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3PLR/1991/26  (CA)










Ohimai J. Airenakho ‑for the Appellant

Modupe Fasanmi (Mrs.), D.D.P.P. Ministry of Justice, Ondo State ‑ for the Respondent



PRACTICE AND PROCEDURE – COURT ‑ Defence of accused ‑ Duty on court to consider

PRACTICE AND PROCEDURE – COURT ‑ Statement of accused‑ Imperfect or unsatisfactory interpretation thereof ‑ Attitude of court.

CRIMINAL LAW AND PROCEDURE ‑ Accused’s statement to police ‑ Recording of ‑ Need to record in language used by accused or something as near as possible to it.

CRIMINAL LAW AND PROCEDURE ‑ Circumstantial evidence ‑ Conviction pursuant to ‑ Requirements.

CRIMINAL LAW AND PROCEDURE ‑ Defences ‑ Defence of accused ‑ Duty on court to consider.

CRIMINAL LAW AND PROCEDURE – Natural consequences of a person’s act ‑ Presumption of law in respect thereof.

CRIMINAL LAW AND PROCEDURE ‑ Proof‑ Prior Statement of accused and his testimony in court ‑ Conflict or contradiction therein ‑ value attachable thereto ‑ Reliability of.

CRIMINAL LAW AND PROCEDURE ‑ Statement of accused to Police ‑ Retraction of in conflict in accused’s statement vis‑a‑vis his testimony in court ‑ Whether Distinct from each other.




In the High Court of Justice Ondo State of Nigeria in the Akure Judicial Division holden at Akure, the appellant Agbeyemi Ajidahun, was arraigned an information for murder, contrary to section 316(1) of the Criminal code Cap.30 Laws of Ondo State of Nigeria, 1978, and punishable under section 319 of the same enactment. The particulars of the offence to which the appellant pleaded not guilty are that, on or about 30th day of August, 1987, at Ijare, in the Akure Judicial Division, he murdered one Sunday Omosebi. He was duly tried, convicted and was accordingly sentenced to death. The appellant was thereby aggrieved and appealed to this court on only one ground of appeal, the ominibus ground. The Ominibus ground filed along with the appellant’s notice of appeal was found to be incurably bad because it was couched in the manner of the general ground of appeal in a civil matter. The said ground of appeal reads:


“That the decision of the High court is unreasonable and cannot be supported having regard to the weight of evidence”


That ground of appeal was consequently struck out for the simple reason that criminal cases are not determined on the weight or preponderance of evidence or balance of probabilities.


The record of appeal was compiled and transmitted to this court solely on that incompetent ground of appeal. That incompetent ground having been struck out and consequently the appeal on 5th March, 1990 the appellant was constrained to seek for an extension of time within which to file a fresh notice of appeal. It is

fresh appeal which was subsequently filed that is being determined in the instant proceedings.


The two grounds of appeal filed in this appeal read as follows:


“I. The learned trial judge erred in law when she held at page 55 line 1‑5 that “My conclusion is that having left the deceased in a state of stupor the accused brought an abrupt end to his life with stick. The size of the deceased given in Exhibit “A” as 6 feet 2 inches will not be relevant at this point in time since he could then be helpless and no longer himself”.




(a)     There was no direct evidence that the accused terminated the life of the deceased with a stick.


(b)     Notwithstanding the frame of the deceased in comparison with the small stature (page 35 line 1) of the accused, there was no evidence that he was helpless.


(c)     The use of a stick ‑ Exhibit “D”, by the accused on the deceased was denied by the accused on oath: Vide, page 29 lines 5‑8


  1. The learned trial judge erred in law and on the facts in reaching the conclusion that the accused killed the deceased ‑ Sunday Omosebi.




(a)     That Exhibit “B” relied on as being a confessional statement of the accused was written in Yoruba language.


(b)     That Exhibit “B 1” the English version of Exhibit “B” was not signed by any person including the accused, P.W.5 and the translator.


(c)     There is no evidence on record of the translator of Exhibit to ‘‘B

The learned counsel for both parties filed and exchanged briefs on behalf of their respective parties. Each brief contained formulation of issues for determination. The three issues framed in the appellant’s brief read thus:


“A.     “Whether the confessional statements ‑ Exhibits “B” and “B 1”, are good in law to form the basis of the conviction of the appellant?


  1. Whether excluding Exhibits “B” and “B 1” there is sufficient evidence on the record on which the conviction of the appellant for murder can be justified? and


  1. Whether such evidence (excluding Exhibit “B” and “B 1”) conclusively and indisputably leads to the guilt of the appellant?”


The issues identified on behalf of the respondent as calling for determination in the instant appeal are recited immediately hereunder:


“1.     Whether the trial court rightly convicted the appellant on the confessional statement which was retracted in part having considered other circumstances which made it probable that the confession was true.


  1. Whether the omissions highlighted by the defence counsel at the trial court are fatal to the prosecution’s case to have occasioned miscarriage of justice.”


In view of the vagueness of the respondent’s second issue and the fact that respondent did not cross appeal, the issues formulated by appellant even though they are all framed pursuant to ground 2 of the grounds of appeal are preferred.


Although two grounds of appeal were filed, there is no issue formulated in respect of the first ground of appeal. The three issues framed are distilled from ground 2 of the grounds of appeal to the utter neglect of ground 1 of the grounds of appeal. It is not only this but the same ground 2 of the grounds of appeal, in respect of which copious issues were drafted, was not recited in the appellants brief even though the remaining ground of appeal is copied in the appellant’s brief. The learned counsel for the appellant has been rather casual in getting up the appellant’s brief. This approach is neither good enough nor commendable. His lackadaisical approach may, in certain circumstances, be construed as abandonment of the ground of appeal. I refrain from taking such an extreme view because of the nature of this case, not only a citizen’s liberty is involved his life too is at stake.


At the hearing of the appeal both counsel adopted and relied on the brief of the parties. They also made oral submissions in elaboration. The learned counsel for the appellant in the appellant’s brief, while arguing issue 1, conceded that Exhibit “B” the confessional statement of the appellant was voluntarily made and was properly admitted. Counsel’s quarrel focuses on the translation of the said statement which was admitted as Exhibit “Bi”. He contended that Exhibit “BI”, the translation of the appellant’s statement, Exhibit “B”, was neither read over to the appellant nor did the appellant signify his approval of its accuracy or authenticity. He contended further that the prosecution failed to prove Exhibit B 1. Counsel then submitted that the omissions are fatal to the prosecution’s case and urged upon us to treat Exhibit B as hear say evidence which is incapable of establishing the truth of its contents. He referred to the cases of R v. Zakwakwa (1960)5 F.S.C. 12, (1960) SCNLR 36. R. v. T.B. Ogbuewu (1949)12 WACA 483, Queen v. Charlie Mboho (1964) N.M.L.R 49 and Abieke & Another v. The State (1975)9‑11. S.C. 97 at 101.


The learned counsel for the respondent, Mrs Fasanmi, D.D.P.P, Ondo State submitted that Exhibit B is admissible. She argued that a statement which is admissible in other respects does not cease to be so merely because it was recorded in English and not in language used by the maker. She referred to R. v. Ogbuewu

(1949) 12 WACA 483.


Before I proceed to consider the submissions of counsel on this issue, I wish to place on record that there is no case of T.B. Ogbuewu reported in 2 WACA 403. Indeed, the last case reported in that report ended at p. 391. It is not unlikely the learned counsel for the appellant, Mr. Airenakho had in mind the case of Rex v. John Ogbuewu (supra) cited in the respondent’s brief. Also the case of Zakwakwa of Yorro is reported at p. 12 of the report and not at 122 of the same as quoted by the learned counsel for the appellant whom I believe can afford to be more diligent.


Be that as it may, the authorities cited by the learned counsel for the appellant are different on the facts from the instant case. They are, therefore, distinguishable. In the case in hand, the appellant personally recorded his own statement which was challenged on the usual ground of want of voluntariness on the part of the person making it, that is the appellant. A “trial within a trial” was duly conducted and the learned trial judge was satisfied that the statement was voluntarily made and accordingly admitted it. In the cases cited by the learned counsel for the appellant, with exception of the case of Charlie Mboho (supra), to which I will return presently, the makers of those statements volunteered them in languages other than those spoken by the recorder (who were invariably not one and the same persons with the makers) and who recorded same with the help of interpreters. Where such interpreters are not called to testify, the statement are considered not proved or ruled to be hearsay. It is only the interpreter of the accused’s statement, rendered by the accused in any of the Nigerian indigenous languages to the Police, who can verify the contents or give evidence of such statement at the trial of the accused. In the case of Zakwakwa (supra) at page 13 of the report Hubbard Ag. F.J said:


“If it was P.C. Musa who did the interpretation, and not L/CPI/Umoru, then since P.C. Musa was not called as a witness and subject to cross‑examination, the Hausa version and the English Version are hearsay”.


See also the cases of Igele Iyu v. The State (1965) 1 All N.L.R. 203 at 209 and Shivero v, State (1976)3 S.C. 63 where Fatayi williams J.S.C. (as he then) was said at page 71 of the report thus:


“In this connection we refer to the decision ofGorman, J., in R.v. Attard (supra) where the accused Maltese who neither spoke nor understood English was charged with murder. During the course of the case for the prosecution, the crown proposed to call evidence by a police officer of an interview which he (the police officer) had conducted with the accused through an interpreter. The defence objected on the ground that since neither the police officer nor the accused could understand what the interpreter said to the other, the evidence of the police officer was inadmissible as being hearsay, and that only the interpreter could give evidence of the questions which he put to the accused on behalf of the police officer and of the answers given to him by the accused in the accused’s own language. The court, quite rightly in our view, upheld the objection for the reasons given by the defence in their admission and held that the evidence of the police officer in relation to the interview was hearsay and was therefore inadmissible.”


It is this principle in effect the appellant seemingly wants applied by implication to deny exhibit B of its validity, a matter, which the learned counsel for the appellant, as he should do, has rightly conceded. Exhibit B was not recorded through an interpreter. It was written by the appellant in his own language. The document can, therefore, not be held to be hearsay. The submission of the learned counsel for the appellant that the failure to call the person who translated the said statement into English to testify is without merit. The document that is relevant to the just determination of the case is the appellant’s statement, exhibit B and not the translation exhibit B I which is a product of our accident of history. There are authorities galore insisting that statement of an accused to the police to be written in the language the accused (appellant) made it or something as near as possible to the language in which it was given to the police. But my research did not reveal a single decided case prescribing the manner of translating such statement to English. In The Queen v. Omerewure Sapele & Another (1957)2 F.S.C. 24, (1957) SCNLR 307. Where Abbot F.J. while delivering the judgment of the court said at page 25 of the report thus:


“It is desirable, in the interests of accuracy, that such a statement should be recorded in the language in which it is made, read over to the maker in that language, and then translated into English so that both vernacular and English version may be put in as evidence.”


See also Brownson Etuk Udo vs. The State (1964) 1 All N.L.R. 21, John Ogbuewu (supra)at 483 and Nnana Okoro v. Queen(1960) SCNLR 292; (1960)5 F.S.C. 134 where at pages 135 and 136 of the report Abbot Ag. C.J.F. while delivering the judgment of the Federal Supreme Court said:‑


“While it may well be that the three languages (or dialects which is probably the better term) are sufficiently similar to avoid lack of understanding of what was being said, it is obvious that more care should have been taken to use throughout the dialect native to the appellant whichever of the three it was. And had the statement being the only evidence against the appellant we might have had to consider whether a conviction thereon was justified”. (Italics Mine)


On the complaint that the translation of the appellant’s statement exhibit BI was never read over to the appellant, with due deference to the learned counsel for the appellant, I think, there is no basis for this complaint which, to my mind, is purely academic made mainly to gain a debating point. There was evidence before the trial court from which it can be inferred that the appellant does speak and understand English of what use, therefore, will it be to read over to him English translation of his statement which he personally recorded in Yoruba? The statement which should have been read over to him in appropriate cases was his statement in Yoruba. But this is uncalled for in the peculiar background of the instant case. The need to read the Yoruba version to the appellant would have been of necessity, called for if the appellant had dictated the statement in Yoruba to a third party who recorded it in Yoruba language to ascertain the accuracy of the recording. In this connection, see the case of Nwangba Igwe v. The Queen (1960) F.S.C 55, 50; (1960) SCNLR 158 where the Federal Supreme Court Coram Ademola C.J.F. Brett F.J. and Hubbard Ag. F.J. said:


“ ………….that what the interpreter was asked to do was to translate to the appellant in Ibo the English version which had already been made of his original Ibo confession. What ought to have been put to the appellant for confirmation was the exact Ibo confession which he had originally made”.


The learned counsel for the appellant would have probably been on a firmer ground if correctness or the accuracy of the translation had been challenged. Counsel understandably did not approach the matter from that angle because the translation has been confirmed correct and authentic. I have compared the two exhibits, the appellant’s original statement, in Yoruba and its English Version, and the translation is a true representation of what the appellant wrote in his original statement, exhibit B. To reject the appellant’s original statement in Yoruba on the ground that the identity of the translator is shrouded in mystery or is not disclosed will not be in the larger interest of justice. Indeed, it would tantamount to enthroning technicality which would have resulted in a miscarriage of justice. The failure of the learned trial judge to reject the statement on the mundane excuse that the identity of the translator is unknown, indeed no such approach was made to the learned trial judge and was in no manner prejudicial to the appellant. It therefore did not occasion a miscarriage of justice.


The Mboho’s case (supra) does not support the proposition of the learned counsel for the appellant. If it is an authority for finding the translation irregular, which is not the case here, the translation could be disregarded without doing any harm or damage to the statement itself which is otherwise admissible. In Mboho’ s case (supra) the interpreter who interpreted for the senior police officer, who verified the voluntariness of the accused’s statement, was not called and the Federal Supreme Court rejected the argument that the statement which was otherwise admissible be expunged from record because the evidence of its confirmation is hearsay. In refusing the supplication the Federal Supreme Court per Taylor, J.S.C. stated thus:‑


“As to the admissibility of Exhibit ‘A’ if the statement itself is admissible in evidence as a voluntary statement, we do not think the fact that the evidence of its confirmation as hearsay will affect the admissibility of the statement. The evidence of confirmation should be rejected and the statement treated as one made without it, and in this respect the case of Nwigboke & others v. The Queen (1) is pertinent”.

Where the trial courts found a statement to be voluntarily made and, therefore, admissible but such statement is not translated or its translation is unsatisfactory or imperfect they have always allowed witnesses preferably the court interpreter to be called to translate the statement from the witness box. The court below would have been perfectly in order, if it had found the translation inaccurate, to call the court’s interpreter or any person it finds suitable to translate same to the court. the answer to the first question is, therefore, positive.


The appellant in the second issue quarried if the conviction can be sustained in the event of expunction of exhibits B and B 1. The question is rather hypothetical. It will be answered because of the serious nature of the appeal, murder, otherwise it would have been struck out as courts are establish to answer live questions. The learned counsel for the appellant contended that there was no eye‑witness account of how the deceased met his death other than the appellant’s testimony. He then referred to the relevant pieces of evidence and submitted thus


I quote for purposes of fuller appreciation of the learned counsel’s submission:


“(a)    It was not the appellant who killed the deceased.


(b)     The Power behind the medicine, as against the act of the appellant, killed the deceased.


In view of this, I submit that the lower court ought to have considered the first arm of section 24 of the Criminal Code, that is, the defence of lack of intention wherein the two essentials of criminal responsibility (mens rea and actus reus) must be available to establish the guilt of the accused. I rely I heavily for support in the authority of Abieke & Another v. The State (1975) 9‑11 S.C. 97 102 to 103″.


It is sad and disheartening that a member of the Bar in the last decade of the 21st century still believe in mysticism and nonsense so much so as to postulate that was responsible for killing a human being. Such a belief, to my mind, is not only unreasonable but also preposterous. I am however, bound to consider the defence the appellant, howsoever stupid, bizarre or unreasonable it might be or sound.


See Abugbor Abgyuluwa & others v, Commissioner of Police. (1961) All N.L.R.(Pt. IV) 850.


In the result, I propose to set out the evidence upon which the submissions are predicated,. The appellant testified thus:


“When I asked him to produce the money he brought out only N300.00 the spirit behind the medicine placed the money on the chest of the deceased and he fell down and died”.


Under cross‑examination the appellant testified inter alia thus:


“On the day of the incident the man died instantly”.

This piece of evidence is belied by exhibit “A”, the autopsy report which was accepted and relied upon by the court below. The relevant part of the report shows that the deceased, contrary to the submissions of the learned counsel for the appellant, met with a violent death and I quote:


“11.   Medical Report:


Highly decomposed body. Broken neck bones, severed lower jaw at the right teperomandibular joint.


I certify the cause of death in my opinion to be strangulation and severe bodily trauma”.


This finding by Dr. O. Olugunwa, M.B.B.S. (Lagos). Medical officer, is consistent with the admission of the appellant to P.W.5, Daniel Audu, to which the latter testified, to the effect that the appellant poisoned the deceased and when the deceased was in a state of stupor the appellant accelerated his death by beating him with a stick, exhibit D, which the appellant produce and handed over to the said witness. It is not the case of the appellant that his purported spirit is capable of wreaking the sort of injury found on the body of the deceased.


In view of these pieces of evidence outside the appellant’s statement, exhibits B and B 1, which the trial court accepted section 24 of the Criminal Code Cap.30 of the Laws of Ondo State of Nigeria, 1978 would not avail the appellant. Section 24 of the Criminal Code Cap. 30 relied upon by appellant in his brief read inter alia thus:


“24.   Subject to the express provisions of this code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission, which occurs independently of the exercise of his will, or for an event which occurs by accident”.


The learned trial judge would still justifiably have come to the conclusion that the killing was premeditated, carefully planned and executed, or that the circumstance disclosed a reckless disregard for the life of the deceased. It is settled law that every person is presumed to intend the natural consequence of his act and since death resulted from the deliberate cudgeling of the deceased by the appellant the appellant must be held for the natural consequence of his act. Moreover, the injury found on the deceased coupled with the fact that he died soon after on the spot strengthened my resolve. In the case of Odofin Bello v. The State (1967) N.M.L.R 1 at 5 the Supreme Court opined that:


“In a charge of murder for example, the body of the deceased bears mark of evidence which pre‑supposes or confirms the story that he was unlawfully killed”.


The background of this case is quite different from the circumstances in the case of Abieke & Another v. The State (supra) which is, therefore, not material to proper determination of the question in issue here because the cause of death of the deceased is referable to the appellant who was solely present when the deceased died.

This would have been the end of the appeal but for the submission of the learned Deputy Director of Public Prosecutions in which she pointed out that the appellant in his evidence in court resiled from his extra judicial statement, exhibit B. The learned Deputy Director of Public Prosecution then contended that, in the circumstance, the trial court was required to review the totality of the body of evidence before it in search of other evidence outside the statement which makes its contents or the confession probable. For this submissions she craved support of the case of Eyo Okpo v. The State (1972)2 S.C. 26 at 28 which, in my opinion, is inapplicable to the instant case. In Eyo Okpo’ s case (supra), the accused retraced or withdrew his extra judicial statement under the pretext that at all time material to the making of the said statement he was unconscious. Thus saying by necessary implication that it was impossible for him to have made the statement. But in the instant case the appellant contradicted what he had already stated in his extra judicial statement when he went into the witness box to give evidence in court. He told the court while in the witness box a version different from the account he had given the police. The appellant in his confessional statement told the police that he administered a concoction on the deceased and when he did not give up the ghost quickly he accelerated his death by striking him with a stick. He, however, called another tune in court when he testified that the spirit behind the money making charm he prepared for the deceased killed the latter because he defaulted with N3,000.00 charges he was required to pay the appellant for the appellants services and which the deceased promised to pay on the fateful day. There is obviously a contradiction between what he stated in his extra judicial statement and his testimony before the learned trial judge.


The consideration and consequences of retraction of statement and conflict between the statement to the police on one hand and the testimony in court are quite distinct or different. Where a witness including an accused made a prior statement in contradiction with his evidence in court sworn or otherwise both the statement and the evidence in court are unreliable or are of very low probative value. In the result both the appellant’s statement to the police, exhibit B, on one part and the appellant testimony in court touching upon the cause of death are unreliable and the case in the circumstance must be determine on the prosecution’s case only. Neither version given by the appellant is acceptable to the court. In this connection, the Supreme court gave the law on the issue in the case of Saka Oladejo v. The State (1987) 3 NWLR (Pt.61) 419; (1987) 7 S.C. 207 at 244 thus:


“Contrary to the conclusion of the learned trial judge, the law is rather that where a witness (here an accused person) Makes a statement which is inconsistent with his testimony; such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act. In R. v. Golder (1960)1 W.L.R. 1169, 1172 Lord Parker C.J. in English criminal Court of Appeal stated it thus:‑


“In the judgment of this court when witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable, they should also be directed that the previous statements, whether sworn or unsworm, do not constitute evidence upon which they can act.”

This was followed by this court in Queen v. Ukpong SCNLR 53 (1961)1 ALL N.L.R. 26per Taylor F.J; Jizurumba v. The State (1976) S.C. 89. Per Idigbe J.S.C. Williams v. State (1975)9‑13 S.C. 139. In the recent case of Stephen v. State (1986) 5 N.W.L.R. (Pt.46), 978 at 1000 Kai‑ibi Whyte, J.S.C., reiterated the same principle. In such cases the trial court would be entitled to reject the inconsistent defences and rely on the evidence adduced by the prosecution”. (Italics mine)


On these authorities the trial judge is not entitled to accept and rely on the statement of the appellant and then fall back on a portion of his evidence at the trial, The evidence is now all one way. The question, therefore, is whether the appellant can be convicted solely on the evidence led by the prosecution the appellant’s relevant portions of his statement and testimony on oath having been excluded, There was no eye witness to the killing and the evidence was circumstantial. Or did the circumstantial evidence point irresistibly to the guilt of the appellant?


The deceased was alleged to have met his death on 30th August, 1987 when he left their home at Ikere‑Ekiti in his taxi cab, registered as OD 7979 RA and has not been seen alive ever since. Appellant reported at the deceased’s home on 31/ 8/87 with the latter’s cheque book together with a message that the deceased had gone to Benin in his taxi cab which is on hire. On 2/9/87 the unsuspecting and trusting wife of the deceased visited the workshop of her mechanic where she was told that the vehicle of her husband had been seen with a stranger operating it. She was then compelled to make a report to the police on the same day. On the same 2nd September, 1987, when the incident was reported to the police, appellant informed Jimoh O. Oloja Kelani, P.W.2, in Lagos that he had just bought the Cat on hire purchase and sought the assistance and advice of P.W.2 as to its running. On 4th September, 1987 the police visited Ijare, the appellant’s home town to check on an information that the appellant had merriment on his acquisition of a vehicle. The visit revealed that the appellant left for Lagos with his newly acquired vehicle, the descriptions of which tallied with those of the deceased’s car. They were further informed that the car had been seen plying along Lagos to Ifonyin otherwise known as Idiroko Road. The investigators on the information gathered left for Lagos and arrested the appellant on 7th August, 1987 while operating the Vehicle along the said route.


A search of the appellant’s home at Ijare led to the recovery of a box containing the remaining concoction with which the deceased was allegedly sent into stupor before his death was hastened with blows inflicted with a stick, exhibit D. The cause of death was attributed to broken cervical bone and lower mandible and severe bodily trauma. The appellant led the police to a bush about two kilometre from Ijare, appellant’s home town, from where the deceased’s decomposing body was retrieved. The appellant produced the stick exhibit D, to the team of investigators as the stick used in beating the deceased.


To sustain a conviction on the basis of circumstantial evidence, the circumstances relied upon by the prosecution must be direct and must lead unequivocally and indisputably to the guilt of the appellant. The Supreme Court pointed out in the case of Okoro Mariagbe v, The State (1977) 3 S.c. 47 at 52 cited by the learned counsel for the appellant as follows:

“Thus while we agree that circumstantial evidence is admissible in criminal cases, such evidence in the words of LORD NORMAND in LEJZOR TEPER V. THE QUEEN ‑(1952) A.C. 480 at p. 489:‑


“It must be always narrowly examined, if only because evidence of this kind may be fabricated to set suspicion on another………


It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co‑exsiting circumstances which would weaken or destroy the inference”.

See also R. v. OROROSOKODE (1960) 5 F.S.C. p. 208”. (1960) SCNLR 501. It has been settled since R. v. Taylor, Weaver and Donovan 21 C.A.R. 20 that evidence of the background is often the best evidence to ground a conviction. In Joseph Lori v. The State (1980) 8‑11 S.C. 81, 86. Nnamani, J.S.C. said:


“The circumstantial evidence sufficient to support a conviction in criminal trial especially murder, must be cogent, complete and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. The facts must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt”.


The question therefore is who else could have killed the deceased and used the appellant as a decoy to deliver to the deceased’s home the deceased’s cheque book together with a message to the effect that the deceased had driven his taxi cab to Benin City and would be away for about five days within twenty‑four hours of the deceased’s disappearance. Who else knew the scene of the crime and where the corpus delicti could be found? Why did the appellant appropriate the deceased’s vehicle, so soon after his disappearance. If appellant bought the vehicle from a third party he tendered no evidence to that effect, the document he showed to P.W.2 in support of his hire purchasing the vehicle were those of the deceased whom he alleged had traveled overseas. The only inference that can be drawn from the conduct of the appellant in assuming ownership of and operating the vehicle as if it had always been his own was to deprive the deceased of his vehicle. This consuming passion allured the appellant into killing the deceased. This takes the facts of this case outside the purview or contemplation of the case of Ogwa Nweke Onah v. The State (1985) 12 S.C. 5; (1985)3 NWLR (Pt.12) 236 The appellant, in the instant case, had a purpose to serve, that is to deprive the deceased of his taxicab to enable him recover the alleged N3 ,000.00 the deceased agreed to pay for the charm appellant made for him. If evidence of the date appellant celebrated his acquisition of a new vehicle, which was available but wis not led, were led the instant appeal would have been on all fours with the case of Everest Eze v. The State (1985) 12 S.C. 14; (1985) 3 NWLR (Pt.13) 429. Where the accused were found in possession of a subject of a robbery within twenty-four hours of the commission of the offence.


The answers to the remaining two issues postulated in the appellant’s brief are positive. The two grounds of appeal, therefore, fail and are dismissed. Consequently the appeal fails and it is dismissed. The conviction and sentence of the appellant are hereby affirmed.


OMO, J.C.A. I have been privileged to read in draft the judgment of my learned brother Salami, J.C.A just delivered.


I entirely agree with same and have nothing useful to add thereto. For the reasons therein set out which I adopt as mine, I also dismiss this appeal and confirm the conviction and sentence of the trial High Court.


EDOZIE, J.C.A. I have had a preview of the judgment just delivered by my learned brother, SALAMI, J.C.A. in which he dealt comprehensively and admirably with all the issues arising from this appeal. I entirely agree with his conclusions and reasons that the appeal be dismissed.


The appellant Agbeyemi Ajidebue was tried by the Akure High Court which convicted and sentenced him to death for the murder of the deceased, Sunday Ornosebi. His appeal to this court turned on whether his confessional statements recorded by him in Yoruba language (Exh. ‘B’) and the English version thereto (Exh ‘B I ‘ translated by a person not called as a witness was admissible in evidence and whether ii’ the absence of the statement there was sufficient evidence to sustain his conviction. I agree that as Exh. ‘B’ was made voluntarily by the accused and is not suggested that its translation in Exhibit ‘B 1’ is inaccurate, both statements were properly admitted in evidence. I also agree that without the confessional statement, there was overwhelming circumstantial evidence implicating the appellant with the commission of the offence


I too, dismiss the appeal and affirm the conviction and sentence of the lower court.


Appeal dismissed


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