BALA v. C.O.P (2021)

BALA v. C.O.P

(2021)LCN/14970(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/A/232C/2020

RATIO

EVIDENCE: PROOF OF EVIDENCE IN LAW

Proof of evidence is the summary of the statements of those witnesses to be called at the trial by the respondent See the cases of FRN v. Wabara & Ors. (2013) LPELR- 2008 (SC) and Idagu v. The state(2018) LPELR- 44343 (SC). It does not require the filing of statements of the witnesses. Summary is what is required. The purpose of serving proofs of evidence upon an accused is to give him the opportunity of knowing what the prosecution witnesses say to Court against him. See Abacha v. State (2002) 11 NWLR (Pt. 779) 437.
It is therefore necessary in the light of this to understand that filing of proof of evidence has no live link with granting an accused person an adequate time and facility to prepare and conduct his defence. If ever a proof of evidence is filed, it is to acquaint the accused person with the opportunity to know what the prosecution witnesses will come to say. That is only to give him a hint as to what defence to develop in that circumstance. Statements of witnesses are therefore, not a requirement of the law. PER STEPHEN JONAH ADAH, J.C.A.

EVIDENCE: BURDEN OF PROOF IN CRIMINAL ALLEGATION

The demand of the Law on the prosecution is to prove every criminal allegation against the appellant beyond reasonable doubt. Proof beyond reasonable doubt simply means the establishment of all the ingredients of the offence charged in tandem with the dictates of Section 138 of the Evidence Act and Section 36 (5) of the 1999 Constitution (as amended). See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511. Proof beyond reasonable doubt is not proof beyond all iota of doubt or proof to the hilt. See: Nasiru v. The State (1999) 2 NWLR (pt. 589) 87 at 98, Akalezi v. The State(1993) 2 NWLR (Pt. 273) 1 at page 13.

Proof beyond reasonable doubt, as propounded by Lord Sankey, L.C. in Woolmington v. D.P.P. (1935) AC 462 must be kept within its proper compartment. Otherwise, it may cleave. Proof beyond reasonable doubt means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability. See Lori & Anor v. State 1980 12 NSCC P. 269; Ajayi v. The State (2013) LPELR – 1994 1 (SC). In the case of Oseni v. The State (2012) LPELR- 7833 (CS), ADEKEYE, JSC held that:
“Broadly speaking, proof beyond reasonable doubt simply means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. In the case of Miller v. Minister of pensions (1947) 2 ER p. 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt.” Bakare v. State (1987) 1 NWLR (Pt. 52) pg. 579.”
In a recent decision of the Supreme Court in Jibrin v. FRN 2018 Okoro, JSC, defined proof beyond reasonable doubt as follows.
“In Bolanle Abeke v. The State (2007) LPELR – 31 (SC) at page 17, Paragraphs D – F, this Court, per Tobi, JSC explained what the term “proof beyond reasonable doubt” means. He stated as follows:- “Reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.” See also Miller v. Minister of Pension (1947) 2 All ER 372, Egharevba v. The State (2016) LPELR-40029 (SC).”

From these authorities, it is very clear and settled that proof beyond reasonable doubt is not an abstract concept but the substance of the evidence relied upon by the prosecution. It is therefore the business of this Court to look into the length and breadth of the evidence put forward by respondent who was the prosecution at the trial Court to see whether the respondent had discharged as required the onus of proof beyond reasonable doubt. PER STEPHEN JONAH ADAH, J.C.A.

CRIMINAL LAW: NATURE OF THE OFFENCE OF CONSPIRACY

The offence of Conspiracy is the offence that is grounded on an agreement to do illegal thing or to omit from doing something lawful or doing something legal through illegal means. It has to do with a meeting of minds, a plan to carry out the offensive act on the part of the Conspirators which leads the trial Court to the conclusion that the appellant and another engaged in accomplishing a common objective always consummated in secrecy.

In the case of John v. State (2016) LPELR- 40103 (SC) Ngwuta, JSC, gave the nature of the offence of Conspiracy as follows:
“Conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or to do a legal act by an illegal means. People who agree among themselves to embark on an illegal venture or to achieve a legitimate end by an illegal means do not invite a witness or witnesses to attest to their agreement. Usually the facts surrounding the execution of the intention expressed in the agreement will determine whether those charged with the commission of crime acted individually or in pursuance of a prior agreement to effect an unlawful purpose or to effect a lawful purpose by unlawful means. Bare agreement to commit an offence suffices. While the actual commission of the offence is not a necessary ingredient of the offence of conspiracy, the actual commission of the offence may show common intention formed before it. See Patrick Ikemson & Ors v. The State (1989) 3 NWLR (pt. 110) 455 at 477; Clark v. The State (1986) 4 NWLR (Pt. 35) 381; Arinze v. The State (1990) 6 NWLR (Pt. 155) 158.”

Symmetrically, Peter Odili, JSC, in Awosika v. State (2018) LPELR- 44351 (SC) held that:
“On the offence of conspiracy, there is no gainsaying that all the circumstances prevailing and proffered in evidence are such as the Court had easily deduced the commonality of the criminal purpose carried out by the actors in the robbery activities. Being an offence in which direct proof is a near impossibility, conspiracy is usually hatched in secrecy, the proof comes by inference from the facts and circumstances of a given case such as the present one where there is surfeit of materials from which the agreement with a common purpose can be founded. See; Kenneth Clark & Anor v. The State (1986) 4 NWLR (Pt.35) 381 at 395; Musa v. The State (2005) FWLR (Pt. 262) 243 at 353 – 354; Chianugo v. The State (2005) FWLR (Pt.74) 242 at 251.” PER STEPHEN JONAH ADAH, J.C.A.

CRIMINAL LAW: ELEMENTS OF PROVING THE OFFENCE OF CONSPIRACY

The line of proof for the offence of conspiracy is very straightforward, There must in each case be: (i) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means. (ii) where the agreement is other than an agreement to commit an offence, that some act beside the agreement was done by one or more of the parties in furtherance of the agreement. (iii) Specifically that each of the accused individually participated in the conspiracy. PER STEPHEN JONAH ADAH, J.C.A.

ALIBI: DEFENCE OF ALIBI

It is never in doubt that humans as mortals are limited. They cannot be physically present in two places at the same times. In fact, it is believed that it is only the Almighty God who is immanent, having the ability to be at all the material world at the same time. In the case of Osaro Nomayo v. The State (2018) LPELR- 44729 the Supreme Court per Peter-Odili, JSC, held:
“Following in the path laid out by this Court and followed in numerous judicial decisions, I would restate that the principles guiding the use of alibi as a defence open to an accused such as the appellant herein is not an automatic exculpatory defence such that once raised, the accused gets off. The reasons are that an alibi must be put across timeously or at the first opportunity with details for the prosecution or the police to investigate for the prosecution or the police to investigate to confirm the truth thereof or that the alibi did not hold water. However, that an alibi was raised by an accused and not investigated does not translate to the alibi’s acceptance as gospel if the evidence adduced by the prosecution at the trail effectively fixed or apprehended the accused at the scene of crime at the material time. When that happens the alibi is demolished or destroyed and becomes ineffectual or of no use. I shall refer in support to the case of Monday Odu v. The State (2001) 10 NWLR (Pt. 722) 668 at 674 per Mohammed JSC as follows: …”Although there are occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. I do not have to repeat what this Court had said in several decisions, but the onus of establishing alibi, being a matter within the personal knowledge of an accused lies on him. It is not enough for the accused to say to the Court that I was at a particular place away from the scene of crime, he has to prove his assertion. Even if the police have failed to investigate such assertion, the accused has the onus of adducing evidence on which he relies for his defence of alibi. The issue of the defence of alibi has failed.” See also Hausa v. State (1994) 6 NWLR (Pt. 350) 281 at 301 – 302.
See also State v. Odomo (2018) LPELR- 46339 (SC) and the case of Ezekwe v. State (2018) LPELR-44392 (SC), where Onnoghen, JSC, (as he then was) held:
“On alibi, it is settled law that a defence of alibi, when raised successfully, is a complete defence to the offence charged. It is a defence that raises doubt as to the identity of the perpetrator of the offence charged, particularly, as it contends that the accused was at the time material to the commission of the offence at a different location from the scene of crime thereby making it physically impossible for the accused to have been the person who committed the alleged offence as it is impractical for a person to be at two different locations at the same time. However, for the defence to apply, it is required of the accused to provide the prosecution/police, at the earliest opportunity, with the details of his movements on the date in question to enable the police/prosecution check the said details. See Obiode v. The State (1970) 1 All NLR 36; Nsofor v. State (2002) 10 NWLR (Pt. 775) 274 etc.”
From these decisions, the defence of alibi are meant to be raised timeously earlier in the case to give the opportunity to the prosecution to clear those doubts raised by the respondent. Any defence of alibi not raised on time is not only deemed to be an afterthought, it will be deemed to be calculated to overreach the prosecution. PER STEPHEN JONAH ADAH, J.C.A.

Before Our Lordships:

Monica Bolna’an Dongban-Mensem Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

DANLADI BALA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, Abuja, hereinafter referred to as “the trial Court”, coram judice, Sylvanus C. Oriji J., delivered on the 4th 2017, in Charge No: FCT/HC/CR/64/2013, convicting the defendant/accused now appellant, (Danladi Bala) with other co-accused, for the offences bothering on criminal conspiracy to commit culpable homicide punishable with death in count 1, mischief in count 2 and culpable homicide punishable with death in count 3, all under Sections 97, 336 and 221 of the Penal Code respectively. The appellant together with his co-accused were thereafter sentenced to death by hanging or by lethal injection for the offences of conspiracy and culpable homicide (Counts 1 & 3) and again sentenced to six years imprisonment for the offence of mischief (Count 2). (See 108 & 109 of the record of appeal).

The three count charge upon which the appellant together with his co-accused were charged reads as follows:
“Count 1:
That you Bameyi Shaye ‘m’ 25 yrs and you Danladi Bala ‘m’ 30 yrs, on or about the

15th day of September, 2013 at about 1600 hours within the jurisdiction of this Honourable Court that you conspired to wit committing a felony by killing one Jibrin Adamu ‘m’ and his brother one Nura Abdulmalik ‘m’ haven inflicted on them severe matchet cuts thus resulting to their death and you also proceeded to dig a shallow graves where you hide the corpse in other to cover up your acts. You thereby commit an offence of criminal conspiracy punishable under Section 97 of the Penal Code Law.
Count 2:
That you Bameyi Shaye ‘m’ 25 yrs and you Danladi Bala ‘m’ 30 yrs, that on or about the 15th day of September, 2013 as about 1600 hours within the jurisdiction of this Honourable Court did conspired to wit committing a mischief, by setting on fire a Jincheng motor-cycle belonging to the two deceased that were murdered by you on the said date and eventually hide their corpse in shallow graves. You thereby commit an offence of mischief punishable under Section 336 of the Penal Code Law.
Count 3:
That you Bameyi Shaye ‘m’ 25 yrs and you Danladi Bala ‘m’ 30 yrs, that on or about the 15th day of September, 2013 at about 1600 hours within the

jurisdiction of this Honourable Court, did commit a felony to wit attacking one Jibrin Adamu and his brother Nura Abdulmalik, with your matchet thus causing the death of the two brothers instantly and haven the knowledge that the use of the cutlass on the decease would result to their death. That haven killed the two brothers you went ahead to hide their corpse in shallow graves. You thereby commit an offence of culpable Homicide punishable with death and under Section 221 of the Penal Code Law.”

After the charges were read and explained to the appellant and his co-accused, they pleaded not guilty to the three counts charges. Consequently, trial in the case commenced. The prosecution called three (3) witnesses (i.e PW1 – 3), and tendered Exhibits A – F. Thereafter, the appellant and his co-accused testified for themselves in defence respectively and called other two (2) witnesses (i.e DW1 – DW4). The appellant herein testified as the DW4.

At the close of trial, learned counsel at the trial Court adopted their respective final written addresses filed on behalf of the parties. In a considered judgment delivered by the trial Court on the 4th July,

2017, the appellant together with the 1st defendant was found guilty as charged and consequently sentenced to death with six years imprisonment to the appellant.

Dissatisfied by the said conviction and sentence of the trial Court, the appellant sought and obtained the leave of this Court to appeal against the judgment of the trial Court. On the 13th February, 2020, the appellant lodged an Eleven Grounds Notice of Appeal and urged the Court to set aside the judgment of the trial Court and discharge and acquit the appellant. The record of appeal was transmitted to this Court on the 20th March, 2020.

In line with the rules and practice of this Court, parties filed and exchanged their respective briefs of argument. Appellant’s brief was filed on 12/05/2020, while the respondent’s brief was filed on the 01/06/2020.

Counsel for the appellant, Adeolu Salako Esq., distilled three issues for determination of this appeal. These issues are:
1. Whether failure of the trial Court and the prosecution to give appellant adequate time and facilities to prepare and conduct his defence amounts to denial of fair hearing thereby occasion miscarriage of

justice. (Distilled from Grounds 1 & 2).
2. Whether the prosecution proved the case beyond reasonable doubt in convicting the appellant for the offence of conspiracy, conspiracy to commit mischief and culpable homicide punishable with death. (Distilled from Grounds 6, 7 & 8).
3. Whether the trial Court properly considered and evaluated the totality of evidence adduced by parties at the trial before convicting and sentencing the appellant. (Distilled from Grounds 3, 4, 5, 9, 10 & 11).

In response, Chinyere Moneme Esq., counsel for the respondent, adopted the three (3) issues as submitted and argued by the appellant.

The three (3) issues formulated by the appellant are consequently adopted for the determination of this appeal. I now start with issue one.

Issue One:
This issue is – whether failure of the trial Court and the prosecution to give appellant adequate time and facilities to prepare and conduct his defence amounts to denial of fair hearing thereby occasion miscarriage of justice.

While arguing this issue, counsel for the appellant submitted that the charges against the appellant as contained in

Charge No: FCT/HC/CR/64/2013 is ab initio incompetent and that the proof of evidence in the whole exercise is a breach of Section 36(6)(a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He argued that it is a constitutional right of any person accused of committing an offence and charged before any Court in Nigeria to have those documents for the important reasons of affording the person sufficient opportunity to prepare his defence and to prevent surprise being sprung at trial. He referred to the cases of Ohwovoriol v. FRN (2003) 2 NWLR (Pt. 803) 176, Okoye v. COP (2015) LPELR – 24675 -(SC), Akabogu v. State (2016) LPELR- 40929 (CA), FRN v. Wabara (2013) LPELR -20083 (SC).

On the provision of Section 185(b) of the Criminal Procedure Code, counsel opined that the trial Court and the respondent failed woefully in following the principles and cases law stated in the above law. He maintained that the prosecution in the course of filing the charge failed, neglected and refused to file along with the proof of evidence the statements of the two prosecution witnesses it intended to call even though the summary of the

evidence annexed to the charge, list of witnesses and list of exhibits were attached. That the trial Court failed to advert its mind to the fact that the witness statements and the photographs (Exhibits B1 – B8) which were later used against the appellant constitute the facility that the appellant needed to prepare for his defence and not the summary of the evidence annexed to the charge which is a caricature of the kind of preview that the appellant is entitled to. That the trial Court and the respondent abridged the fundamental right of the appellant He relied on Uket v. FRN (2008) 4 FWLR (Pt. 411) 937. That the non-service of the prosecution’s witness statements before and after the plea of the appellant renders the proof evidence inchoate and breach of the provision of Section 36 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria. That the appellant’s right to fair hearing denied him a very big opportunity to prepare his defence.

On whether if there was anything on record to show that the Court satisfied itself that appellant understood what he was being charged for, counsel argued that it is a fundamental principle in the

Constitution under Section 36 (6) that the persons accused must be informed properly of the charge against him so that he will understand it. That where the accused does not understand English Language i.e the language of the Court, that the charge must be read and explained to him in the language he understands through an interpreter. He cited Erekanure v. State (1993) 5 NWLR (Pt. 294) 385 at 397, Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria Ugboji v. State (2018) 10 NWLR (Pt. 1627) and Lanre v. State (2019) 3 NWLR (Pt. 1660) 506. He stated that there is nothing on record to show that the trial Court satisfied itself that the appellant understood what he was being charged for. That on the day of the arraignment that no interpreter was called upon to interpret the proceedings from Gbagyi Language to English Language and vice versa. Counsel questioned on why the appellant was arraigned in English Language but his trial conducted with the assistance of an interpreter? He maintained that it is clear that the plea of the appellant which is the bedrock of his trial as recorded by the trial Court failed to satisfy the condition laid

down in Section 36 (6) (a) & (e) of the Constitution of the Federal Republic of Nigeria (as amended) and that such vitiates the entire trial of the appellant. He cited Eyorokoromo v. State (1985) 1 NWLR (Pt. 1) 125, Kajubo v. State (1988) 1 NWLR (Pt. 73) 721/731 & 737, Nwakwo v. State (1990) 2 NWLR (Pt. 134) 627 and Eben v. State (1990) 7 NWLR (Pt. 160) 113. That the absence of an interpreter who was duty bound to explain the charge to the illiterate appellant who only understands Gbagyi Language amounts to miscarriage of justice as the arraignment is the crucial part of the entire trial. That the fact that the appellant and the other accused speak English Language ‘small small’ does not mean that they understand the language of the Court and by arraigning somebody who partially understands English Language in English is non-compliance with Section 36 (6) (e) of the 1999 Constitution of the Federal Republic of Nigeria. Counsel urged the Court to hold that the entire trial of the appellant is a nullity for breach of the principle of fair hearing and non-compliance with constitutional provision.

In response, counsel for the respondent while

arguing issue one relied on Section 36 (6) (b) of the Constitution of the Federal Republic of Nigeria, as amended and authority of Nweke v. State (2017) 15 NWLR (Pt. 1587) P. 139 paras. F – H and submitted that it is the settled law that the right to facilities for trial as enshrined in Constitution are not self-executory. That the record shows that the appellant did not apply for the facilities he needed for his defense and having not requested for facilities in the lower Court, that he only has himself to blame and cannot be heard to complain on appeal. He cited Nweke v. State (supra).

On the issue of the alleged non-compliance with Section 185b of the Criminal Procedure Code, counsel argued that none of the laws provide for the prosecution to attach the statement of witnesses to the charge during the prosecution’s application for leave to prefer a charge. That failure to attach same did not amount to a denial of facilities for trial to the appellant because the aforementioned enactment(s) do not stipulate that the statement of witnesses must be attached to the respondent’s application for leave to prefer a charge. He cited FRN v. Wabara (2013) 5 NWLR

(Pt. 1347) Pp. 348 – 349, paras. G – B and submitted that proofs of evidence as mentioned are not the same as statement of witnesses the prosecution would call at trial. That proof of evidence are the summaries of the statements of witnesses the prosecution intends to call at the trial. That the trial judge was well aware that the statements of witnesses was not attached to the application for leave to prefer a charge and therefore was not misled. That wherever leave of judge is required to be sought under a statutory provision, that it means that the statute has conferred on the judge some discretionary powers. That an exercise of discretion by a trial Court is never questioned by an appellate Court, except where stronger reasons prevail or where the findings made by the trial Court in the exercise of its discretion are perverse. He citedFRN v. Wabara (supra).

On whether the appellant understand what he was being charged for, counsel stated the trite position of the law that where an accused person speaks and understands English language in which the charge is read over and explained to him, that the requirement for the charge to be interpreted to him

in any other language he claims to understand becomes unnecessary and cannot render an arraignment invalid. He cited Ibrahim v. State (2014) 3 NWLR (Pt. 1394) pp. 334 – 335 paras. G – A. That the plea of not guilty to the three count charge is indicative of the fact that the appellant understood the charge which is why he pleaded ‘not guilty’. That the record at pages 111 shows that the appellant understood both English and Gbagyi Language and that the Court still complied with the provisions of Section 242 of the CPC. He cited Sowemimo v. State (2012) 2 NWLR (Pt. 1284) P. 396 paras G – A, Owoeye v. Oyinlola (2012) 15 NWLR (Pt. 1322) P. 103, lwunze v. State (2013) 1 NWLR (Pt. 1334) P. 161 paras. E – H, Sadiku v. State (2013) 11 NWLR (Pt. 364) P. 212 paras. G – F and Omokuwajo v. FRN (2013) 9 NWLR (Pt. 359) Pp. 323 – 324 paras. H – C. He argued that there was no compliant by the appellant at the trial Court that he neither spoke or understood English Language during the proceedings. That where a party consented to an irregular procedure, he cannot on appeal challenge the irregularity. He relied on Oguno v. State (2013) 15 NWLR (Pt. 1376) P. 24 paras. E – G.

That even if the appellant complained of non-interpretation of the charge, that such does not automatically vitiate the proceedings as the defendant must show that the non-interpretation has occasioned a miscarriage of justice. He relied on Okoro v. State (2012) 4 NWLR (Pt. 1290) Pp. 368 paras. B -C. That the testimonies of the PW2 and PW3 shows that the appellant could understand English Language. (See pages 69 of the record of appeal). Counsel maintained that the trial Court rightfully maintained its position of impartiality and neutrality. That it relied on the evidence of PW3, that the appellant understands English and also relied on that fact that the counsel to the defendant never objected to the statements on the ground that the appellants do not understand English. That a reasonable person observing proceedings in the trial Court would conclude that the appellant understands both English and Gbagyi language. He urged the Court to so hold.

The learned counsel for the parties have made elaborate submissions on this issue. The crux of the contention of the parties is that of the alleged failure of the trial Court and the prosecution to give the

appellant adequate time and facilities to prepare and conduct his defence. The complaint of the appellant which formed the basis of this part of the appeal is that the proof of evidence does not comply with Section 36(a) & (b) of the 1999 Constitution.
In the instant case, the record shows at page 1 thereof the application of the respondent to the trial Court to prefer a criminal charge in the High Court against the appellant. The application was supported by:
a. Affidavit in support of the application
b. A copy of charge in respect of which leave is sought
c. A copy of the proof of evidence which shall be relied upon during trial.
d. A copy of the list of witness showing their names and address.
e. A copy of the list of exhibits.
f. Photocopies of the statement of witnesses and the statement of the accused persons.
These items are at pages 1 to 15 of the record of appeal. These items forwarded with the application to the trial Court are the essential requirement for consideration of the Court when an application to prefer a charge is made. These were considered by the lower Court before leave was issued for

the prosecution of the appellant. I cannot see any deficiency in the application made to the Court and the ruling of that Court granting leave. The appellant may be considering the proof of evidence as inadequate since the statements of the witnesses were not wholly uploaded into the application. This will be a misapprehension of what a proof of evidence is under our law. Proof of evidence is the summary of the statements of those witnesses to be called at the trial by the respondent See the cases of FRN v. Wabara & Ors. (2013) LPELR- 2008 (SC) and Idagu v. The state(2018) LPELR- 44343 (SC). It does not require the filing of statements of the witnesses. Summary is what is required. The purpose of serving proofs of evidence upon an accused is to give him the opportunity of knowing what the prosecution witnesses say to Court against him. See Abacha v. State (2002) 11 NWLR (Pt. 779) 437.
It is therefore necessary in the light of this to understand that filing of proof of evidence has no live link with granting an accused person an adequate time and facility to prepare and conduct his defence. If ever a proof of evidence is filed, it is to acquaint the

accused person with the opportunity to know what the prosecution witnesses will come to say. That is only to give him a hint as to what defence to develop in that circumstance. Statements of witnesses are therefore, not a requirement of the law. In the instant case, the proof of evidence is at page 5 of the record. It follows therefore, that this complaint is unfounded.

On the issue of whether the appellant as the accused understood the charge before he went through trial. This and the earlier situation as pointed out are preliminary issues which the appellant ought to challenge at the earliest time. If an accused person wants to object to it he must do that timeously else, it will be deemed to be an afterthought. In the instant case, the record shows at pages 53, 54 and 55 that each counts of the charge was reads and explained to the appellant. The appellant pleaded “not guilty” to each of the three counts. The fact that the appellant did not plead to the contrary and not guilty, is a clear sign in this case that the appellant not only understood the charge and its import. There is therefore no merit in this complaint. Issue one is therefore resolved in favour of the respondent.

Issues Two and Three
These issue are – whether the prosecution proved the case beyond reasonable doubt in convicting the appellant for the offence of conspiracy, conspiracy to commit mischief and culpable homicide punishable with death; and
Whether the trial Court properly considered and evaluated the totality of evidence adduced by parties at the trial Court before convicting and sentencing the appellant.

Counsel for the appellant while arguing these issues submitted that there is no duty imposed by law on the accused person to prove his innocence. He cited Williams v. State (1992) 10 SCNJ P. 74 and Section 131 (1) & (2)of the Evidence Act and Section 135 (2) of the Evidence Act. That the burden on the prosecution in this respect is constant like the Northern star, that it never shifts except in a few limited circumstances. He cited State v. Emine (1992) NWLR (Pt. 256) at 658, Abokokuyanro v. State (2016) 3 SCNJ P. 183, Eromosele v. FRN (2017) 1 NWLR (Pt. 1545) at 55, Igabele v. State (2006) 6 NWLR (Pt. 975) P. 100, Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305 and Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 497.

On the issue of Culpable Homicide punishable with death, counsel stated the ingredients that must be established and argued that where one of such ingredients is either absent or tainted, that the charge is considered not to be proved. He relied on Sule v. State (2009) 19 NWLR (Pt. 1169) at 33, Nkebisi v. State (2010) 7 NWLR (Pt. 1188) 431, Mbang v. State (2011) 7 NWLR (Pt. 1194) 43, Usman v. State (2011) 3 NWLR (Pt. 1233) 1 and Uluebeka v. State (2011) 4 NWLR (Pt. 1237) 358. He submitted that by the evidence before the trial Court that the respondent has not led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death against the appellant beyond reasonable doubt.

On the ingredient of culpable homicide as regard the death of the deceased, counsel argued that from the evidence available from the printed record, that the death of one Jibrin Adamu and his brother, Nura Abdulmalik had not been established as the death of the deceased person was speculative, as no eye witness was called. That a scrutiny of the record would show that the evidence of the prosecution witnesses did not link the

two deceased persons, Jibrin Adamu and Nura Abdulmalik, with the corpse purportedly exhumed from the farm of the appellant.

On whether the death of the deceased resulted from the act of the accused person, counsel stated that none of the witnesses identified the appellant as the one who murdered any of the deceased persons and that from available records, no evidence linked him with the commission of the crime. That a conviction for culpable homicide on circumstantial evidence must point to the guilt of the accused with accuracy of mathematics and that a Court cannot convict on such circumstantial evidence where such evidence points in more than one direction. He cited The Queen v. Oromachi (1963) 1 SCNLR 8 and Ubani v. State (2003) 4 NWLR (Pt. 309) 51. That the trial Court committed a judicial sacrilege when it relied on the purported confessional statement of the appellant and contradictory evidence of PW1 – PW3 in determining the appellant’s responsibility in the culpable homicide.

On the issue of Confessional Statement erroneously admitted, counsel opined that the purported confessional statement of the appellant tendered by PW3 which the

trial Court admitted and utilized to convict the appellant should not have been admitted in the first place and that the Court even it admitted ought not to attach any probative value to it. He relied on Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria. Counsel stated further, that it will smell of judicial sacrilege to allow Exhibit D (the Confessional statement of the appellant) to stand.

On the contradictory and unreliable evidence of prosecution witnesses, counsel argued that it the duty of prosecution to tender any statements made by an accused person during the investigation of the offence with which he was charged, whether or not it is in his favour. He cited Ogudo v. State (2011) LPELR 860 (SC), Dandare v. State (1967) NMLR 56 and Section 167 (d) of the Evidence Act, 2011. He argued that the prosecution failed to tender the statement of the appellant made at Nyanya Police Station where the case was actually investigated and also that the statement of PW1 was not tendered. He maintained that the trial Court must make a finding in relation to the contradiction, failure to do so may vitiate a conviction. He relied on Ibeh v. State (1997) LPELR-1389 (SC).

On the evidences of PW1, PW2 and PW3, counsel argued the failure of PW1 to tender his statement to the police makes his evidence to lack probative value. That a scrutiny of the entire evidence of the PW2 will show that he is not a credible witness who the Court can rely upon. That the entire evidence of PW3 is submerged in his inconsistencies and smirks of credibility which ultimately casts doubt on the case of the prosecution. That the trial Court ought to have been cautious with the evidence of PW3 instead of unhesitatingly accepting hook line and sinker of the evidence of PW3 and used same to convict the appellant. He maintained that the evidence of PW3 ought not have flied as a result of the contradictions and inconsistencies coupled with lack of credibility. That the trial Court erred when it used the inadmissible evidence of PW3 to fortify the case of the prosecution.

On the allegation that the accused person caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was the probable consequence of his act, counsel stated that it is the law that a person intends the

natural consequence of his actions and if there was an intention to cause grievous bodily harm and death results, that the defendant must be held culpable for the offence of murder. He cited Nwokearu v. State (2010) 15 NWLR (Pt. 1215) 1, Njoku v. State (2013) 2 NWLR (Pt. 1339) 548 and Musa v. State (2014) LPELR 22912 CA. He explained ‘intention’ as the state of being set to do something. He relied on Bamidele v. State LPELR 44393 (CA) and Afolabi v. State (2016) 11 NWLR (Pt. 1524) 497 at 519. He argued that the prosecution failed to adduce reliable evidence in proof of this ingredient of the offence.

On the ingredient of conspiracy, counsel reiterated that the confessional statement tendered and admitted is an inadmissible document. He urged the Court to expunge the said exhibit from the record of this appeal. Counsel submitted that there was no independent evidence adduced by the prosecution in proof of the conspiracy charges. He cited Njovens v. State (1973) 5 SC 17; Usufu v. State (2006) LPELR (11970) 1 at 33 – 35, Oseni v. State (2017) LPELR (42546) 1 at 60 – 61, Idowu v. State (2011) LPELR (35971) 1 at 83 – 84, Balogun v. State (2018) LPELR (44215) 1

at 4 – 5 and Temitope vs State (2010) LPELR (37521) 1 at 24.

On the ingredient of mischief, counsel canvassed that trial Court heavily relied on the confessional statement of the appellant to convict and sentenced the appellant. He argued that the confessional statement ought not to have been admitted in the first place. He invites the Court to take a careful perusal of the printed record; that there is no single evidence led by the prosecution in prove of the element of conspiracy to commit mischief.

In response, counsel for the respondent while arguing these issue stated the trite position of the law that the prosecution has to prove any allegation of a crime beyond reasonable doubt. That it is the duty of the prosecution to lead credible evidence to rebut the presumption of innocence that is clothed by law on the accused person. That where evidence adduced is so strong as to leave only a remote probability in favour of the accused person, that the case is proved beyond reasonable doubt. He cited Emmanuel Tometim v. The State (2014) LPELR-22788 (CA) and Bakare v. State (1987) 3 SC 1 or (1982) LPELR (714) 1 at 12 – 13. Counsel stated that the

respondent relied on the circumstantial evidence and Exhibit D, the confessional statement of the appellant to prove his guilt. He argued that the totality of the evidence of PW1, PW2, PW3 as well as the Exhibits D proved the case of conspiracy against the appellant beyond reasonable doubt. Counsel maintained that the respondent satisfied the burden of proof beyond reasonable doubt placed on it and has proven that the defendant conspired with another to commit the offence of armed robbery. On the ingredient of Mischief, counsel submitted that the appellant intended the probable consequences of their actions and that by setting fire on the deceased motorcycle, that the appellant knew that his mischievous action would permanently destroy the Jincheng motorcycle. He urged the Court to find that the respondent proved the charge of mischief against the appellant beyond reasonable doubt. On the ingredients of Culpable Homicide, counsel submitted that medical evidence is not necessary where the cause of death is obvious, instantaneous or in circumstances in which there is abundant evidence of the manner of death like in the instant case. He cited Galadima v. State (2017) LPELR – 41911 (SC).

On the appellant’s defence of alibi, counsel argued that same was considered and disbelieved by the trial Court because same was raised during trial and not during investigation at the police station. He relied on Mohammed v. State (2014) LPELR- 22916 (SC) and Smart v. State (2016) 9 NWLR (Pt. 1518) 447. He maintained that the respondent proved that the appellant caused the death of the deceased persons.

On the issue of whether the learned trial judge was right when it arrived at the conclusion that the appellant could understand the English Language and admitted his confessional statement, counsel opined that the records of appeal clearly shows that the appellant understands Gbagyi language as well as the English Language. He referred the Court to page 53 of the records. He urged the Court to uphold the findings of the trial wherein he stated and in quote: ‘They can speak English ‘small small’.

Counsel further argued that Exhibit D is not inadmissible on the basis that it was recorded by one CPL Janifer Konyfa who was not present in Court to testify on how she recorded the statement of the appellant.

He relied on Olude v. State (2014) 7 NWLR (Pt. 1405) P. 114 para. C, and submitted that the trial Court thoroughly applied the tests laid down by law to examine retracted confessional statement. That there is no contradiction in the testimonies of PW1 and PW3 at the trial as to the source of the photograph because PW2 and PW3 never stated that they called the same photographer. That the evidence of the prosecution witnesses may at best be described as a discrepancy and not material contradiction to have occasioned a miscarriage of justice to the appellants. He urged the Court to so hold.

On the issue of non-compliance with Section 84 of the Evidence Act by the respondent in respect of Exhibits B1 – B3, counsel stated that in the course of the trial, PW2 stated that he does not have the phone number of the photographer and that he could not find the photographer as a result of several demolitions held in the Karu and Nyanya areas in Abuja. He maintained that the trial Court rightly admitted Exhibits B1 – B8. He cited Blaise v. FRN (2017) 6 NWLR (Pt. 1560), Moreso, that there were other credible evidences laid by the respondent that proved the death of the deceased persons.

On the issue of respondent’s alleged withholding of the statements of the appellant, counsel argued that the appellant ought to have requested for same. That the appellant failed to do so because PW3 had testified that ‘when I came I collected the 2 statements, I read through, I found that they admitted the allegations made against them’. That the respondent’s failure to tender statements not requested for, is not fatal as the appellant’s failure to ask PW3 to produce same at the trial meant he accepted the contents of, and consented to the fact that the statements were not tendered by the witness. He urged the Court to so hold. That the PW3 having explained the inconsistency in his earlier testimony, that the Court was right to have relied on the testimony of PW3 as a credible witness.

Counsel urged the Court to hold that the respondent proved the 3rd ingredient against the appellant.

Counsel for the appellant while arguing the issue of evaluation stated that it is the cardinal duty of a trial Court to perceive and evaluate the totality of evidence adduced before it before arriving at a conclusion. That a dereliction of

this fundamental duty is fatal to whatever conclusion the trial Court may reach. Counsel stated that the trial Court did not painstakingly evaluated the evidence adduced before him in this case before reaching his conclusion that the offences were proved beyond reasonable doubt against the appellant by the respondent He cited Arabambi v. A.B. Industries Ltd. (2005) 19 NWLR (Pt. 959) 1 at pg. 31. Counsel emphasized that the trial judge misappraised the evidence and equally failed to apply the correct principles of law that are applicable to the facts and circumstances of this case. He stated further that the trial judge was confused about different modes of proving the offence of culpable homicide. That the judge wrongly admitted Exhibit D, the confessional statement of the accused to convict him. He urged the Court to do judicial survey of Exhibit D. Moreso, counsel argued the Exhibits B1 – B8 were also wrongly admitted by the trial judge which occasioned miscarriage of justice in the conviction and sentencing of the appellant. He submitted that the trial Court cannot pick and choose between two contradictory evidence. He referred to Ekpoisong v. State NWLR

(Pt. 1122), Attah v. State (2019) LPELR- 48287 (CA). That Exhibits B1 – B8 are computer generated documents which can only be admitted upon fulfilling conditions laid down in Section 84(4) of the Evidence Act, 2011. He stated the trite position of the law that where a statute provides for the method of doing things, that such method must be followed. He relied on Inakoju v. Adeleke (2007) LPELR- 1510 (SC) and Amaechi v. INEC (2007) LPELR- 8253 (CA).

As per the evidence of PW1, counsel argued that the trial Court ought not to have ascribed probative value to such oral evidence which is a by-product of documentary evidence. That the failure of the prosecution to tender PW’s extra judicial statement is a breach of Section 167 (d) of Evidence Act, 2011 as relates to withholding evidence. As per PW3’s evidence, counsel posited that the trial Court desecrated the law when it hugely relied on the evidence of PW3 in reaching its decision and that this led to miscarriage of justice on the part of the appellant. As per the evidence of the PW2, counsel argued that the PW2 failed and neglected to tender the statements made by the appellant and PW1 at the Nyanya

Divisional Headquarters in the course of his evidence. That the trial Court imported and endorsed the irrelevant and inadmissible evidence prepared by PW1, PW2 and PW3 respectively in arriving at its findings on the slim point. He cited Shehu v. State (2010) LPELR (3041) 1 or (2010) 8 NWLR (Pt. 1195) 112 and Onianwa v. State (2015) LPELR (24517) 1 at 40 – 41.

Counsel alleged that the trial Court refused to evaluate the entire defence of the appellant. He invites the Court to visit the printed record and the necessary proceedings therein, that the Court will find out that the findings of the trial Court is enmeshed in the world of perversity as a result of failure to give the defence of the appellant the necessary and required consideration. He relied on Section 135(3) of Evidence Act, 2011, Akinmoju v. State (2000) 6 NWLR (pt. 662) 608 at 629, Adepetu v. State (1998) LPELR 135 (SC) 185, Arogundade v. State (2009) 6 NWLR (Pt. 1136) 165, Ezeugo v. State (2013) LPELR 19984 (CA), Eyo v. State (2016) 7 NWLR (Pt. 1510) 183. That there is no eyewitness evidence of the murder of the deceased persons.

Counsel argued further that the trial judge failed to

thoroughly examine the contents of the charge before assuming jurisdiction. He cited Okorocha v. PDP (2012) 15 NWLR (Pt. 1323) 205, Madukolu v. Nkemdilim (1962) 2 SCNLR 341. He stated that considering the loopholes associated with the entire trial, that the only conclusion that can be reached is that the decision of the trial Court is altogether unwarranted, unreasonable and cannot be supported having regards to the evidence on record. He reiterated that there is no evidence that established the fact that the appellant killed any of the deceased persons and that it will be offending the law if the conviction of the appellant is allowed to stand when the doubt in the case ought to be resolved in his favour. He relied on Ukorah v. State (1977) LPELR 3345 (SC), Olakaibe v. State (1990) 1 NWLR (pt. 129) 632 at 644, Shehu v. State (2010) LPELR (3041) 1 at 60; Musa v. The State of Lagos (2018) LPELR (46037) 1 at 29.

He finally urged the Court to step into the shoes of the trial Court, re-evaluate the evidence as contained in the record of appeal and accordingly set aside the judgment of the trial Court.

In response to this issue, counsel for the

respondent relied on the cases of Al-Mustapha v. State (2013) 17 NWLR (Pt. 383) P. 405 D – E, Adesina v. Ojo (2012) 10 NWLR (Pt. 1309) pp. 579 – 580 paras. G – C, and stated that the trial Court thoroughly evaluated and appraised the evidence placed before him and applied the tight principles of law in arriving at the conclusion that the appellant was guilty. He posited that the trial Court rightfully admitted Exhibit D when it sought to be tendered. That the question of voluntariness of the statement was not raised by the appellant during trial. That the trial Court attached weight to Exhibit D at the end of the trial when it reached the conclusion that there were other pieces of evidence that corroborated Exhibit D. That the appellant did not object to Exhibit D based on the facts that the appellant does not understand the English Language. He relied on Adelani v. State (2018) 5 NWLR (Pt. 1611) 18 at 41 SC. Moreso counsel canvassed that the trial judge did not wrongfully admit Exhibits B1 – B8 and equally did not solely relied on Exhibits B1 – B8 to prove the death of the deceased person. Rather that the trial Court relied on the testimonies of PW1, PW2

and PW3 who all testified that they saw the corpses of the deceased at the scene of the crime.

On whether the Court was right to place any weight on Exhibits B1 – B8 which are computer generated without a certificate of compliance, counsel posited that the fact that compliance is required to the provisions of Section 84 of the Evidence Act does not mean common sense should be thrown out of the window given the circumstances of this case where the respondent would not be in any position to perform any magic by producing a certificate stating the status of the computer from which Exhibit B1 – B8 was generated since the photographer who made the aforementioned exhibits could no longer be found even after series of efforts to search for him. That Courts have frowned against lavish compliance to the provisions of Section 84 of the Evidence Act. He cited the case of Blaise v. FRN (2017) 6 NWLR (Pt. 1560) 90 CA.

Counsel further stated that it is trite law that a Court is bound to consider every defence stated by an accused no matter how strong or weak it may be. That the trial Court did just that when it thoroughly evaluated the evidence of DW1 – DW4

(See pages 110 – 146 of the record of appeal). He maintained that the evidence of the appellant was robustly considered and evaluated in pages 126 – 129 of the record of appeal. That every aspect of the case including the evidence of PW1, PW2, PW3, DW1, DW2, DW3 & DW4 as well as Exhibits A, B1- B8, C, D, E1, E2, F1 & F2 were thoroughly examined and weighed by the Court.

On the issue of the trial Court not having jurisdiction to entertain this suit as a result of a misnomer in the respondent’s name where it was captured as Commission of police instead of Commissioner of Police, counsel stated that a misnomer has been described as occurring where the natural or legal person actually exists but a wrong name is used to sue. He referred the Court to Emespo Continental v. Corona S. MBH (2006) 11 NWLR (Pt. 991) P. 365 @ 378. That the word ‘commission of police’ in the instant case is a misnomer.

Counsel in the final analysis, submitted that the Appeal Court does not make a habit of interfering with the findings of fact made by a trial Court by substituting its own findings for that of the trial Court except under certain special circumstances.

He relied on Akubuiro v. Mobil Oil (Nig.) Plc (2012) 14 NWLR (Pt. 1319) P. 84, Paras. C – E, Lasisi v. State (2013) 9 NWLR (Pt. 1358) Pp. 95 – 96, Paras. H – B. That the appellant has shown no special circumstance which would warrant this Court to substitute its findings for that of the trial Court who saw and observed the demeanor of the witnesses. He urged the Court to hold that the findings of fact flowed from the evidence accepted by the trial Court and that the decision of Court did not lead to a miscarriage of justice against the appellant.

beyond reasonable doubt.” Bakare v. State (1987) 1 NWLR (Pt. 52) pg. 579.”
In a recent decision of the Supreme Court in Jibrin v. FRN 2018 Okoro, JSC, defined proof beyond reasonable doubt as follows.
“In Bolanle Abeke v. The State (2007) LPELR – 31 (SC) at page 17, Paragraphs D – F, this Court, per Tobi, JSC explained what the term “proof beyond reasonable doubt” means. He stated as follows:- “Reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.” See also Miller v. Minister of Pension (1947) 2 All ER 372, Egharevba v. The State (2016) LPELR-40029 (SC).”

In the instant case, the offences for which the appellant was convicted and sentenced at the lower Court are those of Conspiracy under Section 97 of the Penal Code, Mischief under Section 336 of the Penal Code and that of culpable homicide punishable with death under Section 221 of the Penal Code.

by one or more of the parties in furtherance of the agreement. (iii) Specifically that each of the accused individually participated in the conspiracy.

The prosecution in the discharge of its duty as was conceded to by the parties has options of prove by circumstantial evidence, the confessional evidence and evidence of an eye witness or direct evidence. In this case, the evidence before the Court is that confessional evidence of the appellant and circumstantial evidence. The confessional statement of the appellant Exhibit D was direct admission of the offences charged. The narrative in Exhibit D is corroborated by the evidence of the prosecution witnesses PW1 and PW2 made it certain beyond reasonable doubt that the appellant truly committed the offences charged. The confession of the appellant mentioned the fact that the deceased were cutting the sugar cane of the appellant. The statement mentioned that the appellant used cutlass on the deceased and that they buried the deceased in shallow graves. The appellant led the PW3 to his house where the cutlass was recovered. The PW3 went to the farm and saw the sugar cane farm. The cutlass recovered was tendered

as Exhibit E1 & E2 while the sugar canes were tendered as Exhibits F1 & F2.

In the oral evidence of the appellant (DW4) in the Court, he started setting up an alibi, That he was in Church on the day of the incident and that after Church he went to pray for the sick son of their Senior brother. That after prayers, the sick, named Zephaniah died and he was involved in the burial that day. This defence of alibi was not raised early. It was at the time of his defence in Court that he raised this alibi. This defence means the physical impossibility of the Defendant’s guilt by placing the Defendant in a location other than the scene of crime. The claim of the appellant in his oral defence before the Court is that he is not at the locus delict. See Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Idemudia v. The State (2015) 17 NWLR (Pt. 488) 375; Shehu v. State(2010) LPELR 3041 (SC); Aliyu v. State (2013) LPELR- 20748 (SC), Ude v. State (2016) LPELR-40441 (SC). It is never in doubt that humans as mortals are limited. They cannot be physically present in two places at the same times. In fact, it is believed that it is only the Almighty God who is immanent,

having the ability to be at all the material world at the same time. In the case of Osaro Nomayo v. The State (2018) LPELR- 44729 the Supreme Court per Peter-Odili, JSC, held:
“Following in the path laid out by this Court and followed in numerous judicial decisions, I would restate that the principles guiding the use of alibi as a defence open to an accused such as the appellant herein is not an automatic exculpatory defence such that once raised, the accused gets off. The reasons are that an alibi must be put across timeously or at the first opportunity with details for the prosecution or the police to investigate for the prosecution or the police to investigate to confirm the truth thereof or that the alibi did not hold water. However, that an alibi was raised by an accused and not investigated does not translate to the alibi’s acceptance as gospel if the evidence adduced by the prosecution at the trail effectively fixed or apprehended the accused at the scene of crime at the material time. When that happens the alibi is demolished or destroyed and becomes ineffectual or of no use. I shall refer in support to the case of Monday Odu v. The State (2001)

10 NWLR (Pt. 722) 668 at 674 per Mohammed JSC as follows: …”Although there are occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. I do not have to repeat what this Court had said in several decisions, but the onus of establishing alibi, being a matter within the personal knowledge of an accused lies on him. It is not enough for the accused to say to the Court that I was at a particular place away from the scene of crime, he has to prove his assertion. Even if the police have failed to investigate such assertion, the accused has the onus of adducing evidence on which he relies for his defence of alibi. The issue of the defence of alibi has failed.” See also Hausa v. State (1994) 6 NWLR (Pt. 350) 281 at 301 – 302.
See also State v. Odomo (2018) LPELR- 46339 (SC) and the case of Ezekwe v. State (2018) LPELR-44392 (SC), where Onnoghen, JSC, (as he then was) held:
“On alibi, it is settled law that a defence of alibi, when raised successfully, is a complete

defence to the offence charged. It is a defence that raises doubt as to the identity of the perpetrator of the offence charged, particularly, as it contends that the accused was at the time material to the commission of the offence at a different location from the scene of crime thereby making it physically impossible for the accused to have been the person who committed the alleged offence as it is impractical for a person to be at two different locations at the same time. However, for the defence to apply, it is required of the accused to provide the prosecution/police, at the earliest opportunity, with the details of his movements on the date in question to enable the police/prosecution check the said details. See Obiode v. The State (1970) 1 All NLR 36; Nsofor v. State (2002) 10 NWLR (Pt. 775) 274 etc.”
From these decisions, the defence of alibi are meant to be raised timeously earlier in the case to give the opportunity to the prosecution to clear those doubts raised by the respondent. Any defence of alibi not raised on time is not only deemed to be an afterthought, it will be deemed to be calculated to overreach the prosecution.

In the instant case, the appellant’s alibi is halfhearted and an afterthought.

It is the same thing about issue of interpretation or language raised. The appellant was arraigned; he took his plea. He did not raise any issue of interpretation of proceedings until before us on appeal here before he started raising issues of interpretation and that of fair hearing and not being given opportunity to prepare his defence. It is when the appellant knew he had no defence to this gruesome act of culpable homicide punishable with death that he started to mechanically gamble with statutory defences which he could not proof. In every trial, it is not only essential but is of paramount importance that preliminary issues are raised on time or early in the case before taking any major steps on the proceedings. In the instant case, the issues of lack of interpretation was not raised at the arraignment of the appellant. Even then, the record of appeal shows facts that there was an interpreter steadily for the respondent all through the proceedings of the lower Court. The right of the appellant to fair hearing was not in any way breached in this appeal. That insinuation is not correct.

The lower Court from the record before us was thorough in ensuring that the appellant had the use of interpreter all through the trial.

Furthermore, the appellant raised complaint over the admission of his Confessional Statement Exhibit D and the copies of the photographs Exhibit B1 to B8.
From the record of appeal particularly at page 72 of the Record of Appeal, the Confessional Statement of the appellant was not alleged to be procured through torture or any level of force that would raise the insinuation of involuntariness. The learned counsel for the appellant was recorded at the time of tendering the statement to have raised objections as follows:
Prosecution Counsel – I seek to tender the 2 statement in evidence.
Accused Persons’ Counsel – The accused persons have been shown the statements and they said they did not make the statements. We pray the Court not to admit the document in evidence. On the statement of the 2nd accused person, CPL Jennifer is the one to tender the document and no foundation has been laid for the tendering of the statement by the PW3.
There is no objection as to the voluntariness of the statement of

the appellant. The objection is that the appellant did not make the statement and that there was no foundation laid for the tendering of the statement. In the case of Ehot v. State (1993) 4 NWLR (Pt. 290) 644, the Supreme Court held:
“In a long line of cases, this Court has explained this position and an accused person alleging that he did not make a statement should not be under an illusion that non est factum amounts to involuntariness. (R v. lgwe (1960) 5 FSC 55; (1960) SCNLR 158; Godwin Ikpasa v. Bendel State (1981) 9 SC. 7, 28; Obidiozo & Ors. v. The State (1987) 4 NWLR (Pt. 67) 748, 761).”
The denial of the appellant that he did not make the Statement Exhibit D therefore, has nothing to do with admissibility of the Statement. The learned trial judge was therefore, very correct when he admitted the confessional statement Exhibit D and relied on it.

On Exhibit E1 – E8 which were the photographs, the allegation was that they were admitted in error being computer generated documents. Let me explain briefly here that by Section 258 of the Evidence Act, 2011, “Documents” include books, maps, plans, drawings, photographs and also includes

any matter expresses or described upon any substance by means of letter, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.
When a document is sought to be admitted, the primary consideration is whether it is relevant. The photographs were taken for purposes of identification and to corroborate the fact that the deceased died as alleged. In the instant case, the issue of death of the deceased was well splashed and known in the community. The nature of death was such that they had to be exhumed from their shallow graves for the photographs to be shot of them. These photos are not only relevant, they are of high probative value. These photographs Exhibit E – E8 were necessary and the lower Court correctly accepted them as Exhibits. One cannot see any fault in the admission of Exhibits E to E8 in this case.

The appellant made elaborate argument on whether there was proper evaluation. Evaluation of evidence has been settled to be the primary duty of the trial Court. See the cases of Lafia Local Government v. The Executive Governor Nasarawa State & Ors (2012) 17 NWLR

(Pt. 1328) 94;Agbabiaka v. Saibu & Ors (1998) LPELR – 222 (SC).

The trial Court has the duty to determine cases accordingly to facts alleged and proved. The ingredient of the offence charged must be proved as required beyond reasonable doubt and to the satisfaction of the Court.
By virtue of Section 221 of the Penal Code, the three ingredients of the offence of culpable homicide which must be proved in order to secure a conviction are:
(a) that the deceased died;
(b) that his death was caused by the accused;
(c) that the accused intended to either kill the victim or cause him grievous bodily harm.
The presence of these facts conjunctively is what proves murder. In every case where it is alleged that death has resulted from the act of a person, a link between the death and the act must be established and proved beyond reasonable doubt. In the course of event the cause of death must just be proved. Where the cause of death is ascertained the nexus between the cause of death and the act or omission of the accused alleged to have caused it must be established. These are factual questions to be answered by the consideration

of the evidence. In our adversarial system of criminal justice, the prosecution must prove its case beyond reasonable doubt with vital and relevant evidence it can produce. In the process it must also produce vital witnesses to testify for the prosecution. Before a trial Court comes to the conclusion that an offence has been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the acts of the accused complained of come within the confines of the particulars of the offence charged. See the cases of State v. Isah (2019) 1 NWLR (Pt. 1652) 139, Saleh v. State (2019) 8 NWLR (Pt. 1675) 416. In the instant case, the evidence before the Court was direct and certain of how the appellant used cutlass to hack down the deceased. It was clear that the deceased died on the spot and the appellant went further to bury the deceased in a shallow grave to conceal the offence committed. The lower Court evaluated the evidence before it before he arrived at the guilt, the conviction and the sentence of the appellant.

From the foregoing therefore, these issues are resolved in favour of the respondent.

I am invariably of the firm view that this appeal is lacking in merit. The appeal is dismissed. The judgment of the lower Court in suit No: FCT/HC/CR/64/2013, delivered on 4th of July, 2017, is hereby affirmed.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother, STEPHEN JONAH ADAH, JCA, dismissing the appeal.

The learned trial Court rightly received and believed the evidence of the Prosecution witnesses and the confessional statement of the Appellant. The Appellant objected to the admissibility of his confessional statement (Exhibit D) at the trial stating that it is not his statement. In his argument, the Appellant placed heavy reliance on the retracted confessional statement of the Appellant stating that it ought to be expunged from the Records. This submission is of no moment because it is settled that the retraction of a confessional statement does not affect its admissibility, it only affects the weight to be attached to the statement. The Apex Court stated this principle in the case of ADEKOYA V. STATE (2012). LPELR- 7815 (SC) thus;
”A denial or retraction of a confessional statement

is a matter to be taken into consideration to decide what weight could be attached to it. See Dibie v. State (2007) (pt.1038) pg.30. Ukpong v. Queen (No.1) (1961) 1 SCNLR pg.53.” Per ADEKEYE, J.S.C.
In order to determine the weight to be attached to a retracted confessional statement, the learned trial Court ought to conduct a six (6) way test which was succinctly outlined by the Apex Court in the case of ALAO V. STATE (2019) LPELR- 47856 (SC) thus;
“It is trite law that a confessional statement made by an accused person, which is properly admitted in evidence is, in law, the best pointer to the truth of the role played by such accused person in the Commission of the offence. See Oseni v State (2012) 5 NWLR (pt. 1293) 351, FRN v. Iweka & Ors 3 NWLR (pt. 1341) 285. The retraction of a Confessional statement does not render confession inadmissible. The fact that an accused person denies making a confessional statement to the police, does not render such extra judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional

statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The Confession is consistent with the other facts ascertained and proved at the trial. See Osetola v State (2012) 17 NWLR (pt 1329) 251 at page 278: Dawa v State (1980) 8-11 SC 236.” Per OKORO, J.S.C. (Emphasis Supplied).

The trial Court found evidence outside of the Appellant’s confessional statement which establishes the truth and credibility of the confessional statement. These evidence include the testimony of PW1-PW3, the cutlasses (Exhibits E1 and E2) used in killing the deceased persons, the burnt Jincheng motorcycle, the photographs of the deceased persons and the shallow graves (Exhibits B2, B3, B4 and B8). The finding by the learned trial Judge based on the application of the six way test is at page 131-138 of the Records.

I too hereby dismiss this appeal as lacking in merit. The decision of the learned trial Court Coram Sylvanus C. Oriji, J., of the High Court of the FCT, delivered on the 4th of July, 2017 is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, STEPHEN JONAH ADAH JCA and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment. My Lord captured the essence of the trial Court’s evaluation and decision arrived at. I have nothing more to add.
I too dismiss the appeal for lacking in merit.

Appearances:

ADEOLU SALAKO, ESQ., with him, AKINTUNDE AJAYI, ESQ. For Appellant(s)

CHINYERE MONEME, ESQ., with him, JOY ESABA, ESQ. For Respondent(s)