Monsuru Solola V. The State (2005)
LAWGLOBAL HUB Lead Judgment Report
D.O. EDOZIE, JSC
The 1st and 2nd Appellants as 1st and 2nd accused persons respectively, together with two others, namely Latifu Solola (3rd accused) and Kabiru Solola (4th accused) were initially jointly arraigned at the High Court of Justice, Abeokuta on a two count information with the offences of conspiracy to murder in count one and murder in count two contrary to sections 324 and 316 respectively of the Criminal Code Law (Cap 29), Laws of Ogun State of Nigeria 1978. The particulars of the offences alleged that they with others at large on or about 12th April, 1994 at Igbore in the Abeokuta Judicial Division conspired to murder and did murder one Semiu Gboyega. Each of the four accused persons pleaded not guilty to the charge. Before the trial, the charges against the 4th accused Kabiru Solola were withdrawn and he was used as witness for the prosecution No.2. Thereafter, the trial against the 1st, 2nd and 3rd accused persons continued at the end of which they were all convicted as charged and sentenced to death. Their appeals to the Court of Appeal, Ibadan Division were dismissed. Thereupon, each of the 1st and 2nd Appellants, herein has lodged a further appeal to this court. Latifu Solola the 3rd accused at the trial court and 3rd Appellant at the court below filed no appeal before this court. Nevertheless, he will be referred to hereinafter as the 3rd Appellant.
As stated above, the charges against the 4th accused were withdrawn and he was used as a witness for the prosecution apparently because he was an innocent agent in the commission of the offences charged. As a child of 12 years of age, he is a relation to the Appellants, in that, he is a junior brother of the 1st Appellant, cousin of the 2nd Appellant and the son of the 3rd Appellant. Giving evidence as the star witness for the prosecution, he Kabiru Solola (P.W.2) a child of 12 years of age gave a sworn evidence to the effect that on the fateful day, that is, 12th April, 1984, he was sent by the 1st, 2nd and 3rd Appellants to go and call Semiu Gboyega, the deceased his playmate and a boy with a hunch back under the pretext that they wanted to send him on an errand. The message was conveyed to the deceased in the presence of his father and the unsuspecting deceased was allowed to accompany the P.W.2 who subsequently delivered the deceased to the Appellants and was asked to leave. P.W.2 later left the scene after arranging with the deceased for both of them to meet in the house of Buraimoh their common friend. After waiting for sometime without seeing the deceased, the P.W.2 approached the 3rd Appellant his father to enquire about the deceased but was told that the deceased had left for his home. The following day, the father of the deceased confronted, the P.W.2 on the where about of the deceased. A report was made to the police and the report was recorded as one of a missing child. The P.W.2 observed that his father the 3rd Appellant who used to give him N5 for school then gave him N10.00.
In the night of 14/4/94 between 10p.m. and 11p.m., a woman Bolajoko Oshundeyi (P.W.3) who lived near the Appellants smelt an offensive odour and heard the sound like the opening of the roof of the house from the direction where the Appellants lived. She looked out and saw the 1st Appellant as he dropped the corpse of the deceased. She gripped the 1st Appellant and raised an alarm which attracted other neighbours including Oludotun Awaye (P.W.4) alias Baba Ese. She observed that the head of the deceased had been shaved and the hunch at his back severed.
Sergeant Jasper Agamagrah (P.W.5) was the Investigating Police Officer (IPO) at Divisional Crime branch Ibara who on 13/4/94 received the report made by Dauda Adegboyega that his son the deceased was missing. In the company of other police detectives he searched the houses of the 3r Appellant at 42 Igbore Road. All the rooms in the house were searched except one room which the 1st and 3rd Appellants told them the occupant was in Lagos. The following day, the case was transferred to Eleweran police station where another IPO Sergeant Alfred1’Adeleke (P.W.6) took over the investigation of the case. He, P.W.6, took the statement of the 3rd Appellant under caution. The English and Yoruba versions were admitted as Exhs. C-C1, On 15/4/94, the 1st Appellant was arrested and after being charged and cautioned he volunteered a statement and this being a confessional statement, it was endorsed by a superior police officer as having been made voluntarily. The Yoruba and English versions of the statement were admitted as Exhibits D-D1 respectively after a mini trial. The statement of the 2nd Appellant were admitted in similar circumstances as Exhs. E-E1
The 1st and 2nd Appellants on 19/4/94 made additional statements admitted in evidence after a mini trial as Exhibits G-G1 and H-H1 respectively. On investigation of the case, the IPOs discovered the corpse of the deceased by the side of the house of the 3rd Appellant. Post mortem examination of the deceased was performed by Dr. Ekundayo Adefenwa Sobowale (P.W.I). In his opinion, the cause of the death of the deceased was due to haemorrhagic shock as a result of acute loss of large volume of blood due to the removal of the deceased’s hunch back.
As noted earlier on, all the three Appellants were convicted as charged by the trial court and their convictions were affirmed by the court below. Before this court, each of the 1st and 2nd Appellants has pursuant to his appeal filed separate briefs of argument and in response, the Respondent has filed separate briefs. For the consideration of the appeals, I will adopt the issues as formulated in the Respondent’s briefs, which I consider encompasses the issues contained in the 1st and 2nd Appellants’ briefs. The issues identified by the Respondent in respect of the 1st Appellant’s appeal are:-
“1. Whether the Court of Appeal was right in holding that the trial court had substantially complied with the provisions of section 215 of the Criminal Procedure Law (Cap 30) Laws of Ogun State of Nigeria, 1978 and section 3(6)(a) of the 1979 Constitution.
Whether the Court of Appeal was right in holding that the trial court had rightly admitted and relied on Exhibits D-D1 and, G-G1 being the confessional and additional? statements of the 1st Appellant”
Whether the Justices of the Court of Appeal were right when they held that the evaluation and appraisal of the evidence of the defence before that of the prosecution by the trial court had not shifted the burden of proof on the 1st Appellant and other accused persons.
Whether the Court of Appeal was right in holding that the pronoun-cements of the trial Judge on the offences of conspiracy and murder was not substantial to warrant reversal of the decision of the court.”
In respect of the 2nd Appellant’s appeal the issues as identified in the Respondent’s brief which are identical with those formulated in the 2nd Appellant’s brief are as follows:-
“1. Whether the 2nd accused was lawfully arraigned in accordance with the mandatory provisions of section 215 of the CPA.
Whether by virtue of section 155 of the Evidence Act, P.W.2 was a competent person to testify in the trial of the 2nd accused?”
Whether the evidence relied upon by the Court of Appeal was sufficient to affirm the conviction of the 2nd accused for the murder of the deceased?”
Respondent’s first issues in both briefs are identical and relate to compliance with the mandatory provisions of section 215 of the Criminal Procedure Law (CPL) of Ogun State (Section 215 CPA).
The submission on behalf of the 1st Appellant is that the record did not indicate in what manner or language the charge was read to the 1st Appellant and whether or not he understood same. In respect of the 2nd Appellant it was contended that although he was an illiterate who could only communicate in Yoruba language, the charge against him was read in English language at a time he had no legal representative. For there to be a valid trial, there must be a proper arraignment in terms of the procedure laid down in section 215 of the CPL supra. The requirement of this provision or identical provision has been judicially considered in a plethora of the decisions of this court. These requirements are to the effect that the charge must be read over to the accused in the language he understands; and the charge must be explained to the accused in “the language he understands to the satisfaction of the court before he is called upon to plead to the charge: see the cases of Erekanure v State (1993)5 NWLR. (Pt.294) 385; Kajubo v State (1988) 1 N.W.L.R. (Pt.73) 721. In the instant case, the record shows that the 1st and 2nd Appellants were arraigned on 20th March, 1995 in the absence of their counsel and they pleaded not guilty. The charge was subsequently amended and they pleaded not guilty in the presence of their counsel. Although it is not recorded that the charge was explained to them, it does not seem that the record to that effect is contemplated by the provision of section 215 CPL. In the absence of any evidence to the contrary, when the charge is read to the accused person and he makes his plea and the court records his plea and thereafter proceeds to trial, the presumption is that the court is satisfied that the charge was explained to the accused to its satisfaction: see Okoro v The State (1998) 14 N.W.L.R. (Pt.594) 181 where the court per Wali, JSC put the matter succinctly thus:-
“The provision of the law should not be stretched to a point of absurdity by reading into it that the Judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the Judge to do that, as no Judge will take the plea of an accused if he is not satisfied that the charge was read and explained to the accused to his satisfaction.”
The object of an arraignment in terms of section 215 of the CPL is to ensure that justice is done to the accused by ensuring that he understands the charge against him and so as to enable him to make his defence. But it must be borne in mind that justice is not a one way traffic. Justice must be done to the state as well as the victim of the brutal murder. In this case, the deceased was murdered on 12/4/94.
Thereafter the Appellants were arrested and charged with the murder. They made statements in that regard and had been in custody till the 20th March 1995 when they were arraigned. It would be absurd to suggest that when the charge was read to them they did not understand what it was all about. To capitalise on the absence of a record of the explanation of the charge is to cling on unnecessary technicality to defeat the ends of justice. This will not be allowed to occur in this appeal. I agree with the court below that there was a substantial compliance with section 215 of the CPL and section 36 (6)(a) of the 1979 Constitution. The Appellants’ appeals on this issue fail.
The Respondent’s second issue in respect of the 1st Appellant’s appeal relates to the admissibility of Exhibits D-D1 and G-G1 being the confessional and additional statement of the 1st Appellant. The contention under issue 2 of the 1st Appellant’s brief is that the P.W.2 (DSP Aremu) and the 1st Appellant did not testify on oath at mini trial before Exhs. D-D1were admitted and similarly that none of the prosecution witnesses testified on oath before the additional statements of’ the 1st Appellant were admitted.
Furthermore, issue 4 of the 1st Appellant’s brief complained about the statements Exhibits D-D1, G-G1, E-E1; and H-H1 being used as corroborative evidence of one another. The printed record shows clearly that Sgt. Alfred Adeleke (P.W.6) who testified throughout the mini trial did so on oath. Admittedly, DSP Aremu who testified as P.W.2 in the mini trial was not sworn nor was the 1st Appellant. By section 4(3) of the Oaths Act, the failure to administer oath on a witness before giving evidence is a mere irregularity which does not affect the decision arrived at on that evidence unless it has been shown to occasion a miscarriage of justice: see the case of Anatogu v Iweka II (1995) 8 N.W.L.R. (Pt.415) 547. The mere fact that DSP David Aremu (P.W.7) gave unsworn evidence during the mini trial in respect of the admissibility of the confessional statements is immaterial. In reaction to this aspect of the complaint, the court below at p.224 lines 12,18 reasoned thus:-
“The only limitation in this event, even where the testimony of P.W.2, D.S.P. Aremu is for the court below to treat the confessional statement with considerable caution: Queen v Sapele (1957) 2 FSC 24.”
That statement represent the correct statement of the law, that is, that it is not a rule of law that the confessional statement of the accused person should be taken to a superior police officer in order that the accused may deny or admit making the statement: See R. V. Omerewure Sapele (1957) 2 FSC 24. Learned counsel for the 1st Appellant dealing with the 4th issue in his brief had submitted that the trial court was in error to have used the 1st Appellant’s statements exhibit D-D1, G-G1 and those of the 2nd Appellant that is, Exhibits E-E1 and H-H1 as corroborating each other. It is well settled that a voluntary confession or statement of an accused is deemed to be relevant and admissible against its maker and not against another: see Durugo v The State (1992) 7 N.W.L.R. (Pt:225) 525 at 541 Ikemson v The State (1989) 3 N.W.L.R. (Pt.110) 455 at;476. In the instant case, the trial court considered the effect of the confessional statement of the Appellants and at p. 120 lines 1 to 10 held –
“I am satisfied that the confessions of the 1st and 2nd accused as contained in exhs D-D1 and G-G1 on the one hand and E-E1 and H-Hl on the other hand are free and voluntary confessions which are direct and positive ………………. and same have been properly proved to be so and that each of the 1st and 2nd Appellant” could be convicted on them. The simple fact that the confessional statements were later retracted by these accused persons is not a ground for rendering the statements inadmissible on evidence as canvassed on their behalf: see Ojegele v State (1988) 1 N.W.L.R. (Pt 71) 414, 415-417.
I am also satisfied that the statement-Exhibits D-D1 and G-GI and Exhibit E-E1 and H-H1 of these1st and 2nd accused persons have corroborated one another as well as the testimony of P.W.2 as they all had the ring of truth.”
In the above excerpt, the trial court stated the law correctly that a conviction can be sustained on a free and voluntary confession of an accused notwith-standing that he retracted the confession. It then found that the charges against the Appellants were established from their confessional statements. The statement that the confessional statement of the 1st Appellant corroborates those of the 2nd Appellant is merely an innocuous mistake. It is the law that it is not every mistake that will lead to the reversal of a judgment. It is only where such a mistake is substantial and has occasioned a miscarriage of justice that it becomes fatal to the judgment; see Onajobi v Olanipekun (1965) 4 SC (Pt.2) 156 at 163, Oje v Babalola (1991) N.W.L.R. (Pt.185) 267 at 282. For the foregoing reasons, the 1st Appellant’s issues 2 and 4 fail.
The 1st Appellant’s 3rd issue complains about misplacement of burden of proof. The complaint is that the trial court wrongly shifted the burden of proof on the defence when in reviewing the evidence led at the trial, it started first with the case of the defence. With profound respect to the learned counsel for the 1st Appellant, this complaint is not borne out from the record which clearly shows that the trial court dealt with the case for the prosecution before that of the defence. There can be no doubt that the onus is upon the prosecution to prove a charge against an accused person and that onus is one beyond reasonable doubt: see section 38(1) and (2) of the Evidence Act, section 33(5) of the 1979 Constitution (in force at the material time), Areh v C.O.P. (1959) W.R.N.L.R 230, 231.
In the evaluation of the evidence called by the parties, it is at the discretion of the trial court and this is a matter of style for it to commence with the case of the prosecution or the defence and that procedure without more does not amount to shifting the burden of proof: see Onuoha v The State (1985) 5 N.W.L.R. (Pt.54) 118 at 137, Igogo v The State (1994) 14 N.W.L.R. (Pt.637)l.
There is nothing on record to show that the trial court shifted the burden of proof on the Appellants. On the contrary, the learned Judge of the trial court was conscious of the fact that the burden of proof was on the prosecution to prove beyond reasonable doubt the guilt of the Appellants. I, therefore, find no merit in the 1st Appellant’s 3rd issue for determination.
The 1st Appellant’s 5th issue which is-covered by the Respondent’s 4th issue to 1st Appellants appeal related to, the verdict or pronouncement of guilt made by the trial court. In this connection, the trial court at p. 128 of the record said:-
“I find the 1st, 2nd and 3rd accused persons guilty of conspiracy and murder of one Semiu Gboyega as charged in counts 1 and 2 and convict them accordingly.
Admittedly the verdict as recorded is wrong. Where several persons are tried together, separate verdicts must be returned in respect of each of the accused persons and where there are several counts on the information, separate verdicts must be delivered in respect of the several counts: Oyediran v The Republic (1967) N.M.L.R. 122 at 125. However, the error in failing to return a separate verdict on each count against each accused will not result in the quashing of the verdict, where as in the instant case, no miscarriage of justice has occurred: see City Engineering Nig. Ltd v N.A.A. (1999) 11 N.W.L.R. (Pt625) 76 at 89, Eyisi v The State (2000) 5 N.W.L.R. (Pt.690) 555 at 574 to 575.
There is no merit in the issue under consideration.
The 2nd Appellant’s second issue for determination which is the same as the Respondent’s second issue in the 2nd Appellant’s appeal relates to the evidence of P.W.2, a boy of 12 years of age. The contention of the 2nd Appellant is firstly that by the combined effect of sections 155(1) and 183(1) of the Evidence Act Cap 112, Laws of the Federation 1990, P.W.2 was not a competent witness to testify in court and secondly, that no preliminary test was conducted to determine his competence as required by law. On those premises, it was submitted that the evidence of P.W.2 was inadmissible and ought to have been expunged and in the alternative, that it was of little or no probative effect and needed corroborative evidence but none was adduced. Section 183(1) of the Evidence Act deals with the evidence of a child who does not understand the nature of an oath and provides that such a child is competent to give unsworn evidence if in the opinion of the court such a child is possessed of sufficient intelligence to justify the reception of such evidence. This section has no relevance in the instant appeal as the record of the proceedings shows clearly that P.W.2 was sworn on the Holy Quran before giving his evidence. By section 155(1) of the Evidence Act, “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 question by reason of tender years, extreme old age, disease, whether of the body or mind or any other cause of the same kind.” The effect of the section is that all persons irrespective of age are competent to testify in court provided they have the mental capacity and the intelligence to understand questions put to them. A “child” is defined by section 2(1) of the Criminal Procedure Law (Cap 30) Laws of Ogun State 1978 as a person who has not attained the age of 14 years. By this definition, P.W.2 is a child and therefore under section 155(1) of the Evidence Act a competent witness subject to his possessing in the opinion of the court, the mental capacity to understand questions put to him.
Competency is not a matter of age but that of intellectual capacity, see Onyegbu v The State (1995) 4 N.W.L.R. (Pt.391) 510 at 529. It is on record that the trial court tested the P.W.2 and found that he knew the purpose of speaking the truth and also knew the purpose of oath taking before being sworn on the Holy Quoran. It is not a requirement of the law that the questions put to a child witness in order test his ability to testify must be recorded in the proceedings. What is important is that the trial Judge should be satisfied that the child could rationally answer questions put to him and able to understand the nature of taking an oath. See John Okoye v The State (1992) 12 SC 115 at 125, Peter v The State (1991) 12 N.W.L.R. (Pt.531) 1 at 10-11. As the evidence of P.W.2 was given on oath, it needed no corroborative evidence. It is therefore, my view that the complaints agitated on behalf of the 2nd Appellant under this issue are misconceived. The 2nd Appellant’s appeal on the issue under consideration fails.
In the 2nd Appellant’s 3rd issue, that is, the Respondent’s 3rd issue in respect of the 2nd Appellant’s appeal, the contention on behalf of the 2nd Appellant is that the totality of the evidence relied upon by the court below was insufficient to sustain his conviction. With respect to the learned counsel to the 2nd Appellant, I do not share that view. There is overwhelming evidence to the effect that the 2nd Appellant in concert with the other Appellants murdered the deceased with a view to remove his hunch back for ritual purposes. Evidence revealed that on the fateful day, that is, 12/4/94, the 2nd Appellant was in the company of the 1st and 3rd Appellants when the deceased was sent for and was delivered by the P.W.2 a playmate of the deceased. They were the last persons that saw the deceased alive: see the case of Emeka v The State (2001) 14 N.W.L.R. (Pt.734) 666; (2001) 9 SCM, 34
The I.P.O., Sergeant Jasper Ajamagrah (P.W.5) who on 13/4/84 first visited the scene of crime in company with Appellants searched all but one of the rooms of the 3rd Appellant’s house. The 1st and 3rd Appellants told him then that the room not searched was occupied by someone resident in Lagos.
However on 15/4/94 when P.W.5 visited the scene again, the 2nd Appellant confided in him that the deceased was hidden in the room, which he was prevented from opening by the 1st and 3rd Appellants on the previous occasion. The 2nd Appellant made confessional statements which leaves no one in doubt as to his complicity in the dastardly and gruesome murder of the deceased. A confessional statement if made voluntarily by an accused person even if subsequently retracted is sufficient to sustain a conviction: Monday Nwaeze v The State (1996) 2 N.W.L.R. (Pt. 428) 1 at 13, Obosi v The State (1965) N.W.L.R. 119, R v Sykes 8 C.A.R. p.233.
The two courts below have found as a fact that the 2nd Appellant participated or acted in concert with the others in the murder of the deceased. It is not the practice of this court to interfere with such concurrent findings of the two lower courts except where such findings are perverse or unsupported by evidence or occasioned a miscarriage of justice: see Theophilus v The State (1996) 1 N.W.L.R. (Pt.423) 139, 150, Balogun v Labiran (1988) 3 N.W.L.R. (Pt.80) 66, Chiwendu v Mbamali (1980)3 – 4 SC 31; Enang v Adu (1981) 11-12 SC at 25. That is not so in this case. I will also dismiss the 2nd Appellant’s appeal based on his 3rd issue for determination.
On the whole, the appeals by the 1st and 2nd Appellants lack merit and are hereby dismissed. I uphold the judgment of the court below affirming their conviction and sentence. In the introductory part of this judgment, I mentioned that of the 3 Appellants whose appeal were dismissed by the Court of Appeal, the 1st and is 2nd Appellants lodged appeal to this court, which is the subject matter of this judgment. The 3rd Appellant did not file any appeal. Upon enquiry as to his whereabout, Mrs. B.O. Asenuga the learned Solicitor-General, Ministry of Justice, Ogun State who represented the State, in her letter of 16th March, 2005 to this court stated that the 3rd Appellant Latifu Sololu was released by the then Head of State in 1999. It needs to be stressed for future guidance that a person convicted for murder and sentenced to death by a High Court and whose appeal is dismissed by the Court of Appeal is deemed to have lodged a further appeal to this court and until that appeal is finally determined the Head of State or the Governor of a state cannot pursuant to sections 125 or 212 of the 1999 Constitution, as the case may be, exercise his powers of prerogative of mercy in favour of that person. In the same vein, such person cannot be executed before his appeal is disposed of. It is hoped that the prison authorities will be guided by this advice.
SC. 268/2003
