ABIRIFON V. THE STATE (2013)

In The Supreme Court of Nigeria

On Friday, the 21st day of June, 2013

SC.103/2011

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

CHRISTOPHER MITCHEL CHUKWUMA-ENEH Justice of The Supreme Court of Nigeria

SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

STANLEY SHENKO ALAGOA Justice of The Supreme Court of Nigeria

Between

JULIUS ABIRIFON- Appellant

AND

THE STATE –Respondent

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I. T. MUHAMMAD, J.S.C. (Delivering the Leading Judgment): The appellant herein along with others: Sunday Abirifon and Mathew Olomi Abirifon were charged with conspiracy and murder of one Peter John, an indigene of former Bendel State. He was an annual labourer to Mr. Mathew Oloni Abirifon (father to the appellant). Mr. Mathew Oloni Abirifon owed Peter John (the deceased) an amount of money in the sum of thirty thousand Naira (N30,000.00) being money due to the deceased as his annual dues for the year 2008. It was in a bid to avoid the payment of the money to late Peter John that Mr. Mathew Oloni Abirifon conspired with his children and murdered the deceased.The charge was brought before the Ekiti State High court holden at Ado Ekiti (trial court) pursuant to Sections 324 and 319(1) of the Criminal Code Laws of Ondo State as applicable in Ekiti State Before trial commenced however, Mr. Mathew Oloni Abirifon and Sunday Abirifon died and their names were struck out, subsequently, from the trial court’s cause list now leaving the names of the appellant and one other.
On arraignment, the appellant pleaded not guilty to the two counts charge. The case then proceeded for full trial. Witnesses were called Exhibits were tendered. After the close of evidence and defence, respective learned counsel for the parties addressed the court. At the end of trial, the learned trial judge found the appellant guilty as charged, convicted him and sentenced him to death.
Dissatisfied, the appellant appealed to the Court of Appeal sitting in Ilorin. His appeal was unsuccessful as it was dismissed. The appellant appealed further to this court on a sole ground of appeal.In compliance with this Court’s Rules, parties filed and exchanged briefs of argument. The learned counsel for the appellant distilled the following issue for determination:

“Whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the 1st appellant by the Court of Appeal.”

Learned counsel for the respondent adopted the issue formulated by the appellant as set out above.

In his submissions, the learned counsel for the appellant mainly relied on Section 138(1) of the Evidence Act which is to emphasize the position of the law that it is the prosecution which bears the burden of proof beyond reasonable doubt as there was neither eye-witness evidence, nor compelling circumstantial evidence for the prosecution. The conviction of the appellant was predicated on the confession of the appellant which was either wrongly admitted in evidence; made involuntarily or even retracted. The corroborating evidence was not independent of the confession it seeks to corroborate. Some of the prosecution witnesses, learned counsel submitted, were without any credit whatsoever and there were inconsistencies in their testimonies. The foregoing facts leave lingering doubts in the case of the prosecution. It is learned counsel’s further submission that the trial court and the court below never seriously considered appellant’s defence of alibi. Learned counsel urged this court to allow the appeal.

In his brief of argument the learned DPP for the respondent, submitted on his sole issue, after stating the ingredients of the offence of murder and some decided cases, that the prosecution employed two methods, ie confessional statement and circumstantial evidence to prove the guilt of the appellant and that the prosecution proved beyond reasonable doubt the offence of conspiracy to commit murder and murder against the appellant. The lower courts were right in convicting and sentencing the appellant and no miscarriage of justice was suffered by the appellant. This court is urged to affirm the conviction and sentence of the appellant.

Now, the main complaint of the appellant in both the court below and this court is that the trial court was wrong in convicting and sentencing him to death on the offence of murder when the prosecution failed to prove the offence beyond reasonable doubt in that:

a) the conviction of the appellant was not based on any eye-witness testimony;

b) the conviction was based on uncorroborated/independent evidence;

c) the conviction was based on circumstantial evidence which was not direct and did not fix the appellant at the scene of the crime and

d) there was ample evidence that the appellant lived in Lagos far away from the scene of the crime in Ekiti and that he arrived at Ekiti two days after the commission of the crime was neither controverted and nor was he seen at the scene of the crime;

e) that the police (prosecution) suppressed the statements voluntarily made by the appellant and never brought it before the trial court;

f) the guns and cutlasses admitted in evidence as the weapons used in committing the crime were not scientifically proved to be the ones used by the appellant and no linkage was established between the weapons and the appellant.

g) There were several material contradictions in the case of the prosecution that were never rationally explained.

In dealing with this appeal vis-a-vis the sole issue raised by the appellants it is always helpful to state from the outset, the requirement(s) of the law in order to secure conviction. In a murder charge such as this, brought pursuant to Section 319(1) of the Criminal Law, Cap.30 Vol. II of the Laws of 1978 Ondo State (as applicable in Ekiti State), the

…………………….B…………………….

prosecution has the burden to prove that:
a) the accused person killed/murdered the deceased;
b) the killing was unlawfully committed and
c) the killing was intentional

The learned trial judge re-stated these ingredients in his judgment as follows:
“As a recapitulation, it is apposite to conclusively restate that to justify a conviction for murder, the prosecution must prove beyond reasonable doubt:

1) that the deceased died.

2) That the death of the deceased resulted from the act of the accused and

3) That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequences.”

The court below repeated the same position of the law:

“On the substantive count of murder, it is settled by a host of judicial authorities that a charge of murder is established when the prosecution proves the following essential ingredients beyond reasonable doubt:

1) That the deceased died;

2) That the death of the deceased resulted from the act of the accused;

3) That the act of the Accused was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See: Ogba v. The State (1992) 2 NWLR (Pt.222) 146; State v. Aibangbee (1988) 3 NWLR (Pt.297) 29; Oladipupo v. The State (1993) 6 NWLR (Pt.298) 131 and Okeke v. The State (1999) 2 NWLR (Pt.590) at 253.”

There are several methods laid down by the law in proof of such a crime in discharging the burden of proof beyond reasonable doubt. Several authorities of this court, repeatedly made the point clear. For instance in Adio v. The State (1986) 5 SC 194 at 219-220, it was stated as follows:

“How is a case proved beyond reasonable doubt? A case can be proved by direct oral evidence if the testimony of the witness who saw and heard them are believed, there will be proof beyond reasonable doubt… the local case of JOSEPH OGUNBADEJO V. THE QUEEN (1954) 14 WACA 458 (otherwise known as APALARA’s case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial Evidence but far above these two methods of proof is voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further consideration to warrant a conviction unless the trial court is satisfied that the case has not been proved beyond reasonable doubt.”

This means that the offence of murder (as in this case) can be proved beyond reasonable doubt by any or a combination of any of the following methods:
i. by confession of the accused person;

ii. by direct evidence and or

iii. by circumstantial evidence.

See further: Emeka v. State (2002) 14 NWLR (Pt.734) 666 at 683; Ogba v. The State (1992) 2 NWLR (Pt.222) 146; Oladipupo v. The State (1993) 2 NWLR (Pt.590) 253.

In what appears to be captivating, the learned trial judge made the following finding, among others, in proof of the offence of murder with which the appellant was charged:

“Having dispassionately considered and found as established all the ingredients of the offence of murder, the evidence of the witnesses of the prosecution which I equally consider credible and the cogent confessional statements of the accused person; I have come to the conclusion that the prosecution had proved beyond reasonable doubt that the death of Peter John (M) was unlawfully caused by the deliberate and intentional act of the two accused persons. There was no justification in law for the act. In my well considered view, what happened in this case was an unleashing of a vicious death by the entire Abirifon family on the deceased a stranger but dutiful labourer who in pursuit of earning a means of livelihood came all the way from Taraba State to sojourn in Ekiti State. This was certainly not a way of rewarding someone who had served so to speak the Abirifon family for some couple of years uninterrupted and I dare say faithfully too. This was a heinous crime perpetrated wickedly and secretly far away from person eyes. However, the magnetic and eagle eyes of the ‘Law’ run to and from the nation, and indeed the whole world. Its very long arms are more than able to catch criminals and contraveners of the law. The acts of the accused person leading to the death of the deceased were impious acts. They deserve a

…………………….C…………………….

corresponding great reprimand, grant consequences and punishment in accordance to law.”

In affirming the above dictum, the court below went further to say:
“I shall commend the immortal dicta of Oputa and Karibi-Whyte, JJSC in the locus classicus of Bakare v. The State (1987) 1 NWLR (Pt.52) 581 at held 8 and 10 to the learned counsel for the appellants that: ‘proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency consistent with an equally high degree of probability.

As I said elsewhere, from the arguments of learned counsel for the appellants, he probably required the prosecution to prove its case beyond all shadow of doubt which to my mind would be setting a higher standard than the law required. If the appellants confessed as they had done in this case that they killed the deceased and there is corroboration of that confession as can be seen from the evidence of the PW1 – PW5 and the exhibits tendered, then that evidence would be sufficient to convict the appellants even though they subsequently retracted or denied making the confession. See R. v. Akinwale (1963) FSC 322/1963.
From the foregoing, issue No. 2 shall also be resolved in favour of the respondent and ground one of the grounds of Appeal shall also fail.”
From the above dicta, it is clear that the decisions arrived at by the two lower courts is concurrent. Except where there are strong reasons, this court is always loathe to interfere with such concurrent decisions. No such strong, compelling and special reasons have been adduced by the appellant to make me interfere with such concurrent decisions of the two lower courts. In fact I find both decisions lo be sound and lucid being supported throughout by earlier decisions of this court with which, unless reviewed by the same court (for which there is no evidence), I must be bound. I therefore find it difficult to interfere with the decision of the court below. I rather affirm the decision in finding the appeal unmeritorious and I accordingly dismiss it.

SULEIMAN GALADIMA, J.S.C.: I have had the opportunity of reading in draft the leading Judgment of my brother IBRAHIM TANKO MUHAMMAD, JSC just delivered. I agree entirely with his reasoning and conclusion leading to the dismissal of the Appeal which is unmeritorious.
The facts and circumstances of this appeal are similar to Appeal No. SC.103A/2011. In the two appeals the Appellants were jointly charged and tried, convicted and sentenced to death.
The Appellant herein appealed against the dismissal of his appeal at the court below. The grouse of the appellant in his lone issue is that the prosecution has failed to prove its case beyond reasonable doubt to warrant the affirmation of his conviction and sentence by the court below.
The conviction of the Appellant was predicated on his confessional statement which, in my view was not wrongly admitted in evidence. It was voluntary. I have read his statement on page 41 of the Record of appeal. It is cruel, gruesome and callous and mean to say the least, for the Appellant to have cut the neck of the deceased whilst his elder brother, one Bode Abirifon fired gun and in addition cut the leg of the deceased.
The Medical Report described the nature of the wounds. This is consistent with the mutilated body of the deceased. The Appellant does not deserve to live within the civilized society like ours. The two courts below have made concurrent findings of fact, that the prosecution has proved its case beyond reasonable doubt. I have no reason to interfere with the concurrent finding by the two courts.
In view of the foregoing and detailed reasoning in the leading Judgment I also dismiss this appeal.
Appeal dismissed.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment just delivered by my learned brother I. T. Muhammad, JSC. I agree that the appeal is devoid of any merit and should be dismissed.
The facts of this case are very pathetic and unfortunate against the deceased who was an annual labourer seeking for his hard earned daily bread and hence his reason for traveling all the way from the former Bendel State and only to be murdered in cold blood by the appellant and others inclusive of his father who owed the deceased. In a bid to avoid the payment of the money owed the late Peter John (deceased) was murdered in a callous manner with the aid of the appellant.
The learned trial court judge of Ekiti State High Court found the accused/appellant guilty and sentenced him to death. On appeal to the Court of Appeal Ilorin judicial Division against the decision, the lower court justices in a unanimous decision affirmed the judgment of the trial court.
The further appeal to this court is predicated upon the following lone issue:

“Whether the prosecution proved its case beyond reasonable doubt to warrant the affirmation of the conviction and sentence of the appellant by the Court of Appeal.”

The law is well settled in plethora of authorities that the burden is on the prosecution to prove the alleged offence against the appellant beyond reasonable doubt. For the prosecution to discharge this burden, it must adduce cogent, credible and compelling evidence to substantiate or prove the elements of the offence charged. See section 138(1) of the Evidence Act. The general burden of proof is solely on the prosecution and does not shift and it is in consonance with the constitutional provision where the accused is always presumed innocent until proved otherwise.

…………………….D…………………….

In proving the accused/appellant guilty, the prosecution must bring him within one of the methods; direct evidence, or circumstantial evidence or by the accused’s confessional statement. Proof of at least one of the foregoing will suffice to secure conviction.
With particular reference made to the statement of the appellant at page 41 of the record of appeal, the testimony is very revealing and gruesome. This is what he said amongst others:-

“I am the one who gave Peter John a matchet cut on the neck. My elder brother, Bode Abirifon was the person who fired gun (sic) the said Peter John before I matcheted him Sunday Abirifon only used his matchet to cut the body and the leg of the said Peter John. By the time Peter John fell down my father moved near to corpse of late Peter John and carried the leg of the said Peter John up and discovered that Peter John had died.”

The same witness earlier in his evidence said:-

“The reason why the matter was in the farm was that, my father Matthew Olomi did not want Peter John to collect back the sum of thirty thousand naira (N30,000.00k) that belongs to his late brother and again my father Mathew Olomi did not want Peter John to continue working on the cocoa plantation that was the main reason why we killed Peter John. That as a matter of truth.”

As rightly submitted by the learned respondent’s counsel the prosecution in the case at hand did employ two methods out of the three in proving the guilt of the appellant. In other words it is overwhelming on the confessional statement and needed no more that the appellant was clear and cogent. The circumstantial evidence is also very irresistible against the appellant. The nature of the wounds described by the medical report is very consistent with the merciless bodily mutilation inflicted as described by the appellant in his confessional statement. Appellant’s retraction of his statement Exhibit A did not preclude admissibility as rightly concluded by the learned trial judge. The statement was rightly held as confessional. The trial court for instance at page 159 of the record said:-

“The denial of the 1st accused person was therefore held to amount to a mere retraction or resilation which cannot vitiate the admissibility of the statement.”

The conclusion which was adopted by the lower court could not have been otherwise. The appellant’s behaviour was grossly inhuman and the only way to compensate the deceased was for the law to take its cause against the appellant. It is also necessary to protect the society whose safety is at risk if a person of the appellant’s caliber is allowed to continue to live within the society. The concurrent finding by the two courts is unassailable and there is no reason to upset same whatsoever. My learned brother has adequately done justice to the appeal. I also endorse his reasonings and conclusion arrived thereat that the appeal has no merit and is also dismissed in terms of the lead judgment.

STANLEY SHENKO ALAGOA, J.S.C.: I read before now and in draft form the lead judgment just delivered by my learned brother Ibrahim Tanko Muhammad, JSC and I wish to chip in this bit of mine by way of contribution. It is settled on a long line of judicial authorities that an accused may be convicted on his own confession alone whether retracted or not provided the confession is free, voluntary, direct and positive. See the Supreme Court Cases of OZANA UBIERHO V. THE STATE (2005) 2 SC (PART 1) 18; KOPA V. THE STATE SC.16/1970 by Ademola, CJN., following R. V. SYKES (1913) 8 Cr. App. Rep. 233. Once these attributes are present, a confessional statement must rank among the highest if not the highest methods by which the commission of a crime is proved.The Director of Public Prosecution for the Respondent adopted two methods of proof of the offence of murder viz confessional statement and circumstantial evidence which the lower courts agreed with. This is enough. Not even in murder cases as in the present case is proof beyond the shadow of doubt required but remains proof beyond reasonable doubt. It is a pity that a murderous family can hatch out a plan to kill on a paltry sum of N30,000.00 owed the deceased by the patriarch of the family. This is a concurrent finding of guilt by two lower courts. There is a long line of judicial authorities to the effect that the Supreme Court will not disturb the concurrent findings of fact by two lower courts except such findings are perverse, or there is some miscarriage of justice or a violation of some important principle of law or procedure. See OJIBAH V. OJIBAH (1991) 5 NWLR (PART 191) 296; ADELEKE v. ASERIFA (1990) 5 SC (PART 1) 104; CHUKWUOGOR V. OBUORA (1987) 3 NWLR (PART 61) 454, 457; OSHO V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PART 184) 157; AKEREDOLU V. AKINREMI (1989) 3 NWLR (PART 108) 164. I don’t find these findings to be bedeviled by these shortcomings and lapses. The conviction and sentence stand.
It is for these reasons and the more elaborate reasons contained in the lead judgment of my learned brother earlier referred to that I too find no merit in the appeal and dismiss same while affirming the decision of the court below.

Appearances

Olusegun Fowowe, Esq. For Appellant

AND

Adedayo Apata, Esq. (SG, Ekiti State) with him; Gbemiga Adaramola, Esq. (DDCL). For Respondent

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