ONITILO v. THE STATE (2017)

In The Supreme Court of Nigeria

On Friday, the 9th day of June, 2017

SC.253/2012

Before Their Lordships

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

OLUSANYA ONITILO  –Appellant

AND

THE STATE  –Respondent

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant and one other were arraigned before the High Court of Ogun State sitting at Ijebu-Ode on the 5th day of April 2004 on a two-count charge of conspiracy and murder contrary to Sections 324 and 316 (1) of the Criminal Code Law Cap. 29 Vol. II Laws of Ogun State of Nigeria, 1978. They each pleaded not guilty to the charge. At the trial the prosecution called 8 witnesses while the accused persons testified in their own defence.The prosecution’s case was as follows; On the night of 5/10/2001, the deceased, a son-in-law to the appellant left home to attend a party at Oke-Eri Village, Ijebu-Ode in the company of a friend. When he failed to return home, his sister, PW1 reported to their father, who in turn made a report of a missing person at the Atan Police station. The case was referred to a team of investigators. Upon enquiry by PW1 and her father from the deceased’s friend as to his whereabouts, they were informed that the deceased visited the appellant. As a result of this information the appellant and some other persons were arrested. In the course of investigation the team received information that a headless body was found floating in the river at Ilodu, close to Oke-Eri. It was recovered and taken to the State Hospital Ijebu-Ode for post mortem examination. The team also received information that the deceased was last seen with PW2, a 90-year-old man. He was arrested. He made a statement to the Police. He stated that he was woken up at around 11pm on the night of the incident by the appellant, his co-accused and some other people who brought the deceased to his house with his hands tied. He was told that the deceased was reciting incantations at the home of the appellant. He advised them to take him to the Police station and according to him they left. According to PW6 (one of the investigating police officers), the appellant initially denied any knowledge of the whereabouts of the deceased or of the visit to PW2. PW2 demanded to be allowed to confront him. He was brought out of the cell and as soon as he saw PW2, he broke down, saying he had nothing more to hide but that he would not talk in front of him. According to PW6, the appellant admitted taking the deceased to PW2s house on the fateful day. He stated that he confessed that while taking the deceased to the police station, he slumped and died. He further confessed to cutting off his head and ripping open his abdomen and removing his internal organs. The severed head of the deceased was recovered from behind his house from information supplied by him. Subsequently, PW3, the deceaseds sister identified his decapitated body at the mortuary as belonging to the deceased.
The post mortem examination carried out by PW4 on the severed head and decapitated body confirmed that most of the internal organs were missing. He concluded that the cause of death was severe haemorrhage secondary to decapitation. The post mortem report was tendered as Exhibit A. The appellant made several confessional statements, which were admitted in evidence as Exhibits B, C, D, E, F and G respectively.
In his defence, the appellant stated that he met the deceased at a burial ceremony at Oke-Eri Village on the night of 5/10/2001.
After the ceremony, the deceased came to his house which was not far from the venue and asked him to buy him a drink. He refused, because the deceased was allegedly drunk, whereupon the deceased began to recite incantations. As he attempted to leave, the deceased pulled him back and began to beat him. He slapped the deceased in return. People around intervened and he decided to take the deceased to PW2’s house since PW2 was his (deceased’s) relation. That he and several of the people around took the deceased to PW2’s house. They left the deceased with PW2 and returned to the party. However, according to him, he left the party about two hours later and tried to trace the deceased because he was afraid that he might return to fight him. He claimed that he came upon the deceased beside a gutter at a place called Onasebora. That on realising that he was dead, he cut off his head and threw his body into the river.
Under cross-examination he admitted cutting the deceased open and removing his intestines and other internal organs. His reason was that it was to make the body easier to carry. He also admitted burying the severed head behind his house. He however denied killing the deceased.
At the conclusion of the trial the learned trial Judge in a considered judgment delivered on 27/7/2005 found the appellant and his co-accused guilty as charged and sentenced them both to death by hanging. The appellant’s appeal to the Court of Appeal, Ibadan Division (the Court below) against his conviction and sentence was dismissed on 8th December 2011. The appellant is still aggrieved and has further appealed to this Court vide his notice of appeal dated 20th February 2012 containing six grounds of appeal.

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In the appellant’s amended brief of argument deemed filed on 19/10/2016, settled by Chief Bankole Falade, two issues were distilled for the determination of this appeal as follows:
1. Whether the learned Justices of the Court of Appeal were not in error when they relied on the medical evidence, Exhibit A and held that the deceased died as a result of severe haemorrhage resulting from the decapitation of the deceased’s head. (Grounds 2 and 5 of the Notice of Appeal).
2. Whether the learned Justices of the Court of Appeal were not wrong when they held that Exhibits C, D, E, F and G are confessional statements based on which they affirmed the conviction of the appellant. (Ground 1 of the Notice of Appeal).
The respondent in its Amended Respondents brief settled by E.U. Chinedum Esq. and deemed filed on 19/10/2016 adopted the issues formulated by the appellant. At the hearing of the appeal on 16th March 2017, Chief Bankole Falade and E.U. Chinedum Esq. adopted and relied on their respective briefs of argument in urging their respective positions on the Court. I observe that although the Notice of Appeal appears to contain 6 grounds of appeal, there is no Ground 4. In effect there are only 5 grounds of appeal. There are no issues formulated from Grounds 3 and 6 of the Notice of Appeal. The said grounds are accordingly deemed abandoned and accordingly struck out. See Akinlagun V. Oshoboja (2006) 12 NWLR (Pt.993) 60 @ 82 & 83: Eke Vs Ogbonda (2006) 18 NWLR (Pt.1012) 506 @ 525.

I shall treat Issues 1& 2 together.
In support of the first issue, learned counsel for the appellant submitted that in a charge of murder underSection 315 (1) of the Criminal Code Law, Cap, 29 Vol. 2 Laws of Ogun State, 1978, the prosecution must prove the following beyond reasonable doubt:
1. That the deceased has died.
2. That the death of the deceased was caused or traceable to the act of the accused; and
3. That the act of the accused was intentional and with the knowledge that death or bodily harm was the probable consequence.
He submitted that in the instant case, the death of the deceased is not in dispute. That the issue in contention is the link between the death of the deceased and the appellant. He submitted that the appellants case was that he had no further contact with the deceased after the fight they had at Oke-Eri until he found him later that night lying dead by the side of a gutter. Learned counsel submitted that this evidence was supported by the evidence of DW2 (his co-accused) and PW6 to the effect that the deceased slumped and died. He noted that the evidence of the prosecution, relying on the evidence of PW4, was that the deceased died from haemorrhage as a result of decapitation. He noted further that the learned trial Judge held that that the deceased died as a result of the beating he received from the appellant. He also noted that at the Court below the respondent filed a respondent’s notice urging the Court to affirm the appellant’s conviction on grounds other than those relied upon by the learned trial Judge, to wit; that the deceased died as a result of severe haemorrhage and not as a result of beating by the appellant and his cohorts. He submitted that the Court below affirmed the judgment of the trial Court on this ground (i.e. that the cause of death was haemorrhage as a result of decapitation). He argued that there were serious contradictions in the prosecution’s case that ought to have been resolved in the appellant’s favour. He contended that the Court below erred in relying on Exhibit A (the post mortem report) to affirm the judgment.
On the effect of contradictions in the prosecution’s case, he referred to: Oforlete Vs The State (2000) 12 NWLR (Pt.681) 415; State vs Danjuma (1997) 5 NWLR (Pt.506) 512 @ 528 – 529 H – A: Onubogu Vs The State (1974) 9 SC 1. He argued that there is conflict between the evidence of PW4, Exhibit A and PW6 as to the cause of death. He submitted that the Respondent’s Notice procedure is only applicable in civil matters and unknown to criminal procedure. He argued that in so far as the manner in which the deceased met his death is unresolved, the Court below was in error to have chosen one version over the other. That the Court ought to have held that the prosecution failed to prove its case as provided by law and discharged and acquitted the appellant. He cited: Akindipe Vs The State (2008) 15 NWLR (Pt.1111) 560; Danjuma Vs The State(1999) 9 NWLR (Pt.501) 512; Dogo Vs The State (2001) 3 NWLR (Pt.699) 192; In The People of Lagos Vs Umaru(2014) 7 NWLR (Pt.1407) 584 @ 678 F – G. He argued that the cause of death of the deceased must be established with certainty and where the prosecution

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fails to do so, a verdict of not guilty ought to be entered in favour of the accused, He referred to: Ahmed vs The State (1999) 7 NWLR (Pt.612) 641; Adele Vs The State (1995) 2 NWLR (Pt.377) 269 @ 279. Learned counsel argued that there was a time lag between when the deceased was released from the home of PW2 and when he was found lying dead on the way to Onasebora. He submitted that there was a break in the chain of events and therefore there was room for an intervening event that might have caused the death of the deceased.
With regard to the second issue, learned counsel submitted that although the Court below acknowledged in the course of its judgment that the appellant raised the defence of non est factum, it failed to give it any consideration before concluding that Exhibits C, D, E, F and G are confessional statements. He submitted that the appellant admitted making statements to the Police but contended that the statements he made, particularly Exhibits E and F tendered through PW8 were never read over to him. He submitted further that the Yoruba versions of the two statements as well as Exhibit G were not tendered in evidence. He noted that Exhibits C and D on the other hand were properly admitted in evidence being both the English and Yoruba versions of the statements tendered through PW6. He argued that the decision of the lower Court was predicated mainly on Exhibits C, D, E and F and that the outcome of the case would have been different if they had been rejected. In conclusion he submitted that the conviction based on Exhibits E, F and G ought to be set aside.
In response to the submissions above, learned counsel for the respondent cited the cases of Ogba V. The State(1992) 2 NWLR (Pt.164) @ 198; Bakare V. The State (1987) 1 NWLR (Pt.52) 579 @ 582  595 and Abogede V. The State (1996) 5 NWLR (Pt.448) 270 @ 277 in agreeing with learned counsel for the appellant on the essential ingredients of the offence of murder charged under Section 316 (1) of the Criminal Code Law of Ogun State (supra). He submitted, relying on Nwachukwu V. The State (2007) 12 SC (Pt.2) 447 @ 445 that a confessional statement without more is capable of grounding a conviction. He submitted that the appellant contested the admissibility of Exhibits E, F and G but did not challenge Exhibits C and D at the trial. That in its judgment the trial Court held that Exhibits E, F and G, as well as Exhibits C and D, which were not contested, were all confessional statements. He noted that in his written address before the trial Court at pages 62 – 65 of the record, learned counsel for the appellant did not contest the admissibility of Exhibits C, D, E, F and G but in an apparent somersault, challenged the statements vide Issue 1 at the Court below. He submitted that both Courts made concurrent findings on the evaluation of Exhibits C, D, E, F and G, which have not been shown to be perverse and urged this Court to uphold the findings. He relied on: Victor V. The State (2013) 12 NWLR (Pt.1369) 465 @ 485 G H; Abirifon Vs The State (2013) 13 WLR (Pt.1372) 587 @ 598 E-F.
With regard to Exhibit A, he referred to the finding of the Court below to the effect that even without Exhibit A there was strong circumstantial evidence linking the appellant with the death of the deceased. He submitted that the act of decapitation leaves no doubt as to the appellant’s intention. He referred to the English case of:Hyam V. DPP (1974) 2 All ER 41 @ 48 C wherein the decision in Bryne, J. in F V. Smith (1960) 2 All ER 450 @ 453 Dwas cited with approval to the effect that it can usually be determined by inference from surrounding circumstances that a man intends the natural and probable consequences of his acts. He relied on Iliyasu v. The State (2014) 15 NWLR (Pt.1430) 245 @ 264 C in support of his contention that the prosecution may discharge the burden of proof in a criminal trial either by direct eye-witness account, by circumstantial evidence or by a free and voluntary confessional statement of guilt which is direct and positive. He argued that the submission regarding the time lag between the quarrel between the appellant and the deceased and the time when he allegedly discovered his body lying in a gutter is not significant in this case as there was no basis to infer that there was any other intervening circumstance apart from the act of the appellant that led to his death. He cited Aiguoreghian Vs The State (2004) 3 NWLR (Pt.860) 367 @ 419 C – E. He submitted that the burden was on the appellant to give a satisfactory explanation as to what the intervening factor might have been. He submitted that the doctrine of “last seen” is quite apposite in this case. In support of this contention he relied on: Iliyasu Vs The State (supra) at 270 A – D & 274 C – E. He urged this Court to uphold the finding of the lower Court to the effect that the alleged inconsistencies complained of are not fatal to the prosecution’s case having regard to the evidence of PW4 as to the cause of death.
With regard to the plea of non est factum regarding Exhibits C, D, E, F and G, learned counsel submitted that it is does

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not avail the appellant. He submitted that the plea is only available where the party sued can show either that there never has been or that there is not existing at the time of the plea, any valid execution of the deed on his part. He referred to Halsbury’s Laws of England, 4th edition, paragraph 1365 and Words and Phrases Legally Defined, 3rd edition, Vol. 3: K – Q. On what a plea of non est factum implies in criminal proceedings, he relied on: Ogunleye V The State (1999) 3 NWLR (Pt.177) 1, where it was held that the doctrine is not applicable in criminal matters but only in the realm of the civil law of contract. He submitted that in the circumstances, the Court below was right when it held that the plea of non est factum was not properly raised and that the learned trial Judge was not bound to make specific findings on the issue. He submitted that even if the trial Court had made a specific finding on the plea of non est factum, the decision in Ogunleye Vs The State (supra) on its non applicability to criminal proceedings would be binding on that Court.
With regard to the non-tendering of the Yoruba versions of Exhibits E, F and G, he submitted that even if the lower Court agreed that the failure to do so was wrong, this would only go to the probative value to be attached to the statements. He submitted that it is noteworthy that the appellant is not contesting the admissibility of Exhibits C and D and argued that the said statements carry enough weight to ground the conviction. He relied on: Oguntola Vs The State(1987) 1 NWLR (Pt.50) 464; Kato Dan Musa V. Kano N/A (1956) 1 FSC; (1956) SCNLR 65; Ogunleye V. The State(supra). He submitted that the combined effect of these authorities is that once the prosecution has discharged the burden of proving that the death of the deceased is traceable to the acts of the appellant, the medical evidence to prove the cause of death (in this case, Exhibit A) amounts to surplussage.
On the issue of the respondent’s notice, learned counsel submitted that the procedure is permitted by virtue of Order 9 Rules 1 & 2 of the Court of Appeal Rules 2011, a procedure given cognisance in FRN V. Obegolu (2006) 18 NWLR (Pt.1010) 188 @ 235 H, where it was held that a respondent’s notice was validly filed in a criminal appeal but was refused on the ground that it introduced a fresh issue. He also cited: Bob-Manuel V. Briggs (2003) 5 NWLR (Pt.813) 323 @ 339 E cited with approval in: Lateju V. Fabayo (2012) 9 NWLR (Pt.1304) 159 @ 182 B  C.
In resolving the issues in contention in this appeal, I begin by observing that Ground 3 of the notice of appeal had earlier been struck out, as no issue for determination was formulated from it. The ground challenged the competence of the Respondents Notice having been struck out, the submissions on the issue are hereby discountenanced.
My Lords, it is the settled position of the law that the burden of proof in a criminal trial lies on the prosecution throughout and does not shift. The accused person enjoys a constitutionally guaranteed presumption of innocence. It is the duty of the prosecution to rebut the presumption. Furthermore, it is an onerous burden, as the standard of proof required is proof beyond reasonable doubt. Igbi V. The State (2000) 3 NWLR (pt.648) 169;Amala V. The State (2004) 12 NWLR (Pt.888) 520; Amadi Vs FRN (2008) 12 SC (Pt.III) 55. The standard of proof is not proof beyond all doubt or beyond a shadow of a doubt. The doubt must be reasonable. It is not sufficient to raise an improbable doubt or a slight doubt or an unlikely doubt or a doubt, which is not supported by credible evidence. See: Bakare Vs The State (1987) 1 NWLR (Pt.52) 579 @ 588 C  E; The State V. Oladotun (2011) LPELR-3226 (SC); Salawu V. The State (2009) LPELR-8867 (CA).
It is equally well settled that the guilt of an accused person may be established in one of three ways, that is to say:
1. By direct evidence of witnesses;
2. By circumstantial evidence; and
3. By reliance on the voluntary confessional statement of the accused.
See:Bello Okashetu Vs The State (2016) LPELR-40611 (SC); Stephen Vs The State (2013) Vol.223 LRCN (Pt.2) 215; Oguonzee V. The State (1998) 58 LRCN 3512 @ 2551; Akwuobi V. The State 92016) LPELR-41389 (SC).
In a charge of murder, as rightly submitted by both learned counsel, the prosecution must prove beyond reasonable doubt that:
1. The deceased died;
2. That the death of the deceased was caused by the act of the accused person(s); and
3. That the act or omission of the accused person(s) which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See: Ubani Vs The State (2003) 4 NWLR (Pt.811) 595; Ogba V The State (1992) 2 NWLR (Pt.222) 164; Abogede V. The State (1996) LPELR-45 (SC).

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In the instant case, the prosecution relied upon circumstantial evidence and the confessional statements of the appellant to prove the appellant’s guilt. It is conceded on both sides that there is no dispute as to the fact that the deceased died. What is in contention is whether the two lower Courts were right when they held that the death was as a result of the act of the deceased. Although learned counsel for the appellant raised two issues for determination and split them between the reliance by the Court below on Exhibit A (the post mortem report) on the one hand and the admissibility of Exhibits C, D, E, F and G on the other, I am of the view that the proper approach in the instant case is to consider the evidence led at the trial as a whole to determine whether the lower Court was right in affirming the appellant’s conviction and sentence by the Court below. This is because neither the Court below nor the trial Court relied exclusively on either of the two sets of documents in reaching their conclusions. In other words both Courts considered the totality of the evidence before them in determining the appellant’s fate.
The only eye-witness account of what happened to the deceased on the fateful night is that of the appellant. The facts are undisputed regarding the quarrel between the two men up to the point where the deceased was taken to the home of PW2 after the fight. What is also undisputed is the fact that the appellant was the last person seen with the deceased. The appellant has challenged the reliance by the Court below on Exhibit A, the post mortem report as to the cause of death, as there was some inconsistency in the prosecutions case as to whether the deceased was beaten to death or died as a result of decapitation. It is important to note that though desirable, a medical report is not a sine qua non in determining the cause of death in a case of murder where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. See:Joseph Bille Vs The State (2016) LPELR-40832 (SC): Alarape & Ors. Vs The State (2001) 5 NWLR (Pt.705) 79: Aiguoreghian Vs The State (2004) 3 NWLR (Pt.860) 367; Adekunle Vs The State (1989) 5 NWLR (Pt.123) 505. In this case, where a post mortem report was tendered alongside other evidence, the Court has a duty to consider the entire case as a whole in reaching its decision. Such other evidence includes the appellants extra judicial statements, Exhibits C, D, E, F and G as well as the evidence of the prosecution witnesses.
The appellant has also challenged the admissibility of Exhibits E, F and G. I have carefully examined the record and note that when the said extra-judicial statements were tendered, the appellant’s only objection was that he did not make them. Where an accused person denies making a Statement to the Police, such denial does not affect its admissibility. The Court is entitled to admit the statement in evidence and consider the weight to attach to it in light of all the evidence before it. The approach is different where the accused person challenges the statement on the ground that it was not made voluntarily. In that circumstance, the learned trial Judge is obliged to conduct a trial within trial to determine its voluntariness, See: The State Vs Salawu (2011) 18 NWLR (Pt.1279) 883 @ 905 – 906 G – A; Dawa & Anor. Vs The State (1980) N.S,C.C, 334 @ 345; Ogunye Vs The State (1999) 5 NWLR (Pt.604) 548 @ 570. Indeed, a trial within trial was conducted to determine the admissibility of Exhibits C and D, which the appellant challenged on grounds of involuntariness. The learned trial Judge rightly concluded that the statements were made voluntarily.
On the issue as to cause of death, the Court below, after reviewing the findings of the learned trial Judge, held as follows at page 167 – 168 of the record:
“The incident, as narrated by the appellant in his extra-judicial statements, particularly Exhibits C, D, E and F showed that there was no break in the chain of events. According to the evidence the deceased ignited the fight by slapping the deceased. Thereafter other persons present joined in beating the deceased. PW2 confirmed the story when he stated in his testimony that the appellant and in company of some people took the deceased to his house. He said they tied the deceaseds hands and he was also speechless.
Appellant admitted that PW2 told them to allow the deceased to go. They obeyed but later appellant and his cohorts followed the deceased. They found him lying motionless by the road. Appellant admitted 
severing the head of the deceased and some parts of the body. Appellant also hurriedly dispose (sic) of the headless body. The testimony of PW6 also revealed that appellant gave information to the Police as to the whereabouts of the deceaseds head and same was recovered around his compound. The question is even if the appellant found the

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deceased motionless, how did he know that he was dead? Why did the appellant severe (sic) the head and some parts of the body? Why did the appellant hurriedly dispose of the headless body? The level of involvement of the appellant in the commission of the offence is deep and penetrating. The appellant has clearly implicated himself. From the evidence available before the Court even in the absence of medical report there is strong circumstantial evidence to link the appellant with the death of the deceased. The cause of death in my humble view could be inferred from the proved facts.
I am of the view that the above finding cannot be faulted and is fully supported by the evidence before the Court. On alleged discrepancies as to the cause of death, the Court held further at pages 168 – 169 of the record:
The inconsistency complained of, in my humble view is not fatal to the prosecutions case, having regard to the available evidence adduced before the Court. PW4, the medical expert stated the cause of death as severe haemorrhage from decapitating the head. See Exhibit A. It is consistent with proved facts. I am in support of Respondents contention that the cause of death is not as a result of beating as held by the trial Court but as a result of severe haemorrhage secondary to decapitated body, as stated by PW4 the medical expert. I have no hesitation in accepting the finding of the learned trial Judge that the appellant and his cohorts killed are deceased. I also agree with the learned trial Judge that death was intended that was why the appellant and his cohorts took the deceased out of the village and hurriedly disposed of his body. The prosecution in my considered opinion has proved all the essential ingredients of the offence of murder against the appellant beyond reasonable doubt as rightly held by the trial Court. The finding of the learned trial Judge that the appellant was guilty of murder cannot be faulted. There is ample evidence to support the conviction and the learned trial Judge has properly assessed and evaluated the evidence adduced. This Court has no reason to interfere as the findings are not perverse or erroneous.”
What we have before us are concurrent findings of fact by the two Courts below. In order to persuade this Court to disturb those findings, the appellant must show that the findings are perverse, not supported by evidence or that there is some other error in law or procedure that has resulted in a miscarriage of justice, See: Omotola & Ors vs The State (2009) 7 NWLR (Pt.1139) 148; Ogundiyan V. The State (1991) 3 NWLR (Pt.181) 519; Iyaro Vs The State (1988) 1 NWLR (Pt.69) 256. The appellant has failed to so persuade me in this case. The finding of the Court below reproduced above is unassailable in my considered view. The proven facts before the trial Court were to the effect that within two hours of the quarrel between the appellant and the deceased and the beating meted on him by the appellant and his co-travellers, the deceased was declared missing and his decapitated body found floating in a nearby river.
The Police in their investigation correctly traced the movement of the deceased and found that the appellant was the last person seen in his company. Where the accused person was the last person to be seen in the deceased’s company and circumstantial evidence is overwhelming and leads to no other conclusion, it leaves no room for acquittal. The doctrine of “last seen” means that the law presumes that the person last seen with the deceased bears the full responsibility for his death. It is the duty of the accused person to give an explanation as to how the deceased met his death. See: Emeka Vs The State (2001) 14 NWLR (Pt.734) 666; Nwaeze Vs The State (1996) 2 NWLR (Pt.428) 1; Igho Vs The State (1978) 3 SC 87; Igabele vs The State (2006) 6 NWLR (Pt.975) 100. The contention that the deceased was found dead before his head was severed from his body was the appellant’s version of events He was the only eyewitness. The appellant admitted both in his extra judicial statements and in his testimony before the Court that after releasing the deceased, as advised by PW2, he went back to search for him because, according to him, he was afraid the deceased would return and retaliate. As rightly queried by the Court below, if indeed the appellant came upon the deceased who had allegedly slumped, on what basis did he conclude that he had died? Again, even if it were true that the deceased had died, if he had no hand in his death, why did he decapitate and dismember the corpse? I agree with the two lower Courts that the circumstantial evidence in this case, coupled with Exhibit A and the appellants extra judicial statements raise the irresistible inference that not only did the appellant cause the death of the deceased, but also that he knew that death was a probable consequence of his actions.
Learned counsel for the appellant has argued that having regard to the time lag between the quarrel between the appellant and the deceased and the discovery of the body, there was doubt as to whether the death of the deceased could be traced to him.
Both the trial Court and the Court below examined this argument vis–vis the evidence before the Court and rightly

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rejected it, as there was no evidence of any intervening factor that might have cast doubt on the involvement of the appellant in the murder. I also agree with the two lower Courts that the alleged inconsistencies in the evidence of the prosecution were not material enough to warrant the interference of this Court. This is a case of a gruesome and callous murder. I am satisfied that the prosecution established its case against the appellant beyond reasonable doubt. Both issues in this appeal are accordingly resolved against the appellant.
In conclusion, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Court of Appeal, Ibadan delivered on 8th December, 2011 affirming the conviction and sentence of the appellant for murder by the High Court of Ogun State is hereby affirmed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother KUDIRAT M.O. KEKERE-EKUN JSC just delivered. I agree with his lordship’s reasoning and conclusion in the lead judgment that the appeal lacks merit and that same be dismissed.
It is observed that both Courts below have found the appellant guilty of the offences he was arraigned, tried, convicted and sentenced for. The appeal is against the concurrent findings of the two lower Courts.
Having perused the facts on which the appeal hinges, the findings of the two Courts on which the conviction of the appellant rests, and the submissions of both sides to the appeal, I am of the firm and considered view that the two Courts cannot be faulted in their concurrent findings on the guilt of the appellant. Such findings that draw from the evidence on record, in keeping with the practice of this Court must persist. See Ogolo V. Fubura (2003) 11 NWLR (Pt.831) 231, Chinwedu V. Mbamali (1980) 3 -4 SC 31 and Ojo V. AG Oyo State (2008) LPELR-2379(SC).
For the foregoing but more so the fuller reasons outlined in the lead judgment, I also dismiss the appeal. I abide by the consequential orders contained in the lead judgment.
CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother Kekere-Ekun. JSC. I agree that the appeal is lacking in dire merit and should be dismissed.
The facts of this case have been spelt out clearly and succinctly in the lead judgment. The conviction and sentence of the appellant were concurrent by the two lower Courts.
Crucial to the conviction of the appellant are exhibits C, D, E, F and G. The lower court at page 146 of the record of Appeal had the following to say thereon:-
“I have carefully perused exhibits C, D, E, F and G respectively. The contents suggest an inference that appellant committed the offence. I am satisfied that exhibits C, D, E, F and G could be termed as Confessional Statements. It is in evidence that exhibits C & D were admitted in evidence without objection. As regards Exhibits E, F, & G appellant denied making them, when prosecution sought to tender them through PW7 and PW8.
The learned trial judge in my humble view rightly admitted the said statements since appellant did not challenge the voluntariness of the statement.”
The appellant’s 2nd issue challenges vehemently, the exhibits C, D, E, F and G and submitted the error committed by the lower Court when it held that the documents are confessional in nature.
Again, the lower Court at pages 148 – 149 of the record was very affirmative when it said:-
“There is nowhere in the appellants testimony where he denied making the statements. It is therefore my humble view that the defence of non est-factum was not properly raised as such the learned trial judge was not duly bound to make specific findings on the issue. The learned trial judge tested the veracity of the Confessional Statement exhibits C, D, E, F & G along with other facts which have been ascertained and proved before convicting the appellant. Issue 1 is accordingly resolved in favour of the respondent.”

…………………….H…………………….

For all intents and purposes, I also endorse the view held by the lower Court especially when regard is had to the decision of this Court in the case of Victor V. The State (2013) 12 NWLR (Pt. 1369) page 465 at 485 per Fabiyi. JSC and said:-
“It should be stated in passing that the two Courts below made concurrent findings of fact on crucial issues canvassed in the appeal. They have not shown to be perverse or against the current of plausible evidence on record. This Court will not interfere with same.”
Similarly and in the case under consideration, the appellant has not shown any strong reason why this Court should interfere with the concurrent decisions appealed. The reasons must be strong, compelling and special. Again, see the decision of this Court in Abirifon V. State (2013) 13 NWLR (Pt.1372) 587 at 598.
As rightly submitted by the respondent’s counsel therefore, I also find solace in the concurrent evaluation of Exhibits C, D, E, F and G by both the trial Court and affirmed by the Court below.
With the few words of mine and particularly relying on the articulated judgment of my learned brother Kekere-Ekun, JSC, I find no merit in this appeal and I dismiss same also in terms of the lead judgment.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, KUDIRAT MOTONMORI KEKERE-EKUN, JSC. I have nothing useful to add thereto. I am in complete agreement with the analyses and conclusions on all the issues argued culminating in the Judgment.
The facts show beyond reasonable doubt that-
1. On 5th October, 2001, the deceased, a son-in-law of the appellant was alive. He attended a party and got himself drunk that night.
2. The deceased requested for more Beer from the appellant. The request was turned down. The deceased allegedly infuriated boxed the appellant on the head. The two fought. Other 
persons sympathising with the appellant gave the deceased a thorough beating. They tied his hands.
3. The deceased was brought to the PW.2 with his hands tied behind. The appellant led the group. The PW.2 advised them to take him to the police. The deceased was taken away from the house of the Pw.2 that night.
4. When the deceased was no longer found, there was a search party. The decapitated body of the deceased was later found. The heart, lungs, intestines, kidneys and the private parts of the deceased were all removed.
5. The medical report, Exhibit A, ascertained the cause of death to be the decapitation. It was tendered and admitted in evidence without objection. The PW.4, a medical officer, who made Exhibit A also testified.
6. PW.5, a police officer recorded Exhibit B, a confessional statement of the appellant. It was tendered and admitted in evidence without objection. The appellant at the trial was represented by a counsel.
7. The PW.6, another police officer, testified that when he brought PW.2 before the appellant, the appellant melted and started confessing and saying that he had nothing more to hide. The evidence of PW.6 
corroborates the confession made on 16th October, 2001 by the appellant. The PW.6 recovered the headless body of the deceased from the Riverside. The appellant led the police to that scene. He had also confessed to cutting off the head of the deceased after he had slumped and died, following the thorough beating. He showed the police where he had buried the head, and it was recovered.
8. Exhibits B – F, are all confessional statements. Exhibit G, another confessional statement, was admitted upon trial within trial to ascertain its voluntariness. The witnesses through whom all the voluntary statements were tendered were cross-examined and undiscredited.”

The appellant’s plea of non est foctum with regards to Exhibits C.D.E.F. and G is not on any strong footing. On the facts the conviction and sentence of the appellant for murder are unassailable. There is no substance in this appeal. It is accordingly dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother K. M. O. Kekere-Ekun, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal lacks merit, and it is accordingly dismissed by me. I abide by all the orders contained in the lead Judgment.
Appearances

Chief Ibikunle Falade with him, Samson Ike, Esq.  –For Appellant

AND

E.U. Chinedum, Esq. with him, Pereboh Sanami, Esq. and S.B. Olanrewaju (Mrs.).  –For Respondent

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