LASE v THE STATE

LASE v THE STATE


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, 2ND JUNE, 2017


Appeal No: SC.532/2015
CITATION:

Before Their Lordships:

OLABODE RHODES-VIVOUR, J.S.C.

CLARA BATA OGUNBIYI, J.S.C.

AMIRU SANUSI, J.S.C.

PAUL ADAMU GALINJE, J.S.C.

SIDI DAUDA BAGE, J.S.C.


BETWEEN

JONAH LASE
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENTS


A. APPEAL
1. Interference With Concurrent Findings Of Fact – Circumstances under which the Supreme Court will interfere with concurrent findings of the Lower Courts

“The two lower Courts are concurrent in their judgments. The law is trite that the said decision cannot be disturbed except only if the Appellant shows that the judgment was either perverse or it is shows to have occasioned a miscarriage of justice. See Onyejekwe v. The State (1992) 3 NWLP (Pt. 230) 444: Posu v. The State (2011) All FWLR (Pt. 565) 234 at 249: Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23: Alsthom S. A. v. Saraki (2005) All FWLR (Pt. 246) 1385 at 1399: University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156: Ndulue v. Ibezun (2002) (pt.780) 12 NWLR P.139 and Mbadugha v. Nwosu (1993) 9 NWLR (Pt.315) P.110.” Per OGUNBIYI, J.S.C. (para 1) read in context

2. Interference With Concurrent Findings Of Facts – Attitude of the Supreme Court to interference with concurrent findings of Lower Courts

“It is noted by me that in this instant appeal there are concurrent findings of facts by the two Courts below both confirming the guilt of the present Appellant. The practice of this Court is that it is always hesitant in disturbing or interfering with concurrent findings of judgments of two lower Courts, except on special circumstances bordering on perversion, miscarriage of justice or misconception of law substantive of procedural. See Igwego & Ors Vs Ezeugo & Anor (1992) LPELR – 1458 (SC): Kenneth Ogoala vs The State (1991) 2 NWLR (Pt.175) 509; (1991) 3 SCLNJ 61; Osho & Anor vs Forign Finance Corporation (1991) 5 SC 59; Adeyemi v The State (1991) 6 NWLR (pt.195) 1; Ogoala vs The State (1991) 2 NWLR (pt.175) 509.” Per SANUSI, J.S.C. (para 7) read in context

3. Interference With Evaluation Of Evidence – Instances in which an Appellate Court will be empowered to interfere with evaluation of evidence made by a trial Court

“Before I take on the issue of whether the prosecution did prove its case beyond reasonable doubt, I wish to comment on the first issue which the Appellant raised, and that is whether the lower Court had jurisdiction to evaluate the evidence of the parties at the trial Court? The law is settled that assessment of oral evidence and ascription of probative value to such evidence is the primary duty of a tribunal or trial Court and a Court of Appeal would only interfere with the performance of that exercise if the trial Court has drawn wrong conclusions from accepted or proved facts, which those facts do not support.

In other words, an Appellate Court has no jurisdiction to interfere with the assessment of evidence and ascription of probative value to such evidence by the trial Court in the absence of special circumstances. See Eki v Giwa (1977) 11 NSCC 96 where Obaseki JSC cited with approval the case of Fashanu v Adekoya (1974) 1 LL NLR (Pt. 1) 35 at 41 where this Court held:-

“The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a Court of Appeal. The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunity of hearing and seeing the witness or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.” (DISSENTING) Per GALINJE, J.S.C. (para 24 – 25) read in context

B. CRIMINAL LAW AND PROCEDURE
4. Offence Of Abetment – Criminal liability of an abettor

“In the confessional statement above, the Appellant admitted participating in the kidnapping of the deceased by acting as a guard to monitor the environment while the offence was being committed, the consequence of which led to the death of the deceased.
From the above, it is clear that the Appellant has played a vital role in the kidnapping of the deceased, the role which also links him with the murder of the deceased. After kidnapping the deceased, the Appellant and 1st accused handed her over to the 3rd accused person and was later found dead.

There is no doubt that the Appellant has aided the 1st and 3rd accused in both kidnapping and murder of the deceased in this case.

Section 7 of the Criminal Code Law of Ondo State, Cap 37 Vol. 1 2006 provided when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.

a) Every person who actually does the act or makes the omission which constitutes the offence.

b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

c) Every person who aids another person in committing the offence.

d) Any person who counsels or procures any other person to commit the offence.

The law is that once an abettor is found to be present at the commission of the offence he abetted, he has automatically become a principal offender and it is mandatory on the trial Court to convict him of the main offence.

However where two or more persons intentionally do a thing jointly, it is the same as if each had done it individually. Each person is not only liable for his own acts but also for the sum acts of his fellow conspirators in furtherance of the common intention.

In SANI BUJE VS THE STATE (1991) 4 NWLR (Pt. 185) at 288 this Court held that:-“When any person aids the commission of an offence by being present at the scene not as a mere onlooker but with the purpose of aiding and assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal.”
The Appellant in this case, has admitted, in his confessional statement aiding the other accused persons by monitoring the environment and to report any movement. This is his statement:-

“…I was outside waiting as guard and Theophilus Friday and Segun Obaro entered house and carry the baby out, my second Segun Obaro handover her to Theophilus Friday…”
Yet in SANI BUJE VS STATE (supra) the Court on when an abettor becomes principal offender held that:-

“Once an abettor is found to be present at the commission of the offence he abetted, he automatically becomes a principal offender and it is mandatory on the trial Court to convict him of the main offence and not its abetment. In the instant case, Exhibits Pw.1 and Pw.3, statements of the Appellant to the police, contained an admission of the unlawful killing of the deceased in circumstances in which the Appellant was, at least, a principal offender” Per BAGE, J.S.C. (para 35 – 42) read in context

C. EVIDENCE
5. Confessional Statement – Whether failure to read over and confirm a confessional statement before a superior police officer renders it inadmissible

“Where an accused Person makes a confessional statement, the normal Procedure is to take the accused person to a superior police officer before whom the confessional statement will be read and explained to the accused and upon the accused confirmation, the superior police officer will endorse the statement in the instant case, PW1 did not follow this procedure. Although this procedure is not mandatory, his failure to follow this practice has created a vacuum which is difficult to fill. It is the duty of the prosecution to prove positively, that the confessional statement made by the Appellant was made voluntarily. In Emeka v State (2001) 14 NWLR (Pt. 734) 666 at 681 Paras E-F this Court held:-

“Where there is a trial within trial, onus is on the prosecution to prove that it was free and voluntary. In order that evidence of a confession may be admissible, it must be affirmatively proved that the confession was free and voluntary.” See Yusuf v The State (1976) 6 SC 167: Martin Priestly (1966) 50 CR. App. R 183.” (DISSENTING)Per GALINJE, J.S.C. (para 27) read in context

6. Confessional Statement – Whether the court can convict on a resiled confessional statement

“On the confessional statement of the Appellant which was resiled by him, the Court having admitted it after trial within trial was conducted, can convict the Appellant on that. The law is that a free and voluntary confession of guilty by an accused person if it is direct and positive and satisfactorily proved should occupy the high place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without corroboration to warrant a conviction and there cannot be such a conviction unless the trial Court is satisfied that the case has been proved beyond reasonable doubt.

This Court again in SHUAIBU ABDU VS THE STATE (2006) 12 SC (Pt. Vl) at page 103 held that–

“…The prosecution heavily relied on the confession of the accused/Appellant in proof of its case. I am mindful of the fact a free and voluntary confession of guilty whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See:-THOMAS AKPAN EKONG VS THE STATE (2013) All FWLR (Pt. 685) 353; ODEY VS F.R.N. (2008) 3-4 SC 142.”

However, in EGBOGHONOME VS THE STATE (1993) 7 NWLR (Pt. 306) 383 it was held that:-

“Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled there-from or retracted it altogether at the trial, since such u-turn does not necessary make the confession inadmissible.” See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS THE STATE (1984) 6 SC 85; EJINIMA VS THE STATE (1991) 6 NW (pt. 200) 62; AKPAN VS THE STATE (1992) 6 NWLR (Pt. 248) 439 and AKINFE VS STATE (1988) 3 NWLR (Pt.85) 729. In SULE VS THE STATE (2009) 4 NCC 456, this Court decided that:-

“A Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution.” See also ADEKOYA VS THE STATE (2012) 1 NCC page 7 and ONYEYE VS THE STATE 7 NCC page 304.

From the foregoing, this Court agrees with the lower Court, which earlier had agreed with trial Court’s decision to admit the confessional statement of the Appellant and also in agreement with the decision of the lower Court where it affirmed the decision of the trial Court that:-

“The first point to note on the sole issue for determination is in relation to Exhibit D that is the confessional statement of the Appellant. Exhibit D was declared voluntary after trial within trial was held and it also satisfied the six-way test laid down in the case of R VS SYKES (1913) 8 CR App. R. 233 and applied in more recent cases such as ADISA VS STATE (2013) 14 NWLR (Pt. 1375) 567 at 578…it is trite that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court as in the instant case is satisfied of the truth of the confession notwithstanding that it was later retracted…Indeed, and as suggested by the learned counsel for the Respondent, the Appellant’s confessional statement (Exhibit D) has not only admitted the essential ingredients of the offences charged but also shows unequivocal, direct and positive involvement of the Appellant in the crimes alleged.” Per BAGE, J.S.C. (para 43 – 46) read in context

7. Confessional Statement – Whether confirming a confessional statement before a superior police officer is a legal requirement

“On the effect of the failure in taking the accused before a superior police officer after his statement was obtained, the practice and procedure, although desirous is not however a legal requirement. See Solola v. The State (2005) 2 NWLR (Pt. 937) P.460 at 484 where this Court held and said:-

“…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.”Per OGUNBIYI, J.S.C. (para 4) read in context

8. Evidence Of A Single Witness – Whether a court has the power to act on the evidence of a single witness

“It seems to me that the bone of contention between the parties is whether the lower Court was right in affirming the decision of the trial High Court which convicted and sentenced the Appellant of the offences of kidnapping and murder solely on the confessional statement of the Appellant tendered through a witness who was not an eye witness.

In the first place the law is trite that a Court can and is indeed entitled to act on the evidence of one single witness if that witness is believed given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. See Ohuanyan vs The State (1996) 4 SCNJ 95 at 105; Effiong vs The State (1998) 8 NWLR (pt 572) 362.

I must add that the credibility of evidence does not ordinarily depend on the number of witnesses who testify on a particular point, but rather, it depends on whether the evidence of the single witness is believed and accepted by the Court and if so believed by the Court, than it is sufficient to ground a conviction. See Ali vs The State (1988)1 NWLR (pt.68) 1; Abogiede v The State (1996) 4 SCNJ 227 233.”Per SANUSI, J.S.C. (para 2 – 4) read in context

9. Confessional Statement – When the court will be free to admit a confessional statement into evidence

“On Exhibit D which is the confessional statement of the accused/Appellant, it is pertinent to say that the trial Court had conducted trial within trial when the defence objected to its admissibility on ground of involuntariness before admitting same. See Sunday S. Agwu vs The State (2013) ALL FWLR (pt.682)1812. After conducting a trial within trial and ascertaining the voluntariness of the confessional statement, a trial Court is thereupon free to admit it in evidence. See Thomas Akpan Ekong vs The State (2013) All FWLR (pt.685) 353. See also Ekare vs State (1999) 13 NWLR (Pt. 635) 458.

The law still requires that a trial Court faced with confessional statement has the onerous duty to subject it to the six tests to verify the truth of the confessional statement. See Akpa v The State [2007]2 NWLR [pt 1019) 500; Jimoh Yesufu vs The State (1976) 6 SC 167.”Per SANUSI, J.S.C. (para 5 – 6) read in context

10. Calling Of Witnesses – Effect of failure to call a vital witness

“Now if there were policemen in the room where the statement of the Appellant was taken, they are vital witnesses, whose evidence could tilt the case on either side. The prosecution’s failure to call those policemen were present as witnesses is fatal to the Prosecution’s case. See Ochiba v State (2011) 17 NWLR (Pt. 1277) 663 at 696 paras A – B where this Court said:-
“The Appellant assessed the witnesses not called, as vital witnesses. A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.” (DISSENTING)Per GALINJE, J.S.C. (para 29) read in context

D. PRACTICE AND PROCEDURE
11. Preliminary Objection – Whether a preliminary objection is to be determined before hearing of the appeal

“Now the essence of Preliminary objection is to terminate in limine an appeal. So when it is issued by a Respondent, the Court is duty-bound to hear and determine same before hearing the appeal. This is so because the Court would have saved the energy it would have dissipated over the hearing of incompetent appeal, if the appeal is indeed incompetent. See Yaro v Arewa Construction Ltd 2007) 17 NWLR (Pt. 1063) 333; Agbareh v Minra (2008)2 NWLR (Pt. 1071) 378; Onyemeh v Egbuchlam (1996) 5 NWLR (Pt.448) 255; Efet v INEC (2011) 7 NWLR (Pt. 1247) 423 at 438 Paras F-G.” (DISSENTING)Per GALINJE, J.S.C. (para 8) read in context

12. Preliminary Objection – Effect of failure to bring the notice of preliminary objection in accordance with Order 2 Rule 9 of the Supreme Court Rules

“A Respondent who wishes to rely on a Preliminary objection must do so within the confines of Order 2 Rule 9 (1) and (2) of the Rules of this Court. This order provides as follows:-

“9(1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days’ notice thereof before the hearing, Setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time.

(2) If the Respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.”

The provision of Order 2 Rule 9{1) and (2) is very clear. The notice of preliminary objection shall be filed together with ten copies thereof with the registrar. By filing here it presupposes that filing fees shall be paid and a receipt issued by the registrar. The fees payable for filing Court processes are enumerated in the Second Schedule to the Rules of this Court 2014 as amended. The preliminary objection issued by the learned counsel for Respondent, has failed to meet the conditions set under Order 2 Rule 9(1) of the Rules of this Court, and by Order 2 Rule 9(2), the preliminary objection is incompetent and ought not to be considered in line with the decision in Nsirim v Nsirim (supra).” (DISSENTING)Per GALINJE, J.S.C. (para 13 – 15) read in context


LEAD JUDGEMENT DELIVERED BY BAGE, J.S.C


1. This appeal arose from the decision of the Court of Appeal, Akure Judicial Division delivered on the 9th July, 2015, in Appeal No. CA/AK/97C/2014. In the appeal, the Court affirmed the conviction and sentence imposed on the Appellant by the High Court of Akure presided over by Justice A. O. Odusola in suit No AK/34C/2013 delivered on the 20th March, 2014.

2. The brief facts of the case are, the Appellant and one Olusegun Oboro (1st Accused) allegedly Kidnapped one Dada Rachel Akinboye (deceased) an Eighteen months old baby who was sleeping with her mother at lkorigho, Ondo State and handed her over to one Theophilus Friday (3rd Accused) who subsequently murdered the deceased and removed her body parts. The Ikorigho community consulted their local deity “Ogbaji” to fish out those responsible for the kidnap, the name of the Appellant and other accused persons were mentioned, as responsible for the act. The community after arresting them handed them over to the Police.

3. At the Police Station, the Appellant made a confessional statement which he later denied was voluntary. After the trial within trial, the trial Court admitted the statement as evidence.

4. The Appellant and the other two accused persons were charged with the following offences:-

COUNT 1

“Kidnapping, contrary to and Under Section 3 of the Ondo State Anti Kidnapping anti Abduction Law 2010.”

COUNT 2

“Murder, contrary to Section 316 and punishable under Section 319 of Criminal Code Laws of Ondo State 2006.”

5. After the plea of not guilty to the two counts charge, trial commenced on the 19th November 2013. The prosecution called a lone witness, while the Appellant testified in his defence. After the hearing, the Appellant along with the other accused were convicted and sentenced to death on the two counts aforesaid.

6. Dissatisfied with the decision of the trial Court, the Appellant appealed to the lower Court which confirmed the conviction and sentence of the Appellant. The judgment of the trial Court convicting and sentencing the Appellant to death is at pages 82-99 of the record of appeal while the judgment of the lower Court affirming the decision of the trial Court is at pages 131 to 150 of the record of appeal.

7. Being dissatisfied with the judgment, the Appellant sought to upturn the decision by lodging an appeal to this Court. The Appellant filed his brief of argument dated 24th August 2015 wherein the following issues were formulated for the determination of this appeal.

8. ISSUES

“1. Whether the prosecution proved its case beyond reasonable doubt against the Appellant to the effect that the Appellant was guilty of kidnapping and murder of Dada Rachel Akinboye to justify the affirmation of the conviction and sentence of death by hanging of the Appellant by the learned justices of the Court of Appeal, Akure Division.

2. Whether the learned justices of the Court of Appeal, Akure Division were right to have adopted the learned trial Judge’s admission of the Appellant’s purported extra judicial statement Exhibit “D” as a confessional statement in spite of objection of the Appellant to its tendering on the ground of involuntariness of the process of its extraction and relied heavily upon same to affirm the conviction and sentence of the Appellant for kidnapping and murder.

9. The learned counsel for the Respondent however formulated in his brief of argument, a sole issue for determination thus:-

“Whether the prosecution proved its case beyond reasonable doubt against the Appellant in the light of Exhibit D to the effect that the Appellant was guilty of kidnapping and murder of Dada Rachel Akingboye to justify the affirmation of the conviction and sentence of death by hanging of the Appellant by the learned justice of Court of Appeal, Akure Division.”

10. The Learned Counsel for the Respondent A.D. Adeyemi Tunde (Mrs.) filed a Notice of Preliminary objection that the Grounds contained in the Notice of Appeal and the issues there from are incompetent. The arguments from the objection are contained in paragraphs 3.00 of page 4 to 5.0 at page 5. The main plank of the Respondents objection is that, in the instant appeal the issues for determination and grounds of appeal of the Appellant does not arise from the decision of the Court of Appeal, neither is it a challenge on the ratio of the decision, but rather it is an attack on the Judgment of the trial Court which is liable to be struck out. It is trite that for grounds of appeal to be valid and competent they must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. See C.C.B. PLC VS JONAH DAN OKORO EKPERI (2007) 1 SC (pt.11.) 130. He urged the Court to dismiss the appeal as being incompetent

11. In his Reply brief filed 8/2/2016, Learned Counsel for the Appellant urged the Court to dismiss the preliminary objection, for the failure on the side of the Respondent to file a separate motion on Notice to the objection. Learned Counsel relied on NSIRIM VS NSIRIM (1990) 3 NWLR (pt.138) 286 at 297.

12. Learned Counsel agued further that in the event this is overruled, it is a fact that issues for determination of appeal distilled by both the Appellant and Respondent upon which the Judgment of the Court of Appeal Akure Division was border on the Confessional Statement of the Appellant and the trial Court Exhibit ‘D’. See page 134 of the record of appeal where the sole issue for determination of appeal at the Court of Appeal, Akure Division was stated to be:-

“Whether the conviction of the Appeal for the offence of Kidnapping and Murder can be justified in the Light of the confessional statement relied upon by the trial Court.”

He urged the Court to discountenance the objection.

13. I have examined the objection and the reply thereto. The Preliminary objection is vague and not specific. From the record before this Court, the appeal of the Appellant is directly an attack on the Judgment of the Court of Appeal Akure Division as seen on page 134 of the record of appeal. The appeal directly relates to the decision of the Court of Appeal, and a challenge to the ratio of that decision. The appeal did not attack or relate directly with the Judgment of the trial Court. As to whether the preliminary objection was brought by way of a motion on Notice, or not, this is a jurisdictional question which can come in any way, even Viva Voce. On the whole, the objection has no leg to stand upon, and it is hereby overruled.

MAIN APPEAL

14. This appeal is going to be determined by a sole issue for determination which is reframed by this Court as follows:-

“Whether the lower Court was right to have affirmed the conviction and sentence of the Appellant for the offences of kidnapping and murder on the basis of confessional statement and testimony of PW.1 relied upon by the trial Court.”

15. Learned counsel for the Appellant contended that the prosecution did not prove its case beyond reasonable doubt against the Appellant to the effect that the Appellant was guilty of kidnapping and murder of Dada Rachel Akinboye. He submitted that the learned Justices of the Court below in their judgment did not carry out any evaluation of evidence elicited by the prosecution and the defence at the trial to justify their affirmation of conviction and sentence by the trial Court.

16. He argued that for the prosecution to succeed in securing a conviction for the offence of kidnapping under the provisions of Section 3 (1) and (2) of the Anti-Abduction Law of Ondo State, 2010, the following ingredients must be established:-

“i. A person must have been taken or kidnapped by another person.

ii. There must be the intention to demand ransom from that person kidnapped or from another person.

iii. The intention must be to achieve an unlawful purpose.

iv. The intention of the accused person or persons is to inflict bodily injury or terrorize the person kidnapped or abducted.”

17. Learned counsel also submitted that the essential ingredients for the offence of murder are as follows:-

1. That the deceased died

2. That the death of the deceased was caused by the defendant and

3. That the act of the defendant which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable result.

18. He submitted that the prosecution at the trial Court called a lone witness Mr. Odebanitan (a sergeant) who was not an eye witness to the purported crime. He argued that the evidence adduced by the prosecution upon which the Appellant was convicted and sentenced affirmed by the Justices of Court of Appeal is hearsay evidence of a single witness.

19. He argued that the Court below throughout in their judgment attached strong weight on the evidence of PW.1 who is not an eye witness to the incident. He submitted that the case of prosecution was full of inconsistencies and contradictions. He contended that where inconsistencies exist in the evidence of the prosecution on material fact, such ought to be explained by the prosecution. He relied on AHMED VS THE STATE (1999) 5 SCNJ 223.

20. He argued further that the prosecution, at the trial Court did not elicit any evidence whatsoever as to the nature of weapon purportedly used in the killing of the deceased and other fundamental exhibit that could link the Appellant to the act.

21. Learned counsel further argued that the lower Court was wrong to have affirmed and adopted the learned trial judge’s admission of the Appellant’s purported extra judicial statement (Exhibit D) as a confessional statement in-spite of objection of the Appellant to its tendering on the ground of involuntariness of the process of its extraction. He put reliance on DANIEL NSOFOR VS THE STATE (2005) All FWLR (pt.242) 397.

22. He argued further that the lower Court relied mainly on the purported confessional statement made by Appellant in Exhibit D which was retracted by him at the trial Court along with the uncorroborated evidence of PW.1 to affirm the conviction of the Appellant. He submitted that by virtue of his argument, the learned justices of the Court of Appeal reached perverse findings within the meaning of the case of EDOHO VS STATE (2003) FWLR (Pt.171) 29 at 51 paras A.B.R.8.

23. The learned counsel finally urged this Court to hold that this appeal has merit and to set aside the judgment of the Court of Appeal, Akure Division and discharge and acquit the Appellant.

24. On the other hand, learned counsel for the Respondent argued that the contention of the learned counsel for the Appellant as stated above is misconceived. He submitted that, the prosecution, in proving their case called a lone witness (PW.1) and tendered Exhibits A, A3, B, C, D, and E – E2. Exhibit A3 revealed the mutilated body of the one and half year old baby (Dada Akinboye), Exhibit D is the extra Judicial statement of the Appellant upon which mini trial was conducted and which pass the six-way test in R. VS. SYKES (1913)8 CR. App. R. 233

25. He argued that, on the submission of the Appellant that the learned justices of Court of Appeal did not carry out any evaluation of evidence elicited by the Prosecution and the defence at the trial to justify their affirmation of conviction and sentence is totally misconceived. He argued that, the law is that an Appellate Court will interfere with the evaluation or appraisal of evidence and findings of facts by the trial judge, if such findings are perverse or shows a misapprehension of the fact. He cited the case of ATOLAGBE VS SHORUN (1985) 1 NWLR (Pt.2) 360 and STATE VS RABIU (1980) 8 – 9 SC 130. He submitted that contrary to the claim of the Appellant that the Respondent failed to prove the ingredients of kidnapping and murder, he submitted that, looking at Exhibit D, (the confessional statement) will reveal the role of the Appellant as principal offender in the commission of the crimes alleged.

26. He argued that, it is sound principle of law that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. He relies on Section 8 of the Criminal Code Law of Ondo State Cap 37, Vol. 1, 2006.

27. He submitted that there is evidence from Exhibit B and D that the deceased was kidnapped in the night of 16/6/2011, there is also evidence from PW.1 that there was a report of the murder of the deceased at Igbokoda Police Station. PW1 saw the deceased’s corpse at the scene of crime with the mutilated corpse. Exhibits A – A3 showed the mutilated body of deceased. Therefore, the lower Courts having believed the confessional statement of the Appellant and other evidence is entitled to reply on it and draw inferences of guilt there-from.

28. He finally submitted that this appeal should be dismissed on the basis that the prosecution successfully proved their case beyond reasonable doubt. He urged this Court to uphold the conviction and sentence of the Appellant by the trial Court in the judgment delivered on 20th March, 2014.

29. The learned trial judge in convicting the Appellant stated at page 98 of the record as follows:-

“The 1st and 2nd accused person in their statement (Exhibit B and D) admitted the 1st accused carried the deceased and gave it to the 3rd accused and the deceased was found dead with some parts missing near her mother’s house. From the evaluation of the evidence of the prosecution and the defence, the death of the deceased (the child taken from where she was sleeping) is an undisputable fact. Likewise, evidence was adduced that the 1st and 2nd accused were responsible for the disappearance of the deceased only to be found later with mutilated body and some missing parts.

30. The intention and knowledge that death or grievous bodily harm was the possible consequence can be inferred from the actions of the accused persons…From the totality of the evidence before the Court, the prosecution has proved that the acts of the 1st, 2nd and 3rd accused persons were responsible for the death of the deceased.”

31. Looking at the considered view of the learned trial judge, the conviction and sentence of the Appellant was based on the confessional statement made by the Appellant.

32. For reference, the confessional statement by the Appellant which is at page 143 – 144 of the record is reproduced as follows:-

“I Jona Lase ‘M’ freely elect to state as follows:- I am native of Mogbojuri Community seaside via lgbokoda under Ilaje Local Government Area Igbokoda I did not attended any schools, while I am a fishermen by profession, I knew one Bassey Akingboye ‘M’ (and Umisi) the father to deceased one Dada Rachel Akingboye ‘F’.

On the 16/06/2011 the said Theophilus Friday ‘M’ give us assignment that, we are following him down to the Ikoriho Community without telling us the type of work on that day he called us we did not enter his own boat we used our own wooden boat down to Odonla (and) waiting for him at Express Hotel. Later he came mocken me on chest which I did not know or got myself right, he commanded us to followed him at the back to his sister house, which we did I was outside waiting as guard, but Theophilus Friday ‘M’ and Segun Obaro ‘M’ entered house and carry the baby out, my second Segun Obaro ‘M’ handover her to Theophilus Friday he asked us to leave and we left, we did not know when he cut somebody parts of that girl, later the community people arrested us and handover us to the policemen up till point of writing Theophilus did not pay us N100,000.00 he promised us.”

33. The above confessional statement was objected by the learned counsel for the Appellant on the ground that it was not voluntarily made. The Court ordered for trial within trial to ascertain voluntariness or otherwise of the statement. At the trial within trial, the trial judge found that the evidence of the prosecuting witness did not leave any doubt that the prosecution has discharged the burden of proof that the statement of the accused was voluntarily made.

34. He held that the statement of the Appellant dated 20/6/2011 is admitted as Exhibit D. See page 58 of the record.

35. In the confessional statement above, the Appellant admitted participating in the kidnapping of the deceased by acting as a guard to monitor the environment while the offence was being committed, the consequence of which led to the death of the deceased.

36. From the above, it is clear that the Appellant has played a vital role in the kidnapping of the deceased, the role which also links him with the murder of the deceased. After kidnapping the deceased, the Appellant and 1st accused handed her over to the 3rd accused person and was later found dead.

37. There is no doubt that the Appellant has aided the 1st and 3rd accused in both kidnapping and murder of the deceased in this case.

38. Section 7 of the Criminal Code Law of Ondo State, Cap 37 Vol. 1 20 6 provided when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.

a) Every person who actually does the act or makes the omission which constitutes the offence.

b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

c) Every person who aids another person in committing the offence.

d) Any person who counsels or procures any other person to commit the offence.

39. The law is that once an abettor is found to be present at the commission of the offence he abetted, he has automatically become a principal offender and it is mandatory on the trial Court to convict him of the main offence.

40. However where two or more persons intentionally do a thing jointly, it is the same as if each had done it individually. Each person is not only liable for his own acts but also for the sum acts of his fellow conspirators in furtherance of the common intention. In SANI BUJE VS THE STATE (1991) 4 NWLR (Pt. 185) at 288 this Court held that:-

“When any person aids the commission of an offence by being present at the scene not as a mere onlooker but with the purpose of aiding and assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal.”

41. The Appellant in this case, has admitted, in his confessional statement aiding the other accused persons by monitoring the environment and to report any movement. This is his statement:-

“…I was outside waiting as guard and Theophilus Friday and Segun Obaro entered house and carry the baby out, my second Segun Obaro handover her to Theophilus Friday….”

42. Yet in SANI BUJE VS STATE (supra) the Court on when an abettor becomes principal offender held that:-

“Once an abettor is found to be present at the commission of the offence he abetted, he automatically becomes a principal offender and it is mandatory on the trial Court to convict him of the main offence and not its abetment. In the instant case, Exhibits Pw.1 and Pw.3, statements of the Appellant to the police, contained an admission of the unlawful killing of the deceased in circumstances in which the Appellant was, at least, a principal offender.”

43. On the confessional statement of the Appellant which was resiled by him, the Court having admitted it after trial within trial was conducted, can convict the Appellant on that. The law is that a free and voluntary confession of guilty by an accused person if it is direct and positive and satisfactorily proved should occupy the high place of authenticity when it comes to proof beyond reasonable doubt. That is why such a confession by itself alone is sufficient without corroboration to warrant a conviction and there cannot be such a conviction unless the trial Court is satisfied that the case has been proved beyond reasonable doubt.

44. This Court again in SHUAIBU ABDU VS THE STATE (2006) 12 SC (Pt. Vl) at page 103 held that –

“…The prosecution heavily relied on the confession of the accused/Appellant in proof of its case. I am mindful of the fact a free and voluntary confession of guilty whether judicial or extra-judicial which is direct, positive and properly proved is enough to establish a conviction, so long as the Court is satisfied with its truth. See:- THOMAS AKPAN EKONG VS THE STATE (2013) All FWLR (Pt. 685) 353; ODEY VS F.R.N. (2008) 3-4 SC 142.”

45. However, in EGBOGHONOME VS THE STATE (1993) 7 NWLR (Pt. 306) 383 it was held that:-

“Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amount to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled there-from or retracted it altogether at the trial, since such u-turn does not necessary make the confession inadmissible.” See also QUEEN VS ITULE (1961) 2 SCNLR 183; AREMU VS THE STATE (1984) 6 SC 85; EJINIMA VS THE STATE (1991) 6 NWLR (pt. 200) 62; AKPAN VS THE STATE (1992) 6 NWLR (Pt. 248) 439 and AKINFE VS STATE (1988) 3 NWLR (Pt.85) 729. In SULE VS THE STATE (2009) 4 NCC 456, this Court decided that:-

“A Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution.” See also ADEKOYA VS THE STATE (2012) 1 NCC page 7 and ONYEYE VS THE STATE 7 NCC page 304.

46. From the foregoing, this Court agrees with the lower Court, which earlier had agreed with trial Court’s decision to admit the confessional statement of the Appellant and also in agreement with the decision of the lower Court where it affirmed the decision of the trial Court that:-

“The first point to note on the sole issue for determination is in relation to Exhibit D that is the confessional statement of the Appellant. Exhibit D was declared voluntary after trial within trial was held and it also satisfied the six-way test laid down in the case of R VS SYKES (1913) 8 CR App. R. 233…and applied in more recent cases such as ADISA VS STATE (2013) 14 NWLR (Pt. 1375) 567 at 578…it is trite that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court as in the instant case is satisfied of the truth of the confession notwithstanding that it was later retracted…Indeed, and as suggested by the learned counsel for the Respondent, the Appellant’s confessional statement (Exhibit D) has not only admitted the essential ingredients of the offences charged but also shows unequivocal, direct and positive involvement of the Appellant in the crime alleged.”

47. The Appellant did not show the findings of the two lower Courts to be perverse. I am satisfied that the prosecution has proved its case beyond reasonable doubt. The sole issue for determination of this appeal is hereby resolved in favour of the Respondent. The appeal is without merit and is hereby dismissed.

48. The conviction and sentence of the Appellant is reconfirmed.

RHODES-VIVOUR, J.S.C.

1. I have had the opportunity of reading in draft the Leading Judgment of my learned brother, Bage JSC. I am in complete agreement with his Lordship’s reasoning and conclusion, and do not wish to add anything more.

2. Accordingly, the appeal fails and it is hereby dismissed. The conviction and sentence passed on the Appellant is affirmed.

OGUNBIYI, J.S.C.

1. The two lower Courts are concurrent in their judgments. The law is trite that the said decision cannot be disturbed except only if the Appellant shows that the judgment was either perverse or it is shows to have occasioned a miscarriage of justice. See Onyejekwe v. The State (1992) 3 NWLP (Pt. 230) 444: Posu v. The State (2011) All FWLR (Pt. 565) 234 at 249: Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23: Alsthom S. A. v. Saraki (2005) All FWLR (Pt. 246) 1385 at 1399: University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156: Ndulue v. Ibezun (2002) (pt.780) 12 NWLR P.139 and Mbadugha v. Nwosu (1993) 9 NWLR (Pt.315) P.110.

2. It is significant to point out that the confessional statement of the Appellant exhibit “D” speaks volume against him. The contents are very vivid and revealing that the Appellant participated in the act that led to the killing of the deceased.

3. I am mindful however, that the Appellant in his defence at the trial within trial testified that when he was taken to lgbokoda police station, he was handcuffed, sat on the floor and beaten with batons by Police officers, that he was beaten till he fell; that the said PW1 and Abbey inflicted injury upon him. I seek to state also that the nature of the injury alleged by the Appellant was neither described nor specified specifically to the Court. This information was necessary to corroborate the Appellant’s defence.

4. On the effect of the failure in taking the accused before a superior police officer after his statement was obtained, the practice and procedure, although desirous is not however a legal requirement. See Solola v. The State (2005) 2 NWLR (Pt. 937) P.460 at 484 where this Court held and said:-

“… 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.”

5. The information contained therein the statement are such that it must be within the knowledge of the maker, (Appellant), only and none other. The making of such was certainly voluntary.

6. The trial Court believed so and was endorsed by the lower Court. I have perused carefully the contents of the Appellant’s statement Exhibit D, and I hold the view that the nature of the facts contained therein could not have been that of a person who was under stress or force.

7. This is because the narration is so logical and follows chronogically to the point of reasonable conclusion. In other words, the statement contains minute details and facts that could not have been remembered by a person under stress, or who is being threatened. The principle of Justice should not be sacrificed at the altar of technicality.

8. For ease of reference, I wish to reproduce the narration as contained in the Appellant’s confessional statement at pages 143 – 144 of the record of appeal as follows:-

“I Jona Lase ‘M’ freely elect to state as follows:- I am native of Mogbojuri Community seaside via lgbokoda under Ilaje Local Government Area Igbokoda I did not attended any schools, while I am a fisherman by profession, I knew one Bassey Akingboye ‘M’ (and Umisi) the father to the deceased one Dada Racheal Akingboye ‘F’ on the 16/06/2011 the said Theophilus Friday ‘M’ give us assignment that, we are following him down to the lkoriho Community without telling us the type of work on that day he called us we did not enter his own boat we used our own wooden boat down to Odonla (and) waiting for him at Express hotel. Later he came mocken me on chest which I did not know how or got myself right. he commanded us to followed him at the back to his sister house, which we did I was outside waiting as guard, but Theophilus Friday ‘M” and Segun Obaro ‘M’ entered house and carry the baby out, my second Segun Obaro ‘M’ handover her to Theophilus Friday he asked us to leave and we left, we did not know when he cut some body parts of that girl, later the community people arrested us and handover us to the policemen up till point of writing Theophilus did not pay us Nl00,000.00 he promised us. (Emphasis are provided)

9. I have no reason to go contrary to the conclusions arrived at by the two lower Courts in the absence of any cogent and convincing reason by the Appellant. The denial by the Appellant of the statement was an act of afterthought only.

10. My learned brother Bage Jsc has dealt with the issues raised in this appeal adequately and I adopt his reasoning and conclusions as mine.

11. In terms of the lead Judgment, therefore, I also dismiss this appeal as lacking in dire merit, and affirm the concurrent judgments by the two lower Courts.

SANUSI J.S.C.

1. I read before now the judgment prepared by my learned brother Sidi Bage JSC which was supplied to me before now. On perusing same, I find myself in entire agreement with the leading judgment that this appeal lacks merit and ought to be dismissed.

2. It seems to me that the bone of contention between the parties is whether the lower Court was right in affirming the decision of the trial High Court which convicted and sentenced the Appellant of the offences of kidnapping and murder solely on the confessional statement of the Appellant tendered through a witness who was not an eyewitness.

3. In the first place the law is trite that a Court can and is indeed entitled to act on the evidence of one single witness if that witness is believed given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt unless where the law requires corroboration. See Ohuanyan vs The State (1996) 4 SCNJ 95 at 105; Effiong vs The State (1998) 8 NWLR (pt 572) 362.

4. I must add that the credibility of evidence does not ordinarily depend on the number of witnesses who testify on a particular point, but rather, it depends on whether the evidence of the single witness is believed and accepted by the Court and if so believed by the Court, than it is sufficient to ground a conviction. See Ali vs The State (1988)1 NWLR (pt.68) 1; Abogiede v The State (1996) 4 SCNJ 227 233.

5. On Exhibit D which is the confessional statement of the accused/Appellant, it is pertinent to say that the trial Court had conducted trial within trial when the defence objected to its admissibility on ground of involuntariness before admitting same. See Sunday S. Agwu vs The State (2013) ALL FWLR (pt.682)1812. After conducting a trial within trial and ascertaining the voluntariness of the confessional statement, a trial Court is thereupon free to admit it in evidence. See Thomas Akpan Ekong vs The State (2013) All FWLR (pt.685) 353. See also Ekare vs State (1999) 13 NWLR (Pt. 635) 458.

6. The law still requires that a trial Court faced with confessional statement has the onerous duty to subject it to the six tests to verify the truth of the confessional statement. See Akpa v The State [2007]2 NWLR [pt 1019) 500; Jimoh Yesufu vs The State (1976) 6 SC 167. In the instant case, the record of appeal/proceedings clearly shows that the learned trial judge had subjected the confessional statement to the six tests before relying and acting on it to convict the Appellant. I am of the view therefore, that the lower Court had rightly affirmed the judgment of the trial Court in its resolve to convict the Appellant of offences he was charged with. I am also convinced that the confessional statement was duly and adequately corroborated by some other pieces of evidence ascertaining or confirming the involvement of the Appellant in the perpetration of the crimes, contrary to the view held by the learned counsel for the Appellant herein. Moreso, on perusing the statement, one can conclude no other person would have revealed those facts other than the accused/Appellant

7. It is noted by me that in this instant appeal there are concurrent findings of facts by the two Courts below both confirming the guilt of the present Appellant. The practice of this Court is that it is always hesitant in disturbing or interfering with concurrent findings of judgments of two lower Courts, except on special circumstances bordering on perversion, miscarriage of justice or misconception of law substantive of procedural. See Igwego & Ors Vs Ezeugo & Anor (1992) LPELR – 1458 (SC): Kenneth Ogoala vs The State (1991) 2 NWLR (Pt.175) 509; (1991) 3 SCLNJ 61; Osho & Anor vs Forign Finance Corporation (1991) 5 SC 59; Adeyemi v The State (1991) 6 NWLR (pt.195) 1; Ogoala vs The State (1991) 2 NWLR (pt. 5) 509.

8. I must stress here, that the Appellant failed to show that the findings of the two lower Courts are either perverse, or had occasioned miscarriage of justice or that there was misconception or misapplication of the law be it substantive or procedural. It is only if he had done so, that would warrant me to disturb or interfere with the finding of the Court below.

9. I am therefore hesitant to do so in the absence of any such proof and I therefore affirm the lower Court’s judgment which had earlier affirmed the decision of the trial Court convicting the Appellant of the offences he was charged with.

10. With these few comments and for the fuller and more detailed reasons and the conclusion ably marshaled in the lead judgment of my learned brother Sidi Bage JSC which I entirely agree with and adopt as mine. I also adjudge this appeal unmeritorious. It is accordingly dismissed by me. Appeal dismissed

GALINJE, J.S.C. (DISSENTING)

1. The Appellant herein along with two other accused persons were arraigned before the High Court of Ondo State, holden at Akure charged with the offence of kidnapping contrary to and punishable under Section 3 of the Ondo State Anti-Kidnapping and Anti-Abduction Law 2010, and Murder contrary to Section 316 and punishable under Section 319 of the Criminal Code Law of Ondo State, 2006. The Appellant pleaded not guilty to the charge.

2. Learned counsel for the prosecution called one witness out of the five witnesses that were listed in the proof of evidence before the Court and closed the prosecution’s case. The Appellant and the two accused persons each testified in person and called no further witnesses. At the end of the trial, Odusole J in a reserved and considered judgment, delivered on the 20th March, 2014 found the Appellant who was the 2nd accused person guilty on both counts and the 3rd accused was found guilty of murder, each of them were sentenced to death by hanging. The Appellant’s appeal to the Court of Appeal Akure Division was unsuccessful as same was dismissed on the 9th of July, 2015.

3. The present appeal is against the decision of the Court of Appeal, Akure Division The Appellant’s notice of appeal at page 153-157 of the record of this appeal, dated 23rd July, 2015 and filed on the same date, contains eight grounds of appeal. Parties filed and exchanged briefs of argument. Chief Henry Eshijonam Omu, learned Appellant’s counsel at page 5 of the Appellant’s Brief of Argument formulated two issues for determination of this appeal as follows:-

“1. Whether the prosecution proved its case beyond reasonable doubt against the Appellant to the effect that the Appellant was guilty of kidnapping and murder of Dada Rachel Akinboye to justify the affirmation of the conviction and sentence of death by hanging of the Appellant by the learned Justices of the Court of Appeal, Akure Division.

2. Whether the learned Justices of the Court of Appeal, Akure Division were right to have adopted the learned trial Judge’s admission of the Appellant’s purported extra-Judicial statement – Exhibit D as a confessional statement in spite of objection of the Appellant to its tendering on the ground of involuntariness of the process of its extraction and relied heavily upon same to affirm the conviction and sentence of the Appellant for kidnapping and murder.”

4. Learned counsel married the first issue to grounds 1, 3, 4, 5, 6 and 8, while the 2nd issue is married to grounds 2 and 7.

5. Mrs. A. O Adeyemi-Tuki, learned Director Public Prosecutions, Ondo State, Ministry of Justice, settled the Respondent’s brief of argument which was filed on the 12th of January, 2016, but deemed filed on the 20th April, 2016. At page 4 of the said brief, the Respondent issued a preliminary objection in the following terms:-

“Whether or not grounds 1 – 8 of the Appellant’s notice of appeal and the two issues for determination in the Appellant’s brief are competent having failed to challenge the decision or the ratio of the decision of the Court of Appeal.”

6. This preliminary objection is argued at pages 4 – 5 of the Respondent’s brief of argument. Thereafter learned Respondent’s counsel distilled one issue only for determination of this appeal and it reads thus:-

“Whether, the prosecution Proved its case beyond reasonable doubt against the Appellant in the light of Exhibit D to the effect that the Appellant was guilty of kidnapping and murder of Dada Rachel Akingboye to justify the affirmation of the conviction and sentence of death by hanging of the Appellant by the learned Justices of the Court of Appeal, Akure Division.”

7. The Appellant’s reply brief is dated 5th February, 2016 and filed on the 8th February, 2016. l will consider the reply in the course of this judgment as the circumstances permit

8. Now the essence of Preliminary objection is to terminate in limine an appeal. So when it is issued by a Respondent, the Court is duty-bound to hear and determine same before hearing the appeal. This is so because the Court would have saved the energy it would have dissipated over the hearing of incompetent appeal, if the appeal is indeed incompetent. See Yaro v Arewa Construction Ltd (2007) 17 NWLR (Pt. 1063) 333; Agbareh v Minra (2008)2 NWLR (Pt. 1071) 378; Onyemeh v Egbuchlam (1996) 5 NWLR (Pt.448) 255; Efet v INEC (2011) 7 NWLR (Pt. 1247) 423 at 438 Paras F-G. In his argument in support of the preliminary objection, learned Respondent’s counsel submitted that the 1st and 2nd issues formulated by the Appellant are incompetent since they are based on grounds that relate to complaints against the judgment of the trial Court and are totally unconnected with the decision of the Court of Appeal. ln aid, learned counsel cited K. A Onamade & Anor v African Continental Bank Ltd (1997) 1 NWLR (Pt.480) 123 at 146; Hon. Ahmed Salawu Ogenbe v Nurudeen Abatani Usman & 2 Ors LPELR (211) 156/2011, (2011) 17 NWLR (Pt. 1277) 638. In a further argument, learned counsel submitted that the two issues and the grounds of appeal do not arise from the decision of the Court of Appeal and they do not challenge the ratio of the decision. ln support, learned counsel cited Co-operative & Commerce Bank Plc v Jonah Dan Otoro Ekper (2007) 1 SC (Pt.11) 130; Nsirim v Nsirim (1990) 2 NWLR (Pt. 138) 285. Finally, learned counsel urged this Court to dismiss the appeal for being incompetent.

9. In his reply, learned counsel for the Appellant submitted that the preliminary objection in itself is incompetent and should not be heard because same was not separately filed through a motion on notice in line with the decision in Nsirim v Nsirim (supra) at page 297. In event that his objection to the Respondent’s preliminary objection fails, learned counsel submitted that the Respondent’s challenge to the competence of the Appellant’s two issues and eight grounds of appeal did not specify how the aforementioned eight grounds of appeal couched on behalf of the Appellant are incompetent.

10. Learned counsel made reference to the issues formulated by the Appellant and the grounds of appeal and cited examples of the 2nd and 7th grounds of appeal which directly attacked the lower Court’s findings in respect of Exhibit D and contended that the grounds of appeal clearly arise from the decision of the lower Court and they constitute a challenge to the ratio decidendi of the case. Finally, learned counsel urged this Court to dismiss the preliminary objection

11. Because of the serious objection to the grounds of appeal by learned Respondent’s counsel. I wish to reproduce the eight grounds of appeal hereunder for clarity, without their particulars as follows:-

12. GROUNDS OF APPEAL:

GROUND 1:

1. The learned Justices of the Court of Appeal erred in affirming the learned trial Judge’s conviction of Appellant for kidnapping and murder when the prosecution at the trial Court failed to prove the charges against the Appellant beyond reasonable doubt as required by law.

PARTICULARS OF ERROR:

a. The ingredients and requirements of the offence of kidnapping and murder were not proved by the prosecution at the trial.

b. The prosecution at trial did not adduce any evidence directly linking the Appellant to the kidnapping and killing of the deceased.

c. The learned trial judge convinced the Appellant based mainly on the uncorroborated, unsafe and unreliable evidence of PW1 – the prosecution’s sole witness, the IPO – Police Sergeant Odebamitan Dickson and the purported confessional statement of the Appellant – Exhibit D and the Justices of the Court of Appeal affirmed that said conviction to the detriment and prejudice of the Appellant.

d. At the trial, the Appellant and his co-accused persons categorically denied the charges of kidnapping and murder leveled against them and the prosecution did not elicit any scintilla of evidence against the Appellant to justify his conviction.

e. The Appellant was arrested a purported culprit by the Ikoriho community on the directive of the community’s fetish Agbadi Local deity or oracle and not as result of any adverse evidence against the Appellant or any investigative activity by the community or the olice.

f. The Prosecution sole witness – PW1, under cross examination admitted that in the course of his investigation of the case as IPO, search was not conducted at the residence of the Appellant and nothing incriminating was found against the Appellant.

GROUND 2:

2. The learned Justices of the Court of Appeal erred in affirming the learned trial Judge’s conviction of the Appellant for kidnapping and murder by simply believing and accepting the wrong inferences and conclusions of the learned trial Judge based on the evidence of PW1 and Exhibit D without the Learned Justices of the Court of Appeal evaluating the evidence adduced by the respective parties at the trial Court.

PARTICULARS OF ERROR:

a. The learned Justices of the Court of Appeal never evaluated the evidence adduced by the prosecution and defence at the trial at the lower Court but merely wholeheartedly accepted all the finding and conclusions of the learned trial judge in its entirety. b. The learned Justices of the Court of Appeal accepted the wrong inferences and conclusions of the learned trial judge that the Appellant confessed to the crime in his purported confessional statement – Exhibit D without any legal justification whatsoever. GROUND 3:

3. Learned Justices of the Court of Appeal erred in affirming the learned trial Judge’s conviction of the Appellant for murder when the Prosecution at the trial Court did not adduce any evidence directly linking the Appellant to the killing of the deceased.

PARTICULARS OF ERROR:

a. The prosecution at the Court did not elicit any iota of evidence showing that the Appellant actually participated in the kidnap and killing of the deceased as the decision of the lower Courts were based on wrong inferences from Exhibit D – purported confessional statement of the Appellant.

b. The conviction of the Appellant at the trial Court and the affirmation of conviction by the Court of Appeal was based on the unreliable evidence of PW1 and Exhibit D – Appellant’s purported confessional statements which were most unreliable. GROUND 4:

4. The learned Justices of the Court of Appeal erred in affirming the learned trial Judge’s conviction of the Appellant for murder based mainly on the evidence of PW1 – the prosecution’s sole witness, the IPO Police Sergeant Odebamitan Dickson who was not an eye witness to the incident leading to the kidnap and death of the deceased and whose evidence was not corroborated in any manner whatsoever.

PARTICULARS OF ERROR:

a. The learned Justices of the Court of Appeal affirmed the reliance of the Learned Trial Judge on the evidence of PW1 – the prosecution’s sole witness, the IPO Police Sergeant Odebamitan Dickson in the conviction of the Appellant kidnap and murder of the deceased.

b. PW1 was not an eye witness to the incident leading to the kidnap and death of the deceased and the evidence of PW1 was not put to any veracity test both at the trial and the Appellate Court which made his evidence unsafe and unreliable.

GROUND 5:

5. The learned Justices of the Court of Appeal erred in affirming the learned trial Judge’s conviction of the Appellant for murder when the prosecution failed to tender any evidence of whatsoever nature of how the deceased was kidnapped and killed as well as the weapon (if any) purportedly used in killing of the deceased and other fundamental exhibits.

PARTICULARS OF ERROR:

a. The prosecution failed to tender neither any evidence of whatsoever nature of the manner the deceased was kidnapped and killed nor any weapon purportedly used in the killing of the deceased and other fundamental exhibits which linked the Appellant in any way to the incident leading to the death of the deceased.

GROUND 6:

6. The learned Justices of the Court of Appeal erred in affirming the learned trial Judge’s conviction of the Appellant for murder when the prosecution did not tender any medical report/evidence at the trial Court in relation to the purported killing of the deceased linking the Appellant to the death of the deceased PARTICULARS OF ERROR:

a. The prosecution at the trial did not tender any medical report/evidence at the trial linking the Appellant to the kidnap and death of the deceased.

GROUND 7:

7. The learned Justices of the Court of Appeal erred in affirming the learned trial judge’s conviction of the Appellant for kidnap and murder by accepting and treating the Appellant’s purported statement – Exhibit D as a confessional statement in spite of the Appellant’s retraction of the extra-judicial statement and the Appellant’s evidence at the trial Court that he was beaten and tortured by the police before forced to thumb print the said statement and also in spite of the Appellant’s illiteracy.

PARTICULARS OF ERROR

a. Evidence was led at the lower Court that the Appellant is an illiterate who cannot read or write, consequently the Appellant statement (which the lower Courts deemed confessional) were written on his behalf by PW1 who beat him up and forced him to sign same.

b. The Appellant disclaimed, denied and retracted Exhibit D when shown to him by his counsel at the trial at the lower Court.

c. The learned trial Judge admitted Exhibit D – extra-judicial statement purportedly made by the Appellant to the police in evidence and treated confessional statement to the prejudice of the Appellant in spite of the evidence elicited by the Appellant against same at the trial within a trial where the learned trial Judge held that the evidence of Pw1 is probable, believable and more credible than that of the Appellant thereby validating the unreliable Exhibit D.

d. The learned trial Judge treated and relied on Exhibit D as a confessional statement without the learned trial Judge testing the truthfulness and veracity of the said statements in line with judicial decisions and the learned Justices of the Court of Appeal adopted same to the detriment of the Appellant.

e. The Appellant’s extra judicial statement Exhibit D was written on his behalf by Pw1 in English language when the Appellant is a stark illiterate and same was not properly translated to him and the Yoruba version of the statement Exhibit E, E1 and E2 were neither dated nor signed thereby rendering them worthless.

f. The learned trial Judge in inferring the ingredient of ransom payment for the offence of kidnapping by accepting and believing the purported confessional statement of the accused persons to the effect that the deceased was handed over to the 3rd accused because of the 3rd accused promise to pay then N100,000.00.

g. The trial Court as a fact and held that the acts of the 1st and 3rd accused persons (at the trial Court) and not the 2nd accused (Appellant) was responsible for the cause of death of the deceased but nevertheless convicted the Appellant for kidnap and murder of the deceased.

Ground 8:

8. The judgment of the Court of Appeal is perverse, unreasonable, unwarranted and cannot be supported having regard to the evidence adduced by the respective parties at the trial Court and the submissions of the respective counsel at the Court of Appeal.

13. From a close perusal of these grounds of appeal, it is very clear that they are all directed at the decision of the Court of Appeal which the Appellant says was reached in error. I have therefore failed to see where the grounds of appeal] arose from the decision of the trial Court. A Respondent who wishes to rely on a Preliminary objection must do so within the confines of Order 2 Rule 9 (1) and (2) of the Rules of this Court. This order provides as follows:-

“9(1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the Appellant three clear days’ notice thereof before the hearing, Setting out the grounds of objection, and shall file such notice together with ten copies thereof with the Registrar within the same time.

(2) If the Respondent fails to comply with this rule the Court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.”

14. The provision of Order 2 Rule 9{1) and (2) is very clear. The notice of preliminary objection shall be filed together with ten copies thereof with the registrar. By filing here it presupposes that filing fees shall be paid and a receipt issued by the registrar. The fees payable for filing Court processes are enumerated in the Second Schedule to the Rules of this Court 2014 as amended

15. The preliminary objection issued by the learned counsel for Respondent, has failed to meet the conditions set under Order 2 Rule 9(1) of the Rules of this Court, and by Order 2 Rule 9(2), the preliminary objection is incompetent and ought not to be considered in line with the decision in Nsirim v Nsirim (supra).

16. The two issues formulated by the learned counsel for the Appellant as reproduced elsewhere in this judgment are related to the grounds of appeal from which they have been distilled. The preliminary objection even though has not been issued strictly in accordance with Order 2 Rule 9(1) of the Rules of this Court, it has been heard. Same shall to be and it is accordingly overruled.

17. For the appeal, I have read through the record of appeal and the briefs of argument filed by the respective parties and I am of the firm view that the only issue calling for determination of this appeal is whether the Appellant was properly arraigned before the High Court, and if not, whether the prosecution has proved its case beyond reasonable doubt as to warrant the conviction and sentence which were confirmed by the lower Court.

18. Before I consider argument from learned counsel for the parties, it is pertinent to set out albeit in brief the facts of this case which are simple and straight forward. On or about the 7th day of June, 2011, in the night at Ikoriho village, Dada Rachel Akingboye, a child of about one year four months who was sleeping beside her mother along with two other children was reportedly stolen or kidnapped by an unknown person. The following morning Rachel Akingboye body was found in the bush near the house where she was kidnapped with certain parts of her body removed. The father of Rachel left for Igbokoda to report the incidence to the police. He was still at lgbokoda when he received a phone call that those who kidnapped and killed his daughter had been arrested. After the father of Rachel had gone to report the incidence at lgbokoda, Chief Wikon Erejuwa, the Baale of Ikoriho summoned the leaders of the community to a meeting and proper investigation into the disappearance of the child. These leaders consulted their oracle which disclosed that the trio of Olusegun Obaro, Jonah Lase, the Appellant herein and Theophilus Friday were the ones that kidnapped and killed Rachel Akingboye. Chief Wilson Erejuwa had the three persons so disclosed by the oracle arrested and were subsequently handed over to the police that came from Igbokoda with the father of Rachel Akingboye following the report that was received in connection with the kidnapping of the child.

19. In his argument, learned Appellant’s counsel submitted that the prosecution did not prove its case beyond reasonable doubt as required by law and that the lower Court did not carry any evaluation of evidence elicited by the prosecution and the defence at the trial and therefore reached a decision that is perverse. In a further argument, learned counsel submitted that the only witness that was called by the prosecution is not an eyewitness to the crime and therefore his evidence is a hearsav and inadmissible in evidence. In aid learned counsel cited Ahmed v The State
(1999) 7 NWLR (Pt. 612) 641 at 675. Still in argument learned counsel submitted that in view of the untruthfulness and contradictory testimony of PW1 the lower Court ought to have discountenanced his evidence. In aid, learned counsel cited and relied on Ahmed v The State (1999) 5 SCNJ 223; John Agbo v The State (2006) ALL FWLR (Pt.309) 1380 at 1399 paras C -D.

20. On the submission that PW1 is not an eyewitness to the crime, learned counsel cited in aid the authorities in Benson Obiakor v The State (2002) FWLR (Pt.113) 299 at 313 paras E-F and Joseph Idowu v The State (2000) FWLR (Pt. 16) 2672 at 2702 – 2703 paras H-A.

21. Learned counsel submitted that the cause of death was not proved and there is no evidence linking the Appellant to the death of the deceased, as the evidence upon which the Appellant was convicted is unreliable, inconclusive and had no legal basis, as such the Justices of the Court of Appeal were wrong to have affirmed the judgment of the trial Court. Learned counsel faulted the admission of the Appellant’s extra-judicial statement on the ground that during the trial within trial, no independent, credible, cogent and quality evidence was called to justify that the Appellant made Exhibit D, upon which the trial Court relied heavily in returning a verdict of guilt, a verdict that was confirmed by the lower Court. On the whole, learned counsel urged this Court to allow the appeal.

22. Mrs. Adeyemi Tuki, learned counsel for the Respondent reproduced Section 3(1) and (11) and Section 2 of the Ondo State Anti-kidnapping and Abduction Law, 2010 and submitted that prosecution proved its case beyond reasonable doubt through PW1 and Exhibits ‘A’, ‘A3’, B, C, D, ‘E’ – ‘E2’ as well as Exhibits ‘A’ – ‘A3’. According to the learned counsel, the finding of the two lower Courts that Exhibit D – the confessional statement of the Appellant is direct, positive and unequivocal, is a finding of facts and therefore this Court should not interfere with those findings since they are not perverse. In aid, learned counsel cited Atolagbe v Shorun (1985) 1 NWLR (Pt. 2) 360: State v Rabiu (1980) 8 – 11 SC 130.

Learned counsel urged this Court to dismiss this appeal.

23. The lower Court, in its judgment at page 143 of the record of this appeal held:-

“Indeed, and as suggested by the learned counsel for the Respondent, the Appellant’s confessional statement Exhibit D has not only admitted the essential ingredients of the offence charged but also shows unequivocal, direct and positive involvement of the Appellant in the crimes alleged.”

24. Before I take on the issue of whether the prosecution did prove its case beyond reasonable doubt, I wish to comment on the first issue which the Appellant raised, and that is whether the lower Court had jurisdiction to evaluate the evidence of the parties at the trial Court? The law is settled that assessment of oral evidence and ascription of probative value to such evidence is the primary duty of a tribunal or trial Court and a Court of Appeal would only interfere with the performance of that exercise if the trial Court has drawn wrong conclusions from accepted or proved facts, which those facts do not support.

25. In other words, an Appellate Court has no jurisdiction to interfere with the assessment of evidence and ascription of probative value to such evidence by the trial Court in the absence of special circumstances. See Eki v Giwa (1977) 11 NSCC 96 where Obaseki JSC cited with approval the case of Fashanu v Adekoya (1974) 1 LL NLR (Pt. 1) 35 at 41 where this Court held:-

“The appeal before us clearly attacks the findings of facts and seriously challenges the judgment in an area which is only narrowly open to a Court of Appeal. The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial and a Court of Appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunity of hearing and seeing the witness or has drawn wrong conclusions from accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which those facts cannot and do not in themselves support.”

26. Now, was there any special circumstance that would have warranted the lower Court to interfere with the findings of the trial Court? I think there was. The prosecution called only one witness, who was the Investigating Police Officer attached to lgbokoda Divisional Police station by name Odebamitan Dickson.

27. During his testimony, the prosecuting counsel applied to tender the statement of the Appellant in evidence. Learned counsel for the Appellant opposed the admissibility of the Appellant’s extra-judicial statement on the ground of involuntariness. Learned counsel said the Appellant was beaten and forced to sign the statement. Learned counsel urged the trial Court to conduct a trial within trial to test the voluntariness or otherwise of the statement. The trial Court set in motion a trial within trial rightly in my view immediately. The only prosecution witness during the trial was Odebamitan Dickson, the first prosecution witness who the Appellant accused of recording his statement under severe torture. Although, he denied torturing the Appellant, there was no independent witness that was called to confirm whether he tortured the Appellant or not. Where an accused Person makes a confessional statement, the normal Procedure is to take the accused person to a superior police officer before whom the confessional statement will be read and explained to the accused and upon the accused confirmation, the superior police officer will endorse the statement in the instant case, PW1 did not follow this procedure. Although this procedure is not mandatory, his failure to follow this practice has created a vacuum which is difficult to fill. It is the duty of the prosecution to prove positively, that the confessional statement made by the Appellant was made voluntarily. In Emeka v State (2001) 14 NWLR (Pt. 734) 666 at 681 Paras E-F this Court held:-

“Where there is a trial within trial, onus is on the prosecution to prove that it was free and voluntary. In order that evidence of a confession may be admissible, it must be affirmatively proved that the confession was free and voluntary.” See Yusuf v The State (1976) 6 SC 167: Martin Priestly (1966) 50 CR. App. R 183.

28. The statement of the Appellant in my view was not affirmatively proved to be a voluntary confessional statement. PW1 who gave evidence during the trial within trial, at page 37 of the record of this appeal said:-

“There were some Police officers in that room where the statement was obtained. There was no beaten (sic) an (sic) any form of torture metted on the accused while taking his statement.”

29. Now if there were policemen in the room where the statement of the Appellant was taken, they are vital witnesses, whose evidence could tilt the case on either side. The prosecution’s failure to call those policemen were present as witnesses is fatal to the Prosecution’s case. See Ochiba v State (2011) 17 NWLR (Pt. 1277) 663 at 696 paras A – B where this Court said:-

“The Appellant assessed the witnesses not called, as vital witnesses. A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”

30. The Appellant was so categorical in his evidence during the trial within trial that it was the PW 1 and one Abbey that inflicted injury on him and forced him to sign Exhibit D. The only evidence that led to the admission of the statement of the Appellant is that of the person accused of perpetrating the torture. Such evidence in my view required corroboration. In absence of such corroboration, the prosecution had in my view failed to proof that the Appellant’s statement was made voluntarily. The trial Court wrongly admitted Exhibit D and the lower Court was wrong in relying on the said exhibit. I find the confessional statement Exhibit D inadmissible and so I hold. If Exhibit D is removed from the prosecution’s case, there is nothing left to support its case. ln his evidence at the trial Court, the Appellant narrated how he was arrested as follows:-

“I was in my house when one Folagbade and Canada entered my house and told me that the headship of Ikonrigho Community (the Baale) wanted to see me at Ikorigho. I asked why did the Baale wanted to see me but they told me that Baale will tell me when I see him. I thereafter followed them to see the Baale.

31. When I got to Baale’s house, I discovered that the house was filled with multitude. The Baale asked me to sit down and later told me that through consultation with oracle (Fetish act) he was told that I was one of the people that killed the person that died in his community. I then questioned to see their oracle called Agbada to confront him how he came to mention my name. It was at that time that the youth and all the people started to beat me and asked me to confess. I never saw Agbada (Fetish Oracle) to confront me with the killing, but it was Baale who said so.”

32. It will appear from this evidence that the Appellant was subjected to a mob action at the residence of the Baale of lkorigho where he stated that he was beaten and subjected to inhuman treatment. The prosecution did not call the Baale and his subjects to explain how the oracle revealed the identity of the Appellant. Evidence extracted from oracle or fetish substance is not recognized by the law of Ondo State. (See Sections 207 – 211 of Ondo State Criminal Code). Be that as it may, the judgment of the trial Court and the Court of Appeal were predicated on Exhibit D. Since this exhibit is discountenanced by me. I find no reason to uphold the concurrent findings of the two lower Courts. Accordingly the sole issue identified by me is resolved in favour of the Appellant. On this basis, this appeal shall be and it is accordingly allowed. The Appellant is hereby discharged and acquitted.