ABDULSALAM IBRAHIM v. THE STATE (2016)

ABDULSALAM IBRAHIM v. THE STATE

(2016)LCN/8533(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/K/177/C/2011

RATIO

EVIDENCE: CONFESSIONAL STATEMENT; REQUIREMENTS BEFORE A CONFESSION CAN BE USED TO CONVICT AN ACCUSED PERSON
The general application of the law as firmly established is that the Court can convict an accused based on his confessional statement and that such confession does not need to be corroborated if it meets the requirements of the law. See HASSAN V. STATE (2001) 6 NWLR (PT. 709) 286, and KIM V. STATE (1992) 4 NWLR (PT. 233) AT 25.
For an accused to be convicted on his own confessional statement, same must be positive, direct, unequivocal and admit of all the ingredients of the offence before it can be used solely or partly to convict an accused. See AKIBU HASSAN V. THE STATE (2001) 7 SCNJ 643, MICHAEL PETER v. THE STATE (1997) 12 SCNJ 53. The confessional statement of the Appellant herein is so positive, direct, connected, striking, corroborative and rhythmic with the evidence led save that the Appellant was not caught red handed. Although, he retracted and denied Exhibits 7 &7A wherein a trial-within-a trial was conducted, the trial Judge admitted same. In EKURE v. STATE (1991) 13 NWLR (PT. 635) 456 AT 470-471 it was held that the confession of an accused should be tested as to its truth by examining it in the light of the other evidence, to determine:- (a) Whether the facts stated in it are true so far as can be tested (b) Whether the accused had the opportunity of committing the offence (c) Whether the accused’s confession was consistent with the facts which have been ascertained and proved. (d) Whether the accused’s confession was possible (e) Whether there is anything outside it to show that it is true (f) Whether it is corroborated. It is again however, desirable to have outside the confessional statement to the police some evidence no matter how slight of the circumstances which makes it probable that the confession was true. see EFFION v. STATE (1998) 5 S.C.N.J 160; ULUEGEKA v STATE (2007) 7 NWLR (PT. 665) P. 404. Additionally, the law does not require corroboration of a confessional statement to be by direct evidence. It can be sustained by any material in the proceedings which even could come from the maker of the confessional statement himself or by way of conduct or demeanour. see KANU v. R. (1952) 14 WACA 30, R V. OMOKARO (1941) 7 WACA 146 and KOPA V. THE STATE (1971) 1 ALL NLR 150. PER UWANI MUSA ABBA AJI, J.C.A.
EVIDENCE: MATERIAL CONTRADICTION; WHAT CONSTITUTES A MATERIAL CONTRADICTION
A material contradiction is one which goes to the root of the evidence of a witness and is therefore fatal to the case of the party who calls him, as it destroys the credibility of the witness. See GABRIEL v. THE STATE (1989) 5 NWLR (PT.122) 457 AT 468. PER UWANI MUSA ABBA AJI, J.C.A.
ALIBI: MEANING AND NATURE OF THE DEFENCE OF ALIBI
The word “alibi”, means “elsewhere”. When an accused person relies on alibi, it means that he was not at the scene of the crime, but elsewhere and he could not have been the one that committed the offence with which he has been alleged to have committed. In Osuagwa vs. State (2013) 5 NWLR Pt. 1347 P.360 @ 395, the Supreme Court when dealing with the plea of alibi by an appellant enunciated that Alibi means “elsewhere,” when an accused contends that he cannot be guilty of the offence with which he is charged because at the time of the commission of the offence he was somewhere else, he raises the defence of alibi. After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. That is the earliest opportunity a suspect has to 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, where an accused person sets up the defence of alibi, evidence led by the accused person must be taken seriously. However, the onus is not on the accused person to establish alibi to the satisfaction of Court but rather for the prosecution to disprove it. But, the police has no duty to disprove a worthless alibi. A plea of alibi is demolished if the prosecution adduces sufficient and cogent evidence to fix the accused at the scene of the crime at the material time. See also Ikomo v. State (1973) 5C P. 231; Okponefe v. State (1962) 2 NSNLR P. 346; Yanor v. State (1965) 1 ALL NLR P. 193; Njovens v. State (1973) P.17; Ozaki v. State (1990) 1 NWLR Pt. 124; Gachi v. state (1965) NWLR Pt. 333 and Chewmoh v. State (1986) 2 NWLR Pt. 22 P. 31. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: HOW CAN THE COMMISSION OF AN OFFENCE BY AN ACCUSED BE PROVED
The law is trite, the commission of an offence by an accused person can be proved or established by either of the following means:
(a) The confessional statement of the accused person; or
(b) Circumstantial evidence; or
(c) Evidence of eye-witness of the crime.
Thus, the prosecution does not always need an eye-witness evidence to secure the conviction of an accused person, even where the charge is that of culpable homicide or murder, if the charge can be proved by any of the ways enumerated supra. See Igalede vs. State (2006) 6 NWLR Pt. 1000 P. 100 @ 120; Lori v. State (1980) 8-11 SC P. 81; and Emeka v. State (2001) 14 NWLR Pt. 734 P, 666. PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; CAN AN ACCUSED BE CONVICTED SOLELY ON THE CONFESSIONAL STATEMENT
Confessional statements, if properly admitted and having passed or satisfied the requirements set and in the case of Dawa v. State (1980) 11-SC 236 @ 267, is cogent and reliable on which a Court of law can convict an accused for committing an offence. In Akpa vs. State (2008) 14 NWLR Pt. 1106 P.72 @ 92, NIKI TOBI J.S.C said:
“In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he can be convicted on his confession alone once the confession is positive, direct and property proved, See Milla vs. The State (1985) 3 NWLR (Pt. 11) 190 at 95 Paragraph C-D the Supreme Court per Tobi, JSC stated the law thus:
“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 the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof, I think not.” PER IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

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

Between

ABDULSALAM IBRAHIM Appellant(s)

AND

THE STATE Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Kaduna State, holden at Kaduna in Charge No. KDH/KAD/17C/2000, delivered by Justice M.T.M. Aliyu on 27/9/2010, wherein the Appellant was convicted and sentenced to death by hanging under Section 221 of the Penal Code.

The charge against the Appellant pursuant to Sections 97(i), 274 and 221 of the Penal Code contained at page 2 of the records in the Charge Sheet dated 3/3/2000 and filed on 1/3/2007 reads as follows:
COUNT ONE
That you ABDULSALAM IBRAHIM, SUNDAY IKE AND JA’AFARU ISIYAKU on or about the 10th day of October, 1999 at about 1100 hours in Madobi village via Giwa Local Government Area of Kaduna State agreed to be done and indeed caused to be done an illegal act, to wit, behead and or cut off the head of one HADIZA IBAHIM “F’ with the aid of a very sharp object, and that you thereby committed an offence punishable pursuant to Section 97(i) of the Penal Code and triable by the High Court.
COUNT TWO
That you ABDULSALAM IBRAHIM on or about the 12th day of Oct. 1999 at about 100

hours in Madobi village via Giwa, Giwa Local Govt. of Kaduna State, kidnapped or abducted one HADIZA IBRAHIM “F? in order that she might be killed for ritual purposes and thereby committed an offence punishable pursuant to Section 274 of the Penal Code and triable by the High Court.
COUNT THREE
That you ABDUSALAM IBRAHIM on or about the 12th day of Oct. 1999 at about 100 hours in Madobi village via Giwa, Giwa Local Govt. of Kaduna State, did commit culpable homicide punishable with death for having voluntarily caused the death of one HADIZA IBRAHIM “F? by doing an act to wit, cut off her head with the aid of a particularly sharp object with the intention of causing her death and thereby committed an offence punishable pursuant to Section 221 of the Penal Code and triable by the High Court.

The facts according to the evidence of PW2, Izzatu Ibrahim, the mother of the deceased and step mother of the Appellant are that the Appellant sent for the deceased through one Hamisu, that she should accompany him to cut out grass in the farm of the Appellant’s father and that she saw them both in the farm that fateful morning but when she returned

home in the afternoon, she did not see the deceased and the
Appellant at home but later learnt that the Appellant had fled to Hunkuyi. After an inquiry of her whereabouts was made at the PW2 mother’s place, the deceased was still not there. Consequently, a search party was organized who later found the severed head of the deceased by the street, while the body was later found in the farm. Thus, the Appellant was charged along with 2 others for criminal conspiracy and alone with kidnapping and culpable homicide punishable with death all pursuant to Sections 97(i), 274 and 221 of the Penal Code. He pleaded not guilty to the charges. The Respondent called 4 witnesses to prove the charges against the Appellant including the parents of the deceased, Hadiza Ibrahim and tendered 11 Exhibits in all including 3 confessional statements of the Appellant. After the trial, the Appellant was convicted and sentenced as charged by the trial Court. Dissatisfied with the said conviction and sentence, he appealed vide an Amended Notice of Appeal dated 23/10/2013 and filed on 28/10/2013, with 5 Grounds of appeal reproduced without their particulars:
GROUNDS OF

APPEAL:
GROUND ONE:
The learned trial judge erred in law when he convicted the accused person of the offence of culpable homicide punishable with death on the strength of a disputed confessional statement, without seeking corroborative evidence outside the said statement.
GROUND TWO:
The learned trial judge erred in law when he held that “I do not agree with the submission that the evidence that the accused was the last person seen with the deceased alive is porous. On the contrary, the evidence of PW2 has not been controverted or contradicted that in the morning of the fateful day when she passed by the farm she saw the accused and the deceased together in the farm”.
GROUND THREE:
The learned trial judge erred in law when he held that the accused person’s defence of alibi was an after-thought, which was raised for the first time during the course of the trial.
GROUND FOUR:
The learned trial judge erred in law when he held that “the onus of establishing that the statement credited to the accused was in fact not made by him is on him and the time to do that is when he comes to make his defence.”
GROUND

FIVE:
The learned Trial Judge, with due respect, erred in law when he convicted the Appellant “for the offence under Section 227 of the Penal Code as per the charge in Count 3 earlier.”

In accordance with the Rules of this Court, the Appellant filed his Brief of Argument dated 25/5/2015 and filed on 12/6/2015, settled by Ola Olanipekun, Esq, wherein he formulated 4 issues for the determination of the appeal to wit:-
1. Whether the Appellant could be validly convicted of an offence of culpable homicide on the basis of a confessional statement which disclosed that another person carried out the act of the killing of the deceased, when the Appellant was not convicted of criminal conspiracy with that other person, (Distilled from Ground 5)
2. Whether the learned Trial Judge did not lose sight of the standard of proof in the instant trial, thereby occasioning miscarriage of justice in allowing contradictory evidence of PW2 to prove evidence of last person seen with the deceased alive, (Distilled from Ground 2).
3. Whether the learned Trial Judge could validly dismiss the Appellant’s defence of Alibi as having been raised for the first time

during the course of the trial, without admissible evidence to that effect (Distilled from Ground 3).
4. Whether the Trial Court was right in convicting the Accused/Appellant of the offence of culpable homicide punishable with death on the strength of a self-contradictory and disputed alleged confessional statement of the Accused/Appellant without positive and verifiable corroborative evidence, (Distilled from Ground 1).

The Respondent on the other hand, filed its Brief of Argument dated 27/11/2015 but deemed filed on 20/1/2016, settled by Abdullahi Yahya, Esq, Abdullahi Yahya & Co, 2nd Floor, Investment House , 27, Ali Akilu Road, Kaduna, wherein he formulated 2 issues for the determination of this appeal thus:
a. Whether upon a proper appraisal and evaluation of the evidence adduced in this case, the learned trial Judge was right when he held that the prosecution has proved beyond reasonable doubt the offence of culpable homicide punishable with death with which the Appellant was charged and consequently convicted him accordingly.
(Grounds 1, 2 and 5)
b. Whether in the entire circumstances of this case, the learned trial Judge

was right when he held that the defence of alibi raised for the first time when the Appellant gave evidence during his trial was an afterthought, and therefore it did not avail him, (Ground 3).

At the hearing of the appeal on 4/4/2016, the Counsel to the Appellant adopted his Brief of argument and prayed this Court to allow the appeal and set aside the conviction and sentence of the Appellant while the Counsel to the Respondent adopted his Brief and urged this Court to sustain the conviction and sentence of the trial Court.

I shall consider this appeal on a single issue thus:
Whether by the evidence and admitted Exhibits, the trial Court was right to convict and sentence the Appellant to death by hanging for culpable homicide contrary to Section 221 of the Penal Code.

It is submitted by the learned Counsel to the Appellant that the trial Judge relied basically on the disputed confessional statements, Exhibits 1 and 1A in convicting the Appellant under Section 221 of the Penal Code. On the charge of conspiracy, he submitted that while the Appellant and Sunday Ike committed the crime together, yet the Appellant alone was convicted under

Section 221 of the Penal Code. He humbly submitted that the actus reus and mens rea must concur otherwise, the Appellant is entitled to acquittal. He argued that nowhere in the judgment was a pronouncement made on count 1 or Exhibit 1A revealing the Appellant was a conspirator in cutting the head of Hadiza Ibrahim. This, he submitted was a wrong consideration of the evidence.

He maintained that the trial Judge was unmindful of the standard of proof in criminal cases when he overlooked the evidence of the Appellant that he was at home fixing thatch roof with his cousins and not in the farm as testified by PW2, thus last seen with the deceased alive. His submission is that the evidence of PW2 is contradictory and not reliable but the trial Court relied on same as corroborative of the Appellant’s confessional statement. Similarly, that the holding of the trial Court that the deceased was last seen with the Appellant is porous, self-contradictory and should be discountenanced. He submitted that the trial Court cannot pick and choose which set of witnesses to believe or not. He relied on IREGU V. STATE (2013) 12 NWLR 92 AT 126 PARAS D-E, ONWUNALU V. UCHE

(2010) 2 NWLR (PT. 1179) 582 AT 611 PARAS B-C. On the fatal effect of such contradictions, he relied on EZE V. STATE (2013) 16 NWLR (PT. 1380) 392 AT 411- 412 PARAS G-C.

Contending further, he stated that the trial Court was wrong to dismiss the Appellant’s defence of alibi without admissible evidence. He submitted that the defence was raised when the Appellant denied been on the farm with the victim but that he was at home. He cited ANI V. STATE (2003) 11 NWLR (PT. 830) 142. He submitted that it was not the prosecution but the trial Judge that put up the defence that the Appellant’s defence of alibi was an afterthought. He said that the defence of alibi when raised must be investigated by the prosecution, failure of which entitles the accused to a discharge. He relied on DAGAYYA v. STATE (2004) 17 NWLR (PT. 903) 529, ATIKU V. STATE (2010) 9 NWLR 241 AT 288 PARAS F-H, AMODU V. STATE (2010) NWLR (PT. 1177) 47 AT 80 PARAS G-H.

He argued that the trial Court was wrong to convict the Appellant of culpable homicide on a self-contradictory and disputed confessional statement. He cited USMAN V. STATE (2010) 6 NWLR 454 AT 469- 471 PARAS H-A to have laid down the

tests for acting on a confessional statement. He settled that Exhibits 1, 1A, 6, 6A, 7 & 7A did not pass through the criteria for admitting confessional statement before convicting the Appellant. Moreover, that the above Exhibits were intrinsically self-contradictory. He maintained that the trial Court ignored the Appellant’s denial of the said Exhibits without giving any reason. He relied on GODWIN IKPASA V. BENDEL STATE (1981) 95 SC 7 AT 28, UGUNYE V. STATE (1999) 5 NWLR 548 AT 570 PARAS E-F, D, 576 PARAS F-G. He urged this Court to allow the appeal, set aside the judgment, discharge and acquit the Appellant.

The Respondents learned Counsel on the contrary has submitted that under our criminal justice system, it is settled that the burden of proof lies on the prosecution to prove beyond reasonable doubt the essential elements of an offence and the burden never shifts. He cited AKALEZI V. STATE (1993) 2 NWLR (Pt. 273) 1 AT 13 PARA E, OSUAGWU v. STATE (2013) 1-2 SC (PT. 1) 37 AT 49, USMAN V. STATE (2013) 5-6 SC (PT. 111) 71 AT 87. He stated that in establishing the guilt of the accused, the prosecution can do so through one or all of these methods, to

wit; (A) By confessional statement or evidence; (B) By circumstantial evidence; (c) By eye witness account or direct evidence. He relied on AGBOOLA v. STATE (2013) 11 NWLR (PT. 1366) 619 AT 646 PARA E, MBANG V. STATE (2013) 7 NWLR (PT. 1352) 48 AT 68 PARAS F-G, EMEKA V. STATE (2002) 14 NWLR (Pt. 734) 666 AT PARAS G-H. He submitted that the Appellant was charged under Section 221 of the Penal Code and convicted accordingly. That, for the prosecution to secure conviction under this section, it must prove that; (a) the death of a human being has taken place (b) it was caused by the act of the accused (c) the act of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was the probable consequence. He cited STEPHEN HARUNA v. AG. FED (2012) ALL FWLR (PT. 632) 1617 AT 1634 PARAS E-G, TUNDE ADAVA V. STATE (2006) ALL FWLR (Pt. 311) 1777 AT 1785 PARAS E-F. He cited STATE V. DANJUMA (1997) 5 SCNJ 126 AT 136 to submit that failure to prove the above ingredients, will lead to acquittal.

He made a submission that by the evidence of PW1, PW2, PW4, the Appellant and the finding of the trial Court, the

1st ingredient has been proved. On the 2nd and 3rd ingredients, he submitted that although there was no eyewitness account, Exhibits 1 & 1A is an admission and confession by the Appellant of how he and one Sunday Ike killed the deceased and took her blood. Thus, that a confessional statement is the best evidence to prove the commission of an offence if it is voluntary, direct, positive and unequivocal. He relied on ANTHONY NWACHUKWU V. STATE (2007) 17 NWLR (PT. 1062) 31 AT 65- 66 PARAS H-A, AGBOOLA V. STATE (2013) 11 NWLR (PT. 1366) 619 AT 656 PARAS B-E, It is similarly settled that although the confession in Exhibits 1 & 1A were retracted by the Appellant, it cannot bar the trial Court from relying on it to convict the Appellant. He cited FATAI BUSARI V. STATE (2015) 5 NWLR (PT. 1452) 343 AT 367- 368 PARAS G-A.

Attacking the Appellant’s Counsel’s argument that since the Appellant was not the one that severed the head of the deceased, he should have been convicted of conspiracy and not culpable homicide punishable with death. He however submitted that by Section 79 of the Penal Code, Laws of Kaduna State, 1991, each of the persons is liable where a

criminal act is done by several persons in furtherance of the common intention of all. He further relied on NIMVEN MIRI & ORS v. STATE (1968) ALL NLR 56, DABO FILANI & NJOBDI FULANI V. BORNU N.A (1966) ALL NLR 255 AT 259.

On the defence of alibi put up by the Appellant, it is submitted that the trial Court was right to hold that it was an afterthought. That, out of the 3 extra-judicial statements made by the Appellant, none alleged that he was somewhere other than the crime scene. It is trite that for the defence of alibi to avail an accused, it must be raised at the earliest time to allow the police to investigate same. He cited FRIDAY AIGUOREGHIAN & ANOR V. STATE (2004) 3 NWLR (PT. 860) 367 AT 423-424 PARAS G-E, VICTOR ESSIEN VICTOR V. STATE (2013) 12 NWLR (PT. 1369) 465 AT 486 PARAS D-G. He maintained that the Appellant having raised the defence of alibi for the first time during his evidence in chief, the trial Court was right to hold that it was an afterthought. Furthermore, that by Exhibits 1 & 1A, the Appellant having fixed himself at the scene of the crime, the trial Court was entitled to believe his confessional statement and regard

his oral testimony as unreliable. He cited USMAN MAIGARI V. STATE (2010) 16 NWLR (PT. 1220) 439 AT 479-480 PARAS H-A. Finally, he submitted that there was no contradiction in the evidence of PW2, which evidence the trial Court used to corroborate the retracted statement of the Appellant. Thus, the conviction of the Appellant was not based on the evidence of PW2. He urged this Court to resolve the issue in his favour, dismiss the appeal and affirm the judgment of the trial Court.

The Respondent’s learned Counsel has urged this Court at page 8 of his Brief to strike out Ground 4 since no issue has been raised therefrom. He relied on LASISI OGBE V. SULE ASABE (2009) 18 NWLR (Pt. 1172) 106 AT t24 PARA E, 137 PARAS B-D, PURIFICATION TECHNIQUES NIG. LTD & ORS V. RUFALUBRIL & ORS (2012) 18 NWLR (PT. 1331) 109 AT 128 PARA B.

It is apparently obvious that the Appellant’s learned Counsel formulated his 4 issues from Grounds 5, 2, 3 and 1 respectively, leaving out Ground 4. Of course, there is no issue for me to consider since none can be formulated from an abandoned ground. Having framed no issue from the said Ground 4, it is natural, inferable and

automatic that he cannot make use of what he has abandoned and same must be struck out. See Per ARIWOOLA, J.S.C in DANIEL V. FRN (2015) LPELR- 24733 (SC), MADAM AKON IYOHO V. E.P.E EFFTONG ESQ. (2007) 11 NWLR (PT. 1044) 31.

The crux of this appeal is that the Appellant was charged amongst other charges under Section 221 (b) of the Penal Code as Count 3 and accordingly convicted and sentenced under same by the trial Court. The Apex Court, Per OKORO, J.S.C, in SHEIDU V. STATE (2014) LPELR- 23018 (SC) held that to secure conviction under Section 221 (b) of the penal code:
“… the prosecution has to prove the following ingredients in order to secure a conviction for the offence of culpable homicide punishable with death. That is to say: 1. That the death of a human being actually occurred. 2. That it was caused by the act or acts of the accused. 3. That the act/acts were done with the intent of causing death or 4. That accused knew that death was the probable consequence of his acts.”
See also OMINI V. THE STATE (1999) 12 NWLR (PT. 630) 168, IGAGO V. THE STATE (1999) 14 NWLR (PT. 637) 1, (1999) 10 – 12 S.C. 84, EDOHO V. THE STATE (2010) 14 NWLR (PT.

1214) 651.

On the methods to prove the commission of the offence or ingredients under Section 221 (b) of the Penal Code, Per MUHAMMAD, J.S.C, in UMAR V. STATE (2014) LPELR- 23190 (SC) held and propounded thus:
?It is thus, my understanding that the offence of culpable homicide punishable with death as provided under Section 221(b) of the Penal Code can be proved to the standard required by the law, that is, proof beyond reasonable doubt by any of the following methods: (i) by confession of the accused person, (ii) by direct evidence, (iii) by circumstantial evidence and or; (iv) by the combination of all or any of the above methods.?

In the instant appeal, there is no evidence of any eye or direct witness to the commission of the offence. In other words, there is no witness paraded as having seen the Appellant severe or assist or abet in decapitating the deceased, Hadiza Ibrahim. Thus, the trial Court relied on the remaining methods in establishing the offence against the Appellant.
?
It is worthy to note that after the arrest of the Appellant, he made 3 set of confessional statements to the police herein after tagged Exhibits 1 &

1A, 6 & 6A and 7 & 7A respectively. There has never been exactitude to the statements made by an accused person when he is under the heat of arrest and interrogations! Thus, the 3 sets of confessional statements differ in varying degrees; even with the retraction of Exhibits 7 & 7A which led to a trial within a trial as contained at pages 65-66 of the records.

In the three different Exhibits, the Appellant has admitted the commission of the offence. Whether it was coincidental or a mix of fate, the Appellant has confessed how the request for human blood was negotiated, how the deceased was lured into the farm where she was killed, how the Appellant and one Sunday Eke carried out the slaughter of the deceased, how the blood was collected into a rubber container and the promise of money to him. He however denied at the trial of ever making Exhibits 7 &7A, which consequently led to a trial-within trial.

The general application of the law as firmly established is that the Court can convict an accused based on his confessional statement and that such confession does not need to be corroborated if it meets the requirements of the law. See

HASSAN V. STATE (2001) 6 NWLR (PT. 709) 286, and KIM V. STATE (1992) 4 NWLR (PT. 233) AT 25.

For an accused to be convicted on his own confessional statement, same must be positive, direct, unequivocal and admit of all the ingredients of the offence before it can be used solely or partly to convict an accused. See AKIBU HASSAN V. THE STATE (2001) 7 SCNJ 643, MICHAEL PETER v. THE STATE (1997) 12 SCNJ 53. The confessional statement of the Appellant herein is so positive, direct, connected, striking, corroborative and rhythmic with the evidence led save that the Appellant was not caught red handed. Although, he retracted and denied Exhibits 7 &7A wherein a trial-within-a trial was conducted, the trial Judge admitted same. In EKURE v. STATE (1991) 13 NWLR (PT. 635) 456 AT 470-471 it was held that the confession of an accused should be tested as to its truth by examining it in the light of the other evidence, to determine:- (a) Whether the facts stated in it are true so far as can be tested (b) Whether the accused had the opportunity of committing the offence (c) Whether the accused’s confession was consistent with the facts which have been ascertained and

proved. (d) Whether the accused’s confession was possible (e) Whether there is anything outside it to show that it is true (f) Whether it is corroborated. It is again however, desirable to have outside the confessional statement to the police some evidence no matter how slight of the circumstances which makes it probable that the confession was true. see EFFION v. STATE (1998) 5 S.C.N.J 160; ULUEGEKA v STATE (2007) 7 NWLR (PT. 665) P. 404. Additionally, the law does not require corroboration of a confessional statement to be by direct evidence. It can be sustained by any material in the proceedings which even could come from the maker of the confessional statement himself or by way of conduct or demeanour. see KANU v. R. (1952) 14 WACA 30, R V. OMOKARO (1941) 7 WACA 146 and KOPA V. THE STATE (1971) 1 ALL NLR 150. The trial Court warily, consciously and meticulously considered, assessed and evaluated the confessional statement of the Appellant and found it to have been corroborated with other evidence and the conduct of the Appellant. The trial Court was firm and believed the positiveness, unequivocality and directness of the Appellant’s confessional statements

when it held from line 2 of page 82 of the records:
“I find nothing in the evidence adduced in this case to suggest that the statements, Exhibits 1, 6 and 7 were not made by the accused. They contain such information relating to the educational background of the accused, the name of his teacher and the girl he wanted to marry which are personal and private and therefore difficult for anybody not very close to the accused to know except the accused told him. The accused did not debunk these facts as false, it is my opinion that the accused made the 3 extra judicial statements.”

As a drowning man groping for anything to hold unto and save his neck, the Appellant in one fell swoop came up with a defence of alibi at page 69 when he at line 12 said “On 12/10/99, I was in the house throughout”. I must align myself with the well-considered finding of the trial Court on the non-availability of this defence to the Appellant when he with comprehension inter alia held at pages 83-84 from the last paragraph thus:
“?the defence of alibi first raised by the accused person does not avail him. The defence was first raised by him in his evidence before

this Court. It is trite that an accused relying on an alibi has a duty to let the Police know at the earliest opportunity where and with whom he was at all material time…The accused in this case did not raise the defence in any of the 3 statements he made to the Police. He did not raise the defence at the earliest opportunity but late in the day after the prosecution had closed their case and during his evidence in chief. When he testified, the accused did not even claim that the Police is aware of his alibi before he testified, If it is true that he was home throughout with two of his cousins Abdulkadir and Jibrin Aliyu on the fateful date, why didn?t he state in any of his statements and how come none of them was called by him to testify in his behalf? I find the alibi of the accused to be nothing but an afterthought and I so hold.”
This same issue was squarely tackled by this Court per Uwa, JCA in KABIRU v. AG OGUN STATE (2008) LPELR-3617 (CA), when he held as follows:
?The appellant did not raise the defence of alibi at his arrest but at the trial. The prosecution was not therefore obliged to investigate the plea of alibi. In his

evidence the appellant did not give evidence to support his defence of alibi or mistaken identity as to where he was and those who could testify to his presence in that other place rather than the scene of crime, making it impossible for him to have been present at the time and place of the robbery. In such a situation, the onus would then be on the prosecution to disprove it. As earlier stated, where properly raised it is the duty of the prosecution to disprove the alibi by calling evidence, it follows therefore that the alibi must be raised early to enable the prosecution to investigate it and call evidence, if necessary, in rebuttal. An accused raising the defence of alibi must therefore do so at the earliest opportunity… On the other hand, where there is positive and credible evidence, accepted by the Court, which evidence fixed the appellant at the scene of crime as one of the parties to the crime, the prosecution has no duty to call evidence in rebuttal of the defence of alibi or in conducting an identification parade to exclude the appellant… It is clear that the appellant did not give the police the opportunity to investigate the alibi, as a result

he cannot rely on it. In this case, since the appellant raised the defence of alibi at the trial and said he was elsewhere at the time the offence was committed has made an assertion he has to prove, which in this case he failed to do.”
See also SOWEMIMO v. THE STATE (2001) 36 NRN 52. R v. LEWIS (1969) 2 Q.B 1, ADIO V. THE STATE (1986) 2 NSCC 815, ADEDEJI V. THE STATE (1971) 1 ALL NLR 75, EDE V. FEDERAL REPUBLIC OF NIGERIA (2001) 1 NWLR (Pt. 695) 502, GACHI V. THE STATE (1965) NMLR 33, FATOYINBO V. AG WESTERN NIGERIA (1966) NWLR 4, EZE V. STATE (1976) 1 SC 125, OZAKI v. STATE (1991) 21 NSCC (PT. 1) 79, (1990) 1 NWLR (PT. 124) 92, IBRAHIM V. STATE (1991) 4 NWLR (PT. 186) 399.

There is also the submission of the Appellant’s learned Counsel that the trial Court lost sight when he allowed the contradictory evidence of PW2 to prove the evidence of last seen. PW2’s evidence in chief touching on this is at page 46 lines 10-14 wherein she testified:
“He sent a small boy who lives at the same house his name is Hamisu. The victim came out to the accused and they went out together to the farm. When I returned house I prayed my Zuhr (noon) prayer and I

didn?t see the victim?The accused ran away to Hunkuyi on the same date. He was arrested by the Police on the same date at about 12.00am.”

The PW2 vehemently asserted this under cross-examination at page 47 from line 7 when she stated:
“I was inside the house when accused and the victim left the house that day. When I passed by the farm land on my way to visit some people in the morning of the fateful date I saw the accused farming while the victim was standing. The farm belongs to the accused’s father.”

It is noteworthy that aside the straightforward and streamlined evidence of the PW2 asserting that the Appellant was last seen with the deceased, there are corroborative evidence on this. On Exhibits 6A and 1A respectively, the Appellant confessed as follows:
“On 12/10/1999 at about 0900 hours in the morning I now went to the farm together with two children Hamisu and Uwale
“On Tuesday 12/10/99 at about 0730 hrs I went to the farm together with the late Hadiza and little Hamisu both of them are my junior brother.”

It is equally not in dispute that the farm where the deceased headless body was found after

the search is the farm of the Appellant’s father. I have not spotted any iota of contradiction let alone material contradiction on the last seen evidence of PW2. A material contradiction is one which goes to the root of the evidence of a witness and is therefore fatal to the case of the party who calls him, as it destroys the credibility of the witness. See GABRIEL v. THE STATE (1989) 5 NWLR (PT.122) 457 AT 468. Obviously, the Appellant has not rebutted this evidence of PW2 that he was last seen with the deceased. The doctrine of last seen has evolved in our criminal jurisprudence, consistent with what obtains in other jurisdictions and is to the effect that it is the duty of an accused person who last saw the deceased alive to give an explanation on how the deceased met his death. In the absence of an explanation, the Court is entitled to infer in the face of overwhelming circumstantial evidence that the accused person killed the deceased. See BASSEY AKPAN ARCHIBONG V. THE STATE (2006) 5 SCNJ 202. In this appeal, the Appellant could not rebut the fact that he was last seen with the deceased but fleetingly, sweepingly and contradictorily denied ever been

with the deceased but that he was at home throughout, when it was in evidence that he ran to Hunkuyi on that day. In fact, he could not even call as witnesses the 2 people he alleged he was with that period. I believe that the evidence of last seen is well articulated here.

The learned Counsel to the Appellant has urged this Court to commute the conviction and sentence of the Appellant from culpable homicide punishable with death to conspiracy since the Appellant was not the one that severed the head of the deceased but one Sunday Ike. The Appellant’s learned Counsel is indeed bereft of understanding of the law on liability for joint acts in criminal jurisprudence. The learned Counsel to the Respondent has rightly stated the position of the law on this and I am in full agreement with his submission. To buttress more, Section 79 of the Penal Code, Laws of Kaduna State, 1991, with respect to liability of each person when a criminal act is done by several persons in furtherance of the common intention of all provides:
?When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable

for that act in the same manner as if it were done by him alone.”
Thus, when the existence of a common intention between all the several persons who committed the criminal act and the criminal act itself are established, each of such persons would be liable for the entire criminal act; such criminal act includes all acts contemplated by the participants or which would ordinarily be done in furtherance of that common intention but not the unpremeditated acts of a participant. In other words, this section deals with the liability of several persons committing a criminal act with a common intention. See AUTA V. STATE (1975) 4 S.C. 92. consequently, even if the Appellant was not the one that beheaded the deceased, there has been established their common intention and acts to kill the deceased. It will be injustice if he goes for a lesser offence. In fact, in this appeal, it has been abundantly established and proved that it was the Appellant that killed the deceased.
?
Having exhausted all the defences available, the trial Judge was not convinced otherwise to discharge the Appellant. It is a well settled principle of the administration of justice that

questions relating to primary findings of fact are ordinarily, exclusively within the domain of the Court of trial. This is because it is the Court of trial which has the opportunity of observing the witnesses give oral evidence and determining their credibility from their demeanour and behaviour before the Court of trial. see STATE v. NAFIU RABIU (1980) 8-11 SC 130, NASAMU v. THE STATE (1979) 6-9 SC 153, 161. The Court of Appeal which is not in the same advantageous position as the Court of trial cannot set aside the judgment of the Court of trial merely on the grounds that, it would have, if it were considering the matter, come to a different conclusion. Hence, so long as there was evidence from which the learned Judge could have come to the conclusion to which he did, the verdict cannot be disturbed. See R, V. OMISADE & ORS. (1964) N.M.L.R. 67, EFE V. THE STATE (1976) 11 S.C. 81, IKEM V. STATE (1985) NWLR (PT. 2) 378. I have neither seen any contrary evidence to discharge the Appellant.
?
It has thus been established by both confessional statements of the Appellant and the circumstantial evidence that, 1) That there was the death of Hadiza Ibrahim

(Uwale). 2) That it was caused by the act or acts of the Appellant. 3) That the act/acts were done with the intent of causing death or. 4) That the Appellant knew that death was the probable consequence of his acts. The presumption is true that a person intends the natural and foreseeable consequences of his act. An intention to kill can also be deduced from the nature and type of weapon used. See MICHAEL V. STATE (2008) 9 MJSC 61 AT PAGE 73.

This issue is therefore resolved in favour of the Respondent. Consequently, this appeal lacks merit. It is hereby dismissed. Thus, the judgment of the High Court of justice, Kaduna State, holden at Kaduna in Case No.KDH/KAD/17C/2000, delivered by Justice M.T.M. Aliyu on 27/9/2010, is hereby affirmed.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading in draft the leading judgment prepared and just delivered by my lord, Uwani Musa Abba Aji, JCA, I concur with my lord’s reasoning and the decision arrived at that the appeal lacks merit and same be dismissed accordingly. Let me just emphasis one or two points on the defence of alibi put up by the appellant who was the accused

person at the lower Court when he claimed to be at home through out the 12th of October, 1999, therefore could not have been the person who committed the offence with which he was charged.

Where an accused person asserted that he was not at the scene of the crime, he could not have committed the offence, the prosecution has a duty to investigate such assertion in order to disprove same. At this state, an accused person has no duty or onus of proving the alibi but for the prosecution to adduce credible evidence demolishing the assertions of the accused person.

The word “alibi”, means “elsewhere”. When an accused person relies on alibi, it means that he was not at the scene of the crime, but elsewhere and he could not have been the one that committed the offence with which he has been alleged to have committed. In Osuagwa vs. State (2013) 5 NWLR Pt. 1347 P.360 @ 395, the Supreme Court when dealing with the plea of alibi by an appellant enunciated that Alibi means “elsewhere,” when an accused contends that he cannot be guilty of the offence with which he is charged because at the time of the commission of the offence he was somewhere else, he raises

the defence of alibi. After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. That is the earliest opportunity a suspect has to 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, where an accused person sets up the defence of alibi, evidence led by the accused person must be taken seriously. However, the onus is not on the accused person to establish alibi to the satisfaction of Court but rather for the prosecution to disprove it. But, the police has no duty to disprove a worthless alibi. A plea of alibi is demolished if the prosecution adduces sufficient and cogent evidence to fix the accused at the scene of the crime at the material time. See also Ikomo v. State (1973) 5C P. 231; Okponefe v. State (1962) 2 NSNLR P. 346; Yanor v. State (1965) 1 ALL NLR P. 193; Njovens v. State (1973) P.17; Ozaki v. State (1990) 1 NWLR Pt. 124; Gachi v. state (1965) NWLR Pt. 333 and Chewmoh v. State (1986) 2 NWLR Pt. 22 P. 31.

The appellant did not raise the defence of alibi at the

appropriate time, he waited until at the trail. In that circumstance, the prosecution was under no duty to investigate same, being belated. Exhibits 1, 1A, 6, 6A and 7 and 7A do not support the defence of alibi.

The law is trite, the commission of an offence by an accused person can be proved or established by either of the following means:
(a) The confessional statement of the accused person; or
(b) Circumstantial evidence; or
(c) Evidence of eye-witness of the crime.
Thus, the prosecution does not always need an eye-witness evidence to secure the conviction of an accused person, even where the charge is that of culpable homicide or murder, if the charge can be proved by any of the ways enumerated supra. See Igalede vs. State (2006) 6 NWLR Pt. 1000 P. 100 @ 120; Lori v. State (1980) 8-11 SC P. 81; and Emeka v. State (2001) 14 NWLR Pt. 734 P, 666.

The appeal made 3 different statements to the police which have been admitted as Exhibits 1, 1A, 6, 6A and 7, 7B. Confessional statements, if properly admitted and having passed or satisfied the requirements set and in the case of Dawa v. State (1980) 11-SC 236 @ 267, is cogent and

reliable on which a Court of law can convict an accused for committing an offence. In Akpa vs. State (2008) 14 NWLR Pt. 1106 P.72 @ 92, NIKI TOBI J.S.C said:
“In law, where an accused person confesses to a crime, in the absence of an eye witness of killing, he an be convicted on his confession alone once the confession is positive, direct and property proved, See Milla vs. The State (1985) 3 NWLR (Pt. 11) 190 at 95 Paragraph C-D the Supreme Court per Tobi, JSC stated the law
thus:
“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 the accused person. What better evidence than that? He knows or know what he did and he says or said it in Court. Is there need for any further proof, I think not.”

The statement made by the appellant as an accused person at the lower Court, passed all the tests enunciated in the case of Dawa v. State (1980) 8-11 SC. P. 236 @ 268, wherein Obaseki, JSC of

blessed memory, had this to say:
“On the issue of weight to be attached to confessional statement retracted or not retracted, the test to be applied and or followed were laid down in R Vs, Skyes (1973) 8 Cr. App, R. 233 and approved by the West African Court of appeal in Kanu vs. The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are:
(1). Is there anything outside the confession to show that it is true?
(2). Is it corroborated?
(3). Are the relevant statements made in it of facts, true as far as they can be tested?
(4). Was the prisoner one who had the opportunity of Committing the murder?
(5). Is his confession possible?
(6). Is it consistent with other facts which have been Ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exists. If the confessional statement fails to pass the tests, no conviction can properly be founded on it, on appeal, it will be hard to sustain, Since Kanu vs. The King (supra), authorities abound in this

country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above. Among the long line of authorities may be mentioned:
(1) The Queen vs. Obisa (1962) 1 ALL NLR
(2) Edet Obosi vs. The State (1965) NMLR 119
(3) Paul Onochie & 7 Ors. vs. The Republic (1996) NMLR 307 (4) Obue vs. The State (1976) 2 SC 141 (5) Jimoh Yesufu vs. The State (1976) 6 SC 167 (6) Ebhomien & Ors Vs. The Queen (1963) 1 ALL NR 365.”
The evidence adduced before the lower Court satisfied all the tests enumerated in the case of Dawa vs. The State supra. The learned trail Judge was right when he relied on Exhibits 1, 1A, 6, 6A and 7, 78 which has been corroborated by the evidence of PW 2 and the other prosecution witnesses. It is for the foregoing, and the fuller reasons ably marshaled by my learned brother, Uwani Musa Abba Aji, JCA, that, I, too, do hereby dismiss the appeal, and resultantly affirm the judgment of the lower Court delivered on the 27th of September, 2010,

convicting and sentencing the appellant for committing the offence of culpable homicide under Section 221 of the Penal code, Kaduna State.

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, Uwani Musa Abba Aji, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide by the conclusions reached therein.

?I too thus find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Kaduna State in Suit No KDH/KAD/17C/2000 delivered by Honorable Justice M. T. M. Aliyu on the 27th of September 2010 and the sentence passed therein on the Appellant.

Appearances

OLA OLANIPEKUN, ESQ. with him, AITTHOILY OGUAJAMMA, ESQ.For Appellant

AND

ABDULLAHI YAHYA, ESQ.For Respondent