Joseph Okoro Abasi V. The State (1992)
LawGlobal-Hub Lead Judgment Report
U. MOHAMMED, J.S.C.
The appellant was at the Afikpo High Court, former Imo State, charged with the murder of one Ude Egwu Oko on 30th December, 1980, under section 319(1) of the Criminal Code. He was convicted and sentenced to death.
His appeal to the Court of Appeal, Port Harcourt was on 16th October, 1990, unanimously dismissed and he has further appealed to this Court on the omnibus ground only.
When the appeal came up for hearing in this Court on 9th July, 1992, learned counsel who signed the appellant’s brief of argument, Chief C. Akwiwu was not in court but Mr. A.M.O. Onukaogu, Principal Legal Officer, Abia State, for the respondent was present and having adopted his brief, judgment was reserved to today.
Briefly stated the case against the appellant was that on 30th December, 1980, he was seen with two women walking out of Afikpo town. The women were each carrying a basin and the appellant had a hammer in his hand. The following day both women were discovered lying on the ground in a bush near Mgbede Akaeze.
One of them Ude Egwu Oko, who was named in the charge, was already dead and the other who was unconscious died on the(sic) Following the discovery of the bodies the people of Mgbede Akaeze alerted their councillor who in turn sent for the police. After the bodies were removed to Okigwe hospital the people of Mgbede Akaeze assembled for the purpose of finding out what caused the death of the women. Some of the villagers who saw the appellant with the women the previous day told the gathering what they saw. The appellant, who was there attempted to run away but was restrained. He then pleaded with the villagers not to report him. He even gave N250.00 gratification to the crowd not to report him. He and the N250.00 were however eventually handed over to the police at Okposi where he was detained.
At the police station the appellant made two voluntary statements on 3rd and 6th January, 1981 respectively. They are Exhibits A, A 1 and B, B1. Exhibits A & B are in Ibo, the language in which they were made and recorded, their English translations are Exhibits “A1” and “B1”. In view of the weight attached to these voluntary statements by both lower courts I deem it expedient to reproduce the English translations below:-
“(EXHIBIT ‘A1)
HAF/15c/84 – 1st Statement of Accused person marked Exh “A1” (English version).
POLICE STATION, OKPOSI
Name: Okoro Obasi (M)
Occupation: Auto electrician (Motor wiring)
Age: 22 Yrs.
Religion: Christianity.
Tribe: Ibo.
Address: Amaokpu Ngbede Akaeze.
Date: 3/1/81 0900 hrs.
I, Okoro Obasi having been duly cautioned in Igbo language that I am not obliged to say anything unless I wish to do so but whatever I say will be taken down in writing and may be given in evidence.
I voluntarily state as follows:-
In 1978, when I was an apprentice electrician with one man called Ogbu Awa at Afikpo. I had a friend called Okoro Nnachi. He is a native of Ogiri Edda. My friend was living at Afikpo and was trading on provisions. One day he invited me to his house near the motor park at Afikpo. During our discussion, Okoro asked whether my father is alive. I told him that my father died during the wartime. He asked what killed him and I said he was killed by Biafran BOFF. This discussion took place in a drinking parlour in the Afikpo motor park, there Okoro was asking about my father, it was not in his house. Okoro said he was in the BOFF during the war and that he came with the group that killed my father. He said that he knew the very man that killed my father. He said it was the manager of the BOFF. He promised to show me the fellow.
On Easter Sunday 1978, Okoro and I were walking towards Amuro Junction Afikpo and Okoro showed me one man who was passing and said that he was the BOFF Manager who killed my father during the war. He did not tell me the man’s name.
One day, the man came to our workshop to charge his motor cycle battery. I refused to talk to that man. Okoro firmly promised to help me revenge what the man did to my father.
On 22/12/80, I left Afikpo for my home town for the Christmas festival. About on 24/12/80, I received Letter written by Okoro to me. He wrote that he would assist me to bring that man, his wife or his son for us to kill. Okoro invited me to his house on 27/12/80 but I did not go. Okoro came to our house that day and I accompanied him to his house at Ogiri Edda. On 30/12/80, Okoro came again to our house and I went out with him to his own house. In his room I saw two women. Okoro took me outside and said that he has brought the people. After looking at the women I became sorry for them. I asked Okoro, “How did you bring the women here” He said that he told them to come and buy rice. Okoro asked me to give him five Naira. I gave him five Naira as he requested.
Okoro called the women out of the room and we set out and as we were going I was behind. On getting nearer the place he told me to go to the front and I obeyed. We were going inside the bush. While we were going, Okoro had a hand bag with him. But I did not ask Okoro about the weapon we would use in killing the women because Okoro was in the BOFF. It was clear to me that we set out to kill the women. As we were still going, Okoro told me that we have reached the place. I heard the women shouting. I began to run away. I did not beat anybody. It was Okoro who beat them. This incident happened on 30th December, 1980. It was in the night time. I ran to my house. On the next day 31/12/80 Okoro wrote to me; he gave the letter to his sister called Cecilia to bring me. It was one man called Linus, an Abakaliki man who read the letter for me. I will bring the letters to the Police.
Sgd:
Inspr., 1040 hrs.”
“(EXHIBIT ‘B1)
HAF/l5c/84 – 2nd Statement of Accused marked Exh “B” (English version)POLICE STATION OKPOSI, OHAOZARA.
Name: Okoro Obasi (M)
Occupation: Auto electrician
Religion: Christianity
Age: 22 Yrs.
Tribe: Ibo. 0940 hrs.
6/1/81
Address: Amaokpu Mgbede Akaeze.
I, Okoro Obasi having been duly cautioned that I am not obliged to say anything unless I wish to do so, but whatever I say will be taken down in writing and may be given in evidence.
I voluntarily elect to state as follows:-
Sgd: Okoro Obasi (R.T.1)
It was on 15/12/80 that these three men sent for me. The men are 1, Court, he is an Abakaliki man and he lives at Mgbede Akaeze and 11, Akawo, also an Abakaliki man also living at Ogiri Eddaand 111, Nwali Nwikwo who lives at Ogiri Edda. They said we should look for people from whom we can get money. They said we should attack anybody from Akaeze that people will easily spot us out. Before we started looking for people to rob of their money we took a solemn oath to bind us together, (igbaa Ndu).It was on the main road from Akaeze to Afikpo that we took oath. We sat by the roadside and took the oath. Our aim for taking the oath was that whatever we do none of us will reveal it to an outsider. The materials we used in the solemn oath are – hairs, blood from our body, Igbo kolanut, and illicit gin. We cut out some hairs from each one of us and burnt them and put the ashes into the illicit gin, also we gal a drop of blood from each of us and mixed it with the illicit gin and each of us drank from it.
After the oath taking exercise, Court, Akawoand Nwali went to Amasiri to look for people we should rob of their money. When they reached a rice mill at Amasiri they met their town’s people and because of this they could not get anyone.
On 30/12/80, they sent me to Afikpo to get some people. I left Akaeze at about 0800 hrs, for Afikpo. I went to a rice mill near Eke Afikpo and I got two women. One of them called Eleje. That woman knew me very well and I knew her too. I asked them if they were prepared to buy some rice and they agreed to buy and we set out to buy the rice. When we got Amasiri we stopped. I met my friends Court, Akawoand Nwali and showed them the two women. We contributed money and bought two sledge hammers. Akawo, Court and Nwali first moved down to the scene of this crime and waited, while I led the other. We reached Ndiagu Mgbede Akaeze bush. When we got near a tree called Ukpukpa (Agbono tree). I told the women to wait for me to urinate or (pass urine) one of the women shouted “Does it mean that we are going to be killed” It was about 7.30 p.m. then. At this juncture the following three men emerged, Akawo, Court and Nwali. I hit one of the women with the hammer I was holding and her basin fell down from her head. I ran away but after a while I came back to the scene my friends have recovered all the money they had on their waist. We counted the money and it was N730.00 (Seven hundred and thirty Naira). As we were going back home we shared the money. They gave me N 160.00 (One hundred and sixty Naira). Then, I returned to our house.
Sgd: Okoro Obasi (F.T.I)
Recorded by me. Igbo version.
Sgd:
Inspr. 6/1/81 1050 hrs.
CERTIFICATE: I personally read over this statement to Okoro Obasi, the maker who admitted to have made same in connection with this case.
Sgd:
ASP. 8/1/81 0825 hrs.”In his defence in court the appellant inferred that it was Akawo, Nwali and Court who killed the women and that the only role he played in the killing was to lure the women to the bush where they were ambushed and beaten to death. When he realised what was happening he attempted to escape but the three men held him and forced him to swear to an oath of secrecy.
In the appellant’s brief of argument, the following three issues have been formulated as being the issues for determination:
“(i) Can the conviction of the appellant be said to have been reasonable, warranted and justified having regard to the weight of evidence before the learned trial Judge with particular reference to the evaluation of the evidence of PW5.
(ii) Did the admissions in Exhibits “A”, “A1” and “B” “B1″ relieve the prosecution of its duty to prove the case against the appellant on its own beyond reasonable doubt
(iii) Did the court interpret section 185(3) (sic) C.P.O. (sic) correctly”
Mr. Onukaogu for the respondent adopted the above issues as the ones for determination although in his brief he has cited the correct section of the Criminal Procedure Act as section “285(3)” and not section” 185(3)” as incorrectly cited in the appellants brief.
I think issues (i) and (ii) are closely related and I propose to take them up together. The first point taken up in the appellant’s brief is that the trial Judge placed no reliance on the evidence of PW5 and therefore did not include him as one among 8 (eight) prosecution witnesses who testified in this case whose evidence impressed him” (see paragraph 5: 09 of the brief). The portion of the judgment of the trial Judge on page 40 lines 8 – 10 to the effect that:
“I am impressed by the evidence of the prosecution witnesses, particularly PW.2, PW.3, PW.4, PW.6, PW.7 and PW.8.” was cited in support of the argument that PW.5’s evidence did not impress the trial Judge. With all due respect to learned counsel for the appellant this argument is not tenable, the trial Judge said clearly that he was impressed “by the evidence of the prosecution witnesses, particularly……………………………………………”
To argue that PW.5 did not impress the trial Judge as learned counsel does is to misread and misconstrue that portion of the judgment relied upon. The interpretation placed by counsel on this is obviously wrong and I need say no more on it.
The next point taken is that the trial Judge in his judgment on page 38 lines 20 – 34 said things which were not in evidence and the Court of Appeal supported this. The portion of the judgment cited in paragraph 5.05 of the brief is as follows:”
The identity of the accused at all material time before and after the incident of the death of the deceased was not in dispute. I believe the evidence of PW.5, Egwu Oka, that the accused followed his wife now deceased to his house hurrying her up to what appeared to be her last Journey” (Italics mine).
It was further argued “that the trial Judge was in fact, in error in relying on this fact not contained in the evidence in reaching the conclusion as substantiating his associating the Appellant with the movement and murder of the ‘deceased before and after the murder” (see paragraph 5:05 of the brief).
The first question that comes to mind on this is whether PW5 told the court that he saw the appellant at his house. On page 12of the record, lines 20 – 21, PW5 said:
“The accused person went to the rice mill to my house. When the accused came I asked my wife (italics) whether she would be going to buy the rice…………….” (italics mine).
From this there can be no doubt that PW5 saw the appellant at his house and the contention therefore that PW5 did not inform the trial court that he saw appellant at his house is not tenable.
The next related question is whether the appellant was heard “hurrying the deceased on what appeared to be her last journey.” If PW5 did not say so, what effect would this have on the final decision of the trial court PW5 nowhere in his evidence told the trial court that he heard appellant “hurrying” the deceased, his wife. It is my considered view that whether the appellant was heard hurrying” the deceased or not is immaterial, what is material is that he was seen by PW5 at the house; the “hurrying up” is a mere surplusage which does not disturb the undisputed fact that PW5 said the appellant was at his house with the deceased.
The next point taken in the appellant’s brief relates to the presence of PW5 in court throughout the time 1-4 prosecution witnesses were testifying. It is argued that the trial court interpreted section 285 (3) Criminal Procedure Act, wrongly by not expunging the evidence of the witness for inadmissibility. It is contended that the mere fact that PW5 remained in court during the time 1-4 PWs were testifying not only rendered the evidence of PW5 inadmissible, it also rendered the whole trial a nullity. Learned Counsel for the appellant emphasised that the word “shall” as used in the sub-section under consideration connotes a mandatory duty leaving no room for discretion -Achineku v. Ishagba (l988) 4 NWLR (Pt.89) 411 was cited in support. Learned Counsel argues further that the case of Uwaezuoke v. Commissioner of Police 20 NLR 57 which considered section 186 (1) Evidence Act was a decision of the High Court not binding on the Court of Appeal was wrongly decided.
Mr. Onukaogu argues that the combined effect of Faloju v. Amosu (1983) 2 SCNLR 209; (1983) FNR 376 section 186(1) of the Evidence Act and the second proviso to section 285(3) of the Criminal Procedure Act merely affects the weight to be attached to the evidence of the witness who remains in court while witnesses before him testify:-
Now subsection 285 (3) provides:-
“If the defendant says that he is not guilty the court shall direct that all witnesses shall leave the court and upon such direction the provisions of section 186 of the Evidence Act shall apply: Provided that the Judge or Magistrate may in his discretion permit professional and technical witnesses to remain in court: Provided further that failure to comply with the provisions of this subsection shall not invalidate the proceedings.”
It is perhaps pertinent to observe that in the court below, the appellant’s whole arguments and submissions on this point were based on the provision of section 186 (1) of the Evidence Act and not on the provision of section 285 (3) of the Criminal Procedure Act which was never in fact raised or referred to in that court. The court below in its consideration of the arguments on the matter concluded on page 98 lines 1-4 as follows:-
“…………………A breach of section 186 (1) of the Evidence Act will only affect the weight to be attached to the evidence of the particular witness. See Uwaezuoke vs. Commissioner of Police (1949) 19 NLR 57…………………………………………………”.
In this court however the appellant’s arguments and submissions are that section 285 (3) of the Criminal Procedure Act was wrongly interpreted and that because the decision in Uwaezuoke vs. Commissioner of Police (supra) was the decision of an equivalent of the present day High Court, the Court of Appeal was in error to feel bound by it. I find nothing wrong in the Court of Appeal citing the decision in the Uwaezuoke case with approval. It is not an unusual practice. The Supreme Court has done so, see for example Bornu Holding Co. Ltd. vs. Hassan Bogoeo (1971). NSCC 321; (1971) 1 All NLR 324 when it cited Muhammadu Durumunya v. Commissioner of Police (1961) NNLR 70, a decision of the High Court.
With all due respect to learned counsel for the appellant I do not agree that non-compliance with the provision of section 285 (3) of the Criminal Procedure Act will render the evidence of the particular witness in this case PW5 inadmissible. And to submit that such non-compliance renders the whole proceeding a nullity is to disregard the second proviso to the subsection – ”that failure to comply with the provision of this subsection shall not invalidate the proceedings.” It is my respectful view that such non-compliance will only affect the weight to be attached to such evidence. Indeed in considering the weight to attach to the evidence of such witness, a trial court may have to take into account such factors as the nature of the evidence, its content, the veracity of the witness, the relationship of the evidence of the witness with that already given and whether it can be said that the evidence given by the witness is not from his personal knowledge but has been garnered by his presence in court whilst other witnesses testified.
How then do I answer issues (i) and (iii) in the circumstances I have not the slightest doubt that the answers are the affirmative; that is to say that having regard to the weight placed by the trial Judge on the evidence of PW5 and which was affirmed by the court below, the conviction of the appellant is reasonable. warranted and justifiable and also that the interpretation of section 285 (3) Criminal Procedure Act by the trial court was, in the circumstances correct.
There remains issue (ii) which is the last of the three issues – whether the admissions in the voluntary statements of the appellant relieve the prosecution of its duly of proving the case beyond reasonable doubt.
It was argued in the brief, by reference to Nwogu vs. The State All NLR 213 that the fact that the accused has admitted committing an offence does not automatically make him liable for the offence as such admission does not shift the onus of establishing the guilt of the accused. It was further argued that following the argument that the evidence of PW5 should not have been admitted the identity of the appellant had not been established beyond reasonable doubt.
For the respondent it was submitted that both lower courts accepted the two statements made by the appellant as confessional. The case of James Obi Achabua v, The State, (1976) 12 SC 63; (1962) 2 SCNLR 402 was relied upon for the submission that a confession alone is sufficient to support a conviction without corroboration so long as the court is satisfied of the truth of the confession. It was further argued that even if corroboration was required, the trial court held on page 39 lines 21 – 24 that apart from the confessions there were other pieces of evidence corroborating the confession. It was submitted by reference to the case The Queen vs, Obiasa (1962) 1 All NLR (Part IV) 651 that the pieces of evidence referred to in the trial court’s judgment made the confession probable. It was finally submitted that the prosecution had proved the case against the appellant beyond reasonable doubt.
In the court below the main plank of the appeal was whether the statements made by the appellant were confessions or not and that court dealt with the issue extensively from page 86 lines 6 to 92 and in the last paragraph the following conclusion was, rightly in my view, reached:-
“From the foregoing, it is my conclusion that Exhibit A – A1 is a confessional statement made by the appellant on 3/1/81. But Exhibit B-B1 made on 6/1/81 by the appellant is more detailed. In that statement he narrated how on 15/12/80 he, and three others, namely. Court, and Akawo from Abakaliki and Nwali Nwiko who lives at Ogiri Edda met and agreed to rob people outside Akaeze village where they will be easily identified. They took a solemn oath with hairs and blood from each of their bodies. kolanut and illicit gin which they mixed with ashes and drank”.
The court below went on, on page 94 to answer the issue – whether Exhibits A-A1 and B-B1 could be regarded as confessional statements, in the affirmative. In this court, it is clear that learned counsel for the appellant concedes that these statements are admissions because in formulating issue the word “admissions” has been used. It seems to me that the way the issue is formulated is really begging the question. It is trite law that a confession alone, even without corroboration can support a conviction so long as the court is satisfied that the confession is true – see for example James Achahua v. The State (1976) 10 NSCC 714; (1976) 12 S.C. 63 per Obaseki, J.S.C. (as he then was).
In answering the issue in the affirmative I wish to emphasise that it is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. For a confession to form the basis of a conviction it has to be shown to be free and voluntary, positive and proved to be true – see Jafiya Kopa v. The State, (1971) 7 NSCC 166: (1971) 1 All NLR 150.
All the issues having been resolved against the appellant, I find no merit in the appeal and it is dismissed. The conviction and sentence of the trial court affirmed by court below are further affirmed.
SC.35/1991
