John Eragua & Ors v. The Attorney General, Bendel State (In re: Gabriel Osakwe)

I have read ant discussed in advance the judgment of my learned brother, Ogwuegbu, J.S.C. with which I am in full agreement. As I have nothing more to add to it I adopt the reasoning and conclusion in the judgment a, mine in dismissing this appeal.

I have read in advance a copy of the lead judgment of my learned brother, Ogwuegbu, J.S.C., with which I agree. I however wish to make the following contribution by way of emphasis.
This is a murder case in which the appellant, along with four others (now at large) were tried in the High Court of the then Bendel State, Abudu Judicial Division and found guilty of:-
1. Murder of Anna Nun, and
2. Conspiracy to murder Anna Nun.
All the five were accordingly convicted and sentenced to death by hanging.
Following their conviction and sentence, all the five accused persons promptly filed separate notices of appeal. While they were awaiting the hearing of the appeal and being kept in the Benin City Prison, there was a jail break in which all the five appellants escaped. This was in April 1989.
In September, 1989, the present appellant reported

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himself to the police at Abraka. He was re-arrested and taken back to the Benin City Prison. He is therefore the only appellant whose appeal was heard and considered by the Court of Appeal, Benin Division. The appeal was found to be unmeritorious and was accordingly dismissed.
The appellant has now appealed to this court.
Two original grounds of appeal and with the leave of this court, two additional grounds were filed.
The facts of the case are as stated in the evidence of P.W.1 and which are as follows:-
“I remember 29/11/84. On that day at about 5 p.m. my sister Ana went to Iyekeze village to carry grounded cassava. At about 7 p.m. she did not return. I went for her there. On my way there I found on the farm road her basin and the garri she was carrying and the cloth she had on. I called her name but there was no response. It was a farm road close to Church of God Mission. I raised an alarm and many people ran to me. Myself and the people searched for her but we could not find her. I reported the matter to Abudu Police Station. The police asked me to report back after 24 hours. On the next day 30/11/84 I looked for her again. I found her corpse in a cassava farm near Church of God Mission Abudu. She was naked and dead. She had a blouse. Blood was rushing from her private part. There was foam from her mouth. I went back to the police to report. Two police went with me to the scene. The police got a photographer to take the picture. The corpse was conveyed to Abudu General Hospital.”
Parties to the appeal filed an exchanged briefs of arguments. On the date the appeal came up for hearing, none of the parties appeared in court and since there was

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proof that they were aware of the hearing date of the appeal, in line with Order 6 rule 8(6) of the Supreme Court Rules 1985, it was treated as having been argued.
In the appellant’s brief, the following two issues were formulated:-
“1. Whether the Court of Appeal was justified in affirming the decision of the trial court which convicted the appellant for conspiracy to murder and for murder mainly on an alleged confessional statement of the appellant from which the appellant resiled at the trial and when there is no other complete substantial evidence from which the guilt of the appellant could be inferred.
2. Whether the Court of Appeal was right in affirming the decision of the trial court which convicted the appellant for conspiracy for murder and for murder mainly on the alleged confessional statement of the appellant when the alleged confessional statement was not proved to have been made by the appellant voluntarily.”
The respondent also raised in his brief, the following two issues:-
“1. Whether the Justices of the Court of Appeal were right in affirming the decision of the trial court which convicted the appellant for conspiracy to commit murder and for murder based on the confessional statement which appellant retracted.
2. Whether it was necessary to determine the voluntariness of the confessional statement made by appellant.”
The respondent’s two issues are covered by the appellant’s two issues.
In issue 1, it was the contention of learned counsel for the

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appellant that the Court of Appeal was wrong in affirming the decision of the trial court that was solely based on the alleged extra-judicial confessional statement from which the appellant resiled. He submitted that where a retracted statement of a witness, including an accused person is in conflict with his evidence, the previous statement is not only to be disregarded, but also the evidence of such a witness is rendered unreliable. It is his further submission that if both the appellant’s extra-judicial statement and his evidence in court are disregarded, there is no other evidence, whether direct or circumstantial, to sustain the conviction. In support of these arguments, learned counsel referred to and relied on the cases of Saka Oladejo v. The State (1987); 3 S.C. 207 at 224; (1987) 3 NWLR (Pt.61) 419; Joseph Lori v. The State (1980) 8-11 S.C. 86; and Okoro Mariagbe v. The State (1977) 3 S.C. 47 at 52 in urging the court to sustain his submissions.
On the second issue, learned counsel submitted that the alleged extra-judicial statement was not voluntarily made by the appellant as he was brutalised and put in fear to sign whatever papers were presented to him by the police. He said the trial court should have exercised extra caution before admitting the retracted confessional statement of the appellant in evidence as Exh. 6 and relying solely on the same to convict the appellant, particularly when the same was retracted and there was no other corroborative evidence to confirm its truthfulness. In support, teamed counsel cited Section 177(1)(2) of the Evidence Act, Cap.62 Laws of the Federation of Nigeria, Omisade v. R. (1964) 1 All NLR 233; Enahoro v. R. (1965) 1 All NLR 125; Nkut v. R. (1965) 1 All NLR 306;

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and Bello v. R. (1966) 1 All NLR 223. He urged the court to allow the appeal by quashing the conviction and sentence and set the appellant free.
In reply to issue 1, learned counsel for the respondent submitted that the trial Judge rightly relied and acted on Exh. 6, the extra-judicial confessional statement, notwithstanding his retraction of the same. He contended that a confessional statement of an accused person should not be disregarded simply because it is retracted. In support of the submission, learned counsel cited and relied on the following decided cases: Ikemson & Ors. v. The State (1989) 3 NWLR (Pt.110) 455 at 473; R. v. Itule (1961) 1 All NLR 426; and R. v. Skyes (1913) CAR 233.
On issue 2, it was the counsel’s submission that it was not necessary to determine the voluntariness of the appellant’s confessional statement merely because he retracted it while giving evidence. Learned counsel said that the records show that neither the appellant nor his counsel raised any objection that Exh. 6, the confessional statement, was made under duress when it was tendered and admitted in evidence. He referred to Ikemson v. The State (supra) particularly pages 468-469 in support. He contended that a free and voluntary confession of guilt of a prisoner, if it is direct and positive and is duly made and satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence. He however added that Exh. 6 was corroborated by the evidence of P.W.1, P.W.2 and P.W.5 and cited R. v. Sullivan (1987) 16 COX 347 to buttress his submissions. He described the allegations of threats and beatings of the appellant made

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later against the police as mere after thought and urged us to dismiss the appeal.
I shall deal with the two issues together. The pertinent issue for determination in this appeal is whether despite the retraction by the appellant of Exh. 6, the trial court’s reliance on it to convict the appellant can be sustained.
In his brief, learned counsel for the appellant commenting on retraction of extra-judicial confessional statement of an accused person, stated thus:-
“The law is that where a witness including an accused person is shown to have made a statement which is inconsistent and or in conflict with his evidence, the previous statement is not only to be disregarded, the evidence of such a witness is also to be regarded as unreliable and do not form any basis for a decision.”
This statement is part of a judicial pronouncement made in Oladejo v. The State (supra) lifted and relied on by learned counsel. But before discussing the statement above, I shall deal with the issue of voluntariness or otherwise of Exh.6.
It is trite law that it is the duty of the prosecution to prove beyond reasonable doubt the voluntariness of an extra-judicial confessional statement credited to an accused person standing trial for the crime confessed. See Adekanbi v. A.-G., Western Nigeria (1966) 1 All NLR 47. This proof is required when the voluntariness is challenged under the conditions stated in Section 28 of the Evidence Act. These are:-
1. Inducement, or
2. Threat, or
3. Promise having reference to the charge against the

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accused person, proceeding from a person in authority and sufficient to give the accused person grounds reasonable to assume that by making the statement, he would gain any advantage or avoid any evil of a temporal nature.
The time to raise an objection on all or any of these grounds is when the prosecution, through its witness and forming part of its case, seeks to put in evidence the extra-judicial confession. The disputed statement (now Exh.6) was made on 10/12/84. It was tendered in evidence through P.W.2, Sgt. Joachim Gboye on 27/7/87. The only objection raised against it is as narrated on page 13 line 22 reads thus:-
Accused said he did not make it.”
This is nothing more than a retraction of the statement which was made by the appellant about two and half years after its making. There is abundance of authorities that retraction of or resiling from an extra-judicial confessional statement is not a ground on which a trial court will conduct a trial-within-trial to determine its voluntariness. See Jona Dawa v. The State(1980) 8-11 SC. 236. The voluntariness of Exh. 6 was not called into question and the learned trial Judge was perfectly right in admitting it in evidence as part of the prosecution’s case: See Ikemson & 2 Ors. v. The State (1989) 3 NWLR (Pt.110) 455; R. v. Itule (1961) All NLR 481; Mumuni & Ors. v. The State (1975) 6 SC. 79; Nwosu v. The State (1986) 4 NWLR (Pt.186) 428.
I shall now return to the issue on whether the learned trial Judge was right in relying on Exh. 6, the retracted statement of the appellant to find him guilty of the crime

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he was charged with.
Is the statement of law made by this court in Oladejo’s case and applicable to extra-judicial confession made by an accused person and later retracted at the trial, still a good law? My answer to the above will be in the negative having regard to the latest decision by a full panel of 7 Justices of this court (only one dissenting) which over-ruled the statement of law in Oladejo v. The State (supra). See Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383. In that case, this court reviewed the decision on retraction of confessional statement in the two celebrated cases of Asanya v. The State and Oladejo v. The State (supra) and Bello, the learned Chief Justice of Nigeria, in his lead judgment on pages 418 and 419 as follows:-
“Having regard to the plethora of the authorities on the matter, I am now convinced that the decision of the court in Oladejo’s case was made per incuriam and the court erred in law in adiopting it in Asanya’s case.
The learned amici and counsel have urged the court to depart from the over-rule the decisions in the said two cases because they were not only made per incuriam but also their continuous operation will perpetuate substantial miscarriage of justice.
It is trite law that this will depart from or overrule its previous decision if the decision was made per incuriam or its application to future cases will perpetuate injustice: Odi v. Osafile (supra); Asanya v. State (supra) and the other authorities cited therein. It is obvious that the decisions in Oladejo and Asanya were undoubtedly a departure from the long established principle laid down

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in Udo v. State since 1964 and the several decisions of this court thereafter that inconsistency does not apply to retracted extra-judicial confession of an accused person. The application of the rule in R. v. Golder to retracted confessions will tantamount to overruling by implication all the relevant decisions of this court from Udo v. State in 1964 to Kim v. State in 1992.
In my considered view, grave miscarriage of justice would also be occasioned by the extension. It may perpetuate injustices to the society as murderers would be at large simply because after a second thought, they have retracted their confessions. It would also negate the provision of section 27 of the Evidence Act which reads:-
’27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.’
Moreover, the extension would occasion grave injustice to the accused as it would result to depriving him of the right to due consideration of his defence: Opayemi v. State (supra) and Ajudahun v. State (1991) 9 NWLR (Pt.213) 33.
x x x x x x x
‘I am now convinced by the forceful submissions of amici curiae that Uwaifo, J.C.A. correctly stated the law. He was right that the decision of this court in Oladejo’s case was a departure from the long established principle relating to consideration of confession and its retraction. Confession arid testimony of the accused person shall be evaluated and assessed by the trial Judge together with the totality

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of the evidence in order to reach a just decision. For the foregoing reasons, I conclude that the decisions in Oladejo and Asanya should be overruled and are overruled. Accordingly, the trial court was right to rely on the confession of the appellant in convicting him of murder. The Court of Appeal was also right in affirming that the trial Judge was entitled to act on the confession.”
In the light of the decision in Egboghonome v. The State (supra) I shall now proceed to consider whether the learned trial Judge was right in relying on Exh. 6 to find the appellant guilty.
There is no eye-witness to the incident of the premeditated and brutal killing of the deceased. P.W.1 gave evidence of how he traced the deceased’s body and its condition in a cassava farm near Church of God Mission, Abudu. It was P.W.1 that reported the incident to the police in Abudu and later identified the corpse to P.W.5 who conducted an autopsy on the body and certified her dead in his evidence as due to “asphyxia -lack of oxygen. By the signs found on the body it could be caused by strangulation”. In his evidence P.W.5 described the wound he saw on the deceased as follows:-
“The neck was bruised and swollen, crusted blood in the nose and mouth, sub-conjunctival haemorrhage – bleeding in the eye ball.
The face was bloated up.
Further examination showed bruising of the vagina wall. The internal organs were normal.”
In Exh. 6, the appellant admitted conspiring with the 4 others now at large, to the conspiracy and murder of the deceased. He said:-

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“On 29/11/84 at about 3 p.m. Owun (m) invited four of us to his house, namely (1) William Enabulele (2) John Ebagua (m) (3) Kingsley Ekhase and myself. On reaching Owun’s house at Abudu, Owun told us that he gave one Kwale girl name unknown the sum of N100.00 for love, but the woman failed him. He brought out N1,000.00 cash from his house and told us that he want the girl to be killed so that we can divide the money. Owun gave the N1000.00 to William Enabulele as the senior man for the job. John Ebagua told Owun that we will succeed and that we will soon come back. Owun show us the girl as she was going to market area to grand cassava. The money was not shared and William Enabulele kept the N1,000.00 We drank one big bottle of ogogoro which Owun bought for us in his house before we left for the operation. I did not go to my house at all and nobody went with me to my house. At about 4 p.m. of that 29/11/84, four of us namely:- John Ebagua, William Enabulele, Kingsley Ekhase and myself left to Ugbidi Road Abudu and hide inside the bush waiting for the lady. Owun was in the house waiting for result and did not go with us. At about 6.30 p.m. of 29/11/84, William Enabulele alerted us in the bush that the woman was coming. We all came out from the bush and John Ebagua held the woman. John Ebagua gave the woman a blow on her eye while William Enabulele held the two woman’s leg and fell her down with her load. As the woman was shouting Kingsley Ekhase covered her mouth so that nobody will hear the voice. Four of us dragged her enter the cassava farm and John Ebagua turned the woman’s neck and she died

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immediately. After the death of the woman, John Ebagua sex her and William Enabulele removed hair from the private part and head of the woman. He wrap it with a white paper and gave it to Owun when we arrived Owun’s house. I did not take part in sexing the woman because I was on the road waiting whether people will pass the road or not. William Enabulele also removed the finger-nail of the woman and gave it to Owun. On arriving Owun’s house at about 8 p.m. of that 29/11/84, we told him that we succeeded in killing the woman.”
The learned trial Judge examined these pieces of evidence together with that of P.W.2, P.W.3 and the appellant’s and made the following finding:-
“The confessional statement was direct and positive, duly made and satisfactorily proved. It satisfied all the tests enunciated in R. v. Kanu (1952) 14 WACA 30. It was evidence against the maker and not his accomplices.”
The learned trial Judge remarked that:-
“Fifth accused was always the central figure in the conspiracy and murder. Fifth accused had no defence.”
x x x x x x
A free and voluntary confession of guilt of a prisoner if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence. R. v. Sulliven (1887) 16 COX 347; R. v. Sykes (1913) CAR 233.”
Although the learned trial Judge was perfectly right in returning a verdict of guilty on the 5th appellant on Exh. 6 alone without specifically stating the evidence that corroborated Exh. 6 I find such corroboration in the evidence of P.W.1, P.W.5, P.Ws 2 and 4. It shows that

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the offence was committed in the manner stated in Exh. 6 and that the appellant had opportunity of committing the heinous crime. See Kanu & Anor. v. R. 14 WACA 30; and R. v. Obiasa (1962) 2 SCNLR 402. Even without any corroborative evidence to Exh. 6, the conviction can be sustained since the learned trial Judge found that Exh. 6 was free, voluntary and positive. See Yanya v. The State (1986) 12S.c. 282; Yesufu v. The State (1976) 6 S.C. 167; Obosi v. The State (1965) NMLR 119; and Ntaha v. The State(1982) 4 S.C. 1.
Finally, the findings and conclusions of the Court of Appeal in the lead judgment of Salami, J.C.A. (concurred to by both Uche Omo, J.C.A. (as he then was) and Mustapher, J.C.A.) that:-
“On the statement of the fifth accused, Exhibit 6, the learned trial Judge summarised the evidence of the appellant thus:-

“On 9th December, 1984 he the fifth accused was arrested by the Police. He was brutalised by the police and was forced to sign Exhibit 6 under duress in order to save his life.'”
And the court concluded thus on the same, Exhibit 6:-
“The confessional statement was direct and positive, duly made and satisfactorily proved. It satisfies all the tests enunciated in R. v. Kanu (1952) 14 WACA 30. It was evidence against the maker and not his accomplices.”
The learned trial Judge having concluded as he did on the admissibility of Exhibit 6 in his judgment the point is closed and no longer free for debate. In this regard, the dicta of Brett, Ag. C.J.F. in the case of Queen v.

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Itule (1961) All NLR 462 is very worthy of note. At page 465 of the report the learned Acting Chief Justice of the Federation said:-
“A confession does not become inadmissible merely because the accused person denied having made it, and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession: R. v. Philip Kanu & Anor. 14 WACA 30. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial: R. v. Sapele & Anor. 2 F.S.C. 24 but it is not itself a reason for ignoring the statement. ‘”
The second P.W. gave account of how the appellant volunteered the statement to him. He also testified to the effect that he considered the statement to be confessional as a result he took the appellant along with the said statement to a superior police office fourth P.W. to enable the appellant confirm to the superior police officer the voluntariness or otherwise of the statement. The second P.W. further gave evidence of how the appellant, in the presence of the witness, confirmed to the fourth P.W. that he (appellant) freely made the statement. The fourth P.W. corroborated this aspect of the second P.W.’s evidence including the completion of the confessional statement form, Exhibit 11, to which the officer and the appellant appended their respective signatures. The appellant was led to the superior police officer solely to afford him an opportunity to admit or deny the voluntaries of the statement at the earliest opportunity.
He let the opportunity slip off. He failed, at the material

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time, to distance himself from the statement nor did he allege that he was compelled to sign an already prepared statement. The appellant waited for more than three years before he breathed a word of his torture to anyone. He confirmed under cross-examination that he was releasing his tales of woe for the first time in court. It is equally doubtful that a person who received such an extensive injuries as described by the appellant would not seek medical assistance. But appellant said he did not ask for one. The steps taken by second and fourth P.W.s to establish the voluntariness of the statement is in strict compliance with the principle laid down by the Supreme Court in Obue v. The State (1976) 2 S.C. 141, 152 and 153.
I think the learned trial Judge was entitled to make use of the statement as he did in his judgment.”
His Judgment is very sound and cannot be faulted. I agree with it. The appeal lacks merit and it is accordingly dismissed. The-conviction and sentence of the appellant are confirmed.

 Having been privileged before now to read in draft from the lead judgment of my learned brother Owuegbu, J.S.C. just delivered. I am in complete agreement with him that this appeal fails and it is accordingly dismissed by me. I will however add a few words of mine hereunder in expatiation.
The brief facts of the case in its cold-blooded contraption and execution are that on 26th November, 1984 at Abudu, the appellant along with his four co-accused agreed with a man called Owun as his (Owun’s) hired assassins for pay

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of one thousand Naira (N1,000.00) in order that they would kill Anna Nun (hereinafter called the deceased) for refusing Owun’ s sexual advances to her. In consequence, the appellant conspired with the four others with whom he agreed to wait by the road side in order to waylay the deceased in Abudu while she was going to grand cassava at 6.00 p.m. They did as they agreed by waylaying her, had sexual intercourse with her after killing her and removed parts of her body which they then took to their hirer. Upon arrest, the appellant and his co-accused persons made confession statements (Exhibit 6 is appellant’s) which he however later retracted, alleging that he was severely beaten and thereafter forced to sign certain documents, the contents of which he did not know. The prosecution called five witnesses in support of its case and after the defence, in which the appellant testified alone for himself, the trial court (per Gbemudu. J.) in a well considered judgment convicted and sentenced him to death on 31st May, 1988 on the 1st count for murder. It is further shown that the appellant, while awaiting the hearing of his appeal and still in detention at the Benin City Prison with his four co-convicts, was involved in a jail break in April, 1989, only to report himself back to the prison authorities in September of the same year to face his appeal. The court below after hearing the appellant’s appeal, dismissed it and affirmed the decision of the trial court on 26th October, 1990, basing it mainly on the confessional statement (Exhibit 6). It is against that decision that the appellant has now further appealed to this court premised on a Notice of Appeal containing two original grounds. Leave was later sought and granted for

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the appellant to file and argue two additional grounds .
Briefs were eventually filed and exchanged by the parties in accordance with the rules of court. The issues submitted on behalf of the appellant for determination distiled from the two additional grounds are:
1. Whether the Court of Appeal was justified in affirming the decision of the trial court which convicted the appellant for the conspiracy to murder and for murder mainly on an alleged confessional statement from which the appellant resiled at the trial and when there is no other complete substantial evidence from which the guilt of the appellant could be inferred.
2. Whether the Court of Appeal was right in affirming the decision of the trial court which convicted the appellant for conspiracy for murder and for murder mainly on the alleged Confessional Statement of the appellant when the alleged Confessional Statement was (Sic) proved to have been made by the appellant voluntarily?
The respondent submitted two issues identical to those of the appellant for our determination; hence I will consider the issues submitted on behalf of the appellant for purpose of this appeal which we heard on 25th November, 1993 in the absence of parties reserved judgment until today. I will consider the two issues herein together as they clearly overlap.
Issues 1 and 2:
The learned counsel for the appellant has contended on appellant’s behalf that the court below affirmed the decision of the trial court which convicted the appellant of the offence of conspiracy to murder and for murder based mainly on Exhibit 6 without appreciating that the alleged

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extra judicial statement of the appellant from which the appellant resiled during the trial ought not to have been the basis for convicting him in the circumstances of the case. The law, he argued, is that where a witness including as accused is shown to have made a statement which is inconsistent and or in conflict with his evidence, the previous statement is not only to be disregarded, the evidence of such a witness is also to be regarded as unreliable so as not to form any basis for a decision vide Saka Oladejo v. The State (1987) 3 NWLR (Pt.61) 419. It was further contended that the court below would have come to a different decision if it had considered the purport of that case.
It was also contended on appellant’s behalf that as there was no independent witness of the alleged killing of Anna Nun the confessional statements of the other co-accused, which were all denied during the trial do not constitute admissible evidence against the appellant. It was finally submitted that after disregarding the alleged extra-judicial statement of the -appellant (Exhibit 6 hereof) and his testimony during the trial, the circumstantial evidence upon which the prosecution must rely to succeed to prove its case beyond reasonable doubt must be cogent, complete and irresistible and must not admit of other possibilities as was decided by the Supreme Court in Joseph Lori v. The State(1980) 8-11 SC. 81 and Okoro Mariagbe v. The State (1977)3 SCAJ at 52.
It is well to begin by stressing firstly, that a confessional statement will not be rejected because an accused person denied making it. See R. v. Agagariga Itule (1961) 1 All NLR 462. When on the 27th of July, 1987, P.M.2 Sergent

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Joachim Gboye, tendered the voluntary statement of the appellant (then 5th accused) it was recorded at page 13 of the Record, line 22
“Accused said he did not make the statement.”
Whereupon, the statement was received by the trial court and marked Exhibit 6. This effect means that there was no need for trial within trial. See Ehot v. The State (1993) SCNJ 65 as there was nothing left to suggest that the statement was involuntarily made. Indeed, it is clear from the records that neither the appellant nor his counsel raised any objection when Exhibit 6 was tendered as a statement that it was made under duress. What in fact transpired in this case, was that the appellant only alleged while testifying in his own defence at the trial, that he was badly beaten. In the not-too-dissimilar case of Patrick Ikemson & Ors v. The State (1989) 3 NWLR (Pt.110) 455 where one of the issues was whether the trial court was right to have relied on the extra judicial statements of the appellants as evidence against them at the trial, it was there held by this court, dismissing the appellant’s appeal, inter alia at pass 468-469 that
“It was contended that the confessional statements of the appellants were not voluntarily made. This was a most misconceived complaint. Each statement was tendered in evidence at the trial without objection by counsel representing the appellants. It was at the point of tendering the statement that the question of voluntaries would have been tested.”

Secondly, since Exhibit 6 is by its very tenor and purport a confessional statement, it was at the point of tendering it

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that the question of its voluntaries would have been tested. Since this was not done by a challenge to its voluntariness or that it was obtained by a force or under duress, the contention in relation thereto is clearly misconceived.
The appellant’s contention on the principle of law that where a witness including an accused is shown to have made a statement which is inconsistent and or is in conflict with his evidence the previous statement is not only to be disregarded, the evidence of such a witness is also to be regarded as unreliable vide Saka Oladejo’ case (supra), is no longer good law.
This court having overruled the latter case as well as Asanya v. The State (1993)3 NWLR (Pt.180) 422 in its recent decision of Stanley Idgun Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383 the law now is that evidence obtained through a confession if direct and positive as well as duly made and satisfactorily proved, is enough to secure a conviction. Thus in Ikemson v. The State (supra), the dictum of Karibi- Whyte, JSC at page 473 to the effect that-
“It has always been held that where the statement of accused made before the trial is inconsistent with his testimony at the trial the court should reject both as unreliable. R.E. Ukpong (1961) 1 All NLR.25. This is however not the same with the evidence obtained through confession”
(Italics is mine for emphasis)
Was re-echoed by Olatawura, J.S.C, in Egboghonome’s case (supra) at page 435 when he asserted:
“Following Oladejo’s case (supra) our decision in

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Asanya’s case (supra) to the effect that:
‘Where a witness makes a statement which is inconsistent with his testimony such testimony is to be treated as not reliable while the statement is not regarded as evidence upon which the court can act should not apply to confessional statements. It will be an escape route freely taken by an accused person without any hindrance to escape from justice. It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of court free man simply because he had a change of mind; the trial will be a mockery ….”
In the instant case where the allegation later made by the appellant is to the effect that Exhibit 6 was involuntarily made or that force was used to elicit it, it is no more than an afterthought. It is pertinent to add that a free and voluntary confession of guilt by a prisoner such as disclosed by Exhibit 6, if it is direct and positive and when duly made and satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence. See R. v. Sullivan (1887) 16 Cox 347; R. v. Sykes C.A.R. 233 and R. v. Obiasa (1962) 1 All NLR.651.
The appellant’s confession in Exhibit 6 having, moreover, been corroborated by the evidence of P.W.1, P.W.2 and P.W.5, the test laid down in the above cases was satisfied. Besides, there was complete circumstantial evidence from which the guilt of the appellant could be inferred. For instance, what the appellant said in Exhibit 6 (See pages 100 and 101 of the Record) regarding the conspiracy to murder and murder of the deceased contrived by him and his co-convicts and later executed at the back of their hirer, Owun, at Abudu on 29th

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November, 1984, tallied with the evidence of P.W.1 (Martin Ite) at page 6 of the Record to the effect that following the disappearance of the deceased (his sister) on the fateful day and the abandonment of the search for her due to night fall, a search party was organised the following day, 30/11/84, leading to the discovery of her naked corpse with named parts of her body removed. Similarly, is the evidence of P.W.2, D.S.P. Edward Emordi Chima, who stated that he took the voluntary confessional statement of the appellant (Exhibit 6). Also the evidence of Doctor John Bosah, who said that he carried out the post mortem examination on the bruised parts as well as showing the cause of death to be due to asphyxia resulting from strangulation. The pieces of evidence so cogently, compellingly and conclusively dovetail into one another and so point to one and only conclusion- that the appellants and his co-convicts killed the deceased and that the offences are proved with accuracy of mathematics.
It is for the reasons set out above and the fuller ones contained in the lead judgment of my learned brother, Ogwuegbu, J.S.C. that I dismiss this appeal as lacking in merit. I accordingly dismiss this appeal and affirm the conviction and sentence of death passed on the appellant.

 I have had the privilege of preview, in fact, of the lead judgment just delivered by my learned brother, Ogwuegbu, J.S.C., and I am in full agreement with him that this appeal lacks merit and should be dismissed.
The appellant, along with four others, were arraigned

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before the then Bendel State High Court, now the Edo State High Court of Justice, holden at Abudu with the offences of conspiracy to murder and the murder of one Ann Nun at Abudu on or about the 29th day of November, 1984 contrary to section 324 and 319 (1) of the Criminal Code, Cap, 48 Volume II, Laws of the Bendel State of Nigeria, 1976 respectively. All five accused persons were at the conclusions of their trial found guilty as charge and were accordingly sentenced to death by hanging. The appellant, who was the fifth accused at the trial, being dissatisfied with the judgment of the trial court, appealed to the Court of Appeal which on the 26th day of October, 1990 dismissed his appeal. He has now further appealed to this court being dissatisfied with the judgment of the Court of Appeal which affirmed his conviction and sentence by the trial court.
The appellant after he was arrested by the police for the offences charged was duly cautioned and made the detailed statement, exhibit 6. Exhibit 6 is a clear confessional statement. The learned trial judge, relying on this statement together with some other corroborative evidence before the court found the appellant guilty as charged and convicted him accordingly.
The brief facts of this case as contained in exhibit 6 are that on the 29th day of November, 1984, one Owun, the 4th accused person, invited the appellant along with the 1st, 2nd and 3rd accused persons to his house. When they all assembled, the said Owun announced to them that he gave the sum N100.00 to the deceased in order to make love to her but that the deceased had refused to submit to his overtures. As a result, he conspired with and

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offered them N1,000.00 so that they would murder her.
The appellant, along with the 1st, 2nd and 3rd accused persons, accepted this assignment. The same day, they waylaid the deceased on the road, brutally attacked and dragged her into a cassava farm, where they strangulated her. The deceased died on the spot. Thereafter they had sexual intercourse with her and finally removed some of her pubic hair and hair from her head which they delivered to Owun.
It is necessary to point out that the appellant’s statement, exhibit 6, was duly confirmed before a Superior Police Officer, Edward Emodi Chima who testified as P.W.2 at the trial. The relevant confessional statement confirmation form was tendered in evidence as exhibit 11.
The first issue for determination as formulated by both parties is whether the Court of Appeal was right in affirming the decision of the trial court which convicted the appellant on the basis of his confessional statement which he subsequently retracted at the trial. In his regard, it must be stressed that the trial court after a careful evaluation and assessment of exhibit 6 found it to be free and voluntary statement of the appellant. The learned trial judge in his judgment said of Exhibit 6 as follows:-
“The confessional statement was direct and positive, duly made and satisfactorily proved. It satisfied all the tests enunciated in R. v. Kanu (1952) 14 W.A.C.A.30. It was evidence against the maker and not his accomplices.”
Earlier on in his judgment, the learned trial judge had posed the question and answered the same in the manner following namely:
“Is there anything outside the confession to show it is

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true? The deceased woman was found strangulated and sexually assaulted in a cassava farm in Abudu ……A basin of ground cassava was found near her …….”
It seems to be indisputable that the trial court was totally satisfied that the appellant’s statement to the police, exhibit 6, is his and voluntarily statement. The Court of Appeal was also ad idem with trial court on this material issue when, in its judgment, it stated as follows:-
“The learned trial judge having concluded as he did on the admission of Exhibit 6 in his judgment, the point is closed and no longer free for debate.”
I will consider the first issue for determination in this appeal against the background of the above findings.
The first point must be stressed is that a free and voluntary confessional statement, whether judicial or extrajudicial, if it is direct, positive and satisfactorily proved is sufficient proof of guilt and is enough to sustain a conviction. See R. v. Sykes (1913) 8 C.A.R. 233 at 236, R. v. Ajayi Omokaro (1941) 7 WACA 146; Philip Kanu & Another v. King (1952) 14 W.A.C.A. 30 and Patrick Ikemson & Ors. v. The State (1989) 3 N.W.L.R. (Pt. 110) 455. A conviction will not be quashed merely because it is based entirely upon evidence of confession of the appellant.
Speaking for myself, a confession that is both well and satisfactorily proved and established to be true must be one of the best evidence that can be produced to justify a conviction. An accused person may therefore be convicted on his own voluntary and true confession alone as there is no law against this procedure.
Indeed the law is well established that such a free and

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voluntary confession of guilt by a prisoner is sufficient to warrant conviction even without any corroborative evidence so long as the court is satisfied of the truth of such a confession. See Edet Obosi v. The State (1965) N.M.L.R. 119 and Jimoh Yesufu v. The State (1976) 6 S.C. 167 at 113. It is however desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight of the circumstances which make it probable that the confession is true. It must thus be stressed that the courts are not generally disposed to act on a confession without first testing the truth thereof. See Paul Onochie & Ors. v. The Republic (1966) N.M.L.R. 307. See too Jafiya Kopa v. The State (1971)1 All N.L.R. 150.
As earlier indicated, the appellant’s statement to the police, Exhibit 6, was duly confirmed before a Superior Police Officer, P.W.2. But it must be stated that it is not the law that a free and voluntary confessional statement must be confirmed
before a superior police officer to be properly proved or admissible. Confirmation of confessional statements before a superior police officer has however been commended by this court in a number of case. See R. v. Omerewure Sapale (1957) SCNLR 307; Nwighoke & Ors. v. R. (1959) 4 F.S.C. 101; Chungwom Kim v. The State(1992) 4 N.W.L.R. (Pt 233) 17. It ought also to be emphasised that where a court is expected to attach some weight to a confessional statement purported to have been confirmed before a superior police officer, it is desirable that the laid down procedure for such confirmation should be followed. See David Obue v. The

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State(1976) 2 S.C. 141.
In the instant case, it is note worthy that the laid down procedure was strictly adheld to in Exhibit 11 in the confirmation of the appellant’s statement, Exhibit 6.
Learned counsel for the appellant in his brief of argument, attacked the reliance placed on the appellant’s confessional statement (Exhibit 6) by the trial court contending that the trial Judge should have disregarded both Exhibit 6 and the testimony of the appellant before the trial court where the appellant retracted his said confessional statement. With respect to learned counsel, this attack is not only unjustifiable but totally misconceived. A confessional statement does not become inadmissible as evidence or liable to be discountenanced or disregarded merely because the accused person retracted it in his evidence before the trial court. This proposition is not now the law.
No doubt, in Oladejo v. The State (1987) 3 N.W.L.R. (Pt. 61) 419 it was laid down that where an accused person makes a confession which is inconsistent with his testimony at the trial, such a testimony is to be treated by the court as unreliable while the confusion must not be regarded as evidence upon which the court can act. This decision unfortunately was adopted in the subsequent case of Asanya v. The State (1991) 3 N.W.L.R. (Pt. 180) 422. However, in the recent case of Stanley Egboghonome v. The State (1993) 7 N.M.L.R. (Pt. 306) 383 which was heard by a full panel of this court, the said decisions in the Oladejo and Asanya’ s cases (supra), came up for a closer consideration. The full court finally held that the decision in Oladej’s case was made per

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incuriam and that the court erred in law in adopting it in Asanya’s case.
The confessional statement, Exhibit 6, was found by the trial court to have been made freely and voluntarily by the appellant. It was direct and positive and was properly and satisfactorily proved. It is plain to me that the learned trial judge rightly relied and acted upon the confessional statement, Exhibit 6, even though the appellant resiled it in his evidence at the trial. See too R. v. John Itule (1961) All N.L.R. 462 and Patrick Ikemson v. The State(1989) 3 N.W.L.R. (Pt. 110) 455 at 473. Indeed in Egbohonome v. The State (supra), this court emphasised the principle that the inconsistency rule, that is to say, the rule that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which the court can act was formulated for the resolution of conflict between the latter evidence and the previous statement of a witness to ensure that the evidence received is credible. The court stressed that this rule was not formulated for the resolution of inconsistency in the evidence of an accused person and his extra-judicial confession. It can now be taken as settled that the inconsistency rule does not therefore cover the case of an accused person who testifies contrary to his earlier statement as the court can convict on the confessional statement of an accused alone. Having regard to all my observations above, it seems to me clear that issue number one must be resolved against the appellant.
The second issue which regrettably was inelegantly

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formulated in the appellant’s brief of argument seems to question whether the Court of Appeal was right in affirming the decision of the trial court when the confessional statement upon which the appellant was convicted was not proved to have been made voluntarily. The first point must be made in this regard is that the trial court upon a careful evaluation of Exhibit 6 found that it was a free and voluntarily confession of the appellant. As was observed by the Court of Appeal on this question, the learned trial judge having rightly concluded, as he did, on the admissibility of Exhibit 6 in his judgment, the point must be regarded as “closed and no longer free for debate”. The records clearly show that neither the appellant nor his learned counsel raised any objection on ground of voluntariness at the stage when the confessional statement, Exhibit 6, was tendered at the trial by the prosecution. The appellant’s original claim when Exhibit 6 was tendered was that he did not make the statement to the police at all. It was only when he was testifying on his own defence that he alleged he was brutalised by the police and was forced to sign Exhibit 6 under duress, a claim which the trial court considered and rejected. At all events, the issue of the voluntariness of a statement is tested at the point the statement is being tendered. See Patrick Ikemson v. The State, (supra) at pages 468-469. I agree with the learned respondent’s counsel that the trial court properly accepted and acted on Exhibit 6 upon which the appellant was convicted and sentenced as prescribed by law. Accordingly issue number two again be resolved against the appellant.
In the final analysis, I accept the submission of learned

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respondent’s counsel that the appellant’s confessional statement was duly proved as free and voluntary. There is on record, abundant evidence outside Exhibit 6 which make it possible that the confession is true. Having accepted the truth of the confession in Exhibit 6, the learned trial judge was perfectly justified in convicting the appellant, and I hold that the court below was justified in dismissing the appeal against the conviction.
I find no merit in this appeal which I also hereby dismiss. The judgment of the trial court affirmed by the Court of Appeal is hereby further confirmed.

Appeal dismissed.