UMAR v. STATE & ANOR
(2020)LCN/15727(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, July 28, 2020
CA/G/263/C/2019
Before Our Lordships:
JummaiHannatu Sankey Justice of the Court of Appeal
ElfriedaOluwayemisi Williams-Dawodu Justice of the Court of Appeal
James GamboAbundaga Justice of the Court of Appeal
Between
IBRAHIM UMAR APPELANT(S)
And
1. THE STATE 2. IBRAHIM ABUBAKAR RESPONDENT(S)
RATIO:
NO PARTICULAR FORMAT FOR JUDGMENT AND THE RIGHT OF FAIR HEARING
Judgment writing is no doubt a fine art, a creative activity, a prowess, and there is more than one way of going about it. In fact, it is possible to have as many variations/styles as there are Judges. However, what is important is that all evidence adduced must be considered. There is certainly no constitutional or statutory requirement for a particular format. See Onuoha V State (1988) 3 NWLR (Pt. 83) 460, 464; Adamu V State (1991) 6 SCNJ 23, 140 In particular, in the case of Orugbo V Una (2002) 16 NWLR (Pt. 792) 175, 211, Tobi, JSC in his inimitable way, exhorted Counsel on their frequency in brandishing the right of fair hearing in any and every situation, whether merited or not, in these words:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in theinterest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle, which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”; Awopejo V State (2001) 12 SCNJ 293, 302; Usiobaifo V Usubaifo (2005) 6 SCNJ 83, 94; Ndukwe V State (2009) LPELR-1979(SC) 55-56, G-C. JUMMAI HANNATU SANKEY, J.C.A.
NO RULES OR LAW LAID DOWN ON HOW TO WRITE A JUDGMENT
Thus, the settled practice is that since no rule or law lays down for a Judge how to write a Judgment, no two Judges can write the same way. Judgment writing is therefore a matter of style and every Judge is entitled to write in the way that best suits him. What is important is that a just conclusion is arrived at from a proper consideration of the facts presented, a logical reasoning and a proper application of the applicable law. JUMMAI HANNATU SANKEY, J.C.A.
WHAT IS IMPORTANT IS CLARITY IN THE LANGUAGE IN WHICH THE JUDGMENT IS WRITTEN AND DELIVERED
Yet it is not infrequent that you find different judges with different styles of writing judgment. Whichever style a judge adopts, what is important is clarity in the language in which the judgment is written and delivered and that justice should be seen by all to have been done to the parties in dispute. See Oyedele V State (2019) LPELR-47576(SC) 23-25 per Peter-Odili, JSC; Ishola V Folorunsho (2010) 13 NWLR (Pt. 1210) 169 at 195, per Muhammad JSC.
From a proper consideration of the form and contents of the Judgment of the lower Court in the instant case, it is my view that the learned trial Judge acted within the confines of what a Judgment should comprise of, notwithstanding that the Judgment is quite brief. The criticisms of the Appellant however cannot detract from it, if it is found that the prosecution discharged its duty of proof beyond reasonable doubt of the offences charged. JUMMAI HANNATU SANKEY, J.C.A.
AN ACCUSED PERSON CAN BE CONVICTED ON HIS RETRACTED CONFESSIONAL STATEMENT
The law is trite that a Court can convict an accused person on his retracted confessional statement. However, it is safer to find some evidence outside the confession which makes it likely that the confession is true. This quality of evidence can be found in the form of direct evidence comprising of the eyewitness testimony of PW4. Therefore, based on the confessional statement, albeit retracted, the eyewitness evidence of PW4 and the circumstantial evidence adduced in the trial as reflected in the evidence of PW1 and PW2 as well as PW3, PW5 and PW6, there was sufficient evidence upon which the trial Court based the conviction of the Appellant for the offences. JUMMAI HANNATU SANKEY, J.C.A.
A CONFESSIONAL STATEMENT WITHOUT CORROBORATION IS STILL RELEVANT
However, even without corroboration, the law is that a confessional statement, once not impeached by failure to prove any vitiating factor, is relevant and even standing alone, can secure a conviction no matter how weighty the charge – Theophilus V State (1996) 1 SCNJ 79. In Solola V State (2005) ALL FWLR (Pt. 269) 1751, 1782, the Supreme Court further endorsed the expansion of the frontiers of the weightiness of a confessional statement in the words of Tobi, JSC thus:
“A confessional statement is the best evidence inour criminal procedure. It is a statement of admission of guilt by the accused and the Court must admit it in evidence, unless it is contested at the trial… Once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.” (Emphasis supplied) JUMMAI HANNATU SANKEY, J.C.A.
A COURT CAN CONVICT SOLELY ON THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
In the case of Adeyemi vs. State (2013) LPELR-20337 (SC), the apex Court held:
“… It is trite law that a trial Court can convict solely on the Confessional Statement of an accused person.” per Onnoghen, JSC (p. 11 para B).
See also Saliu vs. State (2014) LPELR-22998 (SC) per Onnoghen, JSC (p. 19 Para C). The appellant at the trial Court retracted his Confessional Statement. In a situation such as this, the apex Court in the case of AsuquoOkonAsuquo vs. The State (2016) LPELR-40597 (SC) held:
“It is well settled that an accused can be safely convicted on his retracted Confessional Statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted Confessional Statement, there should be corroborative evidence outside the confession which could make it probable that the confession was true. See Uluebeka vs. The State (2000) 7 NWLR (Pt. 565) 41; Okoh vs. The State (2014) 8 NWLR (Pt. 1410) 502.” Per Aka’ahs, JSC (p. 13 paras B – E). JAMES GAMBO ABUNDAGA, J.C.A
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is a sister Appeal to Appeal No. CA/G/264/C/2019, between Ibrahim Abubakar V (1) The State and (2) Ibrahim Umar. Both the Appellant and Ibrahim Abubakar were charged before the High Court of Gombe State in Case No. GM/20C/2018 for the same offences in respect of the same incident. They were tried together before the same Court, represented by the same Counsel and at the end of the trial, they were both found guilty and sentenced to death. Dissatisfied with the Judgment, both accused persons filed separate Appeals to this Court with identical grounds of Appeal. The Records of Appeal transmitted to this Court for both Appeals are the same. In addition, the issues crafted for determination by the parties are the same, as well as the submissions of learned Counsel on both sides. The differences in the two Appeals lie only in the names of the parties, the respective Appeal numbers and the fact that the confessional statements of the Appellant, Exhibits BU and BU2 in this Appeal, are Exhibits BA and BA2 in the sister Appeal.
This Appeal is against the Judgment of the High Court of Justiceof Gombe State delivered on December 18, 2018 by Mohammed, J., wherein the Appellant was convicted on a two-count charge of criminal conspiracy contrary to Section 97 of the Penal Code and culpable homicide punishable with death contrary to Section 221 of the Penal Code. As a result, he was sentenced to death by hanging.
The brief facts leading to the Appeal are set out hereunder:
The Appellant was arraigned before the trial High Court along with the 2nd Respondent and other persons at large on a two-count charge for the offences of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 221 respectively of the Penal Code. The charge at pages 6 to 7 of the printed Record states as follows –
“COUNT ONE
That you [1] Ibrahim Abubakar and [2] Ibrahim Umar together with Bello alias Ascal, Auwalu Chanister, Yahaya alias Gabi, Aminu Shayi and Michael alias Soccer [now at large] on or about the 25th day of April, 2017 at Mallam Inna Quarters Gombe State Judicial Division agreed to do an illegal act to wit: Culpable Homicide and in pursuance of the said agreement, while armed with a Pestle and Sticks, you attacked one Muhammadu Usman on his way back from the mosque and beat him which resulted to his death on the spot. You thereby committed an offence contrary to Section 96 and punishable under Section 97 of the Penal Code and triable by this Court.
COUNT TWO
That you [1] Ibrahim Abubakar and [2] Ibrahim Umar together with Bello alias Ascal, Auwalu Chanister, Yahaya alias Gabi, Aminu Shayi and Michael alias Soccer [now at large] on or about the 25th day of April 2017 at Mallam Inna Quarters Gombe State Judicial Division committed the offence of Culpable Homicide Punishable with Death, in that while armed with a Pestle and Sticks, you caused the death of one Muhammadu Usman by hitting him with the Pestle on his head and various parts of his body, with knowledge that death would be the probable consequence of your act. And you thereby committed an offence punishable under Section 221 of the Penal Code and triable by this Court.” (Emphasis supplied)
The Appellant pleaded not guilty. In proof of the charge, the 1st Respondent adduced evidence through six witnesses and 10 Exhibits. In his defence, the Appellant also adduced evidence through six witnesses, himself inclusive as DW5. At the close of evidence and final addresses of Counsel for the respective parties, the learned trial Judge found the Appellant guilty as charged, convicted him and sentenced him the death by hanging. Dissatisfied, the Appellant filed a Notice of Appeal on March 18, 2019 containing five grounds, which however was subsequently amended by an Amended Notice of Appeal wherein he complained on seven grounds filed on December 5, 2019. It is upon this Amended Notice that the Appeal is now predicated.
At the hearing of the Appeal on 22-06-20, Adedayo Adesina Esq., learned Counsel for the Appellant adopted the Appellant’s Brief of argument filed on 09-12-19 and deemed filed on 28-05-20, as well as the Appellant’s Reply Brief of argument filed on 11-06-20, both Briefs of argument settled by Adedayo Adesina Esq., in urging the Court to allow the Appeal. Similarly, Abdussalam Muhammad Esq., the Acting DPP with the Ministry of Justice of Gombe State adopted the 1st Respondent’s Brief of argument filed on 09-06-20 and settled by Zubair Muhammad Umar Esq., Attorney-General of Gombe State, in urging the Court to dismiss the Appeal for lacking in merit.
Even though the 2nd Respondent was duly served all the processes of Court as well as a hearing notice, he was neither in Court nor did he file any response to the Appeal, nor was he represented by Counsel. It is however noted that he filed a separate Appeal which was heard simultaneously with this Appeal on the same day.
Learned Counsel for the Appellant in his Brief of argument, distilled two issues for the determination of the Appeal by this Court from the seven grounds of appeal as follows:
i. “Whether the failure of the lower Court to evaluate the evidence adduced by the prosecution and defences witnesses and making clear findings on same did not breach the Appellant’s right to fair hearing, thereby occasioning a miscarriage of justice against the Appellant. (Grounds 5, 6 and 7)
ii. Whether having regard to the totality of the evidence adduced by the prosecution before the trial Court, a case of criminal conspiracy and culpable homicide punishable with death was established against the Appellant to warrant his conviction. (Grounds 1, 2, 3 and 4).”
On his part, the 1stRespondent also formulated the following two issues for determination by the Court:
1. “Whether the lower Court was right when it relied on the retracted confessional statements of the Appellant admitted as Exhibits BU and BU2 to convict the Appellant for the offences of criminal conspiracy to commit culpable homicide and culpable homicide punishable with death. (Grounds 1,2,3 and 4)
2. Whether the learned lower Court has rightly evaluated the evidence adduced by the prosecution and defence before making findings on same and whether, if there is failure to do so, the Appellant’s right to fair hearing was breached (Grounds 5, 6 and 7).”
I have examined the two sets of issues vis-a-vis the grounds of appeal and I am of the opinion that the issues crafted by the Appellant best embody and capture the complaints contained in the grounds. I therefore adopt them in the determination of the Appeal.
ARGUMENTS
Issue one – Whether the failure of the lower Court to evaluate the evidence adduced by the prosecution and defences witnesses and making clear findings on same did not breach the Appellant’s right to fair hearing, thereby occasioning a miscarriage of justice against the Appellant.
The contention of learned Counsel for the Appellant under this issue is that the lower Court in its Judgment failed to evaluate the evidence led at the trial Court and make clear findings on them, which omission/failure occasioned a miscarriage of justice – Ikumonihan V State (2014) 2 NWLR (Pt. 1392) 564; Joseph V State (2011) 16 NWLR (Pt. 1273) 226, 242.
Referring to the Judgment of the trial Court, Counsel submits that the learned trial Judge did not evaluate the evidence of the six witnesses called by the prosecution and the six witnesses who testified on behalf of the Appellant and the 2nd Respondent, as well as the Exhibits tendered. Instead, all it considered before arriving at the conclusion to convict the Appellant was the submissions of Counsel. Counsel submits that this is contrary to the requirement of the law – State V Onyeukwu (2004) 14 NWLR (Pt. 893) 340, 380. Counsel submits that the duty of the trial Court is to consider and evaluate the evidence of the prosecution and defence, and not to peruse and consider the submissions of Counsel because no matter how ingenious or brilliant the submissions of Counsel, it cannot substitute evidence – Airtel Networks Ltd V George (2015) 4 NWLR (Pt. 1448) 60, 87; Buhari V INEC (2008) 4 NWLR (Pt. 1078) 546; 630.
Counsel contends that as a result of this failure, the Judgment of the trial Court fell short of the requirements of what a Judgment should contain. Reliance is placed on Section 269(1) of the Criminal Procedure Code as well as Onuoha V State (1988) 3 NWLR (Pt. 83) 463; Stephen V State (1986) (Pt. 46) 978, 1005 per Oputa, JSC. Counsel submits that the failure of the trial Court to give consideration to the evidence led by both parties amounted not only to an abdication of judicial duty but also occasioned a grave miscarriage of justice, which has thus vitiated the Judgment – Lagga V Sarhuna (2008) 16 NWLR (Pt. 114) 427, 461; Aigbe V State (1976) NSCC 487, 492.
Secondly, Counsel relies on Section 6(6) and 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to submit that the lower Court breached the Appellant’s right to fair hearing when it deprived the Appellant of a fair determination of the case for its failure to consider the evidence led at the trial Court before convicting him for the offences charged. This failure constitutes a breach of the right to fair hearing, therefore the conviction of the Appellant amounts to a nullity – Salu V Egeibon (1994) 6 NWLR (Pt. 348) 23, 44; Ndukauba V Kolomo (2005) 4 NWLR (Pt. 915) 411, 431; Okafor V AG Anambra State (1991) 6 NWLR (Pt. 200) 659, 67-679. Finally, Counsel urged the Court to resolve issue one in favour of the Appellant.
In response, learned Counsel for the Respondent submits that it is not enough for a party to merely allege that his right to fair hearing was breached. He has a legal duty to show from the Record of the trial that the right was indeed breached in the course of proceedings -Ejeka V State (2003) LPELR-1061(SC) 13, A-D per Tobi, JSC; Adeyemi V State (2011) 5 NWLR (Pt. 1239) 1; Tetrazzini Foods Ltd V Abbacon Inv. Ltd (2015) LPELR-25007(CA) 45, A-E.
Counsel submits that the learned trial Judge made considered efforts in analyzing the issues and arriving at his decision. In this regard, he argues that there is no specific style of writing judgments and the learned trial Judge was very specific in his findings and conclusions – Garuba V Yahaya (2007) LPELR-131(SC); Onuoha V State (1988) 3 NWLR (Pt. 83) 460.
Counsel submits that Judges differ in the procedure and style they adopt in the consideration of the evidence. What is important is that a Judge should put the whole evidence of the parties on an imaginary scale, weigh them and find out which is heavier by the quality and or probative value of the testimonies, as against the quantity or the number of witnesses. Then the Judge applies the law, if any, before he comes to a final conclusion based on the accepted evidence -Idakwo V Nigerian Army (2004) 2 NWLR (Pt. 857) 268 per Odili, JCA (as she then was); Jekpe V Alokwe (2001) LPELR-1604(SC); Uchendu V Ogboni (1999) 5 NWLR (Pt. 603) 337, 363. Counsel therefore urged the Court to dismiss the Appeal in its entirety and affirm the Judgment of the trial Court.
RESOLUTION OF ISSUE ONE
Judgment writing is no doubt a fine art, a creative activity, a prowess, and there is more than one way of going about it. In fact, it is possible to have as many variations/styles as there are Judges. However, what is important is that all evidence adduced must beconsidered. There is certainly no constitutional or statutory requirement for a particular format. SeeOnuoha V State (1988) 3 NWLR (Pt. 83) 460, 464; Adamu V State (1991) 6 SCNJ 23, 140; Awopejo V State (2001) 12 SCNJ 293, 302; Usiobaifo V Usubaifo (2005) 6 SCNJ 83, 94; Ndukwe V State (2009) LPELR-1979(SC) 55-56, G-C.
Thus, the settled practice is that since no rule or law lays down for a Judge how to write a Judgment, no two Judges can write the same way. Judgment writing is therefore a matter of style and every Judge is entitled to write in the way that best suits him. What is important is that a just conclusion is arrived at from a proper consideration of the facts presented, a logical reasoning and a proper application of the applicable law.
Nevertheless, it is generally agreed that a good Judgment should have certain rudimentary attributes such as:
(a) Making a brief statement of the type of action/office being adjudicated upon;
(b) Setting out the claim/offence in full or in part;
(c) A review of the evidence led;
(d) Appraisal/evaluation of such evidence;
(e) Making findings of fact therefrom;
(f) Consideration of legal submission made and/or arising, and findings of law on them; and
(g) Conclusion, that is the verdict/final decision/order(s).
Yet it is not infrequent that you find different judges with different styles of writing judgment. Whichever style a judge adopts, what is important is clarity in the language in which the judgment is written and delivered and that justice should be seen by all to have been done to the parties in dispute. See Oyedele V State (2019) LPELR-47576(SC) 23-25 per Peter-Odili, JSC; Ishola V Folorunsho (2010) 13 NWLR (Pt. 1210) 169 at 195, per Muhammad JSC.
From a proper consideration of the form and contents of the Judgment of the lower Court in the instant case, it is my view that the learned trial Judge acted within the confines of what a Judgment should comprise of, notwithstanding that the Judgment is quite brief. The criticisms of the Appellant however cannot detract from it, if it is found that the prosecution discharged its duty of proof beyond reasonable doubt of the offences charged.
Actually, the general trend of the decisions of appellate Courts leans towards ensuring substantial justice as opposed to technical justice in respect of the form of a Judgment as there is no straitjacketed approach. This is due to the latitude Judges are given on the issue of the style of writing Judgments. While some Judges have a flair for writing and engage in voluminous expressions, others are more reticent and employ few words in getting the same job done. Once it can be seen from the Judgment that the evidence adduced before the trial Court from both parties was duly considered, proper evaluation and ascription of value to the evidence is carried out, the applicable law is applied and correct conclusions reached, an appellate Court will be reluctant to interfere just because the style of writing the Judgment is eccentric/unconventional/unorthodox or does not accord with another individual’s expectation of how he should have written the Judgment. What I’m trying to say is that while the Judgment could have been better written in Counsel’s opinion, as long as it accords with the demands of justice in that the Judge gave due consideration to the essentials of good Judgment i.e. (i) the consideration and evaluation of the evidence, (ii) the application of theapplicable law to the facts and (iii) conclusions arrived at, it will not, simply for the sake of an untoward style adopted, be set aside. It is in the light of the above guidance that I have examined the Judgment of the trial Court which is contained at pages 74-77 of the printed Record.
It is apparent that the trial Court made specific findings of facts in respect of the death of the deceased and the acts of the Appellant which, cumulatively with the acts of the other persons, led to the death of the deceased. Some portions of the evaluation and specific findings of the trial Court are at page 75 of the Record and are reproduced as follows:
“To prove the offence of conspiracy under Section 97 P.C. the following ingredients must be established:
That two or more persons have entered into an agreement to do or commit an illegal act.
That two or more persons have agreed to cause to be done an illegal act.
Two or more persons have agreed to do an act which is not illegal but by illegal means.
In proving the offence of conspiracy existence of an agreement to commit an offence must be established by the prosecution such agreements are usually inferred from the circumstances of each particular (sic). This makes it difficult to establish justify (sic) because they are covertly discussed.
In this case however from the confessional statement of the accused persons and the manner the assailants singled out the deceased person for attack out of a number of people it is clear that the assailants had earlier made an agreement to attack the deceased.”
In respect of count two of the charge for culpable homicide punishable with death, this is what the trial Court had to say (page 75 of the Record):
“To prove the offence of culpable homicide under S. 221 of the P.C. the prosecution must prove the following ingredients.
1. That the death of a human being has occurred
2. That the said death resulted from the acts of the accused persons.
3. That the accused person intended to kill the deceased or he knew that his act will result in the death of the deceased.”
In respect of this count of charge, the trial Judge thereafter proceeded to apply the facts before it specifically with reference to the ingredients stated therein. He found for a fact that the death of the deceased had been proved, found that the confessional statement of the Appellant in conjunction with the sworn testimony of the PW4, the medical evidence and the evidence of all the other five witnesses constituted abundant evidence to prove that the act of the Appellant and others caused the death of the deceased.
After that the trial Judge considered and evaluated the evidence of the Appellant and the defence witnesses, DW1 to DW6 and made the following findings (at page 77 of the Record):
“The evidence of the DW5 and DW6 were ambivalent contradictory and unreliable.
From the demeanour of the DW1 to DW4 and their evidence in Court it appeared that their testimonies were carefully connected and tailored to favour the accused person when they claimed not to have seen (sic) on the scene of the incidence but rather put the whole blame on one Michael also an accused person now at large. In the fact (sic) of the overwhelming evidence adduced by the prosecution against the accused person the evidence adduced by the defence can be said to be totally unbelievable.”
These are the perceptions and clearfindings made by the trial Judge who had the opportunity to see and hear the witnesses testify, and they are in consonance with the evidence adduced before the Court, both by the prosecution and by the Appellant himself in his confessional statement, Exhibits BU and BU2.
From all the above, it is undeniable that consideration was given to the evidence adduced by the respective parties and same was evaluated by the learned trial Judge who also made findings thereon. To say that it could have been more detailed does not detract from the fact that the Judgment was in consonance with the expectations of the law set down through a line of decided cases. It cannot therefore be jettisoned on account of its brevity which is attributable to the style of the learned trial Judge.
One other grouse of the Appellant in his Brief of argument is that the learned trial Judge did not state expressly that he had considered the evidence adduced before the Court, but only said he had considered the submissions of Counsel (page 75 of the Record). While it may be the general practice for Judges to state expressly in so many words that the evidence was considered before they go on to actually consider the evidence, where such a statement is omitted but the trial Judge actually proceeds to embark upon a consideration of the evidence as well as the submissions of Counsel, without necessarily repeating them in the body of the Judgment, unless the Appellant shows that a miscarriage of justice is occasioned thereby by his simply failing to say those words, the trial will not be vitiated merely on this account.
This is more so that the submissions of both learned Counsel in their respective final addresses (at pages 27 to 34 and pages 35 to 47 of the Record) which the learned trial Judge referred to as having been perused and considered, dwelt extensively on the evidence adduced before the Court and the law applicable to the facts and circumstances of the case. Thereafter, the learned trial Judge (1) set out each of the offences charged i.e. criminal conspiracy and culpable homicide punishable with death, (2) the ingredients to be proved by the prosecution in proof of each count of charge and (3) the evidence offered in proof of the counts of charge and how he considered that they had been proved. The evaluation the evidence by the learned trial Judge at pages 75-77 has been set out earlier in the body of this Judgment.
From this evaluation, it is evident that the learned trial Judge placed premium weight on the confessional statement of the Appellant – Exhibits BU and BU2, the sworn evidence of PW4 – the 13 year old daughter of the deceased who was an eyewitness to the killing of her father, as well as on the postmortem report of the deceased – Exhibit MU, in respect of which the doctor who performed the autopsy, PW5, testified to throw more light on the nature of injuries sustained by the deceased which led to his death. In addition, at page 77 of the Record, the trial Judge considered the defence presented through the DW1-DW6 and gave reasons why he jettisoned the Appellant’s defence.
From all the above, it is evident contrary to the submissions of Counsel, that the learned trial Judge did evaluate the evidence adduced before him, albeit in a very reticent, taciturn and concise manner. He certainly cannot be accused of being verbose and/or voluble. As was stated by the Supreme Court in Ishola V Folorunsho (supra), styles of Judgment writing differ, whereas some Judges are of very few words, some are verbose and some are in-between. This does not however detract from the fact that the essentials of a good Judgment are embodied therein. Therefore, I am unable to agree with learned Counsel for the Appellant that the learned trial Judge failed to evaluate the evidence adduced in the case, ascribe value thereto and make findings thereon. He did.
For this reason therefore, the assertion that the right to fair hearing of the Appellant was breached is not borne out. It must however be reiterated that fair hearing is not a magic wand to be waved about as a trump card by Counsel in any and every situation to serve as an anchor in a stormy sea. Section 36(1) of the Constitution (supra) provides –
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
In this case, the Appellant has failed to show how his right to fairhearing under Section 36(1) was breached. Hence, Counsel should heed the several admonitions by the Supreme Court that the doctrine of fair hearing as enshrined in Section 36(1) of the Constitution (supra) should cease to be abused by both litigants and Counsel just because a party is struggling to make out a case. SeeAdeyemi V State (2011) 5 NWLR (Pt. 1239) 1; Inakoju V Adeleke (2007) LPELR-1510(SC) 231, per Ogbuagu, JSC; &MM Services Ltd V Oteju (2005) 5 SCNJ 100, 117, 118-119; (2005) 14 NWLR (Pt. 945) 517, per Tobi, JSC and Edozie, JSC; Ejeka V State (2003) LPELR-1061(SC) 13, A-D.
In particular, in the case of Orugbo V Una (2002) 16 NWLR (Pt. 792) 175, 211, Tobi, JSC in his inimitable way, exhorted Counsel on their frequency in brandishing the right of fair hearing in any and every situation, whether merited or not, in these words:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle, which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
The facts of this case certainly do not support the invocation of the principle of fair hearing in favour of the Appellant because the Appellant has not been able to substantiate how the style in which the Judgment was written infringed upon the twin principles/pillars of fair hearing implicit in Section 36 of the Constitution (supra), to wit: Nemo judex in causa sua and Audi alterem partem. This issue accordingly fails and is resolved against the Appellant.
Issue two – Whether having regard to the totality of the evidence adduced by the prosecution before the trial Court, a case of criminal conspiracy and culpable homicide punishable with death was established against the Appellant to warrant his conviction.
Learned Counsel for the Appellant submits that the 1st Respondent failed to prove the two-count charge against the Appellant. He submits that the trial Court relied on the sworn evidence of PW4, a child of 13 years old, and then used the confessional statement of the Appellant, the medical evidence and the evidence of five other witnesses as corroboration for PW4’s evidence.
Relying on Section 209(1) of the Evidence Act, 2011 Counsel submits that the evidence of PW4 is inadmissible as she could not have given sworn evidence, either on oath or by affirmation. He submits that the legal effect of non-compliance with this provision of law is not a mere irregularity that can be waived, but is a fundamental irregularity which renders her evidence worthless -Sambo V State (1993) 6 NWLR (Pt. 300) 399, 419; Siwobi V COP (1997) 1 NWLR (Pt. 482) 411, 425-426.
Counsel further submits that the PW4, being the star witness, once her evidence is expunged from the Record, there is nothing left to sustain the conviction because the confessional statements of the Appellant were not subjected to the tests laid down inR V Sykes (1913) 8 CAR 233. While conceding that the confessional statement of an accused person which is direct, positive and unequivocal may be sufficient to anchor a conviction without any corroborative evidence, Counsel submits that it is desirable to find some independent evidence which tends to support the confession and make it more likely that it is true – Okoh V State (2014) 8 NWLR (Pt. 1410) 502, 526.
In addition, Counsel submits that whereas the trial Court held that the statements were admitted without objection, the Appellant raised an objection at the point of tendering Exhibits BA, BA2, BU and BU2 on the ground that the witnesses were not the makers. Therefore, the finding of the Court thereon showed a lack of understanding of the Appellant’s case, which misconception led the trial Court to fail to apply the tests to the statements. He also submits that there was also no corroboration of the Appellant’s confessional statement, apart from the evidence of PW4, since the evidence of other witnesses was hearsay – State V Gwangwan (2015) 13 NWLR(Pt. 1477) 600,626; Uwa V State (2015) 4 NWLR (Pt. 1450) 438, 474.
In respect of the offence of conspiracy, Counsel adopted his submissions in respect of on the conviction for culpable homicide and contends that the trial Judge did not state the circumstances from which he inferred conspiracy. Counsel also submits that since the confessional statement was retracted by the Appellant, the lower Court ought to have applied the mandatory test to establish its veracity before it placed reliance on it to convict the Appellant – Bako V State (2018) LPELR-44479(CA). He finally urged the Court to resolve this issue in favour of the Appellant, allow the Appeal, quash the conviction, acquit him of the charge and set aside the sentence of death.
In response, learned Counsel for the 1st Respondent submits that the trial Court held that the confessional statements of the accused persons were voluntary, unequivocal, direct and positive, and were admitted in evidence without objection. Relying on Oche V State (2007) 5 NWLR (Pt. 1027) 214, 235, A-C, Counsel submits that the fact that the confession was subsequently retracted, is immaterial. Besides which the trial Court did not rely solely on the confessional statement to convict the Appellant, even though it was entitled to do so. From the Record of Appeal, the veracity of the confessional statements were established by Exhibits A2, A2(S), BA, BA2, BU and BU2, as well as the evidence of PW4, PW2 and PW5 which showed that the confession of the Appellant was true. Counsel further submits that Exhibits A, A1, MU and MU2 (the photographs of the corpse, the postmortem report and the pestle) corroborated Exhibits A2 and A2(S),BA, BA2, BU and BU2 (the confessional statements of the 1st accused and the Appellant). He therefore submits that from the Record, all the necessary steps in R V Sykes (supra) were satisfied for the purpose of testing the veracity of Exhibits A2, A2(S), BA, BU and BU2. Consequently, that the trial Court was right when it convicted the Appellant.
On the submissions of the Appellant in respect of the evidence of a minor, PW4, Counsel submits that a child can give sworn evidence when certain tests have been conducted on such a child – Okon V State (1988) LPELR-2472(SC). He refers to page 76 lines 10-19 of the Supplementary Record to submit that the learned trial Judge found PW4 a competent and reliable eyewitness. He submits that Section 155(1) of the Evidence Act, 2011 empowers and supports such a witness and does not disqualify PW4’s already admitted evidence. That even though independent corroborative evidence is needed in admitting the evidence of a child, it does not render such evidence inadmissible.
In a brief reply on point of law, Counsel for the Appellant submits that Section 155(1) of the Evidence Act Cap E14 Laws of the Federation of Nigeria, 2004 was repealed by Section 257 of the Evidence Act, 2011 which repealed the Evidence Act Cap E14 LFN, 2004.
RESOLUTION OF ISSUE TWO
From the Judgment of the trial Court, there is no gainsaying that the learned trial Court relied in the main on the eyewitness evidence of the PW4 in conjunction with the evidence of the other five prosecution witnesses, as well as the confessional statement of the Appellant, Exhibits BU and BU2 and the postmortem report on the deceased, Exhibit MU, in convicting the Appellant for the offences of criminal conspiracy and culpable homicide punishable with death.
Firstly, the contention of the Appellant is that by Section 209, a child under the age of 14 cannot in law give sworn testimony. In other words, that the evidence of PW4 must conform with Section 209(1) of the Act (supra) which provides:
“209 (1) In any proceedings in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.”
However, before this provision, Section 175(1) of the Act also provides:
“175 (1) All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
Thus, Section 175(1) (supra) makes every person competent to testify subject to any obstacle or impediment that can militate against any person from understandingquestions put to him or her by reason of the said witness being a minor, being of extremely old age, suffering from disease, whether of body or mind. Although the witness in this matter was a minor at the time she testified on oath, the Record shows that she was affirmed. What this means is that the trial Court considered PW4 as a person of sound mind that understood the import and implication of testifying on oath.
The demand of the law under Section 209(1) of the Evidence Act (supra) that the trial Judge shall ask the child witness under the age of 14 preliminary questions to test his ability or intelligence to answer questions and weigh whether such a child witness understands the implication of speaking the truth, is within the discretion of the trial Judge and in his considered opinion. The printed Record (at page 61) discloses that the learned trial Judge went through the gamut of these preliminaries with PW4 and as such, it can be inferred that the trial Judge complied with the provision in Section 209(1) of the Evidence Act. On the matter of the sworn testimony, an examination of a few authorities is warranted.
In the case of Peter V State(1997) 12 NWLR (Pt. 531) a similar appeal was presented to the Supreme Court. Therein, the complaint of the Appellant under issue 2 for consideration was whether the Court of Appeal did not err when it upheld the finding of the trial Court that PW1, a 13 year old child, was a competent witness to give sworn testimony for the prosecution in view of Sections 154(1) and 182(1) of the Evidence Act (then 155(1) and 183(1) Cap. 112 LFN, 1990). In its Judgment, Onu, JSC held inter alia thus:
“It was right for the learned trial Judge in the instant case to ab initio cause the witness to be sworn since at 13 years, she would reasonably be expected to understand the questions put to her and to understand the nature of an oath even though she would still be considered a person of tender age by judicial interpretation… This is why perhaps, it is also settled, that if a trial Judge believes the sworn evidence of a child, he is entitled to act on that testimony alone just as if it is a sworn testimony of an adult… This is because there is no requirement in law that the sworn testimony of a child must be corroborated.”
In view of the above, the fact that the PW4 gave sworn testimony does not, without more, render the evidence of PW4 worthless.
I am not unmindful of the distinction the Appellant has drawn on the difference between the Sections 155 and 183 of the Evidence Act, LFN 1990 and LFN 2004, and Section 209(1) of the Evidence Act, 2011 in that in the extant Act, it is provided in Section 209 that a child under 14 shall not give sworn evidence, thereby implying that although such a minor/child can testify, such evidence should not be given under oath or affirmation. Also, by this provision, the Record must show that the child is capable of understanding the nature of telling the truth. However, from the Record of the lower Court, the Appellant was well represented by Counsel and yet he raised no objection to the administration of the affirmation on the PW4, which in view of the provision of Section 209(1) supra is an irregularity.
It is the duty of Counsel to raise an objection to any irregularity in the conduct of proceedings and especially so when it is clear that a particular step ought not to have been taken or done. In the instant case, the witness, 13 year old Fatima Mohammed, gave evidence under affirmation without any objection whatsoever from Counsel; and as her age does not necessarily import an incapability to understand the nature of an oath or any other form of incompetency, the section relied upon to attack the proceedings is, in my view, unavailing.
In addition, the Appellant’s Counsel was afforded the opportunity and he did cross-examine the witness on her evidence (page 62 of the Record). Therefore, no miscarriage of justice has been shown to have been occasioned by this irregularity, which miscarriage of justice could have rendered the evidence of the PW4 worthless or led to the vitiation of the trial. The evidence therefore was rightly admitted and justly utilized by the trial Court. See Obi V State (2016) LPELR-40543(CA) 18-24.
Also, by Section 209(1) of the Evidence Act, it is desirable, if not necessary, for the Judge after examining the child, to write whether he is satisfied that the child –
a) knows the duty of telling the truth; and
b) is possessed of intelligence to give rational answers to questions put to him before taking his evidence under Section 209 of the Act (supra).
The Supreme Court in the recent case of Gambo Idi V State (2017) LPELR-42587(SC) 29-33, E-G, per Kekere-Ekun, JSC referring to its decision in Dagayya V State (2006) LPELR-912(SC) 20-22, D-A, per Tobi, JSC, which interpreted Sections 155(1) and 183(1) of the Evidence Act, 1990 which is in some respects similar to Sections 175(1) and 209(1) of the Evidence Act, 2011, held that there was sufficient compliance with Section 209 of the Evidence Act, 2011 where a child of 10 was duly tested by the trial Judge before he gave sworn testimony.
In respect of the corroboration required to prove/establish the evidence of PW4, the question is, what is corroboration? Corroborative evidence is that piece of evidence which confirms in all respect the evidence of a witness in a criminal trial against an accused person, showing truly that the accused person committed the offence for which he is charged. It must implicate the accused person in some respect material to the charge against him – State V Gwangwan (2015) 9 SCM 253, 272, B-C, per Okoro, JSC. The Hausa and English version of the confessional statement of the Appellant himself, Exhibits BU and BU2,was considered by the learned trial Judge as such corroborative evidence.
On the retraction of the confessional statement in Court, the evidence of the Police Investigator, PW3 (at pages 59-60 of the Record) is explicit and cogent as to how he administered the words of caution to the Appellant, how the Appellant made the statement voluntarily and signed same; and how he was taken before a Superior Police Officer, an ASP and the O/C Homicide at the Police CID office, Gombe, where he (Appellant) confirmed that it was his statement and that he made it voluntarily, after which the latter so endorsed the statement. It is true that at the Appellant as DW5 subsequently denied making the statement. However, notwithstanding this denial or retraction, the learned trial Judge accepted and relied on the statement. He was right.
The reason is that at the point of tendering the document, the Appellant merely observed that the PW3 was not the maker of the statement (page 60 of the Record). There was no contention that the statement was not made voluntarily or that he was forced to sign the statement. Therefore, there was no obligation on the trial Court to conduct a trial-within-trial. It was now left for the learned trial Judge to determine the weight to be attached to the document. This is more so that the Appellant while testifying in his defence as DW5, again retracted the statement and denied making it.
However, from the evidence of the PW3 referred to above, the learned trial Judge was not in error in ascribing probative value to the confessional statement. Once there is evidence of the administration of words of caution on a suspect in the language he understands, and he voluntarily makes a statement which is so recorded, and he signed the statement, a Judge is at liberty to act on it and predicate a conviction thereon. See Ikemson V State (1989) 3 NWLR (Pt. 110) 539; Edamine V State (1996) 3 NWLR (Pt. 438) 53; Ubierho V State (2005) 5 NWLR (Pt. 919) 644. In the instant case, the trial Judge found that the Appellant made the Exhibit BU and BU2. There is no apparent miscarriage of justice in the manner the statement was admitted in evidence and relied on by the trial Judge.
By Exhibit BU and BU2, the Appellant admitted all the ingredients of the offences for which he was charged. The oralmedical evidence given by PW5 and the postmortem report prepared by him, Exhibit MU, and tendered through the PW1, as well as the eyewitness evidence that came through PW4 who witnessed when her father was beaten and stabbed to death by the Appellant, 1st accused and their cohorts, all combined to make it probable that the confessional statement was true and therefore was amply corroborated. Thus, from the evidence on Record, the learned trial Judge rightly used those pieces of evidence as the necessary corroborative evidence of the confessional statement, Exhibit BU and BU2.
The next contention of the Appellant is that the prosecution failed to prove the ingredients of the offences charged. The Appellant herein was charged under Sections 97 and 221 of the Penal Code for criminal conspiracy and culpable homicide punishable with death. The essential ingredients which must be proved to establish these offences were well set down in the Judgment of the trial Court (page 75 of Record). In establishing each of these elements, the prosecution may employ one or more of the following modes of proof, i.e. a confessional statement, direct evidence being evidencefrom eyewitnesses, and/or indirect evidence being circumstantial evidence – Archibong V State (2006) 14 NWLR (Pt. 1000) 349; Igabele V State (2006) 6 NWLR (Pt. 975) 103.
An accused person is guilty of culpable homicide punishable with death if it is proved that a human being died, the death was caused by the accused person, and that the accused person intentionally carried out the act intending to cause death or he knew that death would be the probable result of his action or that he intended to cause grievous hurt which ultimately led to the death of the deceased. The question therefore arises whether or not the ingredients of the offence of homicide under Section 221 of the Penal Code were established from the evidence led by the prosecution; and whether the guilt of the accused was proved beyond reasonable doubt as required under Sections 135 of the Evidence Act, 2011?
In making a determination one way or another, this Court is mindful of the fact that, with regard to findings of facts, the evaluation of evidence and ascription of probative value to the evidence is the forte of the trial Court. Once the trial Court has discharged its duty on thestrength of the evidence placed before it, unless it is established that its findings and conclusions were perverse and not supported by the evidence adduced before it, an appellate Court will not interfere where the conclusion reached is correct, even if the reasoning turns out to be wrong – Ndayako V Dantoro (2004) 13 NWLR (Pt. 889) 187; 198.
Consequently, an appellate Court is loathe to interfere with the Judgment of a trial Court when it was not privileged to see the witnesses testify and observe their demeanour. It is for this reason that appellate Courts do not, as a matter of course, readily substitute their own views for that of trial Courts except where it is established that such decisions were perverse. Thus, an appellate Court will only intervene to re-evaluate the evidence where it is shown that the findings made and the conclusions reached by the trial Court did not flow from the proved facts or runs contrary to the proved facts – Sa’eed V Yakowa (2013) All FWLR (Pt. 692) 1650, 1681.
The first duty of this Court therefore is to consider whether or not the findings of the lower Court on the facts constituting the ingredients ofthe offences charged did not flow from the proven facts or whether they run contrary to proved facts, and so were perverse. Where this is not the case, the Court would not be in a position to re-evaluate the findings and conclusions of the lower Court. In carrying out this duty, I turn my attention to the evidence led by the parties vis-a-vis the findings of the trial Court, i.e. whether the findings are borne out by the evidence adduced before it.
The Appellant’s Counsel has contended that the Respondent failed to prove the ingredients of the offences of criminal conspiracy and culpable homicide to warrant conviction because the evidence of PW4 which materially linked the Appellant with the commission of the offence, was given on oath and so was in contravention of Section 209(1) of the Evidence Act. Thus, that the confessional statement of the Appellant, the medical evidence and the evidence of the other prosecution witnesses lose their characterization as corroboration to the PW4’s statement. He argues that once the evidence of PW4 is expunged from the Record, there is nothing left to sustain the conviction. In addition, Counsel hascontended that the confessional statement was not subjected to the tests laid down in R V Sykes (1913) 8 CAR 223 and also did not demonstrate how the statement was corroborated. Thus on the basis of these, Counsel contends that the prosecution failed to prove the offences in the charge.
On the part of Counsel for the Respondent, it is contended that there was ample evidence to prove all the ingredients of both offences through its witnesses, PW1 to PW6, the exhibits admitted in evidence, especially Exhibits BU and BU2 (the confessional statement of the Appellant) and Exhibit MU (the postmortem report).
I will now proceed to examine the evidence offered by the Respondent in proof of the elements of the offence and with a view to establishing whether the findings and conclusion of the trial Court are in tandem with the evidence and so ought to be left undisturbed; or whether other they are perverse and so are liable to be set aside.
The prosecution offered the confessional statement of the Appellant in proof of the offences charged and, after due consideration of the evidence before it, the trial Court accepted the statement as voluntary,unequivocal, direct and positive. I am aware that the Appellant has raised a lot of furore over the statement of the learned trial Judge in his Judgment that the statement was admitted without objection. The Record shows that when the prosecution tendered the statement in evidence, the Appellant’s Counsel merely stated that the Appellant was not the maker of the statement. He did not object to its admissibility in evidence, which objection could only have been made on the grounds that it was either not relevant or that it was not voluntary. The mere statement that the Appellant was not the maker, i.e. a denial of the statement, could not have stopped the lower Court from admitting it in evidence in the light of the evidence/foundation laid by the witness before it was tendered. However, it may simply go to the weight to be attached to the statement at the end of the day – Oche V State (2007) NWLR (Pt. 1027) 214, 234, C-A. Thus, the trial Judge was technically right to say that the statement was admitted without objection.
The question to be asked and answered is, whether from the lawful evidence on Record comprising of the oral evidence of PW1-PW6as well as the Exhibits BU, BU2 (the statement of the Appellant) and Exhibit MU (the postmortem report), the charge of criminal conspiracy and culpable homicide punishable with death was proved beyond reasonable doubt. Firstly, Exhibit BU and BU2 is a confessional statement freely made by the Appellant which by law, is sufficient to prove the charge against him, even where it is subsequently retracted in Court – Oseni V State (2017) LPELR-42770(CA) 36-37, D-A.
The next question to be answered is, whether there is any independent evidence outside the confession which makes it likely that the confession is true? I believe the answer to this is in the affirmative and can be found in the evidence of PW2, PW4 and PW5, all of whom testified as to fact of the death of the deceased and the Appellant’s action, in conjunction with others, which directly led to the almost instantaneous death of the deceased at the scene of crime outside the Mosque after the brutal beating and stabbing. Thereafter, the Appellant himself filled in the gaps of what transpired on the fateful day in his confessional statement.
The law is trite that a Court can convict anaccused person on his retracted confessional statement. However, it is safer to find some evidence outside the confession which makes it likely that the confession is true. This quality of evidence can be found in the form of direct evidence comprising of the eyewitness testimony of PW4. Therefore, based on the confessional statement, albeit retracted, the eyewitness evidence of PW4 and the circumstantial evidence adduced in the trial as reflected in the evidence of PW1 and PW2 as well as PW3, PW5 and PW6, there was sufficient evidence upon which the trial Court based the conviction of the Appellant for the offences.
The trial Court had the legal basis to rely on the confession in Exhibit BU and BU2 to find the Appellant guilty of the charge as it did in its Judgment, particularly at page 76, lines 1-9 of the printed Record inter alia as follows:
“From the evidence of the prosecution and that of the defence, it is not in dispute that the said Muhammadu Usman is dead. The confessional statement of the accused persons were voluntary, unequivocal direct and positive, they were admitted without objection. Though the defence counsel has urged theCourt to be cautious in placing weight of evidence on the confessional statements of the accused persons already admitted, the Court is free to rely and act on such a statement where there is corroboration or where the confessional statements are consistent with some facts already established before the Court.”
The Appellant, by his own admission in Exhibit BU and BU2, expressly and explicitly stated the role he played in the events leading up to the death of the deceased. For instance, in his confessional statement in Hausa and its English translation at pages 17-18 and 19-20 of the Record respectively, he states inter alia as follows:
“I and all my friends I listed their names left to mallam Muhammadu’s house because we all alleged him of been a witch. We went and met him in front of one mosque near his house, together with Malam Gardi ‘m’ of mallam Inna quarters Gombe. Michael was holding a pistle in his hand, I Ibrahim Umar, Alias Danmasi, was holding a stick in my hand, Michael was the first person that took his pestle and beat him on his head, and he fell down… Yahaya alias Gabi he collected pistle fromMichael’s hand and beat him on his labs, I tooked the stick on my hand and beat him up on his…, Garkuwa machete him, with cutlass on his body. The remaining friends confirmed beating him with sticks in their hand. In the process of beating mallam Muhammadu Usman Yusuf died on the spot. We all ran away but I … runned to Abuja. I came back 09-10-2017 on Friday.”
By all standards, this confession was direct, positive and unequivocal and so the trial Court was entitled to act on it, having found ample corroboration of the facts stated therein in the evidence of PW4 and the postmortem report, Exhibit MU.
In the instant case, much as it was entitled to, the trial Court did not entirely rely on the confessional statement, but also relied on other pieces of evidence offered by the prosecution (page 76 of the Record). One example will suffice. PW4 at pages 61-to 62 of the Record, testified as follows:
“I know the Mohammed, Usman he was my father. Mohammed Usman is dead. I know the accused persons. We live in the same area… 1st accused is Buba Amore 2nd accused is Ibrahim Dan Masi. On 25/4/17, I was sent to my Anty house close to Railways near DutsenDala I stopped near my sister’s house I saw people beating my father I stand close to Yaya Rabi’s house I saw 1st accused, 2nd accused, BappaKadiriAska and Bello, I when to my sisteragain they finished beating my father. About 30ft from where I am. It was around 4:30pm. He was saying what have I done to you. They replied that you will know when we dispatched you to heaven. They were beating my father with sticks and pestle.”
This was direct eyewitness evidence of the violent and brutal attack of the deceased by the Appellant, the 1st accused and their co-travelers which led to the instantaneous death of the deceased on the spot. Shortly, after the dastardly act, the deceased’s wife came out of the house and this was her account of the events of that day (at page 55-56 of the Record):
“On 25/04/17 around 1pm on Tuesday the accused came to our house with pestle treating to cancel the house… I heard people running… I sent one of our son to call the deceased… I went out to see him i.e. the deceased. I saw him at the frontage of the Mosque. I went to meet the deceased already dead. Both side of his hand was broken his shoulder were cut. He was seriously bleeding.”
This evidence corroborated the PW4’s evidence as well as the Appellant’s account in his confessional statementthat they beat the deceased to death because he bewitched their friend who died as a result. It also established that prior to the final act leading to the death of the deceased, the Appellant had come to the house of the deceased earlier in the day to threaten violence on the deceased, and so it linked the Appellant to the death of the deceased circumstantially. Finally, PW5, the medical doctor who performed the postmortem and issued the report, Exhibit MU, testified (at pages 24-26 of the Record) upon the nature of injuries he saw on an examination of the corpse of the deceased, which injuries were consistent with being beaten, bashed and stabbed with sticks, pestle and a machete as described by both the Appellant in his statement and the PW4 in her evidence. All these tied together to make it most probable that the Appellant’s confession was true and also established all the ingredients of the offences of conspiracy and culpable homicide punishable with death. It is therefore for the above reasons that I resolve issue two also against the Appellant.
Consequently, having resolved both issues for determination against the Appellant, this Appeal isdevoid of merit. It fails and is dismissed.
Accordingly, I affirm and uphold the Judgment, conviction and sentence of the High Court of Justice, Gombe State in Case No. GM/20C/2018 delivered on December 18, 2018 by Mohammed, J.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of a preview of the lead Judgment read by my learned brother, JUMMAI HANNATU SANKEY, JCA.
I agree entirely with the reasoning and conclusion reached therein.
In consequence, I also find the Appeal unmeritorious and is hereby dismissed. I affirm and uphold the Judgment, conviction and sentence of the High Court of Justice, Gombe State in Suit No. GM/20C/2018 delivered on December, 18th 2018 by Hon. Justice Mohammed.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment delivered by my learned brother, JummaiHannatu Sankey, JCA. I am in agreement with the reasoning and conclusion reached by His Lordship on all the issues considered by him in the determination of the appeal.
For the purpose of justifying my adoption of my learned brother’s reasoning and conclusion, I shall make a few remarks.
The appellant’s Counsel hasmade heavy weather on what he believes or holds to be the error of the trial Judge in relying on the evidence of PW4 which he submits is inadmissible because being a child of 13 years old she could not have given evidence either on oath or affirmation. It is also Counsel’s contention that if the evidence of the said PW4 is expunged there is nothing left to sustain the conclusion of the appellant because the Confessional Statement was not subjected to the tests laid down in law where a Confessional Statement is retracted.
As of truth, PW4 was 13 years old when she gave evidence and therefore falls within the provision of Section 209(1) of the Evidence Act, 2011. By the said provision, even though the Court found her to be possessed of sufficient intelligence to give evidence, and that she understands the duty of speaking the truth she ought not to have given her evidence on oath. However, the appellant was represented by Counsel at the trial, and Counsel did not only fail to object to the procedure but cross examined the witness.
In my view, the appellant in the absence of any miscarriage of justice shown to him lost the right to complain.Moreover, Section 175(1) of the Evidence Act, 2011 makes PW4 a competent witness having passed the tests laid down in the said Section, which if otherwise would have made her incompetent. I am therefore unable to accept the contention of the Appellant’s Counsel that the evidence of PW4 is inadmissible.
I do not also find substance in the contention of appellant’s Counsel that the trial Court erroneously placed reliance on the retracted Confessional Statements of the appellant.
In the case of Adeyemi vs. State (2013) LPELR-20337 (SC), the apex Court held:
“… It is trite law that a trial Court can convict solely on the Confessional Statement of an accused person.” per Onnoghen, JSC (p. 11 para B).
See also Saliu vs. State (2014) LPELR-22998 (SC) per Onnoghen, JSC (p. 19 Para C). The appellant at the trial Court retracted his Confessional Statement. In a situation such as this, the apex Court in the case ofAsuquoOkonAsuquo vs. The State (2016) LPELR-40597 (SC) held:
“It is well settled that an accused can be safely convicted on his retracted Confessional Statement if the trial Court was satisfiedthat the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted Confessional Statement, there should be corroborative evidence outside the confession which could make it probable that the confession was true. See Uluebeka vs. The State (2000) 7 NWLR (Pt. 565) 41; Okoh vs. The State (2014) 8 NWLR (Pt. 1410) 502.” Per Aka’ahs, JSC (p. 13 paras B – E).
In the confessional Statement, the appellant admitted all the ingredients of the offence for which he was charged. The oral medical evidence given by PW5 and the post mortem report prepared by him (Exhibit MU) tendered through PW1, as well as the eye witness evidence of PW4 put together made it probable that the Confessional Statement was true, and thus amply corroborated.
It is for these reasons and the articulate analysis of the evidence and the law in the judgment of his Lordship that I too find no merit in this appeal and accordingly dismiss same.
In consequence, the Judgment of the trial Court delivered on 18th December, 2018 is hereby affirmed.
Appearances:
Adedayo Adesina, Esq., with him, T.J.J. Danjuma, Esq.For Appellant(s)
Abdussalam Muhammad, Esq., Acting Director of Public Prosecution (ADPP) Gombe State Ministry of Justice, with him, AlheriYoriyo, Esq., Assistant Director (AD) and M.S. Hassan, Principal State Counsel (PSC) – for the 1st RespondentFor Respondent(s)
