Obaro V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

At the High Court of Ondo State, Akure Judicial Division, (hereinafter simply referred to as “the trial Court”), the appellant, (as an accused person), was arraigned upon a two-count charge of kidnapping and murder contrary to and punishable under Sections 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law, 2010, and 319 of the Criminal Code, Cap. 30, Vol. 11, Laws of Ondo State of Nigeria, 1978, respectively.

On arraignment, he (the appellant), pleaded not guilty. The trial commenced with two other accused persons. The prosecution called only one witness, the investigating police officer as PW1. On his part, the appellant testified for himself and called no other witness. Exhibits A – A3; B; C – D and E – E2 were tendered and admitted in evidence.

​It was the prosecution’s case that the appellant, with the two accused persons, left their village, Messe, and went to Ikoriho in the same Ilaje Local Government of Ondo State in the middle of the night. They allegedly kidnapped one Dada Akinboye who slept beside his mother on June 17, 2011. The victim was later discovered dead with his body mutilated.

In his extra judicial statement, which formed the basis of his conviction and sentence on the two offences, the appellant allegedly admitted going inside the house to carry the victim. He handed over the said deceased person’s body to the third accused person. He and the third accused person disposed of the body of the victim. On his part, the second accused person stood outside keeping watch.

During the trial, he, the first accused person, in his evidence vehemently denied any involvement in the crime. Under cross examination, he said inter alia, “it is not what I told the Police that they wrote down,” thereby retracting the extra judicial statement. Notwithstanding this retraction, the Court of Appeal (hereinafter simply referred to as “the lower Court”), affirmed the finding of the trial Court to the effect that:

Thus, the confessional statements of the first and second accused persons have satisfied this Court about the involvement of each of the accused persons.

The lower Court thus affirmed the guilt of the appellant on the two-count charge of kidnapping and murder. On further appeal to this Court, the appellant formulated a sole issue for determination:

Whether the prosecution proved beyond reasonable doubt the guilt of the appellant on the two-count charge of kidnapping and murder?

On his part, the respondent concreted a sole issue for the determination of the appeal:

Whether the prosecution proved beyond reasonable doubt the offence of kidnapping and murder to warrant the conviction of the appellant?

Arguments of counsel on the sole issue

At the hearing of the appeal on February 11, 2021, learned counsel for the appellant adopted the brief filed on July 30, 2015. Arguing the sole issue, he submitted that by virtue of the provision of Section 135 of the Evidence Act, 2011, the prosecution has the burden of proving the guilt of the appellant beyond reasonable doubt.

In his submission, proof beyond reasonable doubt does not mean proof to mathematical certainty, Anekwe v. State (2014) 5 SC (Pt. 11) 35, 71, (2014) 10 NWLR (Pt. 1415) 353; Ali v. State (2015) 10 NWLR (Pt.1466) 1, 42; A – C; Nwosu v. State (1986) 7 SC (Pt. 11) 1, (1986) 4 NWLR (Pt. 35) 348. He further submitted that the prosecution’s failure to call the interpreter who recorded the confessional statement which led to the appellant’s conviction, renders it (the confessional statement), inadmissible, Olalekan v. The State (2001) 18 NWLR (Pt. 746) 793, 810 – 811; B – G.