Michael Peter V. The State (1997)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C. 

The appellant, Michael Peter and one Sule Iro (the third suspect having died while on remand) were arraigned before Hunponu-Wusu, J. sitting at Lagos Judicial Division of the High Court of Lagos State, on a one-count charge of the murder of one Maria Jonah, an infant, at Moroga Village, off Agege, Lagos State, an offence punishable under Section 319(1) of the Criminal Code. Cap.31 of Lagos State, 1973.

The appellant and the said Sule Iro, the latter against whom the charge laid was later withdrawn upon being reported dead, was accordingly struck out. In the trial that subsequently ensued, the prosecution called eight witnesses while the appellant for his defence, denied killing the deceased and called four witnesses.

The learned trial Judge after considering the evidence adduced by both sides, found the appellant guilty as charged; proceeded thereafter to convict and sentence him to death, which sentence was affirmed by the Court of Appeal (per Ayoola, J.C.A. reading the leading judgment and concurred in by Kalgo and Pats-Acholonu, JJ.C.A.). Hence this appeal which the following six issues were identified in the appellant’s brief as arising for determination, to wit:

1. Whether the Justices of Court of Appeal were right in holding that the trial Court complied with mandatory provisions of Section 215 of the Criminal Procedure Act. Having regard to the Supreme Court decisions in Kajubo v. State (1988) 1 NWLR (Pt.73) 721 S.C. Ewe v. State (1982) (sic) 6 NWLR (Pt. 246) 147 SC.
2. Whether the learned Justices of the Court of Appeal were right when they affirmed that the trial Judge complied with the provisions of Sections 154(1) and 182(1) of the Evidence Act before P.W.1, a child of 13 years testified as a competent witness for the prosecution.
3. Whether in the absence of the evidence of P.W.1, the remaining circumstantial evidence adduced by the prosecution at the trial and relied upon by the trial court irresistibly (sic) point to the guilt of the appellant, as affirmed by the Court of Appeal.

4 Whether the learned Justices of the Court of Appeal were right in holding that the defence of insanity does not avail the appellant

5. Whether the appellant confessed to the commission of the offence of murder in the circumstances of this case.
6. Whether the Justices of the Court of Appeal were right in holding that there were no contradictions in the case of the prosecution that vitiated the conviction of the appellant.

But for the respondent’s issues 5 and 6 which in their setting are juxtaposed to the appellant’s issues 5 and 6, all the issues formulated by the respondent are similar in purport to the appellant’s. Before I consider the issues formulated at the instance of the appellants which I adopt in my consideration of this appeal, it is pertinent if only briefly, to set out the facts of the case as follows:

That on April 11, 1986 the deceased and P.W. 1 , Rebecca Jonah, at the time a 9 year old person went down together towards the stream at Moroga Village, Agege when she saw a man whom she later identified to be the appellant, carrying a bag. That the appellant asked for their names and she told him. That the appellant ran to the stream, left the bag there and ran back to grab the deceased by the neck. Whereupon, she (P.W.1) enquired what they (she and her deceased sister) had done and then explained how her sister was snatched away and she went to call the police. She further described how she was still affected by the trauma of appellant’s grabbing of the deceased from behind by her neck which frightened her and how the distance between the stream and the village was about one mile. She further narrated how upon being herself grabbed, she struggled and extricated herself and ran away, adding that she was not present when the villagers searched for her sister, caught the appellant and brought him to the Bale’s house at which many people including herself had gathered; that finally, while she identified him there and then as their attacker, although unable to identify the 2nd accused.

Issue one was argued first. The appellant’s submission on it is that the procedure adopted in taking the pleas on the charge as read and explained to the two accused persons in the records upon arraignment failed to satisfy the requirements of the law. It is settled law, it is therefore argued, that for an accused to be properly arraigned before a trial Court the following procedure must be strictly followed:

“(i) The accused shall be present in court

(ii) That charge or information shall be read over to him in a language he understands.

(iii) The charge or information after being read in such language should then be explained to him to his understanding.

(iv) The trial court should satisfy himself (sic) that the explanation of the offence charged was adequate. It is after observing this procedure that he can then call upon the accused to make his plea thereon.”

The case of Kajubo v. State (1988) 1 NWLR (Pt.73) 721 was cited to buttress the above propositions.

It is thereafter contended that in the instant case, there is nothing in the records to show that the learned trial Judge saw to it that the charge was understood by the accused persons to his satisfaction. Neither is there anything in the record to show that the accused persons understood what the importance of the charge against them was all about before they made their plea, it is argued.

This, it is submitted, constitutes a breach of the constitutional right of the appellant to fair hearing as provided under Section 33(6) of the Constitution of the Federal Republic of Nigeria, 1979 and contrary to the provisions of Section 215 of the Criminal Procedure Act. And where the trial court failed to comply strictly with these mandatory provisions of the law with regard to arraignment of an accused as in the instant case, the whole trial should be declared a nullity, it is argued. The cases of Ewe v. State (1992) 6 NWLR (pt. 246) 147 and Kajubo v. State (supra), were cited to buttress the contention.

I take the firm view that in the instant case, there was substantial compliance with the provisions of Section 215 of the Criminal Procedure Law as laid down in Kajubo v. The State (supra). There is nothing on the record to indicate that the appellant did not know the nature of the offence he was called upon to defend.

Beside, too narrow an interpretation of the provisions and application of Section 215 of the Criminal Procedure Law would only serve to defeat the course of justice rather than enhance it. The Section provides:

“The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information or he objects to the want of such service and the court finds that he has not been duly served therewith,”

In Kajubo’s case (supra) which is easily distinguishable from the case in hand, the glaring omission there in the taking of the plea of the accused by the trial Judge was as follows:

“Court Registrar please take the plea of the accused.

Plea: Accused: Not guilty.”

And when the charge was amended on a subsequent date and the plea thereto taken, the learned trial Judge made the following notes:

“Court Registrar take the plea of the accused on the amended charge.

Accused: 1st Count: Pleads not guilty, 2nd Count; Pleads not guilty”

From the above extract of the record, it is manifest that it could not be said that due process had been complied with; nor could the record be protected by the application of the principle of “presumption of regularity,” because there was nothing to indicate what was read to the appellant therein or that it was read to him in a language he understood at all. This Court was therefore justified, in my opinion, to have held that the trial was a nullity. For as Wali, J .S.C. had the occasion to point out at page 479 of the judgment

“There is nothing to show that the charges were even read to the appellant by the Registrar as directed by the learned Judge, much less to talk of explaining the same in a language he understood.”

More recently, this court had the opportunity to examine in further details a similar procedure governing the arraignment of an accused person in its consideration of the provisions of Section 215 of the Criminal Procedure Law of Bendel State in pari materia with identical provisions of the Lagos State Criminal Procedure Law and Section 33(6) of the 1979 Constitution (ibid) now under consideration, in the case of Samuel Erekanure v. The State (1993) 5 NWLR (Pt. 294) 385 among others, including Kajubo v. The State (supra). Ewe v. The State (supra), Eyorokoromo v. The State (1979) 6-9 SC.3 and Okon v. The State (1991) 8 NWLR (Pt. 210) 424, which were followed. At pages 392-393 paragraphs H-E; page 396, in Erekanure (supra) wherein in allowing the appellant’s appeal and ordering a retrial, this Court set out the requirements that must be satisfied thus:

(a) the accused must be present in court unfettered unless there is a compelling reason to the contrary;

(b) the charge must be read over to the accused in the language he understands;

(c) the charge should be explained to the accused to the satisfaction of the court;

(d) in the course of the explanation technical language must be avoided;

(e) after the requirements (a) to (d) above have been satisfied the accused will then be called upon to plead instantly to the charge.

All the above requirements must co-exist and must be satisfied as they are mandatory. For as Olatawura, J .S.C. pungently pointed out in the case (Erekanure (supra) at page 393, paragraphs B-E of the Report:

“In this case on appeal and according to the printed record, there is nothing to show that the court fully complied with these requirements. The five requirements must be satisfied. They are mandatory. The best that could be seen to have been done was that the charge was read to the accused, but in what language If as it has been shown that it was read, was it explained to him No. There is nothing on record to show also that it was even read by the G registrar or an officer of the court. Where for instance no officer of the Court is capable of interpreting the charge in the language the accused person understands, a sworn interpreter is produced to explain the charge to the accused. As shown on page 26 of the printed record, the appellant spoke Urhobo language. The failure to comply fully or wholly with these requirements renders the trial a nullity. Eyorokoromo v. The State (1979) 6-9 SC.3. Quite apart from the requirements of Section 215 of the Criminal Procedure Law of the Bendel State of Nigeria 1976, the Constitution of the Federal Republic of Nigeria in Section 33(6) (a) provides:

‘Every person who is charged with a criminal offence shall be entitled:

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence.’

The Constitution safeguards the interest of those arraigned before the court by requiring strict compliance with this provision. The supremacy of the Constitution has never been in doubt and failure to follow its provision renders whatever was done contrary to it unconstitutional. It is so in this case.”

The arraignment from the record in the instant case, (see page 13 thereof), was to the effect that –

“The charge was read to each of the two accused persons in English Language. The charge was later interpreted to each of the two accused persons in Yoruba and each accused plead as follows:

1st Accused: I am not guilty

2nd Accused: I am not guilty.”

Commenting on the arraignment of the two accused persons, in his judgment, the learned trial Judge stated as follows:-

“The only count was first read and explained to each of the two accused persons in English language, then interpreted to each of the accused in Yoruba and each of them pleaded as follows:- 1st Accused: I am not guilty

2nd Accused: I am not guilty.”

What obtained or transpired in the cases reviewed or referred to above, cannot be said of the record in the instant appeal. Thus, applying the provisions of Section 150(1) of the Evidence Act, Cap. 112 Laws of the Federation 1990 which provide that –

“150(1). When any judicial or official Act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.” (Italics is mine for emphasis).

to page 10 of the record of proceedings, all the prerequisites for the validity of the proceedings as they relate to the procedure for the taking of a plea are in place and the mere omission by the trial Judge to state that he was satisfied that the appellant understood the charge as interpreted to them in Yoruba before they pleaded not guilty cannot, in my view, derogate from the whole proceedings being proper. See Ogbuanyinya v. Okudo (No.2) (1990) 4 NWLR (Pt. 146) 551.

Furthermore, Section 33(6) (a) of the Constitution of the Federal Republic of Nigeria, 1979 whose provisions are that:

Every person who is charged with a criminal offence shall be entitled –

(a) to be informed promptly in the language that he understands and in detail of the nature of the offence;

………”

and which stipulation is identical to and complement Section 215 of the Criminal Procedure Law under consideration would appear to me to have also been fully complied with. See in this regard the recent decision of this court in Edet Effiom v. The State (1995) 1 NWLR (Pt. 373) 507 wherein Iguh, J.S.C. rightly, in my view, observed at page 631, paragraphs B-D as follows:-

“It seems to me quite plain that the said mandatory condition laid down in Section 215 of the Criminal Procedure Law together with the provisions of Section 33(6)(a) of the 1979 Constitution have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial. I should stress that it is the duty of a trial court to ensure strict compliance with the said provisions by reflecting such compliance in the court’s record. See Josiah v. The State (1985) 1 NWLR (Pt. 1) 125.” (Italics above is mine)

Similarly, failure to observe strictly these mandatory provisions could equally result in the want of fair trial or hearing mentioned in the above quotation of my learned brother and against which Section 33(1) of the 1979 Constitution (ibid) frowns as given expression in numerous decided cases by this court to wit:

7Up Bottling Co. Ltd v. Abiola & Sons Ltd. (1995) 3 NWLR (Pt.383) 257; Provincial Liquidator, Tapp Industry v. Tapp Industry (1995) 5 NWLR (Pt. 393) 9; Funduk Engineering Ltd v. McArthur (1995) 5 NWLR (pt.392) 640; Yakubu v. Governor of Kogi State & ors. (1995) 8 NWLR (Pt.414) 386 and Isiyakul Mohammed v. Kano NA (1968) 1 All NLR 424, to mention but a few.

Issue No. 1 is accordingly answered in the affirmative.

The complaint in issue No.2 is whether the learned Justices of the Court below did not err in law when they sustained the trial Judge’s judgment that P.W.1, a child of 13 years, is a competent witness to testify and give sworn evidence for the prosecution as required by Sections 154(1) and 182(1) of the Evidence Act.

I wish to point out straight away that the purports of Section 154(1) and 182(1) of the Evidence Act (now Sections 155(1) and 183(1) Cap. 112 Laws of the Federation of Nigeria, 1990) are clear and unequivocal enough to invoke any confusion. Section 155(1) (ibid) provides that:

“All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.”

Section 183(1) (ibid), on the other hand stipulates that:

“In any proceeding for any offence the evidence of any child who is tendered as a witness and does not in the opinion of the court, understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.”

(Italics above is for emphasis.)

The need for such inquiry in the italicized words of Sections 155(1) and 183(1) above only arises where the trial Judge is of the view that by his/her tender age a witness ought not to be sworn and his/her evidence would then require corroboration. It was right of the learned trial Judge in the instant case to ab initio cause the witness to be sworn since at 13 years, she would reasonably be expected to understand the questions put to her and to understand the nature of the oath even though she would still be considered a person of tender age by judicial interpretation. See Juliana Ode v. The State (1974) 1 ANLR 411. The learned trial Judge’s impression of 1st P.W.’s competence to give clear, cogent and compelling evidence from the record to the events that led to her sister’s death from inception to the end of the case, was not in any way beclouded. I am of the opinion that he had therefore taken steps to satisfy himself that the relevant law was being complied with by the use of his discretion which was all he had to invoke, when he went ahead without entertaining any doubt of P.W.1 ‘s competence to testify as if an adult witness, to get her to be sworn and her evidence accordingly recorded. See the decision of this court in Isaac Sambo v. The State (1993) 6 NWLR (Pt.300) 399, a case of rape contrary to Section 283 of the Penal Code wherein, in a similar situation, one of the issues that came up for determination was whether it was mandatory for a trial court to conduct the usual preliminary test as to the capability of a child to testify before receiving the child’s evidence under Section 182(1) (now Section 183(1)) of the Evidence Act. That if the answer is in the affirmative, whether the Court of Appeal should not have quashed the conviction of the appellant based on the evidence of P.W.1 who was a child, which evidence was received by the trial court without conducting the preliminary test. Expatiating on the purport of Section 183(1) of the Evidence Act (ibid), Ogundare, J.S.C. quoting from G.B.A. Coker, J.S.C.’s decision in Okoye v. The State (1972) 12 SC.115, 125-126, observed that Section 183 of the Act is aimed at a child who does not understand the nature of an oath. Where, in the opinion of the court, a child understands the nature of an oath it is not necessary for the court to carry out further preliminary investigation for the purpose of ascertaining whether the child has sufficient intelligence to satisfy his giving such evidence and understands the duty of speaking the truth as prescribed by Section 183 of the Evidence Act. Cap. 112 Laws of the Federation of Nigeria, 1990. Thus, although in Sambo v. The State (supra) the appellant’s appeal was allowed, in the instant case, I will be loath to interfere with the discretion exercised by the trial court which the court below, rightly in my view, affirmed-both findings which amount to concurrent findings of facts. By failing to carry out preliminary investigation before taking the evidence of P.W.1, in the instant case no error of a fundamental irregularity rendering the evidence so received worthless and of no use as in Sambo v. The State (supra) and Agenu v. The State (1992) 7 NWLR (Pt. 256) 749 respectively.

On issue 3, the appellant’s contention is that the circumstantial evidence led by the prosecution was not conclusive, strong and irresistible enough as to leave no room for doubt as to the guilt of the appellant in respect of the alleged murder of the deceased. I am of the respectful view in the case in hand that formidable, complete and unbroken chain of events point unequivocally to the involvement of the appellant in the murder of the deceased. While I agree that there is no direct testimony or an eye-witness account of the actual killing, the following aspects of the evidence borne out by the record, put the matter beyond any reasonable doubt:-

(a) that it was the appellant who grabbed the deceased by the neck and prevented her from running away as her sister, P.W.1 did;

(b) that shortly after this fact of assault and restraint, the deceased was found brutally murdered;

(c) that the appellant was arrested in the vicinity of the murder shortly after P.W.1 had reported the assault on her and the deceased; and

(d) that it was the oral and written confession of the appellant that led to the arrest of the other two co-conspirators;

These facts, in my view, are clearly sufficient for the learned trial Judge to arrive at the conclusion of guilt on the part of the appellant, moreso that no other person was seen around the scene of crime apart from the appellant and his comrades in crime as disclosed in appellant’s confessional statement (Exhibits “D” and “E”). This court has upheld the inference drawn by a trial court that the accused who was last seen with the deceased, as in the insant case, killed the deceased. See Peter Igho v. The State (1978) 3 SC. 87 and Uche v. The State (1973) 1 All NLR (Pt.11) 181. Indeed, a long line of cases beginning with R. v. Sala Sati (1938) 4 WACA 10 has laid it down that to support a conviction on the question of circumstantial evidence, it must not only be cogent, complete and unequivocal, but compelling and lead to irresistible conclusion that the prisoner and no one else is the murderer (see Yongo v. C.O.P. (1992) 8 NWLR (Pt.257) 36 and Alake v. The State (1992) 9 NWLR (Pt.265) 260. It must leave no room for reasonable doubt. See Joseph Lori & Anor v. The State (1980) 8-11 SC.81; Uwe Esai & Ors. v. The State (1976) 11 SC.39; Paulinus Udedibia & ors v. The State (1976) 11 SC.133 at 138-139 and Ogwa Nweke Onah v. The State (1985)3 NWLR (Pt.12) 236.

As this court had occasion also to point out in Onah v. The State (supra), before a person can be convicted upon circumstantial evidence, such evidence must be so mathematically accurate that it points to the one and only irresistible conclusion that that person was the one responsible for the offence for which he has been charged. In the instant case, there is the evidence of opportunity and the appellant by his statement (Exhibits ‘D’ and ‘E’) provided the motive.

Thus, in the case of Valentine Adie v. The State (1980) 1-2 SC.116 at 146, Obaseki, J.S.C. adopted with approval this court’ s earlier decision in Stephen Ukorah v. The State (1977) 4 SC.167, (per Idigbe, J.S.C.) quoting the dictum of Humphrey, J. in Rex v. Miao from Wills Circumstantial Evidence 7th Edition (1936) page 224 which defines circumstantial evidence as follows:-

“Circumstantial evidence is as good and sometimes better than any other sort of evidence and what is meant by it is that there are number of circumstances which are accepted so as to make a complete unbroken chain of evidence. If that is established to the satisfaction of the jury, they may well and properly act on such circumstantial evidence.”

And in the Privy Council case of Teper v. The Queen (1952) AC.480, their Lordships held at page 489 inter alia that:

“It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no coexisting circumstances which would weaken or destroy the

inference.” See also Philip Omogodo v. The State (1981) 5 SC.5 at 24; Igboji Abieke & Anor v. The State (1975) 9-11 SC.97/104 and Edobor v. The State (1975) 9-11 SC.69/76.”

This was also the position adopted by this Court in Kalu v. The State (1993) 6 NWLR (Pt. 300) 385, and significantly, the trial court in this case went further to stress the onus on an accused person to rebut the guilt based on circumstantial evidence by a preponderance of probabilities. Clearly in this case nothing was offered by the appellant by way of rebuttal except a bare denial. Indeed, where as in this case, the circumstantial evidence led is overwhelming and leads to no other conclusion, it leaves no room for acquittal. See Edet Obosi v. The State (1965) NMLR 129; R. v. Taylor, Weaver v. Donovan 21 CR.APP.R.20 at 20 and Okoro Mariagbe v. The State (1977) 3 SC.47 at 52.

This issue is accordingly answered in the affirmative.

The question posed in issue 4 is whether the learned Justices of the court below were right in holding that the defence of insanity does not avail the appellant. It is pertinent to point out here that a key element of the defence of insanity is missing in this case, namely an admission by the appellant that he committed the offence but that his liability ought to be mitigated by reason of insanity. For instance, part of what he said in Exhibit ‘E’ (his confessional statement whose Yoruba original version is Exhibit’ D’) clearly bereft of a defence of insanity, states as follows:-

“In the evening of 10th April, 1986, at about 6.00 p.m a friend of mine named or called Baba Sule came to me at my working place at Oju-ore Otta, Ogun State. He Baba Sule told me that on the 11th April, 1986, I will accompany him to his farm to help him work. I agreed to accompany him. But I told him that if I follow him to his farm and work, I will collect N500 for the day. He Baba Sule agreed to pay me N500 for a day after work. Today being 11th day of April 1986, at about 7.30 am Baba Sule came to me in my working place.

He took me to a bush where he told me to be his farm, together with his son Sule, on our way when we to the bush, Baba Sule hide me and his son Sule inside the bush, as I and Sule were in the bush Baba Sule was still standing by the roadside. Not quite some minutes two young girls were passing along the road in the bush we were. Baba Sule was at the road by then. Immediately the two girls get to the spot where we were hiding. I, Michael was the one who hold one of the girl, while the other one girl ran forward. Baba Sule got hold of the girl from me, we both took the girl inside the bush. When we got inside the bush, Baba Sule brought out a knife from his armpit and murdered the girl by the neck. When the girl have already dead, Sule brought out a knife and shave or remove the girl’s private part. He kept the private part removed in his left hand…

As we were going, we saw a crowd of villagers or “village people” coming toward us. Baba Sule gave another order that everybody should find his way. Baba Sule and Sule ran helter-skelter into the bush while I ran to the main road. On my way going on the main road the villagers get hold of me. They ask from me where I am coming from, I told them I was coming from the farm, they ask from me further were am I going to. I told them I want to go and buy something. They held me and ask me to take them to where we work on the farm. That is why I took them to where Baba Sule kept us in hiding. On getting there, they took me to where the girl’s dead body was dump, getting there, we met the girl’s dead body there.

That is were the villagers started beating me. They took me before the village head “Baale’s house. They sent for the second girl who identify me to be the one that held the murdered girl by the arm……”

From the foregoing, there is therefore, in my firm view, no derogation from the story as told by the appellant in Exhibit ‘E’ which is through and through confessional in nature vis a vis the account proferred by the prosecution, thus making the proof of the latter’s case, albeit circumstantial with the accuracy of mathematics. It is worthy of note, however, that in his evidence before the trial court, the appellant made a complete denial of his involvement in the killing of the deceased. It is my firm view that the issue of his possible insanity, let alone a defence to that effect, goes to no issue. The provisions of Section 28 of the Criminal Code, in my respectful view, can only be relied upon by a person who accepts responsibility for the act complained of. In the instant case, the appellant raised neither the defence of insanity nor insane delusion and the learned trial Judge, in considering the issue was merely following the injunction that every element of a defendant’s case, be it stupid, fanciful or doubtful should be considered in coming to a final conclusion. See R. v. Barimah (1945) 11 WACA 49; R. v. Braimah 9 WACA 197; Bozin v. The State (1985) 2 NWLR (Pt.8) 465 at 481 and Nwuzoke v. The State (1988) 1 NWLR (Pt.72) 529. Put at its highest, the appellant’s statement referred to above would appear to suggest amnesia but it is settled law that an appellant’s ipse dixit cannot form the basis of a finding of insanity. See Onyekwe v. The State (1988) 1 NSCC (Vol. 19) 371; (1988) 1 NWLR (Pt72) 565 and Saliu v. The State (1984) 1 NSCC (Vol. 15) 640. In this respect also, the submission in relation to the testimony of D.W.2 – appellant’s sister-that both she and appellant went to church together; that appellant left before her, as well as the appellant’s own testimony tending to corroborate same as amounting to his (appellant) rebutting the presumption of sanity, are all, in my view, irrelevant. Nor was the heavy reliance placed on the evidence of the appellant’s brother-in-law/herbalist (D.W.4) as to the appellant’s alleged unbalanced state, of any avail since nowhere is any evidence given as to such mental state preceeding the murder as required by law. See Onyekwe v. The State (supra). While D.W.4 (herbalist) stated that he treated the appellant in August, 1985 – a full nine months before the event- D.W.2 (appellant’s sister) made no mention whatsoever of his (appellant’s) mental state on the fateful day save to say boldly that she took him to church and that he left her behind there during the service without her knowledge. These pieces of evidence, in my opinion, do not in any way amount to a rebuttal, if any; the presumption of sanity at the time of the commission of the offence as provided by Section 27 of Criminal Code, nor do they establish the elements of legally cognizable insanity. The learned trial Judge was therefore right, in my view, in rejecting the weak and purported after-thought defence of insanity. Issue 4 is accordingly answered in the affirmative.

Issue No. 5 which is considered next enquires whether the appellant confessed to the commission of murder in the circumstances of this case.

In arguing this issue appellant submitted inter alia that it is settled law that for a confession to be admissible and effective for the conviction of an accused, it must be shown to be direct, free and voluntary as well as positive and proved to be true. Section 27(1) of the Evidence Act and the case of Abasi v. The State (1992) 8 NWLR (pt 260) 383 were called in aid. A confession made after threat, inducement or beating, it was contended, cannot be said to be voluntary, adding that where an accused made a confessional statement only after he had been beaten, the confessional statement thus made is involuntary and therefore cannot be admitted in evidence against the said accused. The cases of The State v. Mali Audu (1971) NMLR 9 and Alhaji Isiyaka Mohammed v. Kano NA. (1968) 1 All NLR 424 were cited to buttress the argument. In the instant case, the contention is that the alleged confessional statement made by the appellant failed to satisfy the requirement of the law with regard to admissibility of confessional statement vide Sections 27 and 28 of the Evidence Act. It was maintained that in his defence, the appellant testified that the alleged confessional statement was made after being beaten by the villagers and at the two police stations that when the doctor saw him, he advised that he be taken to the clinic. In reply, the respondent urges that it was not the complaint of the appellant during the trial-within-trial on the admissibility of the statement (Exhibit D) on 16/4/86 when he made it that it was due to the beating he received from villagers five days earlier but rather, that he made it due to the beating he received from the police. I am inclined to accept the view that the learned trial Judge accepted neither the fact that there was beating both by the villagers nor the police; rather he held that it was indeed the police that saved the appellant from the further beating and even took him to the police clinic for treatment.

Be it noted that a confessional statement becomes proof of an act when it is true, positive and direct. See Ofoha v. The State (1976) 1 Sc. 55-59.

A voluntary statement stating or suggesting the inference that he committed the offence for which he is charged is relevant and admissible against an accused, as in the instant case, provided that it was not made as a result of any threat, promise or inducement from a person in authority. See Ode v. The State (supra).

Also, any voluntary information given by the accused at any time even during investigation which leads to the discovery of any fact material to the charge against him is equally admissible. So stated Idigbe, J.S.C. in Onungwa v. The State (1976) 2 SC.169 at 173-174.

Thus, a confession as in the instant case, does not become inadmissible as evidence merely because the accused denies having made it. Even though the appellant herein seeks to impugn and reject Exhibit ‘E’ it is the law that a confession made to the police by a person under arrest is not to be treated differently from any other confession. See The Queen v. John Agariga Itule (1961) 1 All NLR (Pt.3) 462; (1961) 2 SCNLR 183; Stanley Idigun Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383. What becomes manifest from the record in the case in hand is that the learned trial Judge, in my view, followed all the laid down criteria in admitting and evaluating the confession which, having stood up to the tests enunciated in numerous earlier judicial precedents, I see no reason to disturb the finding thereon as well as the conviction of the appellant confirmed by the court below.

My answer to the issue considered above is therefore rendered in the affirmative.

Last to be argued is issue No.6 wherein the appellant’s grouse is whether the Justices of the court below were right in holding that there were no contradictions in the case of the prosecution that vitiated his conviction.

The main complaint of the appellant here hinges on the point that the learned Justices of the court below erred in law when they convicted him in the face of irreconcilable contradictions in the testimonies of the prosecution witnesses which ought to have raised reasonable doubts moreso, that they are fatal to the case of the prosecution.

It is enough to say that the appellant has attempted at pages 15 and 16 of his brief to raise the issue of material contradictions as between the evidence of P.W.1, P.W.2 and P.W.3 regarding the number of people who killed the deceased. There is, in my opinion no contradiction in the evidence of these witnesses. For, while P.W.1 gave evidence of the fact that she saw only the appellant grabbing her sister (the deceased) by the neck before making her escape from the looming clutches of the appellant, P.W.2and P.W.3 merely related their belief in the fact that the three original suspects (appellant inclusive) were those who killed their daughter (the deceased). At best, such evidence emotionally-laden as it could be, can be described as hearsay which could well be expunged even at the appeal stage in this court and not a material contradiction of the essential fact of the actions of the appellant prior to the killing as related by P.W.1. The direct evidence on which there is no contradiction is that the appellant grabbed the deceased while chasing her (P.W.1) and the deceased; that appellant grabbed the deceased by the neck; that she was found murdered thereafter; that the appellant was the last person seen with the deceased before her corpse was discovered in a nearby lonely bush; that P.W.1 identified him immediately she saw him with the villagers after his arrest that he confessed voluntarily orally and in writing to the commission of the crime and that he (appellant) spontaneously exposed and related the roles of the other two suspected persons. The fact that P. W.1 saw only one person just before she escaped does not amount to a contradiction, moreso that the fact revealed by the appellant himself showed unmistakably that there were two others involved in the dastardly act. Indeed, regard must be had to the fact that the events took place in a bushy area which could easily harbour the other miscreants.

I see no irreconcilable evidence creating a doubt as to which or which persons killed the deceased. In effect, there were, in my view, no contradictions or doubt created to necessitate a resolution of same in the appellant’s favour. See Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455.

This issue is also accordingly resolved against the appellant.

In conclusion, this appeal fails and it is dismissed by me. The decision of the Court of Appeal which affirmed the decision of the trial court is hereby confirmed.

---

SC.23/1996