➥ CASE SUMMARY OF:
Lawrence Oguno & Anor. v. The State (SC.391/2010, 1 Mar 2013)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Circumstantial evidence;
Confessional statement;
Abetment.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Court of Appeal Jos Division, hereinafter called the lower court delivered on 2/6/2010 affirming the conviction and death sentence passed on the two Appellants by the trial court.
The two accused persons, Lawrence Oguno and Joel Oguno, were arraigned before the High Court of Justice Plateau State for the offences of culpable homicide punishable with death under Section 221 of the penal Code and abetting the commission of culpable homicide punishable under Section 85 of the penal Code respectively.
Both accused persons each pleaded not guilty to the charge and thereafter hearing in the case commenced in earnest. It will be interesting to note that the two accused persons are brothers while the deceased Patrick Oguno was their biological father.
➥ ISSUE(S)
I. Whether the procedure leading to the admission of exhibits 1 and 2 (confessional statements) in evidence is regular if not what is its effect on the proceeding?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[IT WAS THE APPELLANT WHO ELECTED TO CALL THEIR WITNESSES FIRST IN THE TRIAL WITHIN TRIAL
‘In the instant case, was it the trial Court that called the appellant to start giving evidence first in the trial within trial? I have carefully perused the record of appeal and I am unable to find anywhere the trial Court directed the appellants to start first. It was the appellants; through their learned counsel that elected to start giving evidence first at the two trials within trial conducted in respect of exhibits 1 and 2. In my view where a party elected and or consented to an irregular procedure he cannot, on appeal, challenge the said irregularity whichever way the appellants argue it is clear that they were heard by the trial Court on the procedure they elected to adopt, hence the decisions of Z ‘DEEIT V. RSCSC supra, cited by the appellants, is in applicable to this case. It would have been a case of prejudice if it was the Court ordered that the appellant to start first. I am of the firm view that the appellants were not prejudiced on the procedure they elected to adopt at the trial within trial. The alleged irregularity complained of was not objected to immediately or timeously at the trial Court, and being of the view that no miscarriage of justice was occasioned thereby. I therefore find no justification for allowing the appellants to raise it on appeal. See Durwode v. The State (2000) 15 NWLR (Pt.691) 467 at488, Nasco MGT Service Limited V. A.M. Amaku Transport Ltd supra.’
THERE ARE OTHER EVIDENCE THAT NAIL THE COMMISSION OF THE OFFENCE BY THE APPELLANTS
‘It is to be noted that apart from the exhibit 1 and 2, there was oral evidence adduced by the prosecution witnesses that corroborated the contents of the Exhibits. PW1, the mother of the appellants gave evidence on how the deceased corpse was discovered and how Adaobi (PW2) and the appellants sister was beating the appellant’s telling ‘so this is what you people did. The PW2 also gave evidence of how she was in the house with the appellants and the deceased. Her presence was uncomfortable to the appellants and they told her to go and open the shop, she refused because it was too early around 7.30 am, but the 2nd accused persisted and she has to go. The appellants were left together with the deceased and at about 10.30 am they came to the shop discussed briefly and left. At about 1o.pm while she was looking for blanket she discovered the deceased corpse, the 2nd appellant was there, she held him and said “so this is what they did”, she fought him and he did not retaliate. PW3 also, a brother to the appellant stated how he came home at about 9.00am he knocked at the door; it took the 1st appellant time to open the door and when he entered he met the 2nd appellant. Wherever he went the appellants followed him until he left the house. When the corpse was found by PW2 he confirmed her story that she told the 2nd appellant that so this is what you are up to, they then held the 2nd appellant so that he would not escape. He then lodged a complaint at the police station. He identified the bruises on the deceased body. On his way back from the police station he saw the 1st appellant and told him to accompany him to the police station to report that their father was missing. Initially he refused but his friend convinced him, he entered the car and when they got to the police station he handed him over to the police.’
THE APPELLANT WERE CONVICTED BASED ON CIRCUMSTANTIAL EVIDENCE
‘The argument of the appellant that there was no eye witness to the commission of the crime hence the circumstantial evidence adduced in this case is not sufficient to convict and sentence the appellants, is of no moment in this case, circumstantial evidence, particularly evidence that was not challenged under cross-examination as in this case, is as good and sometimes better than any other evidence if it is cogent, positive and conclusive. It is no derogation of evidence to say that it is circumstantial, it may also be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence available for which the circumstantial evidence for which the circumstantial evidence is the only one available. Each case depends on its own facts but the one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other person could have been responsible for the commission of the offence. See Ebenelu v. The State (2009) 6 NWLR (Pt.1138) 431 at 443, Ona v. The State (1985) 3 NWLR (Pt 12) 236.’
THE FOLLOWING EVIDENCE PINPOINT THE APPELLANT CIRCUMSTANTIALLY
‘In the instant case apart from Exhibits 1, 2, 3 and 4 of the confessional statements of the appellants, the evidence adduced by the prosecution witnesses point to the only fact that it was the appellant that killed the deceased particularly if the following facts were considered:- 1. The appellants were not comfortable with the presence of the PW1 in the house, hence they have to look for a way to send her out into the cold weather to go and open the shop at7.30am. 2. Why were they uncomfortable when PW3 entered the house and they were following him to everywhere he went. 3. After the PW3 left and they have accomplished their aim, they left the house came to the shop, discussed briefly and dispersed. 4. Why did the 2nd appellant not challenge the PW2 why she alleged that Joel so this is what you are up to and he did not protest. 5. The Appellants were the last persons who were with the deceased and who saw him last. All of these and coupled with Exhibits 1, 2, 3 and 4 point conclusively that it was the appellants who committed the crime.’
THE 2ND APPELLANT ABETTED
‘The 2nd appellant was present at the scene, he saw PW1 attacking the deceased he did not raise alarm, when the deceased died he joined the 1n appellant to carry the corpse to downstairs when a substance suspected to be acid was poured on him. Then can the 2nd appellant be said not to have aided, encouraged or instigated the 1st appellant to commit the offence of murder in this case, the answer is in the negative. I hold that the charge of aiding and abetting made against the 2nd appellant has been proved beyond reasonable doubt. ’]
.
.
.
✓ DECISION:
‘As a result of all what I have been labouring all along to state above is that I resolve all the issues formulated by the appellants against them. The appeal in a nutshell is devoid of any merit same is accordingly dismissed. The conviction and sentence passed by the trial court which was affirmed by the lower court are hereby restored and affirmed.’
➥ FURTHER DICTA:
⦿ IN TRIAL WITHIN TRIAL, IT IS THE PROSECUTION TO PROVE THAT THE STATEMENT WAS MADE VOLUNTARILY
It is settled principle of law that the Onus to prove the voluntariness of extra judicial statement made by the accused person is on the prosecution. The practice in trial Court for an accused person, who denies the voluntariness of his extrajudicial statement made to the police, is to object to the statement when the prosecution seeks to tender it in evidence. When this is done at that stage the Court proceeds to test the voluntariness of such a statement by conducting a trial within trial on the admissibility of the statement and it is the prosecution who should begin first. It will be wrong for the trial Court to call on the accused’s person to start by calling his witness first. By so doing it has shifted the Onus of proving that the statement was not made voluntarily on the accused person which of course would be prejudicial to the accused person and a denial of his right to fair hearing, the end result of statement admitted under this procedure is to set it aside. See Effiong v. The State (1998) 5 SC. 136 at 142, Gbadamosi and Ors v. The State (1992) 11-12 SCNJ 269 at 277 -288. — M.S. Muntaka-Coomassie JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Muhammad Saifullah Muntaka-Coomassie, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ FOR AN ACCUSED PERSON TO BE CONVICTED OF ABETMENT
This court in the case of Kaza v. The State (2008) 7 NWLR (Pt.1068) 123 at 176 held as follows:- “For an accused person to be convicted of abetment under Section 85 of the Penal Code the prosecution must prove the following ingredients:- 1. That there was an encouragement, incitement, setting on, instigation, promotion or procurement of offence. 2. Any of the above act must be positive and unequivocal specially addressed to the commission of offence. 3. The act abetted must be committed in consequence of abetment. 4. An accused person could be convicted of the offence of abetment on proof by prosecution of any of the acts mentioned in (1) above. In other words the acts mentioned in (1) above are in the alternative and not cumulative. An encouragement here means an act of making someone to feel brave or confident enough to do something by giving active approval in support of the crime, incitement also has the element of encouragement. By incitement the person is provoked by a strong passion or feeling to commit an offence. The word “set” is a word of quite a num of synonyms. The two words “set on” connote the semblance of causing to attack or close like one may say the fisherman prepared the bait to set on the fish”.
➥ REFERENCED (OTHERS)
