Police should not manufacture evidence
The only explanation for the failure to tender these exhibits would only be found in the purported confessional statement extracted from the appellant.It is settled law that where an accused person confesses to the commission of an offence, he can be convicted on his own confession alone once the confession is positive, direct and properly […]
The only explanation for the failure to tender these exhibits would only be found in the purported confessional statement extracted from the appellant.
It is settled law that where an accused person confesses to the commission of an offence, he can be convicted on his own confession alone once the confession is positive, direct and properly proved and as long as the court is satisfied. See Afolabi v. The State (2014) 6 SCNJ 159.
In the lower court the appellant denied the voluntariness of the extra-judicial statements purportedly made by him. One was rejected in evidence after a trial within trial on the ground that it was not voluntary. After the trial within trial in respect of the second statement, the lower court had this to say: “The Ruling will be incorporated into the Judgment.” This was on the 16th May, 2012. Apparently having realized that this was a strange procedure, the Lower Court on the 5th July, 2012 delivered a ruling in which it admitted the second statement but failed to give it a mark. However, it referred to it in its judgment delivered on the 23rd July, 2012 as Exhibit B. Learned counsel for both parties have made heavy weather of these.
Let me quickly dispose of the omission to mark the statement. In my view the failure to mark the extra-judicial statement was a procedural slip and did not occasion a miscarriage of justice. The use of the extra-judicial state or reliance on it by the lower court did not occasion a miscarriage of justice either. On the basis of the procedural slip. It did not matter that he referred to it as Exhibit B even though that was unnecessary. He could very well have merely referred to it as the extra-judicial statement or merely the statement of the accused person instead of the rather dishonest reference to it as Exhibit B when it was never so marked.
However as the ruling admitting the extra-judicial statement was delivered after the close of cases of both parties, learned counsel for the appellant was in my view prevented from cross-examining the PW2 through whom it was tendered on it. This undoubtedly touched on the appellant’s right to fair hearing. In the circumstance, the lower court deprived the appellant of his right to fair hearing by relying on a statement which the appellant’s counsel did not have the benefit of cross-examining on. This is my view vitiated the trial.
Assuming I am wrong, was the Lower Court entitled to convict the appellant on this statement for the offence of conspiracy and manslaughter?
From the extra-judicial statement of the appellant, they went to ask the deceased if he was the person that removed something from their master’s store. The deceased apparently seemed to have admitted but not in so many words. So the appellant and the two other people started beating him. If conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do, as the law says, then I cannot find conspiracy between the appellant and the two others.
Although it turned out that they beat the deceased that was not an agreement reached among them. They merely went to ask the deceased if he was the person who stole from their master’s store. In my view therefore the appellant was wrongly convicted of conspiracy.
On the conviction for manslaughter what did the appellant say in the extrajudicial statement to be entitled to the conviction and sentence for manslaughter. This is what he said in part:
“…… we started beating him with matchet from Ukemmadu hurt (sic) to our hurt (sic). On getting to our hurt (sic) the deceased Ifeanyi (M) doesn’t want to confess we tied him with rope (sic) on two arm and his two legs then we continue beating him till he collapse we tried to rescue him all effort to do so proved abortive but Glory (M) cut the deceased with matchet on his head.”
From the foregoing extract from the extra-judicial statement, was it the beating that caused the death? Was it the cut from Glory? Was it both the beating and the cut? Evidence to support a conviction must not create room for speculation. See Anekwe v. State (2014) 10 NWLR (Pt. 1415) 353 at 379.
In my view medical evidence was necessary to prove the beating and the cut and what caused the death. But this was not obtained and therefore was not tendered. From the extra-judicial statement it cannot be said that any unlawful act of the appellant caused some harm to the deceased which harm caused his death.
It is surprising that none of the boys who purportedly reported to the chief that there was a fight was called to testify to this fact and where the fight was going on. It is surprising also that the police was able to go there without any aid. I have earlier stated that although they purportedly found the corpse in a sack, that sack was not tendered in Court. Even the cutlass which they purportedly found on the appellant was not tendered in court. Why would all this evidence be produced when there was “a confessional statement? If the lower court had properly asked the questions which it said it did, it would have discovered that there was nothing outside the confession which showed that it was true. That it was not corroborated. That it was not consistent with other facts which have been ascertained and have been proved. That this was another case that cried out to be fed with evidence, relevant evidence.
From all that I have stated above the only issue for resolution should be resolved in favour of the appellant: I accordingly do so.
The appeal is allowed, the conviction and sentence of the appellant are hereby quashed.
Appearances
Adekunle Ojo Esq.
For the Appelants
A. O. Adeyemi-Tuki (Mrs.) (DPP) with B. V. Falodun (SLO)
For the Respondents
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment).
Concluded.