide secrets from themselves and insisted that he should tell me. The first accused then confessed to me that he took part in the killing of the deceased and revealed to me that the deceased was killed on 7/4/75 along ile Mill Road about 9.00 p.m. I asked about the corpse of the deceased. The first accused told me that they dragged the dead body into a nearby bush and wrapped same with a blanket. He further told me that after the killing, they assembled in the house of the second accused. The first accused told me that while they were assembled in the house of the second accused, the second accused started to narrate how they killed the deceased. The first accused further told me that he warned the second accused the implication of revealing secrets to women. The first accused informed me that when they left the house of the accused they all drove in the taxi belonging to the deceased to Onitsha.”
Under cross-examination by counsel for the 1st accused/appellant herein, the record of the evidence of 5th P.W. reads:
” I do not know that the corpse of the deceased was discovered on 20/4/75 as I did not take part in the investigation of the case.”
On completion of his assignment, the 5th P.W., made a full report to the Commissioner of Police who thereupon gave further directives.
Before the learned trial Judge, the appellant denied ever having been locked up with 5th P.W. He also denied ever admitting in conversation with 5th P.W., and others in the “B” division police cell on the 23/4/75 at Benin City that he took part in killing the deceased.
However, the learned trial Judge rejected the testimony of the appellant on this issue, believed 5th P.W., and summed up his impressions of 5th P.W., as follows:
“This witness strikes me as honest and truthful witness. I believe him and accept his evidence on the point that he was sent by the police authority into the cell where suspects connected with the murder of Sunday Igbinosun…………….I believe and accept his testimony that while they were in the cell the first accused confessed that he took part in the killing of Sunday Igbinosun. I also believed his evidence when he said that he took a group photograph with the first and second accused persons and others in the police cell.”
He went on to make 10 important findings of fact the last four of which are relevant for the purposes of this judgment. They read:
“7.That P.W. 5 was on the instructions of his superior police officer locked up inside a police cell at the “B” Division of the Nigeria Police, Benin City together with the 1st and 2nd accused persons and other suspects.
8.That the first accused person confessed to the hearing of the fifth prosecution witness in the said police cell that he took part in the killing of Sunday Igbinosun.
9.That the first accused in his admissions to the murder of Sunday Igbinosun made certain statements portraying the part the second accused played during the killing of the deceased.
10.That the first accused admitted in the said cell that after killing of the deceased the taxi car of Sunday Igbinosun was driven to Onitsha and it was there sold to an unknown buyer.”
The learned trial Judge, after rejecting the story of the appellant as regards his movements on the night of 7th April, 1975, concluded his comments on the appellant’s confession as follows:
“Turning to the 1st accused person having regard to my findings above, it is my unshaken belief that the first accused
took part in the murder of Sunday Igbinosun, the deceased…….I also find as a fact that the confession was
voluntarily made……..In the circumstances, I hold that the confession is admissible and I am also satisfied that the confession has been proved. I am also satisfied of the truth of the confession.”
My Lords, the appellant’s conviction followed these findings. His appeal to the Federal Court of Appeal was dismissed in a considered judgment. Before the Federal Court of Appeal, the admission of the extra-judicial confession was challenged. But the learned Justices dismissed the objections for lack of merit and accepted with approval the dictum of Lord Goddard in the case of Kuruma v. R. (1955) AC 197 PC which reads at p. 204:
“when it is a question of admission of evidence, strictly, it is not whether the method by which it is obtained is tortuous but excusable, but whether what has been obtained is relevant to the issue being tried.”
The same objection has re-echoed in this court and one may also ask whether the fact that 5th P.W., a policeman was disguised as suspected criminal when he was planted in the cell does affect the admissibility of the confession made by the appellant in hilarious discussion or chat with 5th P.W., in the cell.
In this area of the world where crimes of violence are on the increase and means of investigation are in their rudimentary stage of development coupled with the secrecy with which these crimes are committed and the abiding faith in concealment of facts by whatever means by the perpetrators of these crimes, the duty of ensuring security for the lives and property of our citizens demands the detection of the perpetrators of these crimes by all means allowed by our law.
Detection of crimes is a never ending task the police is called upon to perform and in the performance of this task, they ought to be able to beat the suspects in their game of hide and seek. If a policeman does not present himself as a policeman but as a wild and vicious criminal, and other suspected criminals take him as such and in order to boost their ego and establish better understanding with him open their mouths and pour out stories of what to them are brave deeds of courage but which to civilized human societies are atrocious acts of violence against society and humanity, that information cannot become inadmissible only by reason of the concealment of the status of the disguised policeman who was fed with such valuable information. Being an undisclosed police officer, he does not fall within the category of persons in authority who can infuse fear of evil into the suspect or inspire hope of advantage in them. Therein lies, in my opinion, the free atmosphere in which to open and close one’s mouth and mind. It is this climate of freedom that imparts the voluntary nature to the words spoken at that point in time. If the words are confessional, they constitute an extra-judicial confession which, when tested for truth and found proved, went to establish the guilt of the author/suspect of the crime alleged.
When called on, appellant’s counsel was at pains to support the grounds of appeal. He conceded that the confession was admissible. Learned counsel submitted in support of ground 1 that in the absence of the confession made to P.W.5, the circumstantial evidence on record was insufficient to establish the guilt of the appellant as required by law. On the confession made to and given in evidence by P.W. 5, learned counsel conceded that it was admissible but submitted that in view of its highly prejudicial nature and having regard to the circumstances in which it was made, the learned trial Judge should have rejected it and if not rejected, he should have attached to it little or no weight.
I am unable to accept these submissions. Having conceded the issue of admissibility of the confession, counsel cannot in fairness urge or press the issue of the highly prejudicial nature of the confession. The highly prejudicial nature of the confession can only come into play and given serious consideration if the circumstances giving rise to its making border on illegality or its admission is excluded by rules of law or practice. The most vital consideration to engage the mind of the trial Judge is the relevancy of the confession.
A confession is relevant when it proves the fact that constitutes one of or all the elements of the crime to be proved and or identifies the person who committed the offence. If the confession is relevant and is free and voluntary, it is admissible in evidence and once admitted the weight to be attached depends on its probative value and pure truth content. In the instant case, the confession by the appellant was highly relevant.
The truth of the various facts contained in the confession was proved beyond any doubt. In fact, those facts, apart from the identity of the suspect, had earlier on been established by the police investigating officers quite unknown to the 5th P.W.
By pressing the issue of the highly prejudicial nature of the confession, learned counsel is indirectly raising the issue of admissibility. The concealed reference to the 5th P.W., as one of the investigating police officers tends to classify him as a person in authority. That clearly also raises the issue of the admissibility of the confession despite the concession by counsel.
The real question therefore to be decided in this appeal is whether the learned trial Judge was right to admit in evidence the oral confession made to the 5th P.W., by the appellant.
It has long been established as a positive rule of Nigerian criminal law, that no confession by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out to him by a person in authority.
See Section 28 Evidence Law Cap. 57 L/Bendel State 1976.
See Section 28 Evidence Act Cap. 62 L/FN 1958.
See Ibrahim v. The King (1914) AC 599 at 609.
See Corporal Jonah Dawa v. The State SC. 75/1979 delivered on 28th November, 1980.
See also Reg. v. Harz ; Reg. v. Power (1967) 1 AC 760.
If the confession proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible. If it flows from a sense of sadistic pride not induced by any promise or threat, it is admissible.
The question for decision in this case in the light of what has been said in the cases referred to above is whether the prosecution has established at the trial that the appellant’s confession was free and voluntary and was not induced by any promise or hope of advantage held out to him by a person in authority.
Who is a person in authority Bain, J., with whom I agree, defines a person in authority as:
“A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him. And the reason, that it is a rule of law that confessions made as a result of inducements held out by persons in authority are inadmissible is clearly this, that the authority that the accused knows such persons to possess may well be supposed in the majority of instances both to animate his hopes of favour on the one hand and on the other to inspire him with awe.” Rex v. Todd (1901) 13 Man LR. 364 at 376.
In that case, i.e Rex v. Todd, the accused was induced to confess by two detectives who were not peace officers, representing that they were members of an organised gang of criminals and that to gain admission to the gang he had to satisfy them that he had committed a crime of a serious nature. Dubuc, J., held that the promise was not made by a person in authority and consequently the confession was admissible, Bain, J., concurred.
In Reg. v. Wilson (David) ; Reg. v. Marshall Graham (1967) 2 QB 406 (1967) 2 WLR 1094 Lord Parker CJ at 415 of (1967) 2 QB (considering the definition of person in authority proposed by Mr. Hawser, counsel for the appellant in the course of the argument) said:
“Mr. Hawser in the course of the argument sought to put forward the principle that a person in authority is any one who can reasonably be considered to be concerned or connected with the prosecution, whether initiator, conductor or witness. The court found it unnecessary to accept or reject the definition save to say that they think that the extension to a witness is going very much too far.” (Underlining is mine.)
I think that the 5th P.W., cannot be classified under any consideration as anything else but a witness. There is no doctrine of entrapment in Nigerian law and evidence obtained by means of agents provocateurs is admissible. See George Diamantides v. Chief Inspector of Mines 13 WACA 94; Omotosho v. Commissioner of Police (1961) All NLR 693.
The appellant regarded 5th P.W. as a trusted partner in crime and at the time of the confession the 5th P.W., was no more than a possible witness for the prosecution. The mere fact that 5th P.., might be a witness for the prosecution did not make him a person in authority. See Deokinanan v. the Queen (1969) 1 AC 20 at p.31.
In Deokinanan v. The Queen (supra), the appellant confessed to his trusted friend Balchard how he murdered one of the men sent with him to buy timber. One of the men had a huge amount of money ($5000 and 1,000 Dutch Guilders) for the purchase and he confessed to Balchard where he hid the money. Balchard went with the police to the place described and recovered the money amounting to $4,780 and 1,000 Dutch Guilders.
The trial Judge ruled the confession admissible and convicted the appellant. His appeal to the Court of Appeal, Guyana was dismissed and Privy Council affirmed the judgment of the Court of Appeal.
Deception is a mode of behaviour highly disapproved of by society. But detection by deception is widely accepted as desirable in order to fish and flush out criminals who wear the garb of innocence.
Lord MacDermott, LCJ., while considering this police procedure of detection by deception in the case of R. v. Murphy (1965) N.I. 138 commented at 147:
“Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection but as a method it is as old as a constable in plain clothes and, regrettable though the fact may be, the day has not yet come when it would be safe to say that law and order could always be enforced and the public safely protected without occasional resort to it.” This was recently adopted with approval by the court of Appeal in England in Regina v. Sand; Regina v. Mangan (1979) 2 WLR 439 at 456.
Avory, J., in R.v. Arthur Gardener and Frank Hancox (1915)11 Cr App R. 265 commenting on evidence of a policeman eavesdropper/listener said at page 268:
“The conduct of the police in listening to this conversation has been condemned and it has been suggested that the two persons were put in adjoining cells in order that they might talk and that it was improper of the police to listen. It is impossible for the courts to say that prisoners charged with the same offence should never be put in adjoining cells or that the police ought never to listen. Indeed, it has been said that the duty of a policeman is to keep his ears open and his mouth shut. There is no ground on which the court can say that the evidence of this conversation is not admissible. The jury were warned to be careful how they accepted it as it only purported to be a portion of the conversation, and having regard to the fact that the officer was listening to a conversation which he was not intended to hear. They found the appellant guilty, and the court cannot interfere with the conviction.”
The facts of that case are simple. The 3 prisoners had broken into a house on the main road and had stolen various articles including a fish basket. The appellants were identified. With regard to Gardener, there was evidence fit for consideration of the jury identifying him as one of a number of men who were in the neighbourhood of the cottage on the afternoon in question. The witnesses identified him by picking him out of a number of men in the ordinary way.
Apart from anything else, this might not have been sufficient to support his conviction as he was not seen going out of or coming into the cottage, but there was also evidence that Gardener being in the cell adjoining Thomas’s held a conversation with the latter, and the Court of Criminal Appeal observed that “it is enough to say that if he held the conversation, there was sufficient evidence to justify the jury in finding him guilty.”
I can therefore not find any merit in ground 1.
Turning to ground 2, I wish to observe that the ground is at variance with the findings of the learned trial Judge. Contrary to the assertion that there was no proof that the statement (confession) was made there is abundant evidence in the testimony of the 5th P.W., that the statement was made and the learned trial Judge “believed and accepted the 5th P.W.’s testimony that while they were in the cell the first accused confessed that he took part in the killing of Sunday Igbinosun.”
The contention in ground 3 that the confession was not proved is flying in the face of concrete facts established by credible evidence accepted by the learned trial Judge. When confronted by the court with the evidence on record, counsel commented that the confession was a late arrival. It was made after the facts which support it have all been ascertained. In other words, the confession found confirmation in the facts already ascertained by the prosecution which in turn now proves the confession to be true.
The Federal Court of Appeal Justices, dealing with the points raised in grounds 2 and 3 when the matter was before them, said:
“We ourselves are satisfied about the learned Judge’s assessment of the evidence of P.W. 5 and his conclusion that the appellant made his confession voluntarily. This is borne out by what the appellant said in his voluntary statement to the police Exhibit 8 where he said, inter alia:
“While (sic) we were in ‘B’ Division police cell Edward Adiwa alias (Omoflying) was quarrelling with me why (sic) I should reveal secret to the police by mentioning his name…”
The only difference between the case in hand and the R.v. Steward 54 Cr App R 210 CA., is that it was the very man to whom the appellant confessed that gave evidence.”
On the issue whether the confession was proved true, the learned Justices of the Court of Appeal observed:
“It is sufficient that the learned Judge found that the body recovered in the bush behind the Television House was that of Sunday Igbinosun whom the appellant confessed he took part in killing along ile Mill Road.”
My Lords, I find all these observations of the justices of the Federal Court of Appeal justified by the evidence on record accepted by the learned trial Judge and accordingly find no merit whatsoever in grounds 2 and 3.
Turning to ground 4, the contention that the defence of the appellant was not considered is not supported by the record. The appellant was the 1st accused at the High Court which tried him. His contention in ground 4 is fully answered by the following conclusion of the learned trial Judge which appears in the terminal paragraph of his judgment. It reads:
“On the whole, I believe the prosecution witnesses. I also believe the first accused when he said that on the evening of the fateful day, he and two friends left in the taxi cab driven by the deceased on the pre of looking for petrol to buy but having listened to him and watched him in the witness box, I must say that I do not believe him when he said that he stopped at the gate of the Supply and Transport Division of the Nigerian Army. I also do not believe him when he said he knew nothing of the murder of Sunday Igbinosun.”
My Lords, I can find nothing better that sheds light on the working of the minds of the learned trial Judge when the defence came to be considered than this passage in his judgment. I can therefore find no substance whatever in ground 4.
In conclusion, I would refer again to the case of Reg. v. Sang (1980) AC 402 when it got to the House of Lords. There at p. 437, Lord Diplock said:
“I would accordingly answer the question certified in terms which have been suggested by my noble and learned friend, Viscount Dilhorne, in the course of our deliberations on this case. (1) A trial Judge in a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative value. (2) Save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, he has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained. It is no ground for the exercise of discretion to exclude that the evidence was obtained as of the result of the activities of an agent provocateur. I would dismiss this appeal.”
My Lords, the appeal has no merit and I hereby dismiss it and affirm the decision of the Federal Court of Appeal delivered on the 10th day of May, 1979 affirming the conviction of murder and sentence of death passed on the appellant on the 14th day of November, 1977 by the High Court (Unurhoro, J.) Benin City.
SC.43/1979
