The defendant appealed against his conviction for murder.

Although it was alleged that he was apprehended a few days after the murder wearing a torn gown and carrying a dane gun, cutlass, and a bag all belonging to the deceased, there was no evidence that the deceased wore the garment or carried the articles at any time on the material day from his house to his farm where he was killed. Eye-witnesses who saw the deceased in his farm did not see the articles with him; no one saw the defendant at the farm, and there was no satisfactory evidence identifying the articles as being those of the deceased, whose relations were contacted by the police but were not shown the articles to identify.

The police claimed that the defendant made a confessional statement and confirmed it before a superior police officer; but there was no test conducted on the veracity of allegations made in it and the superior police officer did not follow the procedure set out in the standard form regarding the questions to be put and the recording of answers. The defendant denied that he made or signed or confirmed the confessional statement and claimed that he did not know how to write.

The trial Judge erroneously made comparisons of the questioned signatures, without any undisputed signature of the defendant, and came to the conclusion that they were his. On further appeal to the Supreme Court-

HELD:

(1)     The weight to be attached to a confessional statement alleged to have been confirmed before a senior police officer depends on whether the statement was confirmed in compliance with the procedure laid down for such confirmation, particularly where the statement is the main proof of the prosecution's case.

(2)     It was not proved beyond all reasonable doubt that the confessional statement was made by the defendant, and since there was no other evidence connecting him with the offence, the appeal must succeed.

Appeal allowed; conviction and sentence quashed.

F.O. Akinrele for the appellant.

S.O. Ajileye (Principal State Counsel) for the respondent.

Case referred to:

The Queen v. Obasa (1962) 1 ALL N.L.R. (Part 4) 651, 657.

Sowemimo, J.S.C. (delivering the judgment of the Court)-The appellant has appealed to this Court from a judgment of the Western State Court of Appeal, Ibadan, which confirmed the conviction for murder and sentence of death passed on him, by the High Court of the Western State at Ado-Ekiti on 25th March, 1974.

The case for the prosecution is that the incident on which the charge is based took place on 1st May, 1973. The evidence of two prosecution witnesses which was relied upon is that of the 6th and 2nd prosecution witnesses in that order. The 6th prosecution witness in his evidence said:-

"................... I know Chief Emmanuel Ogunmola, he has since died. On 1/5/73 I went to the farm that morning. On my way home at about 9 a.m. I met the deceased on the way. He was working in his farm by the road side. At his request I loaned him 50K

"XXd:-When I saw the deceased he wore only singlet with which he worked in his farm

2nd P.W. on the other hand stated inter alia as follows:-

"............ I know Chief Emmanuel Ogunmola. He was a chief in my village. He has since died. One day two years ago I went to Gbeduku farm. On my way I found the deceased lying on the road. I called on him he could not answer, later he answered me. I examined his body and I noticed he was covered with dried blood

XXd:-The deceased had a singlet and a pair of trousers on. There was no other clothes on him. I know the farm of the deceased. I found the deceased in his farm. His farm is adjacent to the motor road. The farm contained hill rocks."

These are the only two witnesses who gave direct evidence of the clothes the deceased had on, on 1/5/73. No evidence was available as to what clothes the deceased wore and what articles he carried when going to the farm on 1/5/73. If the prosecution had thought or intended to rely on the evidence of the wearing apparel of the deceased and articles carried by him to the farm, this could easily have been obtained from the inmates of the deceased chief's residence.

It is also surprising that the prosecution did not investigate from either the 2nd or 6th prosecution witness whether apart from the singlet and pair of trousers they said the deceased had on, on 1/5/73, they also saw any torn garment, dane gun, cutlass (matchet) and bag lying anywhere in the farm. Even the witness who gave out a loan of 50 kobo to the deceased did not see any other person working with the deceased in his farm. Neither of the two witnesses saw any recently-dug heaps ready for the planting of yams. We shall refer to the absence of these material facts when we come to consider the tests applied to verify the truth of the "confessional" statement admitted in evidence as exhibit H.

The prosecution next proceeded to prove the arrest of the appellant. The 5th prosecution witness stated inter alia:-

"I know Chief Emmanuel Ogunmola. He has since died. One day sometime in 1973 I was returning from farm towards evening I saw the accused in the bush. I noticed he wore a garment which the deceased used to wear, he also carried dane gun, a cutlass, and a small bag of salt, (Exhibits A,B,C, & D identified as the articles I saw with the accused). I recognised them as belonging to the deceased."

The 7th prosecution witness in evidence said inter alia:-

"I know the accused. One Sunday last year in consequence of a direction of the Olishua of Ishua, myself and members of my society were sent out in search of the accused. On our way we received information from school children regarding the whereabout of the accused. We followed the direction, we saw the accused and we approached him and took him before the Olishua. When I first saw the accused, he was carrying a gun, cutlass and a bag, and was wearing a garment. Ex. C identified as the garment the accused wore, and exhibits A, B and D identified as the articles he carried. The accused was standing by the road side."

No other member of the society who went with this witness gave evidence.

The other witness, the investigating police constable, is the 3rd prosecution witness and he stated inter alia:-

"I know the accused in May 1973. On the 9/5/73 ...... while on duty at the P.C.B. Akure, the accused was brought to the P.C.B. under police escort together with the exhibits. I took custody of the exhibits which were a dane gun, one matchet, one torn garment, one empty salt bag containing a quantity of gun powder in a small bottle, an empty bottle of Nivaquin and piece of nail. These are the exhibits I took custody of as the investigating constable

I took the exhibits from the police escort." (Italics are ours).

This latter evidence indicates that the garment, dane gun etc. were not worn or carried by the appellant at the time he was brought to the investigating constable.

The next stage in the prosecution's case was the production of exhibit H, the statement made by the appellant to the 3rd prosecution witness. Objection was taken that it was not signed by the appellant. The trial Judge gave a two-line ruling admitting the statement. As it was considered to be a confessional statement, and in view of the objection raised, the nature of which is not clear on the record, the police should, as we shall later show, have investigated the veracity of the facts alleged in the statement in order to enable the trial court to decide the weight to be attached to it.

The learned trial Judge said that the case for the prosecution depended 'heavily' on circumstantial evidence to prove the commission of the crime. We hereby set out the state of the whole case at its close. The prosecution on its own side led evidence on the following:-

(a)     The deceased was seen alive earlier on 1/5/73 by two prosecution witnesses at his farm wearing a singlet and a pair of trousers and was loaned 50K. As at that time the witnesses did not see either the garment, dane gun, cutlass or bag containing salt on any part of the farm.

(b)     When the deceased was found later lying on the ground, a witness observed dried blood on some lacerations on the body.

(c)     The appellant was first seen in the bush and was arrested wearing a torn garment and carrying a dane gun, cutlass and bag Exhibits A, B, C, & D identified to be that of the deceased.

(d)     A confessional statement was tendered, the veracity or otherwise of the contents on material particulars was never investigated by the police.

The accused in his defence led evidence:-

(a)     Retracting the confessional statement exhibit H and specifically denied that he signed it. He even stated that he could not write.

(b)     He denied that he ever wore any garment, or carried a gun, cutlass or bag i.e. exhibit A, B, C, & D.

(c)     He was a total stranger to the area and came to see an in-law, which was found to be true.

The accused at the trial set out the circumstances under which he was arrested and taken to the police station and there it was alleged that some articles were found on him. This piece of evidence was confirmed by the investigating police officer-3rd prosecution witness-that when accused was brought to him, the garment, dane gun, matchet and bag containing salt etc. were brought by another police constable along with the accused. It is curious that no evidence was led by the prosecution as to who collected the exhibits supposed to be worn and carried by the accused at the time of his apprehension in the bush. The police constable who brought the exhibits to the 3rd prosecution witness-the investigating officer-was not called to give evidence.

The learned trial Judge, in his judgment, proceeded to examine the facts before him by dealing with what he regarded as "proved facts". These comprise the evidence that accused was found wearing a garment and carrying other articles identified by one witness as that of the deceased and the evidence of another witness wherein he stated that he and others arrested the accused under the same circumstances. It did not occur to the learned trial Judge that it was necessary that there must be sufficient and satisfactory proof that the articles the exhibit A, B, C & D were those of the deceased. Moreso there must be evidence of the relations of the deceased who lived with him, that the articles actually belonged to the deceased and that he had them with him when going to the farm that day. There was evidence before him that some of the relations of the deceased joined in the search for his assailant. The learned trial Judge stated that one of the witnesses knew the deceased well but there was no evidence before him of the nature of such knowledge. In a criminal case it is essential that proof of material facts should necessarily be beyond reasonable doubt. The identification of exhibits A, B, C & D to say the least is unsatisfactory. Secondly, it must be repeated that the articles were never found to be with the deceased at any time on that day so that their possession by the accused could only have been intended to prove that the accused must have had some contact with the deceased. If the learned trial Judge had carefully examined these facts he would not have regarded as "proved facts" the evidence that the accused was found in possession of exhibits A, B, C & D belonging to the deceased and impliedly removed by the accused after he had committed the crime.

The learned trial Judge, having fallen into this initial error, proceeded unconsciously to presume as a sign of guilt anything the accused stated contrary to exhibit H. When the accused objected to the statement exhibit H, the learned trial Judge thought that this was an after-thought because the accused did not do so at the preliminary inquiry, the evidence at which was not before him. The Western State Court of Appeal agreed that the learned trial Judge was wrong in arriving at that conclusion. This observation also affected his comparison of signatures which we shall deal with next.