Jonah Lase V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This appeal arose from the decision of the Court of Appeal, Akure Judicial Division delivered on the 9th July, 2015, in Appeal No. CA/AK/97C/2014. In the appeal, the Court affirmed the conviction and sentence imposed on the appellant by the High Court of Akure presided over by Justice A. O. Odusola in suit No AK/34C/2013 delivered on the 20th March, 2014.
The brief facts of the case are, the appellant and one Olusegun Oboro (1st Accused) allegedly Kidnapped one Dada Rachel Akinboye (deceased) an Eighteen months old baby who was sleeping with her mother at lkorigho, Ondo State and handed her over to one Theophilus Friday (3rd Accused) who subsequently murdered the deceased and removed her body parts. The Ikorigho community consulted their local deity “Ogbaji” to fish out those responsible for the kidnap, the name of the appellant and other accused persons were mentioned, as responsible for the act. The community after arresting them handed them over to the Police.
At the Police Station, the appellant made a confessional statement which he later denied was voluntary.
After the trial within
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trial, the trial Court admitted the statement as evidence
The appellant and the other two accused persons were charged with the following offences:-
COUNT 1
“Kidnapping, contrary to and Under Section 3 of the Ondo State Anti Kidnapping anti Abduction Law 2010.”
COUNT 2
“Murder, contrary to Section 316 and punishable under Section 319 of Criminal Code Laws of Ondo State 2006.”
After the plea of not guilty to the two counts charge, trial commenced on the 19th November 2013. The prosecution called a lone witness, while the appellant testified in his defence.
After the hearing, the appellant along with the other accused were convicted and sentenced to death on the two counts aforesaid.
Dissatisfied with the decision of the trial Court, the appellant appealed to the lower Court which confirmed the conviction and sentence of the appellant. The judgment of the trial Court convicting and sentencing the appellant to death is at pages 82-99 of the record of appeal while the judgment of the lower Court affirming the decision of the trial Court is at pages 131 to 150 of the record of appeal.
Being dissatisfied with the judgment, the
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appellant sought to upturn the decision by lodging an appeal to this Court.
The appellant filed his brief of argument dated 24th August 2015 wherein the following issues were formulated for the determination of this appeal.
ISSUES
“1. Whether the prosecution proved its case beyond reasonable doubt against the appellant to the effect that the appellant was guilty of kidnapping and murder of Dada Rachel Akinboye to justify the affirmation of the conviction and sentence of death by hanging of the appellant by the learned justices of the Court of Appeal, Akure Division.
- Whether the learned justices of the Court of Appeal, Akure Division were right to have adopted the learned trial Judge’s admission of the appellant’s purported extra judicial statement Exhibit “D” as a confessional statement in spite of objection of the appellant to its tendering on the ground of involuntariness of the process of its extraction and relied heavily upon same to affirm the conviction and sentence of the Appellant for kidnapping and murder.
The learned counsel for the Respondent however formulated in his brief of argument, a sole issue for determination
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thus:-
“Whether the prosecution proved its case beyond reasonable doubt against the appellant in the light of Exhibit D to the effect that the appellant was guilty of kidnapping and murder of Dada Rachel Akingboye to justify the affirmation of the conviction and sentence of death by hanging of the appellant by the learned justice of Court of Appeal, Akure Division.”
The Learned Counsel for the Respondent A.D. Adeyemi Tunde (Mrs.) filed a Notice of Preliminary objection that the Grounds contained in the Notice of Appeal and the issues there from are incompetent. The arguments from the objection are contained in paragraphs 3.00 of page 4 to 5.0 at page 5. The main plank of the Respondents objection is that, in the instant appeal the issues for determination and grounds of appeal of the Appellant does not arise from the decision of the Court of Appeal, neither is it a challenge on the ratio of the decision, but rather it is an attack on the Judgment of the trial Court which is liable to be struck out. It is trite that for grounds of appeal to be valid and competent they must be related to the decision being appealed against and should constitute a
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challenge to the ratio of the decision on appeal see:- C.C.B. PLC VS JONAH DAN OKORO EKPERI (2007) 1 SC (pt.11.) 130. He urged the Court to dismiss the appeal as being incompetent
In his Reply brief filed 8/2/2016, Learned Counsel for the Appellant urged the Court to dismiss the preliminary objection, for the failure on the side of the Respondent to file a separate motion on Notice to the objection. Learned Counsel relied on NSIRIM VS NSIRIM (1990) 3 NWLR (pt.138) 286 at 297.
Learned Counsel agued further that in the event this is overruled, it is a fact that issues for determination of appeal distilled by both the Appellant and Respondent upon which the Judgment of the Court of Appeal Akure Division was border on the Confessional Statement of the Appellant and the trial Court Exhibit ‘D’. See page 134 of the record of appeal where the sole issue for determination of appeal at the Court of Appeal, Akure Division was stated to be:-
“Whether the conviction of the Appeal for the offence of Kidnapping and Murder can be justified in the Light of the confessional statement relied upon by the trial Court.”
He urged the Court to discountenance the
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objection.
I have examined the objection and the reply thereto. The Preliminary objection is vague and not specific. From the record before this Court, the appeal of the Appellant is directly an attack on the Judgment of the Court of Appeal Akure Division as seen on page 134 of the record of appeal. The appeal directly relates to the decision of the Court of Appeal, and a challenge to the ratio of that decision. The appeal did not attack or relate directly with the Judgment of the trial Court. As to whether the preliminary objection was brought by way of a motion on Notice, or not, this is a jurisdictional question which can come in any way, even Viva Voce. On the whole, the objection has no leg to stand upon, and it is hereby overruled.
MAIN APPEAL
This appeal is going to be determined by a sole issue for determination which is reframed by this Court as follows:-
“Whether the lower Court was right to have affirmed the conviction and sentence of the appellant for the offences of kidnapping and murder on the basis of confessional statement and testimony of PW.1 relied upon by the trial Court.”
Learned counsel for the appellant contended
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that the prosecution did not prove its case beyond reasonable doubt against the appellant to the effect that the appellant was guilty of kidnapping and murder of Dada Rachel Akinboye. He submitted that the learned Justices of the Court below in their judgment did not carry out any evaluation of evidence elicited by the prosecution and the defence at the trial to justify their affirmation of conviction and sentence by the trial Court.
He argued that for the prosecution to succeed in securing a conviction for the offence of kidnapping under the provisions of Section 3 (1) and (2) of the Anti-Abduction Law of Ondo State, 2010, the following ingredients must be established:-
“i. A person must have been taken or kidnapped by another person.
ii. There must be the intention to demand ransom from that person kidnapped or from another person.
iii. The intention must be to achieve an unlawful purpose.
iv. The intention of the accused person or persons is to inflict bodily injury or terrorize the person kidnapped or abducted.”
Learned counsel also submitted that the essential ingredients for the offence of murder are as follows:-
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that the deceased died
- that the death of the deceased was caused by the defendant and
- that the act of the defendant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable result.He submitted that the prosecution at the trial Court called a lone witness Mr. Odebanitan (a sergeant) who was not an eye witness to the purported crime. He argued that the evidence adduced by the prosecution upon which the appellant was convicted and sentenced affirmed by the Justices of Court of Appeal is hearsay evidence of a single witness.
He argued that the Court below throughout in their judgment attached strong weight on the evidence of PW.1 who is not an eye witness to the incident. He submitted that the case of prosecution was full of inconsistencies and contradictions. He contended that where inconsistencies exist in the evidence of the prosecution on material fact, such ought to be explained by the prosecution. He relied onAHMED VS THE STATE (1999) 5 SCNJ 223.
He argued further that the prosecution, at the trial Court did not elicit any evidence whatsoever as to the nature of
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weapon purportedly used in the killing of the deceased and other fundamental exhibit that could link the appellant to the act.
Learned counsel further argued that the lower Court was wrong to have affirmed and adopted the learned trial judge’s admission of the appellant’s purported extra judicial statement (Exhibit D) as a confessional statement in-spite of objection of the appellant to its tendering on the ground of involuntariness of the process of its extraction. He put reliance on DANIEL NSOFOR VS THE STATE (2005) All FWLR (pt.242) 397.
He argued further that the lower Court relied mainly on the purported confessional statement made by appellant in Exhibit D which was retracted by him at the trial Court along with the uncorroborated evidence of PW.1 to affirmed the conviction of the appellant. He submitted that by virtue of his argument, the learned justices of the Court of Appeal reached perverse findings within the meaning of the case of EDOHO VS STATE (2003) FWLR (Pt.171) 29 at 51 paras A.B.R.8.
The learned counsel finally urged this Court to hold that this appeal has merit and to set aside the judgment of the Court of Appeal, Akure
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Division and discharge and acquit the appellant.
On the other hand, learned counsel for the respondent argued that the contention of the learned counsel for the appellant as stated above is misconceived. He submitted that, the prosecution, in proving their case called a lone witness (PW.1) and tendered Exhibits A, A3, B, C, D, and E – E2. Exhibit A3 revealed the mutilated body of the one and half year old baby (Dada Akinboye), Exhibit D is the extra Judicial statement of the appellant upon which mini trial was conducted and which pass the six-way test in R. VS. SYKES (1913)8 CR. App. R. 233
He argued that, on the submission of the appellant that the learned justices of Court of Appeal did not carry out any evaluation of evidence elicited by the Prosecution and the defence at the trial to justify their affirmation of conviction and sentence is totally misconceived. He argued that, the law is that an appellate Court will interfere with the evaluation or appraisal of evidence and findings of facts by the trial judge, if such findings are perverse or shows a misapprehension of the fact. He cited the case of ATOLAGBE VS SHORUN (1985) 1 NWLR (Pt.2) 360 and
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STATE VS RABIU(1980) 8 – 9 SC 130. He submitted that contrary to the claim of the appellant that the respondent failed to prove the ingredients of kidnapping and murder, he submitted that, looking at Exhibit D, (the confessional statement) will reveal the role of the appellant as principal offender in the commission of the crimes alleged.
He argued that, it is sound principle of law that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. He relies on Section 8 of the Criminal Code Law of Ondo State Cap 37, Vol. 1, 2006.
He submitted that there is evidence from Exhibit B and D that the deceased was kidnapped in the night of 16/6/2011, there is also evidence from PW.1 that there was a report of the murder of the deceased at Igbokoda Police Station. PW1 saw the deceased’s corpse at the scene of crime with the mutilated corpse.
Exhibits A – A3 showed the mutilated body of
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deceased. Therefore, the lower Courts having believed the confessional statement of the appellant and other evidence is entitled to reply on it and draw inferences of guilt there-from.
He finally submitted that this appeal should be dismissed on the basis that the prosecution successfully proved their case beyond reasonable doubt. He urged this Court to uphold the conviction and sentence of the appellant by the trial Court in the judgment delivered on 20th March, 2014.
The learned trial judge in convicting the appellant stated at page 98 of the record as follows:-
“The 1st and 2nd accused person in their statement (Exhibit B and D) admitted the 1st accused carried the deceased and gave it to the 3rd accused and the deceased was found dead with some parts missing near her mother’s house. From the evaluation of the evidence of the prosecution and the defence, the death of the deceased (the child taken from where she was sleeping) is an undisputable fact. Likewise, evidence was adduced that the 1st and 2nd accused were responsible for the disappearance of the deceased only to be found later with mutilated body and some missing parts.
The
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intention and knowledge that death or grievous bodily harm was the possible consequence can be inferred from the actions of the accused persons…. From the totality of the evidence before the Court, the prosecution has proved that the acts of the 1st, 2nd and 3rd accused persons were responsible for the death of the deceased.”
Looking at the considered view of the learned trial judge, the conviction and sentence of the appellant was based on the confessional statement made by the appellant.
For reference, the confessional statement by the appellant which is at page 143 – 144 of the record is reproduced as follows:-
“I Jona Lase ‘M’ freely elect to state as follows:- I am native of Mogbojuri Community seaside via lgbokoda under Ilaje Local Government Area Igbokoda I did not attended any schools, while I am a fishermen by profession, I knew one Bassey Akingboye ‘M’ (and Umisi) the father to deceased one Dada Rachel Akingboye ‘F’.
On the 16/06/2011 the said Theophilus Friday ‘M’ give us assignment that, we are following him down to the Ikoriho Community without telling us the type of work on that day he called us we did not enter his own
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boat we used our own wooden boat down to Odonla (and) waiting for him at Express Hotel. Later he came mocken me on chest which I did not know or got myself right, he commanded us to followed him at the back to his sister house, which we did I was outside waiting as guard, but Theophilus Friday ‘M’ and Segun Obaro ‘M’ entered house and carry the baby out, my second Segun Obaro ‘M’ handover her to Theophilus Friday he asked us to leave and we left, we did not know when he cut somebody parts of that girl, later the community people arrested us and handover us to the policemen up till point of writing Theophilus did not pay us N100,000.00 he promised us.”
The above confessional statement was objected by the learned counsel for the appellant on the ground that it was not voluntarily made. The Court ordered for trial within trial to ascertain voluntariness or otherwise of the statement. At the trial within trial, the trial judge found that the evidence of the prosecuting witness did not leave any doubt that the prosecution has discharged the burden of proof that the statement of the accused was voluntarily made.
He held that the statement of the appellant
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dated 20/6/2011 is admitted as Exhibit D. See page 58 of the record.
In the confessional statement above, the appellant admitted participating in the kidnapping of the deceased by acting as a guard to monitor the environment while the offence was being committed, the consequence of which led to the death of the deceased.
From the above, it is clear that the appellant has played a vital role in the kidnapping of the deceased, the role which also links him with the murder of the deceased. After kidnapping the deceased, the appellant and 1st accused handed her over to the 3rd accused person and was later found dead.
There is no doubt that the appellant has aided the 1st and 3rd accused in both kidnapping and murder of the deceased in this case.
Section 7 of the Criminal Code Law of Ondo State, Cap 37 Vol. 1 2006 provided when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
a) every person who actually does the act or makes the omission which constitutes the offence.
b) every person who does or
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omits to do any act for the purpose of enabling or aiding another person to commit the offence.
c) every person who aids another person in committing the offence.
d) any person who counsels or procures any other person to commit the offence.
The law is that once an abettor is found to be present at the commission of the offence he abetted, he has automatically become a principal offender and it is mandatory on the trial Court to convict him of the main offence.
However where two or more persons intentionally do a thing jointly, it is the same as if each had done it individually. Each person is not only liable for his own acts but also for the sum acts of his fellow conspirators in furtherance of the common intention.
In SANI BUJE VS THE STATE (1991) 4 NWLR (Pt. 185) at 288 this Court held that:-
“When any person aids the commission of an offence by being present at the scene not as a mere onlooker but with the purpose of aiding and assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal.”
The appellant in this case, has admitted, in his confessional
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statement aiding the other accused persons by monitoring the environment and to report any movement. This is his statement:-
“……. I was outside waiting as guard and Theophilus Friday and Segun Obaro entered house and carry the baby out, my second Segun Obaro handover her to Theophilus Friday….”
Yet in SANI BUJE VS STATE (supra) the Court on when an abettor becomes principal offender held that:-
“Once an abettor is found to be present at the commission of the offence he abetted, he automatically becomes a principal offender and it is mandatory on the trial Court to convict him of the main offence and not its abetment. In the instant case, Exhibits Pw.1 and Pw.3, statements of the appellant to the police, contained an admission of the unlawful killing of the deceased in circumstances in which the appellant was, at least, a principal offender.”
On the confessional statement of the appellant which was resiled by him, the Court having admitted it after trial within trial was conducted, can convict the appellant on that. The law is that a free and voluntary confession of guilty by an accused person if it is direct and positive and
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satisfactorily proved should occupy the high place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without corroboration to warrant a conviction and there cannot be such a conviction unless the trial Court is satisfied that the case has been proved beyond reasonable doubt.
This Court again in SHUAIBU ABDU VS THE STATE (2006) 12 SC (Pt. Vl) at page 103 held that –
“…….The prosecution heavily relied on the confession of the accused/appellant in proof of its case. I am mindful of the fact a free and voluntary confession of guilty whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See:- THOMAS AKPAN EKONG VS THE STATE (2013) All FWLR (Pt. 685) 353; ODEY VS F.R.N. (2008) 3-4 SC 142.”
However, in EGBOGHONOME VS THE STATE (1993) 7 NWLR (Pt. 306) 383 it was held that:-
“Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will
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suffice to ground a finding of guilt regardless of the fact that the maker resiled there-from or retracted it altogether at the trial, since such u-turn does not necessary make the confession inadmissible.”
See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS THE STATE (1984) 6 SC 85; EJINIMA VS THE STATE (1991) 6 NWLR (pt. 200) 62; AKPAN VS THE STATE (1992) 6 NWLR (Pt. 248) 439 and AKINFE VS STATE (1988) 3 NWLR (Pt.85) 729.
In SULE VS THE STATE(2009) 4 NCC 456, this Court decided that:-
“A Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution.”
See also ADEKOYA VS THE STATE (2012) 1 NCC page 7 and ONYEYE VS THE STATE 7 NCC page 304.
From the foregoing, this Court agrees with the lower Court, which earlier had agreed with trial Court’s decision to admit the confessional statement of the appellant and also in agreement with the decision of the lower Court where it affirmed the decision of the trial Court that:-
“The first point to note on the sole issue for determination is in relation to Exhibit D that is the
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confessional statement of the appellant. Exhibit D was declared voluntary after trial within trial was held and it also satisfied the six-way test laid down in the case of R VS SYKES (1913) 8 CR App. R. 233.. and applied in more recent cases such as ADISA VS STATE (2013) 14 NWLR (Pt. 1375) 567 at 578….. it is trite that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court as in the instant case is satisfied of the truth of the confession notwithstanding that it was later retracted….. Indeed, and as suggested by the learned counsel for the respondent, the appellant’s confessional statement (Exhibit D) has not only admitted the essential ingredients of the offences charged but also shows unequivocal, direct and positive involvement of the appellant in the crimes alleged.”
The appellant did not show the findings of the two lower Courts to be perverse. I am satisfied that the prosecution has proved its case beyond reasonable doubt. The sole issue for determination of this appeal is hereby resolved in favour of the
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respondent. The appeal is without merit and is hereby dismissed.
The conviction and sentence of the Appellant is reconfirmed.
SC.532/2015
