Stanley Idigun Egboghonome V. The State (1993)

LawGlobal-Hub Lead Judgment Report

BELLO, C.J.N.

This appeal raises, inter alia, a very important question of law in the administration of criminal justice. The question arises from the principle of law stated in Oladejo v. State (1987) 3 NWLR (Pt.61) 419 at 427 by Nnamani, J.S.C:

“Where a witness (here an accused person) makes a statement which is inconsistent with his testimony, such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act.”

In Asanya v. State (1991) 3 NWLR (Pt.180) 422 at 451, the court sitting as a full court adopted the said principle of law and was not willing to depart from it in spite of the eloquent and well researched submission of learned counsel for the appellant in that case that the court should over-rule the line of cases in which the principle had been applied to the extra-judicial confession of an accused person which was inconsistent with his testimony.

The question now for determination is: Whether this principle of law is applicable to the extra-judicial confession of an accused person which he retracts at the trial Because of the importance of the question we invited as amici curiae some Attorneys-General and some Senior Advocates of Nigeria to address the court on the question. At the conclusion of their addresses, the court expressed its appreciation for the useful assistance given to it by the amici curiae. The court is indeed grateful.

The appellant was convicted by the High Court of Bendel State of conspiracy to commit murder and of the murder of Utoro Akpughe punishable under sections 324 and 319(1) respectively of the Criminal Code of the State. He was sentenced to death for murder and the sentence for conspiracy was deferred. His co-accused one Charles Ogar, was acquitted and discharged.

The facts of the case as found by the trial Judge may be summarised: On 10th October, 1984, the deceased, who had a hunch back, went to her farm and when she did not return home, a search party went out to look for her. She was not found that day but on the following day the search party found her body pinned down with sticks in swampy water near her fall. Her hunch back had been cut off from her body and the hunch back has never been found. The doctor, who performed post mortem examination on her body, testified as follows:

“On examination I observed that the face of the corpse was puffy with no abrasion. The corpse was dressed up in a Yoruba attire. There was a total lesion of the vertebral column from the lumbar aspect upwards to the cervical aspect posteriorly opening into abdominal cavity posteriorly. From the opening of the corpse I could see the bowels, the spleen and the kidney. The same opening extended to the thoracic cage showing six ribson each hemiltorar amputated. The back bone was cut near the neck and the waist and the back between these cuts along the back bone, and part of the ribs attached to the back bone was removed as a whole leaving a hole on the back from which the inside of the corpse could be seen. In my opinion the deceased died of traumatic amputation of vertebral column involving the ribs, the internal and external haemorrhage and shock and the probable date of death of the deceased was 10/10/84.”

There was evidence that P.W.3 had seen the appellant with three other persons in the vicinity of the farm of the deceased on the day she disappeared; that the appellant told P.W3 that he was there to kill rabbits, that the appellant, who lived in the same village of the deceased, was not seen again until on 10th July, 1985 when he was arrested at Ekiugbo village wherein he had been hiding. He made a confessional statement to the Police after his arrest, which was admitted in evidence as Exhibit B, that himself, Charles Ogar who was his co-accused, one Agita and another person conspired together and killed the deceased, cut off her hunch back and went away with it for the purpose of money making medicine. In his testimony during the trial, the appellant retracted the confession and denied making the statement, Exhibit B, though he admitted signing it when it was blank. His defence was alibi.

The trial Judge relied upon the confession and the circumstantial evidence in convicting the appellant of the two offences.

The appellant, aggrieved by the decision of the trial court, appealed to the Court of Appeal which dismissed his appeal and affirmed the conviction. He has now appealed to this court.

Learned counsel for the appellant has formulated five issues for determination. They are:

They are:

“1. Whether the Court of Appeal was justified in affirming the decision of the trial court which convicted the appellant for conspiracy to, murder and for murder mainly on the alleged extra-judicial statement of the appellant from which the appellant not only totally retracted but also contradicted in his testimony before the trial court.