Suleiman Olawale Arogundare V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

O. OGEBE, J.S.C

The appellant and one other were arraigned on the 19th of April 1990 at the High Court of Abuja, Federal Capital Territory, on a one count charge of culpable homicide punishable with death under section 221 of the Penal Code for causing the death of his father, Noshude Atanda Arogundade. The trial court convicted them of the offence based mainly on their confessional statements Exhibit ‘D’ and ‘E’, Their appeal to the Court of Appeal was dismissed but their confessional statements were expunged from the record because the Court of Appeal was of the view that the procedure of the trial within trial to determine whether the statements were voluntary or not was irregular. It however, held that there was sufficient circumstantial evidence without confessional statements to support their conviction.

The appellant has further appealed to this Court and the sole issue formulated in the appellant’s brief reads thus:

“Whether in the absence of the confessional statement expunged by the Court of Appeal, the court was right to have confirmed the conviction and sentencing of the appellant on the evidence of P.W. 5 or any other evidence circumstantial or otherwise.”

The learned counsel for the respondent in the respondent’s brief formulated 2 issues for determination as follows:

(1.) “Whether from the totality of the facts and circumstances of this case the court below was right when it affirmed the decision, conviction and sentence of the trial court on the ground of circumstantial evidence.

(2) Whether the court below was right to have affirmed the decision of the trial court in admitting the evidence of PW5 having regard to the hearsay rule.”

There is only one issue in this appeal and that is the sole issue formulated in the appellant’s brief.

The learned counsel for the appellant submitted that without the confessional statement of the appellant which was rightly expunged by the lower court, there was no sufficient circumstantial evidence or otherwise to support the conviction.

He said that the evidence of PW5 which contained the confession of the appellant was hearsay evidence and was inadmissible. He referred to a number of foreign cases such as:

“R. V. Jackson (1953) 1 All ER. 872; R. V. Bathurst (1968) 52 Cr. App. R. 251; R. V. Mutch (1972) 57 Cr. App. R. 196; R. V. Gilber (1977) 66 Cr. App. R. 237.”

With the greatest respect, we have sufficient Nigerian case laws to help the learned counsel in making his submission on the legal principles necessary for a case of this nature and I consider it of no assistance in making a voyage into foreign cases.

The learned counsel submitted strongly that hearsay evidence is evidence which does not derive its value solely from the credit given to the witness but which also rests in part on the veracity and competence of some other person. He relied on the cases of Judicial Service Committee V. Omo 1990 6 NWLR (Pt. 157) 407 Achara V. Attorney-General Bendel State, 1990, 7 NWLR (Pt. 160) 92 and Okhuorobo V. Aigbe. 2002 9 NWLR (771) 39.

The learned counsel for the respondent submitted that there was sufficient circumstantial evidence apart from the appellant’s confessional statement Exhibit ‘D’ to sustain the conviction and the sentence of the appellant. It is his contention that the evidence of PW5 was not hearsay evidence but a voluntary confession of the appellant to the witness that he killed his father with detailed account of the circumstances. He gave his evidence in the presence of the appellant himself and was not cross-examined. Not only that the appellant rested his case on the prosecution case and thus missed the opportunity of countering the damnable evidence given against him.

He referred to the case of Niyi Akinmoju V. The State 2000 6 NWLR (Pt. 662) 608, to show that where evidence conclusively points at an accused person as the offender the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt on the case of prosecution. The Law is firmly established that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction. It is equally settled that an admission made at any time by a person charged with an offence (even before it had been decided to formally charge him with committing a crime without administering a caution) suggesting that he committed the offence is a relevant fact against him. See Onungwa V. The State 1976 NSCC (Vol. 10) 27 and Akinmogu V. The State (2000) 6 NWLR (Pt. 662) 608.

A critical look at the evidence of PW5 Ajuji Yola, – Assistant Commissioner of Police at Pages 25 – 27 of the printed record showed that the appellant made a purely voluntary unsolicited confession of his crime to him. The witness was on a routine visit to suspects detained by his men in all police stations under him when he met the appellant at 2 a.m. with his eyes wide open. He asked him why he did not go to sleep. He replied that whenever he closed his eyes he was seeing the image of his father whom he killed. He solicited for prayers and then narrated in detail how he and one other killed his father. He made a clean breast of the whole sordid story of how he put overdose of sleeping tablets in the father’s food to make him sleep and then killed him in a vicious manner. He made this confession to PW5 before his confessional statement in Exhibit ‘D’ which was expunged was ever recorded. This voluntary confession made to PW5 and given graphically before the trial court without any challenge by the appellant or his counsel was clearly admissible under Section 27 of the Evidence Act which reads:

“(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.

(2) Confession, if voluntary, are deemed to be relevant facts as against the persons who make them only.

The submission of the learned counsel for the appellant that the evidence of PW5 is hearsay is totally misconceived. PW5 gave direct evidence of what the appellant told him confessing to a serious offence before the trial court in the presence of the appellant and his counsel who for reasons best known to them failed to challenge it. The confession is so graphic and vivid that its veracity is not in doubt.

Apart from the evidence of PW5 there was this circumstantial evidence pointing to the guilt of the appellant in that the appellant reported that his father was killed by armed robbers, but when the Police arrived at the scene it was discovered that the house was not broken into and only the appellant who led them into the father’s bedroom to find him dead in his pool of blood could account for his father’s death.

In the case of Akinmogu V. The State (2000) 6 NWLR (Pt.662) 608 at page 629, Iguh JSC had this to say on circumstantial evidence:

“In the present case, there can be no doubt that the circumstantial evidence led against the appellant was clearly strong and irresistibly pointed at him as the perpetrator of the offence for which he was charged. His rooms were never broken into. He had always been in possession of the keys to them. He also never alleged that there was any other person than himself who had access to his bed-room and who could have removed the air-conditioners. Where, as in the present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested scrutinized and accepted by the court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by preponderance of probabilities. See Onakpoya V. The Queen (1959) S.C.N.L.R. 384, Kalu V. The State (1993) 6 N.W.L.R. (Pt. 300) 385 at 396. In the present case, there was no attempt whatsoever on the part of the appellant to rebut the presumption of guilt against him or to cast a reasonable doubt on the case of the prosecution, albeit, by preponderance of probabilities.”

I adopt the words of my learned brother in holding that the appellant was properly convicted by the lower court based on the evidence of PW5 and circumstantial evidence which pointed irresistibly to his guilt and for which he made no attempt to counter the case of the prosecution. It is a heinous offence for a son to kill his father as in the circumstances of this case. Accordingly, I see no merit in this appeal and I hereby dismiss it and affirm the conviction and sentence of the appellant in line with the judgment of the Court of Appeal.

SC.206/2007