Lukman Adeyemi V. State (2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Ibadan delivered on the 16th day of November, 2011 allowing the appeal of appellant but ordering a retrial after declaring the trial a nullity due to the fact that the accused persons, including appellant, did not plead to the charge before trial.

It is the case of the prosecution that appellant together with two others conspired to murder and did murder one Maria Adeniyi on the 15th day of July, 2000. Appellant made a confessional statement which was tendered and admitted at the trial though appellant denied making it. The deceased was invited by appellant to work for them in their block making site as a labourer on 15th July, 2000 but when the deceased failed to return home after close of work her husband, PW1 organised a search party, after reporting the matter to the police but the search yielded no positive result.

The deceased was subsequently declared missing. The prosecution contends that appellant and his co-accused persons, including appellant in SC/485/2011, had sex with the said Maria Adeniyi, a.k.a Iya Ibeji before cutting off her head and private parts which included her breast, after which they buried her body in a grave around the site. Appellant’s confessional statement was admitted, along with those of the co-accused persons after a trial within trial as they objected to their admission, though appellant later withdrew his objection.

As stated earlier, appellant and the co-accused persons were convicted of the offences and sentenced to death by hanging. The judgment of the trial court was however set aside on appeal giving rise to the instant further appeal, the issue for the determination of which has been identified in the appellant brief filed by learned counsel for appellant OLUSOLA O. IDOWU ESQ, as follows:-

“Whether from the circumstances and evidence led at trial, it is proper and appropriate to order the appellant to go through a fresh trial on this charge”

In arguing the appeal, learned counsel submitted that the order of retrial made by the lower court is not supported by the circumstances of the case, the evidence led and the principles laid down in judicial decisions; that the principles for ordering retrial is as laid down in Abodunde v. The Queen 4 FSC 70 and Kajubo v. State (1988) 1 NWLR (Pt.73) – 721. Which the lower court wrongly applied to the facts of this case; that no prima facie case was made against the appellant; that the confessional statement, Exhibit “C” ought not to have been admitted.

It is the further contention of learned counsel that the evidence adduced at the trial by the prosecution was riddled with conflicts and inconsistencies; that the brother-in-law and IPO at Sango-Otta who first saw the corpse were not called to testify, which, counsel submitted “left a doubt in the case of the prosecution”, and that the doubt ought to have been resolved in favour of appellant, relying on the case of Ogunsi v. State (1994) 1 NWLR (Pt. 322) 583 at 592.

It is also the contention of learned counsel that a second trial will work injustice on the appellant as it will give the prosecution an added advantage; that the only/sole witness available to the prosecution is PW1, the husband of the deceased, and that appellant should not be subjected to an oppressive retrial that would serve no useful purpose; that it will be oppressive to retry appellant ten years after he was first charged to court and urged the court to resolve the issue in favour of appellant and allow the appeal.

On his part, learned counsel for respondent submitted that the lower court took the correct decision by ordering a retrial in the circumstance of the case; that the non-taking of plea of appellant and the other co-accused rendered the first trial and conviction a nullity which nullity cannot ground an order of discharge and acquitted at the same time; that Exhibit “C”, the confessional statement of appellant was admitted without objection at the first trial.

It is the further submission of counsel that a prima facie case was made out against appellant at the trial and that Exhibit “C” was properly admitted.

Learned counsel also contended that the offences with which appellant was convicted are very grievous ones, the punishment of which is death; that the interest of justice would be served if the order of retrial is affirmed by this court; that the fact that it is ten years since appellant was first charged is irrelevant having regards to the gravity of the offence charged, relying on the decision in Yahaya v. The State 9 NSCQR at 36, per UWAIS CJN and urged the court to resolve the issue against appellant and dismiss the appeal.

It is not disputed that no plea of appellant and his co-accused persons was taken upon arraignment by the trial court before the court proceeded to hear evidence and conduct a full trial and entered judgment convincing and sentencing appellant and his said co-accused persons to death for the offences of conspiracy to commit murder and murder. The judgment resulted in an appeal in which it was contended by the appellant, inter alia, that the entire proceeding was vitiated by the failure of the trial court to take the plea of appellant and his co-accused persons which contention was upheld by the lower court as a result of which the court ordered a retrial. The instant appeal and the sole issue for determination is on whether the lower court was right in ordering a retrial instead of discharging and acquitting appellant.

The conditions that must be fulfilled before an order of retrial can be made by an appellate court include:

(a) that leaving aside the error or irregularity in the proceeding, the evidence taken as a whole discloses a substantial case against the appellant;

(b) that the offence(s) of which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trial;

(c) that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it;

(d) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; and,

(e) the reason for declaring the trial a nullity and the overall interest or justice are also the relevant – see the case of: Kajubo v. State (1988) 1 NWLR (pt. 73) 721; Uche v. The State (1999) 7 NWLR (pt. 609) 1.

Upon considering the appropriate order to be made upon the trial being declared a nullity, the lower court held at page 79 of the record as follows:-

“Having gone through the record of proceeding, it is clear from the evidence of PW1 and PW2 that there, is nexus between the acts of the appellants and the death of the deceased. Appellant made confessional statements admitting the offence. In my humble opinion a prima facie case has been made against all the appellants and this has satisfied condition (a).

On condition (b), the fact that the appellants have been in custody since the date of arrest till now cannot amount to sufficient punishment for the offences to render a retrial oppressive. If the circumstances of both the appellants and the deceased are considered together, the order of retrial should not be regarded as oppressive.

On condition (c), the offence or offences of which the appellants have been convicted and sentence are not trivial. The offence of murder carries capital punishment. The years stayed in custody awaiting trial cannot be regarded as sufficient punishment for the offence of murder.

On condition (d), to order their acquittal will not meet the justice of the case.

On condition (e), the appellants’ right to freedom has to be weighed against the security of the general public who are entitled to be protected from murderers. Justice is not to the appellants alone, it is also for the deceased who is crying in her lonely grave for justice to be done to those who killed her in a gruesome manner and also to the public at large. In the case of Yahaya v. The State 9 NSCQR at 36, the learned justice UWAIS CJN as he then was said on page 18 (sic) thus:

“I accept that to remain in prison custody for ten years awaiting trial is outrageous and is such a long period that should undoubtedly evoke sympathy and concern. However the nature of the offence with which the appellant is accused is murder, is so grave that there is no offence under our laws which carries heavier sentence. As it has been stated elsewhere, Justice is not for the accused only. Therefore, if the circumstances of both the accused and the victims are considered together, the order of fresh trial should not in my opinion be regarded as oppressive. Besides in our laws, a sentence of 10 (ten) years is not regarded as sufficient punishment for murder.”

Can it be said that the above finding/holding is not supported by the facts and circumstances of this case I do not think so.

It is not in doubt that appellant made a confessional statement to the police which was later tendered and admitted in court as Exhibit “C” which is copied at pages 18 and 19 of the record. Exhibit “C”, clearly established a nexus between appellant and the commission of the offence(s) charged and it is trite law that a trial court can convict solely on the confessional statement of an accused person. With the said Exhibit “C”, there is clearly a prima facie case made out against appellant which necessarily calls on appellant to offer some explanations. He can only do that at the trial de novo as ordered by the lower court.

In the circumstance, I hold the considered view that the lower court was right in ordering a retrial of the charge after holding that the trial leading to the conviction and sentence of appellant was a nullity due to the failure of the trial judge to take the plea of appellant upon arraignment. The order of retrial was not based on insufficiency of evidence which might have influenced the court to consider the possibility of discharging and acquitting appellant as urged by counsel for appellant.

It should be noted that the fact there exists contradictions in the evidence of the prosecution in an aborted trial cannot be relevant to a consideration as to whether the case should be retried after the first trial has been declared a nullity as everything that took place in the earlier trial goes with the nullity.

Secondly it is very strange and irrelevant for appellant to contest the admissibility of a confessional statement upon appeal when same was admitted without objection and when the trial in which the said statement was admitted had been declared null and void!! Even if the confessional statement is held to have been wrongly admitted in an aborted trial, of what use would that be to the appellant

I consequently find no merit in the issue which is accordingly resolved against appellant.

In conclusion I find the appeal devoid of any merit and is consequently dismissed by me.

PC.486/2011