AWALU YAHAYA v. THE STATE
(2014)LCN/7586(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of December, 2014
CA/A/515C1/2013
RATIO
EVIDENCE: CONFESSION; WHETHER THE RETRACTION OF A CONFESSION DOES NOT MAKE IT INADMISSIBLE AND WHETHER INADMISSIBLE EVIDENCE WHERE ADMITTED OUGHT TO BE REJECTED IN TOTO
If the issue were simply the retraction of a confession the matter could have been straight forward, as the retraction of a confession does not make it inadmissible; AKPAN V STATE (1992) NWLR part 248. Inadmissible evidence on the other hand, where admitted, ought to be rejected in toto, and the case decided on legal evidence OKONJI v. NJOKANMA (1991) 7 NWLR Part 202 at 131. per. MOHAMMED MUSTAPHA, J.C.A
CRIMINAL LAW: CONSPIRACY; WHAT NEEDS TO BE ESTABLISHED IN THE CHARGE OF CONSPIRACY
With regard to the charge of conspiracy it is necessary to establish a meeting of the minds, a plan to carry out the offensive act and an act on the part of the conspirator which leads the trial court to a conclusion that the appellant and others were engaged in accomplishing a common objective; bearing in mind that “the offense of conspiracy is often hatched in utmost secrecy. So, in determining a case of conspiracy the circumstances of the case must be carefully considered.” OGEDENGBE V STATE (2014) 12 NWLR PART 1421 AT 344. per. MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
AWALU YAHAYA – Appellant(s)
AND
THE STATE – Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Niger State in the judgment of Honourable Justice Halima I. Abubakar, delivered on the 18th of April, 2013, in suit No.NSHC/SD/6C/2012.
By notice of appeal filed on the 2nd of July, 2013 the appellant appeals on the following grounds:
1. “The learned trial judge erred in law in convicting the appellant of the offense of culpable homicide, contrary to Section 221(1) of the Panel Code, Conspiracy, contrary to Section 97 of the Penal Code, and Robbery, contrary to Section 298 of the Penal Code, in view of the totality of the evidence before the court.”
2. “The learned trial judge erred in law in convicting the appellants for culpable homicide punishable with death, conspiracy and armed robbery when the circumstances and cause of death of the deceased was unknown.
“That the whole decision is unwarranted and cannot be supported by the weight of evidence.”
FACTS IN BRIEF:
The appellant, along with one Shuaibu Bawa, Bello Sani Danlami and Mustapha Umar were charged with conspiracy to commit felony to wit, causing the death of one Umar Jibrin, now deceased and later robbed the office of the manager of the station and took away the sum of N675,550.00 only from the safe in the Manager’s Office and thereby committed offences of conspiracy, culpable homicide and robbery contrary to Sections 97, 221 and 298 of the Penal Code respectively.
The accused persons pleaded not guilty, as per page 128 and 129 of the record of appeal; the prosecution called 7 witnesses; a successful submission of no case was made on behalf of Shuaibu Bawa, leading to his discharge; the appellant, Bello Sani Danlami and Mustapha Umar were left, and they defended themselves. At the end of it all the appellant was convicted along with his co-accused persons, on the charge of conspiracy to death; on the charge of culpable homicide punishable with death, to death; on the charge of robbery to seven years imprisonment; and the items recovered from the 1st convict forfeited to the state. This is the subject of this appeal.
Akin Adewale Esq., learned counsel to the appellant formulated the following issues for determination by this court:
1. Whether the charge against the appellant which violated Section 212 of the Criminal Procedure Code was bad for duplicity.
2. Whether from the evidence before the court, the prosecution has proved the offenses of conspiracy and culpable homicide punishable with death, for which the appellant was convicted, beyond reasonable doubt.
3. Whether the prosecution proved the offense of robbery beyond reasonable doubt to warrant the conviction of the appellant.
These issues were adopted by Umar Musa Esq. of counsel to the respondent.
ISSUE ONE:
Whether the charge against the appellant which violated section 212 of the Criminal Procedure Code was bad for duplicity?
Akin Adewale Esq., submitted for the appellant that three charges in this case were wrongly framed together; and also that it is equally wrong to try the appellant jointly with the co accused persons, as that violates Section 212 of the Criminal Procedure Code; learned counsel contended that the joint trial of the appellant with the co-accused persons under a single charge that incorporated three distinct offenses also violated Section 212 of the CPC, as that act is prejudicial to the appellant, especially as the appellant’s only connection with the case is the confessional statement of Mustapha Umar (co accused); he referred the court to IDOWU v. STATE (1998) 9 SCNJ 40 at 49 and urged this court to hold that this charge is bad for duplicity.
Omar Musa Esq., for the respondent submitted in response that the arguments of learned counsel to the appellant are misconceived, as the prosecution had moved the trial court to amend the previous charge filed by the appellant; he referred this court to pages 130 to 132 of the record, where the prayer was specifically granted at page 131 pursuant to section 181 of the CPC.
Learned counsel contended that the appellant pleaded to three new charges of conspiracy, culpable homicide and robbery, contrary to Sections 97, 221 and 298 of the Penal Code respectively; and he was subsequently tried on the three new charges separately.
This being the case learned counsel submitted the provisions of Section 212 of the CPC have not been violated.
Learned counsel further submitted that there is no rule of law or practice prohibiting the joining of charges, where acts form the same transaction; that where the proximity of time, place and continuity of action when considered together portray a continuity of purpose the accused may be charged separately and tried at once; he referred the court to OLUSEGUN HARUNA & ORS V THE STATE (1972) 819 SC at 205 and STATE V USAINI ADAMU (1969) SCOPE 35 and urged this court to resolve this issue in favour of the respondent.
It is clear from the record of appeal, at page 103, that the prosecution applied by way of motion on notice, pursuant to section 181 of the Criminal Procedure Code, and the inherent jurisdiction of the court to amend the charge previously filed; for each of the charges to be one and a separate count; and the application was granted, at page 131 of the record. This indeed to all intents and purposes settles the issue as it is the main grouse of the appellant. It is safe to say in the circumstances that section 212 of the CPC has not been violated, as contended by the appellant, and so the question of duplicity does not arise. This is further strengthened by the fact that the record shows at pages 188 to 189 that the amended charges of conspiracy, culpable homicide and robbery were read and explained to the accused persons, including the appellant, to their understanding, on the 23rd of February, 2012, they all appeared to have understood charges, and denied the allegation. That being the case even if the issue of duplicity were established, though not in this case, “it is well settled that a Court of Appeal will not interfere on an issue of duplicity if it is clear from the records of proceedings that the accused knew what charge he was to face, was neither embarrassed nor prejudiced and there is no miscarriage of justice.” THE STATE V GWONTO (1983) All N.L.R 109; accordingly this issue is resolved in favour of the respondent, and against the appellant.
For the purpose of clarity and brevity issues 2 and 3 are reframed and taken together.
ISSUES 2 AND 3:
Whether the prosecution was able to prove the charges of conspiracy, culpable homicide and robbery against the appellant.
It is submitted for the appellant that the prosecution failed to discharge the burden of proving the guilt of the appellant beyond reasonable doubt as the seven witnesses who testified for the prosecution, as well as the confession of Mustapha Umar, Exhibit 1 meant little or next to nothing. This is so learned counsel contended because the appellant was not a party to the criminal conspiracy as required by Section 97(1) of the Penal Code, especially as there is no evidence indicating that he was part of the group that hatched the plan to kill the deceased guard at the Filling Station.
Learned counsel contends that from the totality the prosecution of the evidence of there is nothing linking the appellant with the offence of conspiracy, for which he was charged and convicted, except for the retracted confession of Mustapha Umar, the co accused, which cannot be used to convict him.
That also the appellant was not established to have sent or instructed Mustapha Umar, who confessed to buying the battery acid to give same to the deceased to drink.
Learned counsel further submits that the offense of culpable homicide punishable with death, contrary to section 221(1) of the Penal Code was not proved either, as the confessional statement of Mustapha Umar, heavily relied upon by the prosecution was retracted; that even if not, it can only be used against the maker. He referred this court to MUSA UMARU KASA v THE STATE (1994) 6 SCNJ and GANIYU GBADAMOSI & ANR V THE STATE (1992) 11/12 SCNJ 269.
Learned counsel also submitted that all the appellant did was collect the telephone number of PW1 from Bello Sanni Danlami, the co-accused and called the PW1 to tell him that the deceased security man was sick, and that, he argued cannot by any stretch of imagination amount to taking part in the killing of the deceased; he referred this court to OKAFOR V. THE STATE (2006) 43 WRN 137 and IKHARE V C.O.P. (1997) 2 NWLR part 24 581.
Learned counsel submitted that the cause of death of the deceased was not sufficiently established because even though Mustapha Umar admitted to the killing in his confession when he stated the deceased was given acid to drink as medicine for his ailment, the doctor who examined the corpse gave a different reason as the cause of death, i.e. slashed throat. The doubt created as a result, learned counsel contended ought to have been resolved in favour of the appellant; he referred this court to MANSHEP MASOH V. STATE (1993) 6 SCNJ 55.
That also if the deceased was fed acid as claimed he would have died immediately, making it needless to slash his throat.
Learned counsel further submitted that there were discrepancies in the
evidence of the prosecution witnesses as to when the corpse was discovered; that PW2 said it was discovered four days from the 21st of December, 2010, i.e. the 25th of December, 2010; PW5 said the corpse was taken to the hospital on the 30th of December, 2010, while the doctor said it was brought to the hospital on the 24th of December, 2010; these learned counsel contends created doubt as to whose corpse was actually brought to the hospital.
In response it is submitted for the respondent on the issue of conspiracy that it was established at the trial that Mustapha Umar, the appellant and one Bello Sani Danlami conspired to kill Umar Jibrin of Bulasawa Filing Station, and robbed the station of the sum of N675,550; on the 27th of December, 2010; that also Bello Sani Danlami gave N100 to Mustapha Umar to buy acid which he brought in the presence of the co-accused, including the appellant and gave to the deceased in a brown cup, as medicine for stomach ache; while they all watched; that the appellant called PW1 on his phone on the 21st of December, 2010 at 8.30pm to inform him of the plight of the deceased, thus placing him at the scene of the crime; that the 4th accused as per pages 219-221 of the record gave gave the appellant PW1’S phone number.
It is further submitted that it is these acts of the appellant and the co accused in common intention which led the court to arrive at the conclusion it did; this court was referred to DR SEGUN ODUNEYE V. STATE & ANOR (2001) 1 SC part 1 at 6 – 7.
Learned counsel argued that the evidence of common intention renders all accused persons culpable in the commission of the crime, it does not matter the part played by each; NWANKWOALA DSP & ANOR V. STATE (2005) ALL FWLR part 266 at 1319.
On the issue of culpable homicide, it is submitted for the respondent that the prosecution established its case at the trial court against the appellant and the co-accused persons leading to their conviction; the court was referred to ANANABA OHUKA & OTHERS V. STATE (1988) 7 SC part 2 at 37.
On Exhibit 1, the confessional statement learned counsel argued that even though it is a statement of the 1st accused at the trial it is also evidence against the appellant, as the 1st accused testified on oath and substantially adopted and repeated the contents of Exhibit A; he referred this court to OYAKHIRE V. STATE where it was held that:
“…a statement made by an accused to the police may amount to an admission of the offence for which he is charged; admissible only against the maker of the statement. However if the accused goes into the witness box and repeats the admission in his statement, it becomes evidence for all purposes, admissible in law and can be acted upon by the court against a co-accused.”
Learned counsel further submitted that the retraction of a confessional statement does not make it inadmissible; he referred to ALHAJI PRINCE KAREEM V. FEDERAL REPUBLIC OF NIGERIA (2002) FWLR Part 125 at 811 and urged this court to hold that culpable homicide was established at the trial court.
On robbery it is submitted for the appellant that the prosecution failed through its witnesses to establish same, as every evidence fell short, especially the confession, which cannot be used against the appellant.
That even if the prosecution’s version of events were accepted it would mean that the deceased was making no effort to stop the appellant and his co-accused persons from stealing the money, and so there is no threat of violence to warrant the charge of robbery; learned counsel urged the court to discharge and acquit the appellant.
It is submitted for the respondent in reply that robbery was established through the evidence of PWS 1 and 3 who placed the appellant at the scene of the crime, and the phone call he made as well as the evidence of PWS 5 and 7 which supported the charge of robbery; he referred this court to SUNDAY IYARO V. STATE (1988) 2 SC Part 1 at 167 and AWOPEJU V. STATE (2002) FWLR Part 772 and 781 and urged this court to dismiss this appeal and affirm the judgment of the Lower Court convicting the appellant.
There does not appear to be any dispute on either side of the divide as to the death of the deceased; what is in dispute is whether he died as a result of the acid he was made to ingest or the slashing of his throat with a hack saw, in the hands of the appellant and his co-consipirators, whichever caused his death he was killed.
The trial court found that the hack-saw found at the scene of the crime and exhibited before the court was used to slash the deceased to death, page 215 of the record, “consistent with the evidence of PW7 and Exhibit 1”.
Exhibit 1 is the confession of Mustapha Umar; a confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime. The law is that if the accused makes a free and voluntary confession which is direct and positive and is properly proved the accused may be convicted on the confession. AFOLABI V. COMMISSION OF POLICE (1961) ALL NLR 654.
As a general rule when more persons than one are jointly charged with a criminal offence, and one of them makes a confession, and such a statement is given in evidence, the court shall not take such statement into consideration against a co-accused unless such co-accused adopts it. OZAKI V. STATE (1990) 1 NWLR (PART 1124) page 92.
Before the issue of whether the appellant had adopted the confession to bind him is determined it is important to find out the evidential worth of the confession itself.
PW2 Sergeant John Ateni testifying at page 137 stated of the record stated that he “…cautioned the 1st accused person in English language which was interpreted to him in Hausa Language by Inspector Gabriel Offikwu, he accepted he understood and thumb printed. He gave me his voluntary statement in Hausa Language and was interpreted to me in English by the same inspector Offikwu… he confessed to the commission of the crime…”
Inspector Gabriel Offikwu while testifying as PW5 at page 143 to 149 did not mention anywhere that he interpreted the statement to PW2 from Hausa to English or to the 1st accused from English to Hausa; that in the considered opinion of this court is a fatal failing on the part of the prosecution; it is in this regard that the Supreme Court held in NWAEZE v STATE (1996) NWLR part 428 at 1 that: “The point cannot be over-emphasized that where an interpreter is used in the recording of the statement of an accused person, such a statement is in law inadmissible unless the person who was used in the interpretation of the statement is called as a witness in the proceedings as well as the person who recorded the same. Accordingly, failure on the part of a trial court to appreciate the inadmissibility, as evidence, of an alleged statement by an accused person when such statement is not confirmed and established by the person who acted as interpreter when it was being recorded in a different language can be fatal to a conviction which is based on such a statement in that the court would have misdirected itself in accepting the statement as having been proved”.
This requirement of the law is not meant to be perfunctory. It has to be met specifically, and strangely the prosecution in this case, knowing full well the gravity of the offense and the importance of the confession to the prosecution of this offense, woefully failed to make sure that the fact that an interpretation was needed and indeed made, between Mustapha Umar and John Ateni and Gabriel Offikwu; this to say the least is not only very sad but pathetic. Because in view of this failing, Exhibit 1, the confession is clearly inadmissible evidence admitted. The consequence of which is grave to the conduct of the trial at the Lower Court.
If the issue were simply the retraction of a confession the matter could have been straight forward, as the retraction of a confession does not make it inadmissible; AKPAN V STATE (1992) NWLR part 248.
Inadmissible evidence on the other hand, where admitted, ought to be rejected in toto, and the case decided on legal evidence OKONJI v. NJOKANMA (1991) 7 NWLR Part 202 at 131.
The confession clearly affected the decision of the trial court, without which other evidence, including the principle of last seen, relied on by the Lower Court could not have led to the conviction of the appellant in the circumstances of this case as it is; if the Lower Court had not relied on the confession or if the appellant could have been convicted by other evidence, this court might not interfere; “…if an appellate court is of the opinion, that the inadmissible evidence cannot or could not reasonably have affected the decision, it will not interfere, but if it of the opinion that without the inadmissible evidence the decision must have been different, it will interfere…” A.G LEVENTIS NIG. PLC V AKPU (2007) 617 NWLR Part 1063 at 416; but alas that is not the case; the Lower Court had this to say about the confession at page 216 of the record “…the confession is positive, precise, voluntary and clear admission of the commission of the crime…” at 217 “…the confession was contemporaneous and consistent…”; on page 223 in an answer to the hypothetical question “was the death caused by the accused?” the Lower Court has this to say: “… Exhibit 1(i.e. the confession) the 1st accused said he bought the acid, the 4th accused gave the deceased the acid to drink on the pre that it was medicine…the 3rd accused and 4th accused…moved the deceased to behind the mosque and beat him up…”.
The confession as it is, even if adopted by the appellant, amounts to little to next to nothing in the circumstances of this case; it is indeed painful for this court to declare Exhibit 1, the confession worthless.
It is the responsibility of the prosecution at the trial court to establish conspiracy between the appellant and the other co accused persons, as well as culpable homicide and robbery, contrary to sections 97, 221 and 298 of the Penal Code as charged respectively.
With regard to the charge of conspiracy it is necessary to establish a meeting of the minds, a plan to carry out the offensive act and an act on the part of the conspirator which leads the trial court to a conclusion that the appellant and others were engaged in accomplishing a common objective; bearing in mind that “the offense of conspiracy is often hatched in utmost secrecy. So, in determining a case of conspiracy the circumstances of the case must be carefully considered.” OGEDENGBE V STATE (2014) 12 NWLR PART 1421 AT 344.
Contrary to the findings of the trial court this court fails to see how the appellant could be said to have participated in the conspiracy, homicide or robbery, to the satisfaction of this court, i.e. beyond reasonable doubt.
Merely being at the scene of a crime or calling the 1st accused on phone without more is not enough to conclusively say the appellant conspired along with others, robbed or murdered the hapless guard, especially as the confession is knocked out; It simply is not enough, the court is left in doubt as to the inconclusiveness of the degree of participation of the appellant.
Having said that it is no less significant that the trial court relied on the doctrine of the last seen which holds that “…the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen in company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the appellant to give an explanation relating to how the deceased met her death in such circumstance.
In the absence of a satisfactory explanation, a trial court and an appellate court will be justified in drawing the inference that the accused person killed the deceased.” HARUNA V A.G. FEDERATION (2012) LPELR 7821 SC.
The record shows that the appellant was not the last person seen with the deceased in any event; PW3 stated at page 141 of the record of proceedings that ” I went to park my vehicle at Bulasawa filling station in Suleja and saw Mustapha (the 1st accused) with late Mallam Umar, the guard of the filling station. The guard was vomiting and the 1st accused said he was standing by him…” during cross examination he said he did not see the 3rd and 4th accused with the 1st accused person and the deceased at the station on the fateful day and time…”.
PW2 Sergeant John Ateni, the investigating Police Officer (I.P.O) stated during cross examination at page 139 that “what shows conspiracy between the four accused persons was the admission by the first accused person…”
Clearly the doctrine of the last seen cannot be said to apply to the appellant strictu sensu, in view of the evidence available, because to be the last seen means exactly what it says, and that is not supported by the evidence before this court. The evidence is just not enough in this regard to lead to that conclusion.
The appellant’s presence at the Filling Station followed the departure of PW3, see page 159; he called the manager to inform him of the sickness of deceased guard after which he left, according to DW1.
It is the considered opinion of this court that it is very unsafe to convict on the evidence available; granted a dastardly crime was committed, granted also that the appellant was suspected of being one of the conspirators, he may be guilty of the offense charged or not! But for conviction to be sustained, the evidence must prove the commission of the crime alleged beyond reasonable doubt; that is not the case here. This court is left in doubt, and that is not good enough.
It is important to mention here again that this court is satisfied that there was a robbery and a murder in the process; but the prosecution failed to establish either, beyond reasonable doubt, “in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable state of affairs, other than that of the guilty of the Defendant shall be entitled to acquittal of crime charged, if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible – UBANI v. STATE (2003) 4 NWLR (PT.809) 51 @ 64.” Sadly, because the ultimate truth is not the prerogative of the human judge, this court has to rely on laws, and principles all of which require that, for a conviction to be sustained, the commission of the offense alleged must be proved beyond reasonable doubt it was not done so in this case.
Issue two and three are accordingly resolved in favour of the appellant, and against the respondent; even though the first issue was resolved in favour of the respondent, that did not in any material way assist the respondent, in the circumstances, therefore this court finds this appeal meritorious, the judgment of the Lower Court is hereby set aside; the appellant is discharged and acquitted.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the lead judgment of my learned brother, Mustapha JCA and I agree that this appeal has merit and it therefore succeeds. I too allow it, set aside the judgment of the Lower Court, and discharge and acquit the appellant.
JOSEPH E. EKANEM, J.C.A.: I read in draft the judgment just delivered by my learned brother Mustapha, JCA. I agree with the reasoning contained therein and the conclusion.
The conviction of the appellant was based in the main on the confessional statement of a co-accused person. The confessional statement of a co-accused person is not evidence against an accused unless it was made in the presence of the accused and he adopted it by words or conduct. See STATE V. ONYEUKWU (2004) 122 LRCN 5245, 5267. This is not so in this instance.
It is however the law that in a charge of conspiracy (as in the instant case) once conspiracy is shown to exist the confessional statement of a co-accused can be used against other accused persons. See JIMOH V. ….(2014) 12 NWLR (1414/105,139. But there was no acceptable evidence of conspiracy and the confessional statement of the co – accused in this instance was in the first place inadmissible and so the idea of using it against the appellant should not have arisen. The PW2 who took the statement testified that he took it in English by using another person as an interpreter since the maker made the statement in Hausa language. The person who served as the interpreter testified as PW5 and did not testify of what transpired during the interview.
In the case of OLALEKAN V. STATE (2001) 18 NWLR (746) 793, 810-811. It was held that the person who wrote the statement must testify as well as the interpreter who must testify to the questions he put to the accused person in the latter’s own language on behalf of the interviewer and which he interpreted to the interviewer in English. Failure to follow this procedure will result in the statement becoming inadmissible as hearsay. See FEDERAL REPUBLIC OF NIGERIA V. USMAN (2012) ALL FWLR (632) 1639.
The conviction of the appellant based on the confessional statement of a co -accused cannot therefore stand.
It is for these reasons and the more comprehensive ones given by my learned brother, Mustapha, JCA, that I also allow the appeal, set aside the conviction and sentences on the appellant, and return a verdict of discharge and acquittal in his favour.
Appearances
Akin Adewale Esq.For Appellant
AND
Omar Musa Esq., (FCAI) Notary PublicFor Respondent
