HABILA KORAU & ORS v. THE STATE
(2015)LCN/7898(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of June, 2015
CA/K/288/C/2013
RATIO
APPEAL: WHETHER ANY SPECIFIC FINDING OF FACT MADE BY A TRIAL COURT THAT IS NOT APPEAL AGAINST REMAINS UNASSAILABLE AND IS BINDING ON THE PARTIES
It is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale v. Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu v. Atuma (2013) 11 NWLR (Pt 1364) 117. In effect the finding of the lower Court that the second to the fourth ingredients of the offence of mischief by fire were proved beyond reasonable doubt by the evidence of the first, fourth and fifth prosecution witnesses is binding and conclusive between the parties. It cannot be re-examined by this Court – Alakija v. Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara v. Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt .1002) 342. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
EVIDENCE: BURDEN OF PROOF; ON WHICH OF THE PARTIES DOES THE BURDEN OF PROVING THAT ANY PERSON HAS COMMITTED A CRIME OR A WRONGFUL ACT RESTS AND WAYS IN WHICH THE PROSECUTION MAY PROVE THE GUILT OF THE DEFENDANT
It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of Section 135 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Ike Vs State (2010) 5 NWLR (Pt 1186) 41, Gabriel Vs State (2010) 6 NWLR (Pt 1190) 280, Garba v. State (2011) 14 NWLR (Pt.1266) 98, Obi v. State (2013) 5 NWLR (Pt 1346) 68, Babatunde v. State (2014) 2 NWLR (Pt.1391) 298. It is also axiomatic in our law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Umar v. State (2014) 13 NWLR (Pt 1425) 497. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: THE INCONSISTENCY RULE; WHAT IS THE INCONSISTENCY RULE AND WHEN IS IT APPLICABLE
The submissions of Counsel were predicated on what is referred to in criminal litigation as the inconsistency rule. In Ogudo Vs State (2011) 18 NWLR (Pt.1278) 1 Rhodes-Vivour, JSC, explained the rule thus:
“It is 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 a Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency. The inconsistency rule is restricted only to the evidence of a witness who made an extra judicial statement which was in conflict with the evidence given at trial. The previous statements are not evidence which the Court can act on and the evidence given at the trial is taken by the Court as unreliable …”
The rule is only applicable to the evidence of a witness vis-a-vis his extra judicial statement, and it is not applicable to an accused defendant vis-a-vis his extra judicial statement – Emoga Vs State (1997) 1 NWLR (Pt 483) 615, Akpan Vs The State (2001) 15 NWLR (Pt.737) 745, Nsofor Vs The State (2004) 18 NWLR (Pt 905) 929.
The rationale for this position of the law was given by Olatawura, JSC, while sitting on the full panel of the Supreme Court in Egboghonome Vs State (1993) 7 NWLR (Pt 306) 393 thus:
“It will be an escape route freely taken by an accused person without any hindrance to escape 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 a free man simply because he had a change of mind, the whole trial will be a mockery. As aptly put by the Attorney-General of Ondo State ‘it would be dangerous to apply the principle to extra judicial confession of accused persons as it would open the floodgate to retraction of all statements made by accused persons before police officers.”‘ per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
PRACTICE AND PROCEDURE: EXTRA JUDICIAL STATEMENT; THE PRESENT STATE OF THE LAW WITH REGARDS TO AN ACCUSED DEFENDANT VIS-À-VIS HIS EXTRA JUDICIAL STATEMENT
The present state of the law with regards to an accused defendant vis-a-vis his extra judicial statement is that where an accused defendant does not challenge the making of his extra judicial statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the extra judicial statement upheld unless a satisfactory explanation of the inconsistency is proffered Gabriel Vs State (1989) 5 NWLR (Pt 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt.1341) 285, Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICE
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
Between
Text
1. HABILA KORAU
2. AUDU LAWAL
3. MATTHEW MUSA Appellant(s)
AND
THE STATE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Kaduna State High Court in Charge No KDH/KAD/39C/2011 delivered by Honorable Justice G. I. Kurada on the 28th of May, 2013. The Appellants, along with five other persons, and others at large were arraigned before the lower Court on a five count charge, made up of two counts of conspiracy, one Count of mischief by fire and two Courts of culpable homicide punishable with death, contrary to Sections 97,337 and 221, respectively of the Penal Code Law of Kaduna State 1991.
The Appellants were alleged to have conspired with five other co-accused persons and others at large to cause mischief by fire and to have caused the mischief by fire on the 8th of June, 2011 by setting ablaze the settlement of one Ibrahim Saidu at Ungwan Dutse Village in Igabi Local Government Area of Kaduna State with the intention of causing destruction to the settlement which was ordinarily used as a dwelling place.
The Appellants were also alleged to have conspired with five other co-accused persons and others at large to cause culpable homicide punishable with
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death and to have caused the death of one Ibrahim Saidu and of his son, Abubakar Ibrahim on the 10th of June, 2011 by stabbing them all over their bodies with a knife and beating them with sticks and thereafter dumping their bodies in a nearby stream with knowledge that death was the probable consequence of their actions.
The Appellants were named as the second, fourth and sixth accused persons on the charge sheet and they pleaded Not Guilty and the matter proceeded to trial. The Respondent called five witnesses in proof of its case against the Appellants and the other accused persons and tendered exhibits. At the close of the case of the Respondent, the named seventh and eighth accused persons were discharged on a no case submission, leaving six accused person inclusive of the Appellants. Each of the six accused persons testified in their defence. The first Appellant was the fourth defence witness while the second Appellant was the fifth defence witness and the third Appellant was the second defence witness. At the conclusion of trial and after the written addresses of Counsel to the parties, the lower Court discharged and acquitted the named first,
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third and fifth accused persons on all counts. The lower discharged and acquitted the Appellants on the counts of conspiracy to commit culpable homicide punishable with the death and of committing culpable homicide punishable with death, but it convicted the Appellants on the first two counts of conspiracy to commit mischief by fire and of committing mischief by fire. The lower Court sentenced the Appellants to five years each for the offence of conspiracy to cause mischief by fire and a fine of N5,000.00, in default of which the defaulting accused person would serve an additional term of six months. The lower Court also sentenced the Appellants to seven years each for the offence of causing mischief by fire and a fine of N5,000.00, in default of which the defaulting accused person would serve an additional term of six months.
The Appellants were dissatisfied with the judgment and each of them caused his Counsel to file a notice of appeal against it. The notice of appeal of the each Appellant is dated the 28th of June, 2013 and each of the notices of appeal contained five grounds of appeal. The three appeals were heard together and Counsel to the first
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Appellant filed a brief of arguments in ventilating the grievances of the first Appellant on the appeal and it was dated the 14th of August 2013 and was filed on the 15th of August, 2013. The brief of arguments of the second Appellant was dated the 13th of August, 2013 and it was filed on the 20th of August, 2013 while the brief of arguments of the third Appellant was filed on the 16th of August, 2013. In response to the three briefs of arguments of the Appellants, Counsel to the Respondent filed one concise brief of arguments and it was dated and filed on the 22nd of August, 2014 and it was deemed properly filed by this Court on the 30th of September, 2014. The Counsel to each Appellant and the Counsel to the Respondent adopted the arguments in their respective briefs of arguments as their oral submissions in this appeal.
Counsel to the first Appellant formulated three issues as arising for determination in the appeal of the first Appellant and these were:
i. Whether the Honorable Court was right in relying on Exhibits 1 and 1A to determine the guilt of the first Appellant.
ii. Whether the trial Court was right in holding that the offences
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of criminal conspiracy and mischief by fire were proved beyond reasonable doubt by the Respondent against the first Appellant.
iii. Whether the conviction and sentence of the first Appellant can be sustained in the face of the acquittal of the three co-accused persons.
Counsel to the second Appellant similarly formulated three issues as arising for determination in the appeal of the second Appellant and these were:
i. Whether the finding by the Honorable Court that the Respondent proved against the second Appellant beyond reasonable doubt the offence of criminal conspiracy and mischief by fire punishable under Sections 97 and 337 of the Penal Code were not perverse having regards to the totality and quality of the evidence adduced against him.
ii. Whether the Honorable trial Court was right in relying on Exhibit 4 and 4A which is not a confessional statement in determining the guilt of the second Appellant having held that they were at variance with his testimony in Court.
iii. Whether the trial Court was right when it found the second Appellant guilty of criminal conspiracy and causing mischief by fire when it has earlier discharged
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and acquitted the first, third and fifth accused persons based on the same evidence.
In his own brief of arguments, Counsel to the third Appellant also formulated three issues for determination in the appeal of third Appellant. These were:
i. Whether the lower Court was not bound to discharge and acquit the third Appellant of the offences of criminal conspiracy and mischief by fire in the joint criminal trial having acquitted his co-accused persons based on the same interwoven, inseparable and discredited evidence of PW5.
ii. Whether the lower Court was right in convicting and sentencing the third Appellant for the offence of criminal conspiracy and mischief by fire when the Respondent did not discharge the evidential burden imposed on it in proving the case against the accused persons beyond reasonable doubt.
iii. Whether the lower Court was right in relying on Exhibits 5 and 5A to determine the guilt of the third Appellant having held that the testimony of the third Appellant in court was at variance with the said Exhibits.
On his part, Counsel to the Respondent formulated three issues for determination as arising in all the appeals
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of the three Appellants. These were:
i. Whether the trial Court was right in relying on Exhibits 1 and 1A, 4 and 4A and 5 and 5A to determine the guilt of the first, second and third Appellants respectively.
ii. Whether the trial Court was right in holding that the offences of criminal conspiracy and mischief by fire were proved beyond reasonable doubt by the prosecution against the Appellants.
iii. Whether the conviction and sentence of the Appellants can be sustained in the face of the acquittal of their co-accused persons.
Reading through the briefs of arguments, the records of appeal and the judgment of the lower Court, it is the view of this Court that there is in indeed only one issue for determination in this appeal, and it is:
Whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the offences of criminal conspiracy and of mischief by fire against the Appellants beyond reasonable doubt, to warrant their convictions and the sentences passed on them for the offences?
This Court will consider and resolve all the arguments of the Counsel to the Appellants and Respondent
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under this sole issue for determination. The arguments canvassed in briefs of arguments of the three Appellants are practically the same and they shall be considered together.
In their brief of arguments, Counsel to each of the Appellants reiterated the age-long principle that in criminal cases, the burden of proof is on the prosecution who must prove its case beyond reasonable doubt and has a general duty to rebut the presumption of innocence constitutionally guaranteed to an accused person and that the burden never shifts and they referred to the cases of Usufu Vs State (2008) All FWLR (Pt 405) 1731, Akalezi Vs State (1993) 2 NWLR (Pt 273) 1. Counsel stated that the lower Court in the instant case placed heavy reliance on the testimony of the fifth prosecution witness who claimed to be an eye witness to the commission of the crimes and on the statements the Appellants made to the Police, the Hausa and English versions of which were tendered as Exhibits 1 and 1A, 4 and 4A, 5 and 5A to convict the Appellants.
The Counsel recalled that the Appellants were charged for one count of criminal conspiracy to commit culpable homicide and two counts of
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culpable homicide, along with the one count of criminal conspiracy to commit mischief by fire and one count of committing mischief by fire and that while the Appellants were acquitted of the first three counts, they were convicted of the last two counts. Counsel stated that the Respondent called five witnesses in proving all the offences against the Appellants and other co-accused persons and that while the first three prosecution witnesses were policemen who gave evidence of recording the statements of the Appellants and of their co-accused persons, the fourth and fifth prosecution witnesses were alleged eye witnesses of the commission of the offences and that the evidence given in proof of the all the offences were the same and interwoven. Counsel stated that the lower Court rejected the testimonies of the fourth and fifth prosecution witnesses against the Appellants for the offences of criminal conspiracy to commit culpable homicide and culpable homicide, but accepted certain aspects of the testimony of the fifth prosecution witness against the Appellants for the offences of criminal conspiracy to commit mischief by fire and committing mischief by fire.
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The Counsel stated that the fifth prosecution witness testified that all the six accused persons were among the many people she saw on the day of the incident who burnt their houses and that the first accused person was the leader of the gang, but that the lower Court discharged and acquitted the first accused person for lack of evidence and the third and fi.fth accused persons on a successful plea of alibi, meaning that they were not at the scene of the crime as claimed by the fifth prosecution witness.
Counsel stated that this finding ought to have created a doubt in the mind of the lower Court as to the truth of the evidence of the fifth prosecution witness that she saw the Appellants at the scene of the crime and such doubt should have been resolved in favour of the Appellants. Counsel stated that this was much more so as the fifth prosecution witness stated that she knew the Appellants all along as those who burnt their houses, but she never mentioned the names of the Appellants to the Police at the earliest opportunity or at all and that the lower Court ought to have directed itself on this point and should have discharged and acquitted the
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Appellants and they referred to the cases of Isah Vs State (2008) All FWLR (Pt 443) 1243, Abdullahi Vs State (2008) 17 NWLR (Pt 1115) 203, Ani Vs The State (2009) 16 NWLR (Pt.1168) 443.
With regards to the statements the Appellants made to the Police, Exhibits 1 and 1A, 4 and 4A, 5 and 5A, all the Counsel stated that the statements were not confessional as they did not amount to a direct, positive and unequivocal admission of guilt as to the commission of the offences for which the Appellants were charged and they referred to the cases of Shurumo Vs State (2010) All FWLR (Pt.551) 1406, Sule Vs State (2009) 17 NWLR (Pt 1169) 33. Counsel stated that though the Appellants admitted being at the scene of the crime in their respective statements, it was not as a participant in the commission of the crime, rather the first Appellant stated that he was there to assist to prevent the crowd from committing the offence while the second Appellant stated that he was only an on-looker and that he left the scene before anything happened. Counsel stated that where a confessional statement is capable of two interpretations, one to support a finding of guilt and the other
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to support a finding of non-guilt, a trial. Court should not convict on its basis and they referred to the case of Solola v. State (2005) All FWLR (Pt 269) 1751. Counsel stated further that having found, as the trial Court did, that the oral testimonies of the Appellants at the trial were inconsistent or in conflict with their extra-judicial statement, the trial Court ought to have rejected both the testimonies and the extra judicial statements and they referred to the cases of Onubogu v. State (1974) 9 SC 1, Alor v. State (1996) 4 NWLR (Pt 445) 726, Usufu v. State supra.
The Counsel stated that the best that the evidence of the fifth prosecution witness and Exhibits 1 and 1A, 4 and 4A, 5 and 5A did was to fix the Appellants at the scene of the crime and this was not sufficient to make them participants in the commission of the crime, particularly as each Appellant led evidence that he did not partake in the commission of the crime and they referred to the cases of Orji Vs State (2008) 10 NWLR (Pt 1094) 31, Posu v. State (2011) All FWLR (Pt 565) 234. Counsel to the first Appellant stated that the trial Court was wrong to have found that the contents of
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Exhibits 1 and 1A corroborated the testimony of the fifth prosecution witness because the charge against the first Appellant was for setting ablaze the settlement of Ibrahim Saidu while the evidence of the fifth prosecution witness related to burning of houses and the contents of Exhibit 1 and 1A were about damage to a room in one Jiwaji’s house. Counsel to the third Appellant stated that the third Appellant raised the issue of alibi at the first opportunity, in his written statement to the Police, and that the Police was bound to investigate same but that the Police did not do so in the instant case and offered no explanation for the dereliction and that this amounted to serious blunder and that the lower Court could not in those circumstances disregard the defence of alibi and he referred to the case of Ani v. State (2009) 16 NWLR (Pt.1168) 443
All the Counsel stated that the interwoven and inseparable nature of the evidence led by the fifth prosecution witness against all the accused persons on the commission of the five count of offences charged meant that the discharge and acquittal of the first, third and fifth accused person ought to have led to
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the automatic discharge of the three Appellants and they referred to the cases of Shittu Layiwola v. The Queen (1959) WRNLR 194, Abudu v. The State (1985) 1 NWLR (Pt 1) 55, Umani Vs State (1983) All NLR 145, Ebri Vs State (2004) All FWLR (Pt 216) 420, Idiok Vs State (2008) 13 NSILR (Pt 1104) 225. Counsel urged this Court to allow the appeal of each of the three Appellants.
In response, Counsel to the Respondent confirmed that Appellants testified as fourth, fifth and second defence witnesses respectively and that their extra judicial statements were Exhibits 1 and 1A, 4 and 4A, 5 and 5A. Counsel stated that all the Appellants raised the defence of alibi in their oral testimonies in their defence saying that they were elsewhere, and not at the scene of crime, when the incident in question took place and that the extra judicial statements of the Appellants were tendered and admitted in evidence without any objection from the Appellants or their Counsel and that this amounted to a concession by the Appellants that the statements were made voluntarily as found by the trial Court and the finding of the trial Court on this point has not been challenged on this
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appeal. Counsel stated that at no time did the lower Court treat the extra judicial statements of the Appellants as confessional statements, but it rather used them in determining whether the defence of alibi raised by the Appellants in their respective oral testimonies was not an afterthought and was indeed available to them as they ought to have raised it timeously by disclosing it in their extra judicial statements to the Police; he referred to the case of Muhammad Vs The State (2011) All FWLR (Pt 580) 1276.
Counsel stated that the lower Court did not convict the Appellants based on their extra judicial statements but on the eye witness account of the fifth prosecution witness which fixed the Appellants at the scene of the crime and which the lower Court believed and accepted and the extra judicial statements only acted as corroborative evidence of the eye witness account and were used to debunk the defence of alibi of the Appellants and he referred to the definition of corroboration in Alo Vs The State (2011) All FWLR (Pt 600) 1357 and Akawo Vs The State (2011) All FWLR (Pt 597) 624. On the inconsistency rule canvassed by the Counsel to all the
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Appellants, Counsel stated that the rule applies only to the extra judicial statements of witnesses called in a matter, and not to the extra judicial statement of an accused defendant and he referred to the cases of Oseni Vs The State (2011) All FWLR (Pt 592) 1722 and Ogudu Vs The State (2012) All FWLR (Pt.629) 1111.
?
Counsel conceded that the onus of proving the offences of conspiracy and mischief by fire was on the Respondent and he stated that to prove the offence of conspiracy, the Respondent was obliged to establish (i) an agreement between two or more persons to do an illegal act or a legal act by illegal means and (ii) that the accused persons took part in the agreement; while for the offence of mischief by fire, the Respondent must establish (i) that a mischief was committed by fire; (ii) that the mischief destroyed or damaged a building; (iii) that the building was ordinarily used either as a place of worship, or a human dwelling or a place for the custody of property; and (iv) that the accused committed the mischief. Counsel stated that the first, fourth and fifth prosecution witnesses gave clear and uncontroverted evidence of the mischief by
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fire which destroyed the settlement of late Ibrahim Saidu and they proved the first three ingredients of the offence of mischief by fire and that on the fourth ingredient, the fifth prosecution witness led clear and unequivocal eye witness account that she saw the Appellants who were their neighbours and who were well known to her amongst those who burnt and destroyed their house.
Counsel stated that the Appellants did not controvert the evidence of the fifth prosecution witness, but rather raised the defence of alibi and that to succeed on such a defence, it must have been raised with full details at the earliest opportunity, preferably in the extra judicial statement to the Police, so as to enable the Police investigate it and that where it is not so raised and there is evidence fixing the accused at the scene of the crime at the time of the offence, the defence must collapse and he referred to the cases of Attah Vs The State (2010) All FWLR (Pt 540) 1224 and Lasisi vs The State (2011) All FWLR (Pt 601) 1410. Counsel submitted that the Appellants did not raise the defence of alibi timeously in their extra judicial statements to the police, rather they
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admitted being at the scene of the crime in their statements and the lower Court found that the contents of the statements corroborated the unchallenged evidence of the fifth prosecution witness that the Appellants partook in the crime and that the defence of alibi was unavailable to the Appellants. Counsel urged the Court not to disturb the findings of the lower Court on the visual and positive evidence of the fifth prosecution witness which fixed the Appellants at the scene of crime and destroyed their defence of alibi.
On conspiracy, Counsel stated that with the proof that the Appellants acted in concert in destroying the house of late Ibrahim Saidu, it can be inferred from their conduct and the facts and circumstances of the case that there was an agreement between them to commit the said offence and he referred to the cases of Emenegor Vs The State (2010) All FWLR (Pt 511) 884, Shurumo Vs The State (2011) All FWLR (Pt.568) 864. Counsel stated that it was incorrect, as canvassed by Counsel to the Appellants, that the testimony of the fifth prosecution witness on the offences of mischief by fire and culpable homicide punishable with death was
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interwoven and inseparable because from the evidence of the witness, the two incidents did not occur on the same day and that as such the rejection of her evidence on culpable homicide does not necessary lead to the rejection of her evidence on mischief by fire, particularly more so as the evidence on mischief by fire was not controverted in any way and the lower Court was right to rely on it and he referred to Nkebisi Vs The State (2010) All FWLR (Pt 521) 1407.
Counsel further argued that fact that the first, third and fifth accused persons charged along with the Appellants were discharged and acquitted did not automatically mean that the Appellants must be discharged and that it is not in every situation where two or more accused persons are charged for the same offence and the same evidence is led against them that the acquittal of one must lead to the acquittal of the other and that the evidence must be considered against their relative defences and he referred to the case of Ilodigwe Vs The State (2012) All FWLR (Pt 654) 1. Counsel stated that in the instant case, each of the accused persons raised the defence of alibi in their respective oral
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testimonies in their defence and the lower Court acquitted the first, third and fifth accused persons not because it found that the testimony of the fifth prosecution witness against them was not credible or had been disparaged, but because of the ineptitude of the Police in not investigating the defence of alibi that they each raised timeously in their extra judicial statements. Counsel said that with respect to the Appellants, the lower Court found that they did not raise the defence of alibi in their respective extra judicial statements and rather that they admitted being at the scene of the crime in their statements and that this destroyed their defence of alibi and corroborated the evidence of the fifth prosecution witness. Counsel stated that, in the circumstances, the acquittal of the first, third and fifth accused person could not automatically recommend the acquittal of the Appellants. Counsel concluded that the lower Court was right when it found that the Respondent made out a credible case against the Appellants to prove the offences of conspiracy to commit mischief by fire and mischief by fire beyond reasonable doubt. Counsel urged this Court to
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dismiss the appeal of each of the Appellants.
The lower Court opened its deliberations in the judgment thus:
“As I have already said, counts one and three of the amended charge are for conspiracy to commit an offence. It is settled law that in a charge of conspiracy the Prosecution has a duty to prove:
1. An agreement between two or more Persons to do an illegal act or a legal act by illegal means.
2. That the accused took part in the agreement.
… I must say straight away that there is no evidence of express agreement by the accused persons to commit an offence in this case. However, it is settled law that agreement may be proved either by evidence of express agreement or by inference from the facts and circumstances revealed in the evidence before the Court. … I will therefore consider counts one and three later after I have considered counts two, four and five of the charge and from the totality of the evidence adduced in this case, to see if there is evidence from which the Court can infer an agreement to commit an offence.
For count two of the charge, the prosecution is required to prove beyond reasonable doubt:
1.
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That the accused committed mischief.
2. That the mischief was committed by fire.
3. That the mischief destroyed or damaged a building.
4. That the building was ordinarily used either as:
(a) a place of worship; or
(b) a human dwelling; or
(c) a place for the custody of property.
There is evidence of PW1 that he visited the scene of crime and saw that the entire building and property of the deceased were burnt down and totally destroyed. The PW4 also gave evidence that he went to the scene of crime and saw the destruction.
The PW5 gave evidence that their houses at Unguwan Dutse in Giwa Local Government Area and everything in them were burnt down on the 8/6/2011. These pieces of evidence were not discredited under cross-examination. There is therefore credible evidence which proves beyond reasonable doubt that mischief was committed by fire and that the mischief destroyed or damaged a building which was ordinarily used as a human dwelling and a place for the custody of a property (a house). What remains to be determined is who committed the mischief?” (See page 73 of the records)
?The statement of law and the findings made
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by the lower Court in the above reproduced excerpt of the judgment were not challenged or contested by the Appellants in this appeal. It is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties – Amale v. Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd Vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike v. Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Nwaogu v. Atuma (2013) 11 NWLR (Pt 1364) 117. In effect the finding of the lower Court that the second to the fourth ingredients of the offence of mischief by fire were proved beyond reasonable doubt by the evidence of the first, fourth and fifth prosecution witnesses is binding and conclusive between the parties. It cannot be re-examined by this Court – Alakija v. Abdulai (1998) 6 NWLR (Pt 552) 1 and Opara v. Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt .1002) 342.
The only question to be answered in this appeal therefore is whether the lower Court was correct when it found that the Respondent proved beyond reasonable doubt that the Appellants partook in the commission of the mischief
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by fire. It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of Section 135 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Ike Vs State (2010) 5 NWLR (Pt 1186) 41, Gabriel Vs State (2010) 6 NWLR (Pt 1190) 280, Garba v. State (2011) 14 NWLR (Pt.1266) 98, Obi v. State (2013) 5 NWLR (Pt 1346) 68, Babatunde v. State (2014) 2 NWLR (Pt.1391) 298.
It is also axiomatic in our law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account
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or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy v. Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Umar v. State (2014) 13 NWLR (Pt 1425) 497.
Reading through the judgment of the lower Court, it is obvious, contrary to the submissions of all the Counsel to the Appellants, that the lower Court did not treat the extra judicial statements of the Appellants, Exhibits 1 and 1A, 4 and 4A, 5 and 5A, as confessional statements of the commission of the crime, but rather as confessional statements of their presence at the scene of the crime. The lower Court used the extra judicial statements of the Appellants as corroborative evidence of the testimony of the fifth prosecution witness of the presence of the Appellants at the scene of the crime on the day of the incident.
The testimony of the fifth prosecution witness on the offence of mischief by fire went thus:
“… My name is Hadiza Ibrahim. I
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live in Unguwar Dutse. I am a house wife. Ibrahim is my husband. He is dead. Abubakar Ibrahim is my son. He is also dead. I know the accused persons. They are my neighbours. They live in Kwarin Janbaba. On 8/6/2011, I was at home, it was on Wednesday, we were sitting under a tree and they came and said our living in peace with them was finished. They started burning our houses. They burnt our houses and everything in the house. They left. …”
Under cross-examination, the fifth prosecution witness stated that “on the day our house was burnt many people came and their leader was Samaila Korau.”
The third Appellant, as the second defence witness, testified before the lower Court that:
“I am a farmer and carpenter. I live in Janbaba in Giwa LGA. On 5/6/ 2011 I was at Giwa market when a Fulani man met us and said he heard that I do roofing. I answered, Yes. We went with him to Bakori in Katsina State on a Sunday. I slept there. On 6/6/2011 I started the work. I did the work on Monday, Tuesday and Wednesday. Or Thursday I was very tired and I rested. On Friday I continued with work. I finished the work on Saturday and went back home, Janbaba. I met my
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family at home and they told me that after I travelled, Samaila’s cows were stolen.
… Then I kept going to work until on 16/6/2011 I went to collect money for work I did from the Fulani man and I went back home from Katsina on 18/6/11. …”
The first Appellant, as the fourth defence witness, testified thus:
“I live in Janbaba in Giwa LGA. I am a farmer. On 6/6/11 at 3.30am, I was sleeping in my room when Samaila (1st accused) came and woke me up and said his cows were stolen. We went round and informed our neighbours. We took torch lights and went to search for the cows up to 11.00am we did not see the cows and we went on the farm at about 11.00am when one boy called Mikah came and informed me that Samaila’s cows had been seen at Bagiri … one Matthew conveyed me on a motorcycle and we went to Bagiri … We left Bagiri not long on our way home we met Jiwaji. He is the one alleged to have stolen the cows. We caught him and asked him if he was the one that stole the cows and he admitted that he was the one and we should forgive him. …
As we were asking him, police men came and we handed him over to them and they took him to the police
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station and we went back to Janbaba. At about 3.30pm I went to my farm. I returned home from the farm at 5.30pm. When I went back home my wife asked me if knew what was happening and I said ‘No’. She told me that Ibrahim’s house was burnt. …”
The second Appellant was the fifth defence witness and he stated that:
“I am a farmer and a rearer. On 6/6/11, I tied cows and went to farm at about 3.00am and returned home at 7.00pm. My wife told me that they stole from Samaila. She said his cows were stolen. I went and condole him and then went back home. On 8/6/11, our master sent me to help his friend on the farm at Tudun Kudi.
I did not return home until 6.30pm and it was when I returned that my wife told me that Ibrahim’s house was burnt down. I asked who burnt the house but she said she did not know. …”
It is obvious that the three Appellants raised the defence of alibi in their testimonies.
The lower Court debunked the defences by referring to the extra judicial statements made by each Appellant. In his extra judicial statement, Exhibits 1 and 1A, the first Appellant stated that many people from his village and other villages
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“…came that they were going to burn the family house of Ibrahim Saidu and his children. I try to stop them, but they over powered me and went to Jiwaji house and succeeded in damaging the room belonging to Jiwaji. I later succeeded in stopping them and we went away.”
The second Appellant stated in his own extra judicial statement, Exhibits 4 and 4A, that
“…on that Wednesday I saw a crowd of people running into our village… It was this that made me return home and on reaching home, the said crowd was heading toward Ungunwan Dutse. I followed them to see what was happening. On getting to Ungunwan Dutse, I discovered that the said crowd have surrounded the house of Ibrahim Saidu and seeing this I returned back home.”
In his own extra judicial statement, Exhibit 5 and 5A, the third Appellant stated that:
“…When I returned at about 1700hrs, I met a crowd of people at Unguwan Dutse and went there wanting to know what was happening. On getting there I discovered that the house of Ibrahim Saidu and his children have been damaged completely.”
The lower Court found that these statements of the Appellants “took the wind out of the
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sails” of their respective defence of alibi and confirmed that each of the Appellants was present at the scene of the crime on the day of the incident and that this corroborated the testimony of the fifth prosecution witness. The lower Court thus rejected the defence of alibi raised by each of them and convicted them on the evidence of the fifth prosecution witness.
Counsel to the Appellants argued that having found, as the trial Court did, that the oral testimonies of the Appellants at the trial were inconsistent or in conflict with their extra-judicial statements, the trial Court ought to have rejected both the testimonies and the extra judicial statements, and should not have relied on the extra judicial statements. With respect to Counsel, this is a complete misstatement of the present state of the law. The submissions of Counsel were predicated on what is referred to in criminal litigation as the inconsistency rule. In Ogudo Vs State (2011) 18 NWLR (Pt.1278) 1 Rhodes-Vivour, JSC, explained the rule thus:
“It is that where a witness makes an extra judicial statement which is inconsistent with his testimony at the trial, such testimony is to be
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treated as unreliable while the statement is not regarded as evidence on which a Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency. The inconsistency rule is restricted only to the evidence of a witness who made an extra judicial statement which was in conflict with the evidence given at trial. The previous statements are not evidence which the Court can act on and the evidence given at the trial is taken by the Court as unreliable …”
The rule is only applicable to the evidence of a witness vis-a-vis his extra judicial statement, and it is not applicable to an accused defendant vis-a-vis his extra judicial statement – Emoga Vs State (1997) 1 NWLR (Pt 483) 615, Akpan Vs The State (2001) 15 NWLR (Pt.737) 745, Nsofor Vs The State (2004) 18 NWLR (Pt 905) 929.
The rationale for this position of the law was given by Olatawura, JSC, while sitting on the full panel
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of the Supreme Court in Egboghonome Vs State (1993) 7 NWLR (Pt 306) 393 thus:
“It will be an escape route freely taken by an accused person without any hindrance to escape 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 a free man simply because he had a change of mind, the whole trial will be a mockery. As aptly put by the Attorney-General of Ondo State ‘it would be dangerous to apply the principle to extra judicial confession of accused persons as it would open the floodgate to retraction of all statements made by accused persons before police officers.”‘
The present state of the law with regards to an accused defendant vis-a-vis his extra judicial statement is that where an accused defendant does not challenge the making of his extra judicial statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the extra judicial statement upheld unless a satisfactory explanation of the inconsistency is proffered ? Gabriel Vs State
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(1989) 5 NWLR (Pt 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt.1341) 285, Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360.
It must be stated that the extra judicial statements of the Appellants were tendered before the lower Court without objection from the Appellants or from their respective Counsel. The law is settled that an extra judicial statement by an accused person made in accordance with the relevant rules and the law and admitted in evidence without objection from the accused or defence, is good evidence which can be used, evaluated and relied on by a trial Court – Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455, Gbadamosi Vs State (1992) 11-12 SCNJ 268. In Amala Vs State (2004) 11 MJSC 147, the Supreme Court stated that the extra judicial statement made by a prisoner is admissible in evidence at the trial of the prisoner, and if it is evident that they were made voluntarily by the prisoner, such evidence becomes admissible against him. The lower Court was thus correct when it used the
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extra judicial statements of the Appellants to debunk their respective defences of alibi.
Counsel to each Appellant contended that since it was the same evidence that was led by the fifth prosecution witness against all the accused persons on the commission of the offence of mischief by fire, the discharge and acquittal of the first, third and fifth accused person ought to have led to the automatic discharge of the three Appellants and they referred to several case law authorities. This statement of the law is correct, but it is not without qualification. It depends on the reasons for the acquittal of the other accused persons. As rightly stated by Counsel to the Respondent, it is not in every situation where two or more accused persons are charged for the same offence and the same evidence is led against them that the acquittal of one must lead to the acquittal of the other and that the evidence must be considered against their relative defences. Reading through the judgment of the lower Court, it was clearly stated that the reason the first, third and fifth accused persons were acquitted was solely that the defence of alibi raised by each of them in
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their extra judicial statements to the Police were not investigated. It is settled law that where the Police fails to investigate the alibi given by an accused person in his statement, it cannot be claimed that the case against the accused person was proved beyond reasonable doubt and the accused person is entitled to an acquittal – Okosi v The State (1989) 1 NWLR (Pt 100) 642, State vs Ani (2009) 16 NWLR (Pt 1168) 443. In other words, the first, third and fifth accused persons were not acquitted because the lower Court found fault with evidence of the fifth prosecution witness against all the accused persons, but on the technical ground of the ineptitude on the part of the Police. The acquittal of the first, third and fifth accused persons by the lower Court could not thus have automatically led to the acquittal of the Appellants, in the circumstances of this case.
The core question in this matter is whether the testimony of the fifth prosecution witness amounted to credible evidence proving the offences of conspiracy to commit mischief by fire and of mischief by fire against the Appellants beyond reasonable doubt? The summary of the evidence of the
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fifth prosecution witness, and upon which the lower Court found the Appellants guilty, was that she knew the Appellants as her neighbours and that on the day of the incident “they came and said our living in peace with then was finished. They started burning our houses. They burnt our houses and everything in the house. They left.” under cross-examination, she stated that “on the day our house was burnt many people came and their leader was Samaila Korau”. It is obvious that the word “they” used by the witness in describing those that burnt “our houses” referred to the “many people” that she said came on the day of the incident led by one Samaila Korau, the first accused person, in the charge. The fifth prosecution witness did not say what each of the Appellants specifically did, amongst the many people that came, in facilitating the burning of the houses.
The fact that the extra judicial statements of the Appellants confirmed the testimony of the fifth prosecution witness that the Appellants were present at the scene of crime on the day of the incident did not add to the quality of the evidence of the witness in any way as it is trite law that the mere
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presence of an accused person at the scene of a crime does not as a matter of law render the person so present guilty. There must be clear evidence that either prior to or at the time of the commission of the offence, the person present did something to facilitate the commission of the offence Mohammed v The State (1991) 5 NWLR (Pt 192) 438, Ogunlana v The State (1995) SCNJ 189, Orji v The State (2008) 10 NWLR (Pt.1094) 31. In Emiowe v State (2000) 1 NWLR (Pt.641) 409, it was held that even where an accused person is seen running away from the scene of crime, it is not conclusive proof that he it guilty of the offence.
Credible evidence to sustain a criminal charge must be such evidence that is reasonable, probable, cogent, unequivocal and compelling as to lead to only one rational conclusion, that it was the accused person, and no one else, that committed the offence with which he is charged. Where an eye witness account does not meet this quality of evidence, it cannot sustain a conviction – Anekwe v State (2014) 10 NWLR (Pt 1415) 353. Speaking on the quality of evidence required to sustain a charge under common law, Lord Cowper in Proceedings against
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Bishop Attenbury (1723); 8 New Panl. Hist 338 stated:
“The wisdom and goodness of our law appear in nothing more remarkable than in the perspicuity, certainty, and clearness of evidence it requires to fix a crime upon a man whereby his life, his liberty or his property may be concerned: herein we glory and pride ourselves and are justly the envy of all our neighbor nations. Our law, in such cases, requires evidence so clear and convincing that every bystander the instant he hears it must be fully satisfied of the truth of it; it admits of no surmises, innuendos, forced consequences or harsh construction, nor anything else to be offered in evidence but what is real and substantial according to the rules of natural justice and equity.”
The testimony of the fifth prosecution witness did not meet the quality of evidence that can, on its own, sustain the offences of conspiracy to commit mischief by fire and of mischief by fire against the Appellants, without substantially tangible corroborative evidence showing the part played by each Appellant in the commission of the crime.
The conviction of the Appellants by the lower Court on the evidence of the
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fifth prosecution witness alone cannot thus be allowed to stand.
In conclusion therefore, this Court finds merits in the appeal of each of the Appellants and the three appeals are hereby allowed. The judgment of the Kaduna State High Court in Charge No KDH/KAD/39C/2011 delivered by Honorable Justice G. I. Kurada on the 28th of May, 2013 and the sentence passed therein on each of the Appellants are set aside. The Appellants are discharged and acquitted.
ISAIAH OLUFEMI AKEJU, J.C.A.:
I had a preview of the judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru JCA just delivered. I agree with the reasoning of my learned brother, and I allow the appeals of the appellants. I also abide by the consequential orders.
AMINA AUDI WAMBAI, J.C.A.:
I have read in advance the lead Judgment just delivered by my learned brother, H. A. O. Abiru, JCA. I am in agreement with the reasoning and conclusion therein that there is merit in this appeal. I also allow the appeal and set aside the decision of the Lower Court.
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Appearances:
E. Y. Kurah with him, J. B. Amos and T. N. Bonnet for 1st Appellant
Abdullahi Yahya for 2nd Appellant
Festus Okoye with him, S. Menta and M. K. Abdullahi for 3rd AppellantFor Appellant(s)
Hassan El-YakoubFor Respondent(s)
>
Appearances
E. Y. Kurah with him, J. B. Amos and T. N. Bonnet for 1st Appellant
Abdullahi Yahya for 2nd Appellant
Festus Okoye with him, S. Menta and M. K. Abdullahi for 3rd AppellantFor Appellant
AND
Hassan El-YakoubFor Respondent
