In The Supreme Court of Nigeria
Holden at Abuja on Friday, the 5th day of July, 2019
The 12th day of April, 2019
Ibrahim Tanko Muhammad
Mary Ukaego Peter-Odili
Sidi Dauda Bage
Justices, Supreme Court SC.586/2014
Judgement Delivered By Amiru Sanusi, JSC
The Appellant was arraigned with two other co-accused persons before the High Court of Ondo State, on a two-count charge of conspiracy to commit murder and murder, contrary to and punishable under Sections 516 and 319(1) of the Criminal Code Laws of Ondo State. It was the case of the Respondent that, the Appellant and the two other accused persons, conspired to kill and indeed, killed a certain Silifatu Rahman. During the trial, the 3rd accused person later died, and the charges against him were accordingly struck out. At the conclusion of the trial, the trial court delivered its judgement in which it found the Appellant guilty as charged, and sentenced him to death. Aggrieved, the Appellant appealed to the Court of Appeal which dismissed his appeal and affirmed the judgement of the trial court. Further aggrieved, the Appellant appealed to the Supreme Court. The parties filed and exchanged their respective briefs of argument, in which they distilled their respective issues for determination.
Issues for Determination
After a consideration of their respective issues, the Apex Court determined the appeal on the basis of the following issues:
- Whether the Court of Appeal was right, in rejecting the defence of alibi raised by the Appellant.
- Whether the Court of Appeal was right, in holding that the trial court rightly relied and acted on the alleged confessional statements of the Appellant and the co-accused persons, in convicting the Appellant.
- Whether the Court of Appeal was right, when it held that the prosecution had proved its case beyond reasonable doubt.
- Whether the Court of Appeal was correct, in holding that the refusal of the trial court to wait indefinitely for the Appellant’s address, did not amount to denial of fair hearing.
On the 1st issue, counsel for the Appellant argued that, the Appellant raised the defence of alibi at the earliest opportunity, and also furnished evidence and sufficient particulars of his whereabouts on the day the deceased was murdered. He submitted that, the two lower courts were wrong to discountenance the Appellant’s defence of alibi.
On the other hand, counsel for the Respondent submitted that, the alibi set up by the Appellant was devoid of sufficient particulars to warrant investigation, hence, the defence cannot avail him. He cited the case of NJOVENS v THE STATE (1973) 1 NWLR 331. He contended that, the Appellant failed to mention the specific time he left the locality where the said crimes in question were committed, in the statement the Appellant made in which he set up the defence.
On the 2nd issue, counsel for the Appellant submitted that, the confessional statements of the 2nd and 3rd accused persons relied upon by the trial court, are mere extra-judicial statements of co-accused persons charged along with the Appellant, which cannot be used in law to convict another person charged with the same offence. He submitted that, the Court of Appeal was wrong to have upheld the conviction of the Appellant by the trial court, on the basis of the statements. Counsel for the Respondent argued conversely that, an accused person can be convicted on his true and positive confession alone, even where he has retracted it, as in the instant case. He further argued that, where there is a nexus between the contents of the statement of a co-accused with other independent evidence, it can be admissible against other accused persons. He contended that, the trial court was convinced that Exhibits 5, 6 and 7 passed the test of admissibility, and the Court of Appeal rightly affirmed this finding.
On the 3rd issue, counsel for the Appellant argued that, the prosecution had not been able to establish that the Appellant caused the death of the deceased. He submitted that, the prosecution, having failed to prove this essential ingredient of the offence of murder, had therefore failed to prove its case beyond reasonable doubt.
Counsel for the Respondent argued that the extra judicial statements of the Appellant and the other co-accused persons, show a conspiracy to rape the deceased by luring the deceased to the 3rd accused person’s farm where they raped the deceased. He argued that, the medical report tendered by the Respondent established that the deceased died from the combined effect of injuries inflicted on her by the Appellant and his accomplices in the process of raping her, and the Appellant also admitted it in his confessional statement.
On the 4th issue, counsel for the Appellant submitted that, the trial court’s judgement, delivered without giving the Appellant the opportunity to deliver his final address through his counsel, was a denial of his right to fair hearing which vitiated the entire proceedings. He urged the court to resolve the issues in favour of the Appellant, and allow the appeal.
Counsel for the Respondent submitted that, the Appellant’s trial was conducted within the tenets of fair hearing, and sufficient opportunity was given to the Appellant for his defence and counsel’s address. Court’s Judgement and Rationale
On the 1st issue, the Court held that, whenever alibi is raised a defence by an accused person, it becomes incumbent on him to adequately furnish detailed information of his whereabouts at the time the offence was committed, or the conspiracy was perpetrated. The court held that, such information must also be unquestionable and capable of being verified when investigated by the Police, and must be raised at the earliest possible time. Where he fails to provide detailed information, the Police have no obligation to investigate the claim, and a defence of alibi without providing sufficient facts to call for verification, is nebulous and porous, and it cannot avail the accused person or defendant. The court held that, the Appellant failed to give the specific time he left the locality where the offence was committed, and also failed to state the particulars of his so-called brother’s wife who he said was about to give birth, or where she was living at Omituntun where he said he was at the time of the commission of the offence, in his statement in which he raised the defence of alibi.
The court held that, the Appellant did not also provide some facts timeously, but gave them during his testimony for his defence, when it was impracticable for the police to investigate. The Court of Appeal was therefore right, to have endorsed the discountenancing of the defence of alibi raised by the Appellant at the trial court.
On the second issue, the court held that, a confessional statement, so long as it is free, direct, positive and voluntary, is enough to ground a conviction. The court relied on R v OMOKARO (1941) WACA 146. It also held that, where there is a nexus between the contents of a statement of a co-accused with other independent evidence, such corroborative evidence is relevant and admissible, and will be regarded to have supported or confirmed the evidence in question, and can be acted upon by the trial court to convict as in the instant case. The court held that, the Appellant unequivocally admitted conniving with the 2nd and 3rd accused persons to rape and kill the deceased in Exhibit 5, and he did not object to his confessional statement when it was tendered by the prosecution. The court further held that, his confessional statement was also corroborated by the confessional statements of the 2nd and 3rd accused persons, wherein they clearly owned up to the commission of the crime with the Appellant.
On the 3rd issue, the court held that in order to obtain a conviction for the offence of murder, the prosecution could adduce evidence through an eyewitness or the voluntary confessional statement of the accused person, or through circumstantial evidence to prove the ingredients of the offence which are: (a) The death of a human being; (b) That the death was caused by the act of the accused person (c) That the act of the accused was done intentionally, or with the knowledge that death or grievous bodily harm would be the probable consequence. The court relied on OKEKE v THE STATE (1999) 2 NWLR (PT. 590) 246 AT 273. The Court held that, adequate evidence was adduced by the Respondent, showing that the deceased died and the dastardly acts of the Appellant and his accomplices resulted in her death, and the extent of the injuries inflicted on the deceased, showed that the offenders had the knowledge that death could be the probable consequence of their actions.
On the 4th issue, the court held that, when the opportunity is given to a party to make his case heard and he fails to utilise it, he cannot hold the other side or the court to ransom, and cannot be heard afterwards that his right to fair hearing was violated. The court held that, after the Respondent closed its case, the Appellant was granted adjournments to enable him bring his last witness, but was unable to, after which the court granted the last adjournment for conclusion and address of counsel. The Appellant still did not do anything, and judgement was subsequently delivered. Relying on EFFIOM v THE STATE (1995) 1 NWLR Part 379 at 507, the Court held that, the Appellant having failed to take advantage of all the opportunities generously given him by the trial court for his defence and counsel’s address, cannot be heard to complain that his right to fair hearing was violated. Appeal Dismissed.
Oliyade Olanrewaju Ismaila with Adeolu Salako for the Appellant
Prof. J. N. Mbadugha with Rita Campbell for the Respondent