MOHAMMED HARUNA v. THE STATE (2016)

MOHAMMED HARUNA v. THE STATE

(2016)LCN/8247(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2016

CA/K/401/C/2014

RATIO

PRACTICE AND PROCEDURE: WHETHER THE FAILURE OF THE TRIAL JUDGE TO SECURE ALTERNATIVE COUNSEL FOR THE PURPOSE OF FILING A WRITTEN ADDRESS RESULTED IN A BREACH OF FAIR HEARING

In the case of Josiah v State (1985) 1 NWLR Part 1 Page 125, cited by the Appellant’s Counsel, the Supreme Court, per Oputa JSC at 140-141 Para F-A had the following to say:
?A fair hearing presupposes first and foremost a hearing. We operate the “Adversary System”. The major feature of this system is the passive and inactive role of the judge in the presentation of cases in Court. The judge under our system is at best an attentive listener to all that is said on both sides. He is not an investigator. He speaks mainly to deliver judgments. This passive role of the judge emphasizes the active role of counsel for the prosecution and for the defence. What is a “hearing” worth to an accused person who does not understand the language of the Court, who does not know the rules of procedure, and who cannot properly present his case? The right to counsel is thus at the very root of, and is the necessary foundation for a fair hearing. The ordinary layman, even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the Court of first instance. It is even more surprising that when the appellant himself. (though not a lawyer) raised this point in his 1st Ground of Appeal 10 the Court below, nobody look it up. A fair hearing in cases coming under Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules like the one on appeal. (where Rule 5 makes the services of a legal practitioner mandatory), must include the right to and the aid of counsel for the defence. This was denied the appellant in this case. I am satisfied that the appellant had no fair hearing in the trial Court. This coupled with the non-compliance with the provisions of Section 287 of the Criminal Procedure Law by the trial judge vitiate the trial and makes it mandatory that this appeal should be allowed”
It was similarly held in the case of Udo v State (1988) 3 NWLR part 82 page 316 at 332 Para B-C, per Nnameka-Agu JSC also cited by the Appellant’s Counsel, per Nnaemeka Agu JSC, that it is “implicit in the concept of fair hearing as on aspect of natural justice in the brood sense that the Court should give equal opportunities to both sides of the conflict. A murder trial cannot be said to be fair when an accused, standing trial for his life, has to conduct the case himself as against a legal practitioner, for the prosecution.” per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

COURT: WHETHER THE TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE BEFORE HIM AND CORRECTLY APPLIED THE LAW TO THE FACTS OF THE CASE

Indeed, it was held in the case of Ekara v Takim (1995) 5 NWLR part 394 page 242 at 252, Paragraphs A-B, per Akintan JCA (as he then was) that:
“It is trite law that address of counsel is designed to assist the Court. Where therefore a counsel deliberately fails to avail himself of the opportunity of delivering his address or where the argument is unanswerable, the fact that counsel did not address the Court cannot be denial of fair hearing which could vitiate the judgment.”
Failure of the Defence Counsel to file a written address in the circumstance of this case, and the fact that the trial judge did not secure alternative Counsel for the Appellant for the sole purpose of filing a written address, cannot be construed, I hold, as a breach of the Appellant’s right to fair hearing. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

THE DEFENCE OF ALIBI: THE NATURE OF THE DEFENCE OF ALIBI

‘Alibi” is defined in Black’s Law Dictionary, 8th edition as:
“A defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of the crime at the relevant time; the fact or state of having been elsewhere when an offence was committed.” Elaborating on this defence, the Supreme Court, per Kekere-Ekun JSC, in the case of Silos Sule Mohammed v State (2014) 12 NWLR Part 1421 at Page 387 at 430 Para B-H referred to the case of Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92 at 109 Para C-G where Obaseki, JSC held thus: “What is the meaning of alibi? It is a defence where an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police.
The onus of establishing alibi is on the accused person since it is a matter within his personal knowledge. The defence of alibi would succeed if at the earliest opportunity such a defence is raised, with sufficient particulars to enable the police investigate it – Abubakar Mohammed v State (2015) 10 NWLR part 1468
Page 496 at 524 Para A-C per Rhodes-Vivour JSC
As held in the case of Osuagwu v State (2013) 5 NWLR Part 1347 page 360 at 383 Para F-H per Rhodes-Vivour JSC:
“After a suspect is arrested, Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence. In Court an accused person who sets up the defence of alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the Court but for the prosecution to disprove it.”
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt – Abubakar Mohammed v State (2015) 70 NWLR Part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC;
The defence of alibi would, however crumble where there is stronger evidence against it, for example if the prosecution leads credible and accepted evidence which fixes the accused person at the scene of the crime at the material time. See Abubakar Mohammed v State Supra at 524 Para C per Rhodes-Vivour JSC; Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 Para H per Rhodes-Vivour JSC:
The law is that where the evidence of the prosecution, positively, unequivocally and irresistibly points to the guilt of the Appellants, the defence of alibi becomes of no moment. See Sampson Ebenehi & Anor v The State (2009) 6 NWLR Part 1138 Page 431 at 448 Para A per Ogbuagu JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

THE DEFENCE OF ALIBI: THE IMPLICATION OF THE FAILURE BY THE POLICE TO CHECK AN ALIBI
Failure to check an alibi may cast doubt on the reliability of the case for the prosecution. Failure by the police to investigate and check the reliability of (the) alibi would raise reasonable doubt in the mind of the Tribunal and lead to the quashing of a conviction imposed in disregard of this requirement. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi – Egwumi v State (2013) 13 NWLR Part 1372 Page 525 at 548 Para E-H per Rhodes-Vivour JSC
As held in Ochemaje v State (2008) 15 NWLR Part 1109 Page 57 at 90 Para C-F per Niki Tobi JSC:
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time… It is not the law that the police should be involved in a wild goose chase for the whereabouts of an accused person of the time the crime was committed. That is not the function or role of the Police. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.”
As also held by His Lordship at Page 90 Para G “investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination by the evidence of the accused or his witnesses.”
To succeed in such a defence that may lead to an acquittal, the accused must support and substantiate the defence with unassailable credible evidence that is not riddled with holes – Ochemaje v State Supra at 93 Para H per Mukhtar JSC (as she then was).
Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Also, the ipse dixit of the accused, i.e. that he was not present, is not enough. To raise the defence he must give particulars of his whereabouts at that particular time. Where the accused is however identified by eye witnesses, a straight case of credibility is involved. See Olaiya v State (2010) 3 NWLR Part 1181 Page 423 at 435 Para B-H per Mahmud Mohammed JSC (as he then was); Silas Sule Mohammed v State (2014) 12 NWLR Part 1421 at Page 387 at 430 Para B-H per Kekere-Ekun JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER CONFESSIONAL STATEMENTS ALONE ARE SUFFICIENT TO GROUND A CONVICTION

The Statement of the Appellant is, no doubt, confessional. Confessional statements alone, I hold, are sufficient to ground a conviction, if such confession is direct and is an unambiguous admission of the ingredients of the offence.
As held in Nkie v The Federal Republic Of Nigeria (2014) 13 NWLR part 1424 Page 305 at 331 Para G’H per Rhodes-Vivour, JSC “once a confessional statement was voluntarily made, that is to say the confession is direct and unequivocal, and it was tendered in Court without objection from the accused person, a judge would be at liberty to act on it and proceed to conviction since a confessional statement is the best evidence that the accused person committed the crime for which he is charged. lt is an admission against the maker.”
See also Iliyasu v The State (2015) 11 NWLR Part 1469 Page 26 At Page 80 Para F-H per Okoro JSC; Akpa v State (2008) 14 NWLR Part 1106 Page 72.
The practice, however, is to look outside the confessional statement to determine if it is probable and true, even where it is voluntary. See Igri v State (2012) Part 1327 16 NWLR Page 522 at 556 Para B-C per Rhodes-Vivour JSC. This, I hold, has been done, by the evidence of PW1 and PW4. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

APPEAL: WHETHER FINDINGS BORNE OUT OF CREDIBLE EVIDENCE MAY BE DISTURBED BY AB APPELLATE COURT

The law is trite that findings that are borne out of credible evidence must not be disturbed by an appellate Court, and an appellate Court will not ordinarily interfere with such findings unless they are perverse or not supported by credible evidence. Consequently where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, such findings cannot be disturbed by an appeal Court, See Guardian Newspapers Ltd v Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC; Momoh v Umoru (2011) 15 NWLR Part 1270 Page 217 at 271 Para C-D per Muntaka-Coomassie JSC; Ali v State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC. per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MOHAMMED HARUNA Appellant(s)

AND

THE STATE Respondent(s)

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Katsina State delivered by Hon. Justice I. B. Ahmed on 5th June 2014, convicting the Appellant for the offence of culpable homicide punishable with death pursuant to Section 221 of the Penal Code.

Dissatisfied with the judgment of the Lower Court, the Appellant filed a Notice of Appeal, dated 28th August 2014, containing five Grounds of Appeal. Briefs of Argument were filed in accordance with the rules of Court.

In the Appellant’s Brief of Arguments, dated and filed on 22/09/2014, settled by Lanre Olaoluwa, Bayo Omole and Bayo Adetomiwa of Matrix Solicitors, four issues for determination were raised, to wit:
1. Whether considering the circumstance of the abandonment of the Appellant’s case by his counsel and the failure of the trial judge to avail an opportunity of legal representation as guaranteed by the Constitution, the Appellant’s right to fair hearing was not breached.
2. Whether having regard to the failure of the prosecution to investigate the defence of Alibi put forward by

the Appellant, the trial Court was right when it held that the defence of alibi could not avail?Appellant.
3. Whether having regards to the clear evidence of the torture and duress which the Appellant was subjected to by the police, the learned trial judge was not wrong when he failed to order for a?trial within trial to ascertain the voluntariness of the confessional statement of the Appellant.
4. Whether despite the absence of a positive element of intention, Court was right when it held that the prosecution had proved the culpable homicide against the Appellants beyond reasonable doubt.

The Respondent, in its Amended Brief of Arguments settled by S. B. Umar (Mrs), Director of Public Prosecutions, Katsina State Ministry of Justice and dated 16/03/2014, deemed properly filed on 28/4/15 pursuant to leave by this Court, adopted the issues for determination raised by the Appellant’s Counsel.
?
I shall accordingly adopt these issues but abridged for succinctness, as follows:
1. Whether the Appellant’s right to fair hearing was breached?
2. Whether, having regard to the failure of the Prosecution to investigate the defence of Alibi

put forward by the Appellant, the trial Court was right when it held that the defence of Alibi could not avail the Appellant.
3. Whether the trial Judge proved the guilt of the Appellant beyond reasonable doubt

The 1st issue for determination is:
Whether the Appellant’s right to fair hearing was breached?

Counsel to the Appellant has complained that, following the abandonment by the Appellant’s Counsel of his defence, the trial Judge was obligated to secure alternative Counsel for him, the failure of which has resulted in the breach of his rights, as guaranteed by Section 36(6) of the 1999 Constitution (as amended) and the trial case of Section 186 of the Criminal Procedure Code, thus rendering the trial a nullity.

They cited the following cases:
Calabar Central Co-Operative Thrift & Credit Society Ltd v Ekpo (2008) 6 NWLR pt.1083 Page 362 at 398; E Onochie V. Odogwu (2006) 6 NWLR Part 975 page 65; Josiah v State (1985) 1 NWLR Part 1 Page 125 and Udo v State (1988) 3 NWLR Part 82 Page 316.

Learned Counsel argued that by these authorities, a judge is obliged to ensure that a person who is being tried of a crime and more

importantly a capital offence which carries a death penalty, is afforded a counsel to defend him at all times throughout the trial because of the gravity of the offence charged. A perusal of the Record of Proceedings, he said, reveals that although a Counsel did represent the Appellant up to some point in the trial, the Counsel abandoned the Appellant to his fate. The application of the prosecution to call three additional witnesses was entertained and granted by the trial Court in the absence of the Defence Counsel, he complained. Citing in support the case of Eshenake V Gbinije (2006) 1 NWLR Part 967 at 228, learned Counsel submitted that the failure of the trial Court to “accord and protect” the right of the Appellant to put in an address at the end of the trial is a breach of the Appellant’s right to fair hearing, which breach occasioned a miscarriage of justice.

Counsel argued further that Section 258(1) of the 1979 Constitution is in pari materia with Section 294(1) of the 1999 Constitution which provides:-
294(1)
“Every Court established under this Constitution shall deliver its decision in writing not later than?ninety days after the

conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

The failure of the Lower Court to avail itself of the benefit of the Appellant’s address which was filed before it but allowed itself the benefit of the Respondents’ address, is an infraction of the rules of natural justice of the “audi alteram partem”.

In her response, the Director of Public Prosecutions pointed out that the Defence Counsel was present at the trial and cross examined the Prosecution witnesses. In addition, all the adjournments were at the instance of the Defence Counsel, who, on conclusion of the case, decided to waive his right to address the Court. She maintained that the Defence Counsel was given more than enough time to file his final address but failed to do so, in consequence of which the prosecution applied to the Court to proceed to deliver its judgment. The Appellant’s Counsel can thus not complain of breach of fair hearing. She cited the case of S & D Const. Co. Ltd Vs Ayoku (2011) 13 NWLR Part 1265 Page 487

In the

instant case, the records show that the Appellant, together with the other accused persons, were represented by A. B. K. Nasir of Counsel. The records also show that, on occasion, S. Salihu, A.T. Karim, M. A. Basumu and H. T. Dikko also appeared for all the accused persons, holding the brief of A,B.K. Nasir. The records further show that it was A.B.K. Nasir that conducted the defence of the accused persons. He led them in evidence and was present during their cross examination, following which he requested that the defence be closed and the case be adjourned for adoption of written addresses. He however ceased further appearances, and, in spite of a number of adjournments to allow him present the written address of the Appellant and the other accused persons, failed to appear.
In consequence, the Court, at the instance of the prosecution, adjourned the case for judgment, the prosecutor informing the Court that he had filed no Address, the defence having failed to file any address. The trial Judge thus adjourned for judgment without the benefit of written addresses from either Counsel. The question is thus whether the failure of the defence Counsel to

write a written address and the failure of the trial judge to secure alternative Counsel for the purpose of filing a written address resulted in a breach of fair hearing.

educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel. It is because of this need that, in capital offences, attracting the death penalty, the accused is not left undefended. If he cannot afford the services of counsel the State assigns one to him. It is surprising that none was assigned to the appellant in the Court of first instance. It is even more surprising that when the appellant himself. (though not a lawyer) raised this point in his 1st Ground of Appeal 10 the Court below, nobody look it up. A fair hearing in cases coming under Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules like the one on appeal. (where Rule 5 makes the services of a legal practitioner mandatory), must include the right to and the aid of counsel for the defence. This was denied the appellant in this case. I am satisfied that the appellant had no fair hearing in the trial Court. This coupled with the non-compliance with the provisions of Section 287 of the Criminal Procedure Law by the trial judge vitiate the trial and makes it mandatory that this appeal should be allowed”
It was similarly held in the case of Udo v

State (1988) 3 NWLR part 82 page 316 at 332 Para B-C, per Nnameka-Agu JSC also cited by the Appellant’s Counsel, per Nnaemeka Agu JSC, that it is “implicit in the concept of fair hearing as on aspect of natural justice in the brood sense that the Court should give equal opportunities to both sides of the conflict. A murder trial cannot be said to be fair when an accused, standing trial for his life, has to conduct the case himself as against a legal practitioner, for the prosecution.”

The instant case however differs from the cases above, as in the cases cited, there was no legal representation afforded the accused person at trial. Defence Counsel in this case, as pointed out above, was, however, present throughout the hearing. As aforesaid, he cross-examined all the prosecution witnesses and conducted the defence of the Appellant and the other accused persons. It was subsequent to hearing that he filed no final address and ceased further appearance. It is thus not correct to say that the Appellant had no legal representation.

On the right to file Written Addresses, Counsel to the Appellant has cited the case of Eshenaike v Gbinije Supra where this

Court, per Abba-Aji JCA, quoted the case of Obodo v Olomu (1987) 3 NWLR Part 59 Page 111 at 721 Para C-F where Belgore JSC (as he then was) held as follows:
“Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced…. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right.
The learned jurist, Abba-Aji JCA, in the case of Eshenaike v Gbinije Supra also cited the case of Salami v Odogun (1991) 2 NWLR Part 173, Page 291 at 301 where Sulu Gambari, JCA, opined thus:-
“Where an address ought to be given and the same was not accorded, any decision so arrived at will amount to a breach of fair hearing which is entrenched in Section 33 of the 1979 Constitution of the Federal Republic of Nigeria and will surely vitiate the proceedings.”
Further referred to by Abba-Aji JCA in the said case is the dictum of Akpabio JCA in Agbogu v Adiche (2003) 2 NWLR Part 805 Page 509

at 527 Para G-H where he held thus:-
“Judicially interpreted, Section 258(1) of the 1979 Constitution vests a right in the parties to make final addresses and where one of the parties makes his final address the other party must be given opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem.”

In the present case, from the records of the Court, the defence was granted four adjournments from 5/3/14 when trial concluded to 4/6/14 to file its written addresses. In default, the trial Judge was compelled to adjourn for judgment. This is thus not a case where the final address of only one side was heard, to the detriment of the other, in contravention of the audi alterem partem rule, for, no address was filed by the Prosecution, the Prosecutor informing the Court, as aforesaid, that the Defence having filed none, he had nothing to respond to.

The important factor is, whether given this state of affairs, the trial Judge properly evaluated the evidence before him

and correctly applied the law to the facts of the case, which is a question that comes up for determination under issue No 3.

In addition, the fact that the Appellant’s Counsel was absent when the motion to call additional prosecution witnesses was taken, is again no denial of fair hearing, for, from the Record, the motion was said, at the hearing of 10/10/12, to

have been brought to the attention of the Defence Counsel. The case was nevertheless adjourned for hearing of this motion, to allow the Defence Counsel be present. Upon his absence at two subsequent dates, the motion was heard and granted and trial continued. Following this grant, the Defence Counsel, later appearing in Court, raised no objections to the grant of this application, neither did he file any application to set the proceedings aside. On the contrary, he participated in the trial, cross examined the prosecution witnesses and upon closure of the prosecution’s case, opened the defence.

Indeed, Courts have to be wary of unnecessarily interfering in the manner a Counsel wishes to conduct the case of his client. When Counsel announces that he is instructed to take on a brief, the Court cannot question this authority except there is a dissent by the client. See Adekanye v FRN (2005) 15 NWLR part 949 Page 433 at 462 Para D per Muhammed JCA (as he then was). See also Afegbai v A/G Edo State (2001) 74 NWLR Part 733 Page 425 at 456 Para B-E per Karibi-Whyte JSC.

I accordingly hold, from the facts of this case, that there was no breach to the

Appellant of his right to fair hearing. As pointed out above, the question of whether the Lower Court properly evaluated the evidence and applied the law to the facts of the case, in spite of the failure of both Counsel to file written addresses, will come up for consideration in the resolution of issue No 3. I accordingly resolve this issue against the Appellant.

The 2nd issue for determination is:
Whether, having regard to the failure of the Prosecution to investigate the defence of Alibi put forward by the Appellant, the trial Court was right when it held that the defence of Alibi could not avail the Appellant.

Learned Counsel to the Appellant concedes that the law is settled that for the defence of alibi to avail an accused person, he must, in addition to his assertion that he was not at the scene of the offence at the time the offence was committed, go further to state where he was, in order to properly absolve himself from culpability. This is because the plea of alibi places an evidential burden on the accused to discharge. The law is settled, he said, that for the defence of alibi to stand, it must be raised at the earliest possible

time, usually during investigation by the Police. Where the defence of alibi is properly raised, the Prosecution has the onus to investigate it. The failure to investigate the alibi raised by the Appellant is fatal to the case of the Prosecution, and any conviction on it will not stand. He cited the cases of Amodu V. State (2010) 2 NWLR (part 1177) 47; Shehu v State (2010) 8 NWLR Part 1195 Page 112; Ukwunnenyi v State (1989) 4 NWLR Part 174 Page 131. He argued further that a careful perusal of the judgment of the trial Court shows that the defence of alibi was not only raised by the Appellant, but promptly too. This alibi was also corroborated by the statements of DW6. Despite this evidence and the failure of the prosecution to investigate the same, the trial Court went ahead to convict the Appellant of the offence charged.

Evidence of alibi, he said, should not be too easily brushed aside except it is counter balanced or demolished by clear rebuttal, adding that in the absence of stronger cogent evidence to counter-balance the plea put forward by the Appellant, the Lower Court was wrong to have rejected it without any legal or factual basis.

Responding, the Director of Public Prosecutions submitted that DW6 who testified for the Appellant in proof of his alibi, raised this defence for the first time in Court, as no alibi was raised at the Police Station worthy of investigation. The defence of alibi which seeks to persuade the Court that the Accused could not possibly be at the scene of the crime as he was somewhere else must, Counsel contended, be precise and specific in terms of the place that the accused was, the particular person or persons he was with and possibly what he was doing at the material time. She cited Ochemoje Vs State (2008) 15 NWLR Part 109 page 57 at 90 Paras C-H.
The evidential burden which rests on the Appellant, she said, must be discharged by information to the Police during investigation when he is giving his statement to the Police. She cited Iregu Vs State (2013) 12 NWLR part 1387 Page 92 at 130 Paras A-D, Osuagwu Vs State (2013) 5 NWLR Part 1347 Page 360 at 383 Paras E-H.

She argued that from the record and also the statement of the Appellant (Exhibit 3A & 3B) the Appellant did not discharge this burden and that a careful perusal of the record of the trial

Court shows that the Appellant was fixed at the scene of the crime committing the offence. The law is that where credible evidence fixes the accused at the scene, committing the offence, the defence of alibi will collapse and fade into insignificance. In addition, where he confesses to the commission of the offence, the defence cannot avail him. She cited Egwumi Vs State (2019) 13 NWLR Part 1372 P. 525 at 548 paras H-G and Lasisi Vs State (2013) 9 NWLR Part 1358 P.74 at 95 paras E-G.

Elaborating on this defence, the Supreme Court, per Kekere-Ekun JSC, in the case of Silos Sule Mohammed v State (2014) 12 NWLR Part 1421 at Page 387 at 430 Para B-H referred to the case of Ozaki Vs The State (1990) 1 NWLR (Pt.124) 92 at 109 Para C-G where Obaseki, JSC held thus:
“What is the meaning of alibi? It is a defence where an accused person alleges

that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police.
The onus of establishing alibi is on the accused person since it is a matter within his personal knowledge. The defence of alibi would succeed if at the earliest opportunity such a defence is raised, with sufficient particulars to enable the police investigate it – Abubakar Mohammed v State (2015) 10 NWLR part 1468
Page 496 at 524 Para A-C per Rhodes-Vivour JSC
As held in the case of Osuagwu v State (2013) 5 NWLR Part 1347 page 360 at 383 Para F-H per Rhodes-Vivour JSC:
“After a suspect is arrested, Police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he

committed the offence. In Court an accused person who sets up the defence of alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the Court but for the prosecution to disprove it.”
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt – Abubakar Mohammed v State (2015) 70 NWLR Part 1468 Page 496 at 524 Para A-C per Rhodes-Vivour JSC;
The defence of alibi would, however crumble where there is stronger evidence against it, for example if the prosecution leads credible and accepted evidence which fixes the accused person at the scene of the crime at the material time. See Abubakar Mohammed v State Supra at 524 Para C per Rhodes-Vivour JSC; Osuagwu v State (2013) 5 NWLR Part 1347 Page 360 at 383 Para H per Rhodes-Vivour JSC:
The law is that where the evidence of the prosecution, positively, unequivocally and irresistibly points to the guilt of the Appellants, the defence of alibi becomes of no moment.

See Sampson Ebenehi & Anor v The State (2009) 6 NWLR Part 1138 Page 431 at 448 Para A per Ogbuagu JSC.
Failure to check an alibi may cast doubt on the reliability of the case for the prosecution. Failure by the police to investigate and check the reliability of (the) alibi would raise reasonable doubt in the mind of the Tribunal and lead to the quashing of a conviction imposed in disregard of this requirement. The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi – Egwumi v State (2013) 13 NWLR Part 1372 Page 525 at 548 Para E-H per Rhodes-Vivour JSC
As held in Ochemaje v State (2008) 15 NWLR Part 1109 Page 57 at 90 Para C-F per Niki Tobi JSC:
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time… It is not the law that the police should be involved in a wild goose chase for the whereabouts of an accused person of the time

the crime was committed. That is not the function or role of the Police. The accused must give specific particulars of where he was at the material time to enable the Police move straight to that place to carry out the investigation required by law.”
As also held by His Lordship at Page 90 Para G “investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination by the evidence of the accused or his witnesses.”
To succeed in such a defence that may lead to an acquittal, the accused must support and substantiate the defence with unassailable credible evidence that is not riddled with holes – Ochemaje v State Supra at 93 Para H per Mukhtar JSC (as she then was).
Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Also, the ipse dixit of the accused, i.e. that he was not present, is not enough. To raise the defence he must give particulars of his whereabouts at that particular time. Where the

accused is however identified by eye witnesses, a straight case of credibility is involved. See Olaiya v State (2010) 3 NWLR Part 1181 Page 423 at 435 Para B-H per Mahmud Mohammed JSC (as he then was); Silas Sule Mohammed v State (2014) 12 NWLR Part 1421 at Page 387 at 430 Para B-H per Kekere-Ekun JSC.

The facts of this case were presented by 5 prosecution witnesses. There were initially 5 accused persons. During the lengthy trial, caused by the retirement of the initial trial Judge and a number of adjournments due to delays caused largely by Defence Counsel and the absence in Court of the accused persons who had been granted bail by the trial Court, two of the accused persons died, leaving three accused persons. The Appellant was the 3rd Accused at the trial. The three accused persons testified as DW1, DW2 and DW3 respectively. DW4, DW5 and DW6 testified as witnesses of the 1st, 2nd and 3rd accused persons respectively.

Eye witness account of the murder of the deceased was given by PW1 and PW4. The evidence of PW1, Abu Yalle Kudidi, a farmer and cattle rearer, is that he lives at Jigawar Danzaki in Safana LGA. Returning to his house on the fateful

day, he met some people coming out of his house, out of which he identified the accused persons and some others. On getting to his house, he discovered the deceased had been killed, with blood gushing from his head, and that the roofing of the deceased’s room had been removed. He went to inform the Village Head and the District Head who returned to the house with him to confirm the incident. The District Head sent for the Police, who arrived the following morning. The Police, the grandfather of the deceased and himself conveyed the deceased to hospital for postmortem examination and subsequently for burial.

The evidence of PW4, Abdu Mamman, also a farmer and cattle rearer, is that he lives in Danzaki Village, also in Safana LGA. He was with the deceased when they (he and the deceased) were chased by the Appellant, Mallam Tukur (2nd Accused) and Usman Shehu (1st accused). He was able to escape but the deceased was attacked with an axe and fell down. He subsequently heard that the victim died.

His cross examination by the Defence counsel is as follows:
“Q: Where did you know the accused persons and for how long?
Ans: I know them as we lived

in the same village. I had known them since childhood.
Q: Why did the accused persons chase you and Kadi?
Ans: They chased us because we supplied water to our animals from a well and the accused persons sent the animals away and abused one of us (a boy). The boy also abused them as a result of which the accused persons wanted to beat him and he ran away and informed us. We then confronted the accused persons as to know why they should attempt to beat the boy as they were surprised to have reported the matter to us.”

Police evidence was given by PW3, Sergeant Yau Shuaibu, then serving at Safana Divisional Police Headquarters. His evidence is that he received the report of the death of the deceased. He went together with a team of police men to the scene, took pictures of the deceased and conveyed the body to the hospital for postmortem examination, subsequently releasing the body for burial. Attempts to arrest the suspects proved abortive. The case diary was subsequently compiled and transferred to the State CID. A stick was recovered from the scene of the accident.
?
The confessional statement of the Appellant was tendered in evidence by PW5,

Inspector Danlami Haruna.

The Appellant testified as DW1. He denied that he perpetrated the crime, claiming to have been in Birnin Gwari, rearing cattle, when the incident occurred. His witness, DW5, testified to this effect. He also alleged that he informed the Police of this alibi.

The testimony of the Appellant in Court, is as follows:
“My name is Muhammadu Haruna. I am 30 years old. I am a Muslim. I am a farmer and rearer. I live at Danzaki in Safano LGA. About 8 years ago, I went out of home rearing my cattle, I and Zayyana Basiru met Police on the way and arrested us and were taken to State CID Katsina and alleged that we killed Kadi Alh. Shuaibu. We denied the allegation as we were not at the scene of the incident. The police at State CID then began to beat us as a result of which Zayyana died while I was hospitalized for a long time. I was with my cattle at Birnin Gwari when the incident occurred. I was together with some of the people who come here to give evidence, I was then taken to prison.
The prosecution witnesses who had testified did so accordingly to their wish as I have no hand in Kadi death. I pray the Court to discharge

and acquit me.”

Under cross examination, with respect to his alibi, he stated as follows:
“Q: When were you arrested by Police?
Ans: I cannot remember
Q; You were at Danzaki when the incident occurred?
Ans: No, I was not there.
Q: How many days did you go back to Danzaki after the incident?
Ans: It was only after six days.
Q; Why did the police arrest you?
Ans: The told us that it was because of the death of Kadi.
Q: What stopped the police from arresting other people?
Ans: I do not know.
Q: Zayyana died at Gen. Hospital Katsina?
Ans: Yes, that is correct.
Q; He died as a result of diarrhea and vomiting?
Ans: I do not know.”

The Statement of the Appellant to the Police, translated into English Language, Exhibit 3B, is as follows:
“I of the above name and address I wish to give my statement as follows. I was born in Jigawa Village Safana LGA. I have one wife on 29/1/2006 at about 20000hrs we saw some people gathering and cry sai (sic) they kill our brother Bello I ask them who and who come our house and killed him from they (sic) mentioned them as follows (1) Nama’u and Jume

and Kadi later on we following them to fight them but from they we look did not saw (sic)them and from they we here (sic) the sound of gun I told our brother sew (sic) them here and we followed them one of them ran and followed one of them to one Alhaji Abu Kudidi House. 1 and (1) Zaya Basiru (2) Tukur Halilu (3) Hassan Basiru (4) Lado Haruna this are people went to fighting them. As a result of the fight one Kadi dead at one Kudidi Abu House because when we follow him he enter the house (but of Kudidi Abu Yale from they (sic) he beat us. We beating so serious so we come back home and leave him there at Kudidi Abu Yale house and letter (sic)we here (sic) said the person which we beating was dead so when we here (sic) said Kadi when we ran away from the village after the village head come and meet us at our place and told us thing the Kadi dead (sic) we sport (sic) to come police station. So that what I know about the case.”
The trial Court, in its Judgment, deliberating on the alibi put forward by the Appellant, at Page 119-120 of the Record, held as follows:
From the testimony of these defence witnesses the accused persons were said to have put up a

defence of alibi, but the even (sic) if that was true the presence of PW1 and PW5 in the trial who were near eye witnesses to the murder and who spotted the accused persons immediately before and immediately after the murder had been committed completely erodes the accused persons’ defence of alibi. I therefore disagree with the defence testimony in its entirety that they were not at the scene of the crime and hereby reject it. I hold that all the three accused persons were responsible for the deceased’s death and have equally no defence to the murder. In other words the accused persons have failed to avail themselves to any of the mitigating circumstances under Section 222 of the Penal Code. The Court is therefore left in no doubt that the ingredients of the offence of culpable homicide punishable with death have been fully proved beyond reasonable doubt as required by law against all the three accused persons and as they have no defence to their action, I accordingly convict them under Section 221 of the Penal Code..”

In the instant case, the Appellant, in his statement to the Police, raised no alibi for the Police to investigate. His statement

was a clear admission of guilt. His witness however alleged in his evidence before the Court, that he informed the police that the Appellant was with him in Birnin Gwari at the time of the incident.

The evidence of his witness, DW6, at Page 79-80 of the Record is as follows:
“I am Iliyasu Adamu. I am 25 years old. I am a rearer and farmer. I lived in Safana?LGA. What I know is that about 8 years back I and the 3rd accused left home and went for rearing our animals somewhere in Birnin Gwari and stayed there for about 9 months when the 3rd accused and one Muhammed decided to come back home. Not known to them that there was trouble in our area, when they were coming back home, police arrested the 3rd accused and Zayya. I was there at Birnin Gwari when I learnt of their arrest and went to inform the police that they were innocent as they were not?in the area at the time of the incident. That is all I know
XX by Prosecution Counsel
Q: Is there 3rd accused related to you?
Ans: No, he is just a?friend.
Q: When the 3rd accused left you at Birnin Gwari where did he head to?
Ans: He came down home at Danzaki village.
Q: When Kadi

was killed you were not at home?
Ans: No, I was not.
Q: So you cannot say who killed him?
Ans: No, I cannot.
Q: You cannot know what happened when 3rd accused left you at Birnin Gwari?
Ans: No, I cannot.
Qr From the time 3rd accused left you to the time you reached home.
Ans: He was about 9 days interval
Rexx: None

From the admission of this witness under cross examination, the Appellant left him to return to Danzaki village nine days before he (DW6) arrived. He thus does not know what happened when the Appellant left him. Thus, even though the Appellant himself raised no defence of alibi during the investigation by the Police, this defence, raised by his witness, does not avail the Appellant, I hold.

In the dictum of Tabai JSC reading the lead judgment in Ochemaje v State Supra at Page 78 Para B-E:
“The settled principle of law is that it is not every failure of the Police to investigate an alibi raised by an accused person that is fatal to the case of the prosecution. In Patrick Njovens & Others v The State (1973) 5 SC 12 at 47 this Court said of the principle.
“There is nothing extraordinary

or exoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished….”
Thus, even though the Police did not investigate this alibi, the prosecution witnesses fixed the Appellant at the scene of the crime at the material time. The alibi of the Appellant, as held in the case of Olaiyo v State Supra “fizzled into the air” and is of no moment, I hold. The trial Judge’s rejection of the plea, in view of the evidence of PW1 and 4, taken together with the confessional statement of the Appellant, Exhibi 3B, cannot be faulted, I further hold.

I again resolve this issue for determination against the Appellant.
?
The 3rd issue for determination is:
Whether the trial Judge

proved the guilt of the Appellant beyond reasonable doubt

The Appellant’s Counsel submits that the law is trite that before a Court can convict a person of committing any offence, the Prosecution has a duty to first prove the commission of such offence beyond reasonable doubt. Citing Section 135 (1) and (2) of the Evidence Act 2011 he submitted that, by law, it is a prerequisite for the Prosecution to prove its case beyond every doubt as only then can it be said to have established its case against the accused person. The reason for this high standard of proof in criminal trials, is so that the essence of the criminal justice system that the innocent be set free and the guilty be punished will not be defeated. Where any doubt in the case of the Prosecution exists, such doubts must be resolved in favour of the Appellant.
?
The learned DPP submitted, in response, that it is trite that it is intention coupled with the physical act that forms the basis of conviction for any crime. Both the elements of an offence must therefore co-exist in order to secure conviction. In the instant case, intention has been well established by the prosecution. The testimony

of PW1 and PW4 at pages 12 and 40 of the record of the trial Court clearly stated the gravity of the injury which the Appellant has the knowledge or is deemed to have the knowledge of, that death will be the probable consequence of their act. Furthermore, the criminal element, especially the mental element could only be inferred through the surrounding circumstances of the commission of the offence. The testimonies of PW1 and 4 stated how they saw the body of the deceased with blood coming out from his head. Head injuries are serious and sensitive which can result in the loss of life of any victim. This piece of evidence is enough for the Lower Court to infer the intention that they had the knowledge that the consequence of their act was death.

While conceding to the position of the law that doubt in criminal cases must be resolved in favour of an accused person, she submitted that no doubt existed in the instant case at the trial Court to warrant resolving the same in favour of the Appellant. Citing Bolanle v State (2009) 18 NWLR pt.1172 p. 7 at 10-11 paras G-C, she submitted that proof beyond reasonable doubt does not mean proof beyond all doubt as

contended by the Appellant adding that it is trite that a case is proved where the prosecution has proved the elements of the offence as in the instant case.

As submitted by both Counsel, by Section 135 (1) and (2) of the Evidence Act 2011, it is a prerequisite in criminal trials for the prosecution to prove its case beyond reasonable doubt. Proof beyond reasonable doubt does not, however, mean proof beyond a shadow of doubt but that the Court must be satisfied that the facts established by the evidence, by virtue of their probative value, establish the guilt of the accused. See Ali v State (2015) 10 NWLR part 1466 page 1 at 42 Para A-C per Kekere-Ekun JSC.

Proof of the guilt of the accused beyond reasonable doubt can be by means of:
1. The confessional statement of the accused;
2. Circumstantial evidence; or by
3. Evidence of eye witnesses
See Ali v State (2015) 10 NWLR Part 1466 Page 1 at 24 Para A-B per Clara Ogunbiyi JSC; Haruna v A/G Federation (2012) 9 NWLR Part 1306 page 419 at 445 Para B-C per Adekeye JSC; Igabele v State (2006) 6 NWLR Part 975 page 100 at 120-121 Para H-A per Onu JSC.

Where there exists any doubt in

the case of the prosecution, such doubt must be resolved in favour of the Appellant. See Igabele v State Supra at page 121 para E – G per Oguntade JSC.

By Section 221 of the Penal Code, for culpable homicide to be punishable with death, the following must be proved:
(a) that the death of a human being actually took place;
(b) that such death was caused by the accused, and
(c) that the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All these ingredients must be proved or co-exist before a conviction can be secured. Failure to establish any of the ingredients will result in an acquittal. See Haruna v A, G, Federation (2012) 9 NWLR Part 1306 Page 419 at 444-445 Para G ? A per Adekeye JSC; Ali v State (2015) 10 NWLR Part 1466 Page 1 at 23-24 per Ogunbiyi JSC.

In the instant case, the 1st requirement, the death of Kadi Shuaibu has been proved.

With respect to the 2nd requirement, that the death was caused by the Appellant, the Appellant, in his statement to the Police has confessed to this crime.

This was corroborated by eye witness evidence of PW4.

The trial Judge, upon a review of the evidence before him, held, at Page 113 of the Record:
“From the testimony of all the prosecution witnesses, particularly the first prosecution witness (PW1) in the person of Abu Yalle Kudidi, this Court is left in no doubt that death of a human being in the person of Kadi Alhaji Shuaibu has occurred. Similarly from the testimony of PW1, PW4 (Abdu Namamu) and the presence of Exhibits 1A and 1B, 2A and 2B and 3A and 3B, it is not in doubt that it was the three accused persons who caused the death of the said Kadi Alhaji Shuaibu.”

The trial Judge also set out excerpts of the testimony of the prosecution witnesses and concluded:
“In the absence of any other contradicting evidence any Court, including this Court, would arrive at the conclusion that it was the accused persons who killed the deceased Kadi Shuaibu and from the circumstances leading to the death they did so intentionally…”

The Appellant’s Counsel has however contended that the confessional statement, Exhibit 3B, was involuntary and made under torture, rendering the same inadmissible

and liable to be expunged. He contended that the trial Judge, by reason of its involuntariness, should have ordered a trial within a trial, to ascertain the voluntariness of the statement, which he did not do, thereby vitiating the trial. Citing Section 28 and Section 29(2) of the Evidence Act 2011, he agreed that it is settled law that confessional statement is the best evidence but that it can ground a conviction only where it is shown and proved to be voluntary, adding that the test for validity and admissibility of a confessional statement is voluntariness.

Conceding that the Defence Counsel failed to object to the admissibility of the confessional statement, the Lower Court, he argued, was wrong not to have raised the issue suo motu and tested the confessional statement, especially when the Appellant alleged that it was obtained under duress and torture, for which he was hospitalized, and which resulted in the death of one of the persons alleged to have committed the offence.
?
The DPP however pointed out that the Appellant’s Counsel did not contest the voluntariness of the statement prior to its admission but only objected to its admissibility on

the ground that it was not properly certified by law. There was thus no need for the Lower Court to have ordered a trial within trial. The issue of the voluntariness of the statement, Counsel contended, was only raised during the Appellant’s defence. Citing the case Ofigri Vs State (2012) 16 NWLR Part 1327 Page 522 at 545 Paras B-E, he submitted that the proper time to raise objection to the admissibility of a confessional statement on the ground of involuntariness is at the point of tendering the same by the prosecution and not at the stage of
defence.

He maintained that contrary to the submission of the Appellant’s Counsel, the trial Court tested the statement in the light of other evidence before coming to the conclusion that the Appellant committed the offence. It is therefore misleading for the Appellant to submit that the trial Judge did not test the confessional statement of the Appellant.

Going through the Record of Appeal, at page 57, I note that when the Prosecution sought to tender the Appellant’s Statement, the Defence Counsel objected on the ground that the document is a public document and which ought to have been certified, with

the mandatory fees paid. The trial Judge, however, overruled the objections of the defence, holding the statements to be duly certified as required by law. He held there to be no requirement in the Evidence Act for the payment of fees in respect of certification in a criminal trial.

I agree with the Respondent’s Counsel that no objection was made with respect to the voluntariness of the statement. The time to challenge a statement on the ground of involuntariness or torture, to compel the trial Court to conduct a trial within a trial, is at the point of tendering the statement and not afterwards.
It was held in the case of Olalekon v State (2001) 18 NWLR part 746 Page 793 at 809 Para F-H per Ogundare JSC (of blessed memory) to be the law that:
“…when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have been admitted in evidence.”
In Igri v state (2012) Part 1327 page 522 at 545 para D-E the Court, per Chukwuma-Eneh JSC held :
“The

objection to a confession is required to be raised at the tendering of the confessional statement. This is ordinarily so during presenting of the prosecution’s case of the main trial”
His Lordship reiterated at page 552 para A-C:
“The time to object to the tendering a statement …and indeed any material object… is at the point of tendering it…to raise any challenge?at the defence stage?is belated as the prosecution has closed its case…
See also Mohammed v State (1991) 5 NWLR Part 192 at page 438 at 457 Para A.

Indeed the same Counsel, when the Prosecution sought to tender the statement of the 2nd Accused (Page 19 of Record), objected to its voluntariness, causing the trial Judge to conduct a trial within a trial. There was, however, no such objection to the tendering of the statement of the Appellant.

There was thus no requirement, I hold, for the trial judge to have conducted a trial within a trial. His failure to do so did not, I hold, vitiate the trial. In addition, the statement by the Appellant in his defence that one of his friends died of the torture was debunked when he stated under cross

examination that he does not know whether his friend died of diarrhoea and vomiting. I accordingly hold it too late in the day, for the Appellant to seek to impugn Exhibit 3B.

Exhibits 3A, the Hausa version and its English translation, Exhibit 3B, were tendered by PW5, Inspector Danlami Haruna, formerly of State CID Katsina. His evidence is that he was the Investigating Police Officer (IPO) to whose department the case was assigned, led by Inspector Magaji Adamu. He (PW5) recorded the statement of the Appellant in Hausa, following the administration of the words of caution, which words were thumb printed by the Appellant. He read over the statement to the Appellant who said he understood and thumb printed the same. Both the statement and the Appellant were taken to ASP Ali Abdu who read over the statement to the Appellant and after the Appellant’s confirmation of same, endorsed it. The case diary was forwarded to the Ministry of Justice for legal advice. The case diary was unfortunately stolen from his (Prosecutor’s car), causing the officer in charge of the State CID to produce the duplicate copy, duly certified by the Officer in Charge, AC Haliru

Gwandu. The witness identified the statement of the accused made by him, by the names and signatures and the endorsement by both the confirming officer, ASP Abdu, and the AC’s stamp and signature. The objection of the Appellant’s Counsel to the admissibility of the statement, as aforesaid, was overruled by the trial Judge who held them to be properly certified, admitting the certified copies of the Hausa and English versions as Exhibits 3A and 3B respectively. An axe, a stick and the sheathe of a cutlass were recovered, he said, from the scene of the crime.

conviction since a confessional statement is the best evidence that the accused person committed the crime for which he is charged. lt is an admission against the maker.”
See also Iliyasu v The State (2015) 11 NWLR Part 1469 Page 26 At Page 80 Para F-H per Okoro JSC; Akpa v State (2008) 14 NWLR Part 1106 Page 72.
The practice, however, is to look outside the confessional statement to determine if it is probable and true, even where it is voluntary. See Igri v State (2012) Part 1327 16 NWLR Page 522 at 556 Para B-C per Rhodes-Vivour JSC. This, I hold, has been done, by the evidence of PW1 and PW4.

In determining the 3rd requirement, that the act of the accused that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act, the law is that a person intends the natural consequences of his act.
The Supreme Court, in the case of Ibikunle v State (2007) 2 NWLR Part 1019 page 546 at 575 Para E-F per Onu JSC, referring to an earlier decision, stated the legal presumption, as follows:
“The law presumes that a man intends the natural and probable consequences of

his acts. And the test to be applied in these circumstances is the objective test namely, the test of what a reasonable man would contemplate as the probable result of his acts.”
And in Garba v. The State (supra) per Mohammed, JSC at p.1459 held:
“If from the intentional act of injury committed the probability of death resulting is high, the finding should be that the accused intended to cause death or injury sufficient in the ordinary cause of nature to cause death.”

In the case of Iliyasu v State (2015) 11 NWLR Part 1469 Page 26 at 57-58 Para F-C the Supreme Court, per Nweze JSC adopted with approval the dictum of Abiru JCA of the Lower Court, where he held:
“In order to determine whether the defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon that is, a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of the proximity of the victim with the lethal weapon used by the accused (person)..”

In the instant

case, the area of the body on which the blow was inflicted and the weapon used, being an axe, on the head of the deceased, is proof, I hold, that the intention of the Appellant was to either kill the deceased or with the knowledge that death would be the probable consequence of the act.

I hold that the trial Judge, even though no written addresses were filed by either party, rightly evaluated the evidence in this case, properly applying the principles of

law to the evidence before him. I see no reason to disturb his findings. I again resolve the 3rd issue for determination against the Appellant I consequently hold that the offence against the Appellant has been proved beyond reasonable doubt and that the Appellant was rightly convicted by the trial Judge of the offence of culpable homicide punishable with death. I find no merit in this appeal. The appeal against the conviction and sentence of the Lower Court accordingly fails and is hereby dismissed. The conviction and sentence of the Lower Court is accordingly affirmed.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:
I have had the privilege of reading before now the draft of the lead judgment delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal.

This appeal is against the conviction of the Appellant by the Lower Court for culpable homicide punishable with death and the sentence of death by hanging passed on him for the part he played in causing the death of one Kadi Alhaji Shuaib by cutting him on the head with an axe of

the 28th of January 2006 at Jingawar Danzaki Village, Safana Local Government Area of Katsina State. I agree entirely with the resolutions of the issues for determination in the lead judgment. I agree that the Respondent led cogent and sufficient evidence to prove the ingredients of the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt through credible eye witnesses’ testimonies and the confessional statement of the Appellant. The complaints of the Counsel to the Appellant in this appeal were not well founded.

I adopt the reasoning in the lead judgment as mine and I, too, find that this appeal is lacking in merit. I hereby dismiss the appeal and affirm the judgment of the judgment of the High Court of Katsina State in Charge No KTH/DM/6C/2006 delivered by Honorable Justice I. B. Ahmed on the 5th of June, 2014 as well as the conviction and sentence passed on the Appellant therein.

AMINA AUDI WAMBAI, J.C.A.:
I had the opportunity of reading in draft the illuminating lead Judgment of my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I am in agreement with the

reasoning therein and the conclusion arrived thereat that the appeal is completely devoid of my merit.

In support of the Judgment, I wish to comment on the judicial attitude to a confessional statement tendered without objection. Where a confessional statement of an accused is tendered and its admissibility is not promptly objected to at the stage of its tendering, the confessional statement would only be deemed to have been voluntarily made by the accused and relevant against him within the contemplation of Section 29(1) of the Evidence Act. Any attempt at a later stage to challenge its voluntariness cannot be accommodated and can only amount to a mere afterthought which does not vitiate the confession nor preclude the Court from relying on same.
It is now well settled that the proper and legally recognized stage of challenging the voluntariness of a confessional statement is at the time it is being tendered and not after it has been tendered and admitted in evidence as an exhibit before the Court. OSENI V. STATE (2012) 2 MJSC (II) 98, ALARAPE & ORS. V. STATE (2001) 2 SCNJ 162 also reported, (2001) 5 NWLR (Pt.705) 79, AFOLALU V. STATE (2009)

3 NWLR (PT.1127) 160 @ 193. Except it is an afterthought; that is, a thought or thing thought of after the occasion; a later thought, reflection or modification (see Chambers 20th Centuary Dictionary Page 22), no man who has the ability and is at liberty and afforded opportunity to avert an eminent danger would wait to be overtaken by that danger which he vividly sees, hears or feels with his senses, before attempting to escape the danger. This is the similitude of an accused person who either personally or through Counsel hears and sees the prosecution in the open Court makes an application to tender in evidence a confessional statement ascribed to him to have been voluntarily made yet decides not to challenge the statement but allows same to be admitted and later turns around after he has had a 2nd and subsequent thoughts but when the whole show is over, to seek to deny the voluntariness of the statement. That would amount to what in common parlance is coined as “too late to cry when the head is off’. Undoubtedly, that does not accord with the dictates of common reasoning nor would the law allow or accommodate such an action.

Thus, the law is, and our

Courts have been consistent in applying the time hallowed principle that where a confession is found to be voluntary, positive, unequivocal and amounts to an admission of guilt, it is enough to sustain a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial since such a u-turn does not necessarily make the confession inadmissible. SULE
V. STATE (2009) 17 NWLR (PT.1169) 33, ADEKOYA V. STATE (2012) LPELR – 7815 (SC), YUSUF V. STATE (2014) VOL. 6 ? 7 MJSC (PT.1) 109.
On the potency of an unchallenged voluntary statement irrespective of its retraction, Oguntade JSC in Yaba v. State (2007) 18 NWLR (Pt.1066) 215 succinctly stated the law thus:-
“The Law is that where a man makes a free and voluntary confession which is direct and positive and is properly proved, the Court may, if satisfied that the statement complies with the law and the rule governing the method of taking it and it is tendered and not objected to by the defence and same is admitted as an exhibit, it becomes good evidence and no amount of retraction will vitiate its admission as a voluntary statement…..”
The Law

is that the trial Judge will be at liberty to act upon such a statement and predicate a conviction upon same.
IKEMWSON V. STATE (1989) 3 NWLR (PT.110) 530, UNIERIIO V. THE STATE.
After all, a confession is the best form of evidence in criminal trial.
MUSA V. STATE (2013) 9 NWLR (PT.1359) 214, SOLOLA V. STATE (2005) 11 NWLR (PT.937) 460, CHIOKWE V. STATE (2013) 5 NWLR (PT.1347) 205. This is because as aptly explained by Tobi JSC in AKPA V. STATE (2008) 14 NWLR 72 @ 95 Para C – D,
“Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is accused person. What better evidence than that? He knows or knew what he did and he says or said it in Court. Is there need for any further proof? I think not”.

It is for this and the elaborate reasons in the lead Judgment that I too, find no merit in this appeal and accordingly dismiss same.

In consequence thereof, I affirm the Judgment of the Lower Court delivered on

5th June, 2014 as well as the conviction and sentence.

Appearances

Bayo Adetomiwa with him, David OkorogbaFor Appellant

AND

Aminu Garba, Assistant Chief State Counsel with him, A. L. Buhari, Senior State Counsel and S. M. Malanta Senior State Counsel, Ministry of Justice Katsina StateFor Respondent

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MOHAMMED HARUNA v. THE STATE (2016)

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