KAINJI NERE v. THE STATE
(2018)LCN/11905(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/S/187C/2017
RATIO
CRIMINAL LAW: OFFENCE OF CULPABLE HOMICIDE
The settled position is that for the prosecution to succeed in establishing the offence of culpable homicide punishable with death, all the ingredients of the offence as contained in Section 221 of the Penal Code must be proved or established to the satisfaction of the Court thus; 1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence.
The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. See the cases of MUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015)11 NCC at page 40-41.” PER FREDERICK OZIAKPONO OHO, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“On the question of weight to be attached to a confessional statement whether retracted or not retracted the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?” PER FREDERICK OZIAKPONO OHO, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
KAINJI NERE Appellant(s)
AND
THE STATE Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the judgment of the High Court of Kebbi State, sitting at Zuru Judicial Division Coram: SABI’UBALA SHU’AIBU, J. in Case No. KB/ZR/HC/7c/2013, delivered on the 4th day of April, 2014 wherein the Appellant was convicted and sentenced to death for the offence of Culpable Homicide punishable with death.
The Appellant was charged alone with the offence of culpable homicide; an offence punishable under Section 221 of the Penal Code in that on or about the 7-2-2012 at Dunahu village in Sakaba Local Government Area of Kebbi State he caused the death of Danjuma Nere by stabbing him with a knife. The Appellant pleaded not guilty to the count. In proof of the case against the Appellant, the Respondent called a witness who testified as the PW1 and tendered an Exhibit admitted as Exhibit ‘S1’.
The Appellant testified in his defense, and called no other witnesses. At the end of final addresses of Counsel the learned trial Judge in a considered judgment delivered on the 4th April, 2014, convicted the Appellant of the offence of culpable homicide punishable with death and sentenced him to death by hanging.
Dissatisfied with his conviction and sentence, the Appellant has appealed to this Court vide a Notice of Appeal dated the 28th of September, 2017 containing three (3) Grounds of Appeal filed.
ISSUE FOR DETERMINATION;
The Appellant nominated a sole issue for the determination of this Appeal thus;
Whether from the evidence before the trial Court, the Respondent proof the offences of culpable homicide contrary to Section 221 (b) of the Penal Code beyond reasonable doubt against the Appellant? (Distilled from grounds 1, 2, and 3 of the Notice of Appeal)
On the part of the Respondent, a sole issue was also nominated for the determination of this Appeal thus;
Whether from the evidence led before the trial Court, the prosecution has proved its case beyond reasonable doubt to warrant the conviction and sentence of the Appellant.
The issues nominated by both sides, only separated by issues of semantics as they are basically the same, this Appeal shall be determined based on the issues nominated by the Appellant.
The Appellant’s brief of Argument filed on the 15-5-2018, settled by HUSSAINI ZAKARIYAU ESQ., was deemed filed on the 15-5-2018 while the Respondent’s brief of Argument filed on the 18-12-2017 and settled by M. U. MAKERA ESQ., was deemed filed 15-5-2018. At the hearing of the Appeal on the 15-5-2018, learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.
SUBMISSIONS OF COUNSEL;
APPELLANT;
SOLE ISSUE;
Whether from the evidence before the trial Court, the Respondent proof the offences of culpable homicide contrary to Section 221 (b) of the Penal Code beyond reasonable doubt against the Appellant? (Distilled from Grounds 1, 2 and 3 of the Notice of Appeal)
In arguing the sole issue, Appellant’s Counsel contended that the burden of proving that the Appellant committed the offence charged beyond reasonable doubt rest squarely on the Respondent and never shifts until when such burden is fully discharged. In proving the offence of culpable homicide punishable with death against the Appellant, Counsel told Court that the Respondent called in the evidence of the PW1 and tender EXHIBIT ”S1” and that the trial Court based on the evidence of the PW1 alone convicted and sentenced the Appellant as charged. The submission of Counsel is that by the evidence before the trial Court, the Respondent did not proof the second and third ingredients of the offence in Section 221 (b) of the Penal Code and he urged this Court to so hold. Counsel therefore reproduced excerpts of the evidence of the PW1 in this respect, where the PW1 stated thus at page 22 of the records;
”I met the deceased fighting with the accused over a cow, I asked them to stop. The Younger brother, the deceased wouldn’t listen. The deceased struck the accused. The accused fell to the ground. I was trying to stop them. I now rushed to the bush to call their mother who was in the bush working on the farm.”
According to Counsel, the Appellant as DW1 confirmed the PW1 story when he said; (See page 30 of the record of Appeal):
”It is not true that I killed Danjuma. I had a cow. Danjuma (deceased) met me at home. He attacked me. I fell to the ground…. He was making abusive language (“Shege, Dan’Iska, Danbanza”) meaning ‘bastard, useless, idiot’. I ignored him. He struck me. I fell unconscious. When I regained consciousness I found that there was no Danjuma and also there was no cow.”
Part of the argument of Counsel is that the PW1 admitted before the trial Court that she did not see nor know who killed the deceased when the PW1 stated thus:
”The accused fell to the ground. I was trying to stop them. I now rushed to the bush to call their mother who was in the bush working on the farm. When I returned I found that Danjuma had died as a result of the fight.”
Counsel further argued that the evidence of the PW1 was even very doubtful particularly when the Respondent refused to tender the evidence of the Investigating Police Officer who investigated the case. According to Counsel, the evidence of the I.P.O. was that it was a case of causing bodily harm (See page 6 of the record of Appeal) and that the deceased was rushed to the hospital for treatment against the evidence of PW1 that she met the deceased dead when she came back from calling the deceased mother. The contention of Counsel is that by the investigation (See page 6 of record of Appeal) the deceased died in the hospital while the PW1 said the deceased died at the place of fighting.
This Court was told by Counsel that there was no any medical report presented and that this results in a serious contradiction and a short coming which deal a great blow to the Respondent’s case, which must be resolve in favour of the Appellant. He urged the Court to so hold and cited the case of OKASHETU vs. THE STATE (2016) 26 WRN 1 at 8:6. It was also submitted by Counsel that the first ingredient of the offence was only slightly proved and not that it was the Appellant who killed the deceased. Counsel further submitted that there was nothing in the evidence of the PW1, which proved that that the death of the deceased can be attributed to the Appellant.
It was contended by Counsel that the Respondent at the trial Court intentionally refused to present the evidence of the deceased’s mother who PW1 called from the farm. The submission of Counsel is that the Respondent refused to present this evidence because it knows that it will be against it and in favour of the Appellant.
He urged Court to so hold. It was further contended that there was no any cogent and compelling evidence against the Appellant, hence the trial Court ought to have discharged the Appellant in accordance with Section 191 (3) of the CPC.
According to Counsel, Section 191(3) of the Criminal Procedure Code Cap 419 Laws of Nigeria, 2004 (hereinafter referred to as the “CPC”) provides as thus:
”If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the Defendant sufficiently to require him to make a defence, the Court shall, as to that particular charge, discharge him.”
The submission of Counsel here is that the trial Judge erred when he insisted on the Appellant defending when the Respondent has not made any case against the Appellant from the evidence of the PW1 who was not an eye witness.
RESPONDENT;
The learned Respondent?s Counsel contended that the Appellant wrongly argued that the trial Court based its decision on the evidence of PW1 alone in convicting and sentencing the Appellant as charged and that PW1 is not an eye witness.
But Counsel submitted that the decision of the trial Court was also predicated on the Extra-Judicial Statement of the Appellant and the circumstantial evidence of PW1.
Counsel said that the Appellant confessed to having committed the offence of Culpable Homicide Punishable with death. He referred to page 62 of the Record of Appeal. Counsel also argued that it is established principle of law that a free and voluntary confession of guilt whether judicial or extra-judicial if it is direct and positive and properly established is sufficient to ground a conviction. He cited the cases of SOLOLA vs. STATE (2005) 11 NWLR (PT. 937) 460; IDOWU vs. STATE (2000) 7 S.C. (PT.11) 203.
Learned Counsel also contended that as it relates to the evidence of the PW1, that her evidence is overwhelmingly circumstantial and leaves no one in doubt as to the guilt of the Appellant and he urged this Court to so hold. He cited the case of IGABELE vs. STATE (2007) 2 N.C.C. 125 at 139 the Supreme Court per ONU, JSC held thus;
“This Court went on to hold in EMEKA vs. STATE (Supra) that where the Accused person was the last person to be seen in the deceased’s company and circumstantial evidence is not only overwhelming but leads to no other conclusion, it leaves no room for acquittal.”
Learned Counsel further contended that in the IGABELE vs. STATE case, (Supra) the Apex Court further held thus at pg. 154.
”This brings me to the doctrine of LAST SEEN. It means in effect that the law presumes that the person last seen with the deceased bears full responsibility for his death if it turns out that the person last seen with him is dead… It must be stressed and this is settled that in view of the said doctrine of last seen it is the duty of the Accused person to give explanation relating to how the deceased met his or her death. Similarly in the absence of an explanation by the Accused person (as in the instant case) the trial Court or even an Appellant Court will be justified in drawing the inference that the Accused person killed the deceased.
It was further submitted by Counsel that no particular number of witnesses is required to prove a fact and as such that the evidence of the PW1 alone is sufficient; that however, in the case at hand, the prosecution went further to present the Extra-Judicial statement (confessional statement) of the Appellant which makes the trial Court right in convicting the Appellant based on the two pieces of evidence. Counsel argued that the Appellant misconstrued the position of law when he argued that failure to present the medical Report (of the cause of death) dealt a great blow to the Respondent’s case. The submission of Counsel on this point is that medical Report is not sine qua non for establishing the offence of Culpable Homicide. He cited the case of OGUNO vs. STATE (2007) 7 N.C.C. 449 AT 467 where the Court held thus:-
”It is not in all cases that Medical Evidence in proof of cause of Death is necessary. A Court can in the absence of a Medical Report properly infer cause of death from the evidence and circumstances of the case.”
Counsel therefore urged this Court to discountenance with the line of argument of the Appellant vis–vis the absence of a medical Report. On the failure of the Respondent to present the deceased’s mother so as to testify in the case, Counsel cited the case of NIGERIA AIR FORCE vs. OBIOSA (2003) 13 NSCQR, 250 AT 280 where Supreme Court held thus:-
”The Law imposes no obligation on the prosecution to call a host of witnesses to prove its case. All the prosecution need to do is to call enough material witnesses to prove its case, and in so doing it has a discretion in the matter.. If the evidence of a witness is very essential to the defense of the Accused, it is for the accused to call him. He should not expect the prosecution to call the witness since the prosecution is not expected to perform the function of the prosecution and that of the defense at the same time.”
Counsel, therefore urged this Court to discountenance with the argument of the Appellant on the issue. On the contention that the evidence of the PW1 contradicted the evidence of the IPO on page 6 of the Record of Appeal, Counsel submitted that no such contradiction of any sort exist between the evidence of the duo. Counsel argued that the PW1 testified that she left the Appellant and the deceased fighting each other while she ran for help but by the time she returned the deceased was dead, refer to page 22 of the Record of Appeal, while the investigating police officer, who was not an eye-witness stated in his statement (attached to the proof of evidence) that the deceased died as confirmed by the Hospital. According to Counsel, both testimonies point to the fact that the deceased/victim died and he urged this Court to so hold.
RESOLUTION OF APPEAL
The case against the Appellant was that on or about the 7th day of February, 2012 at Dunahu village in Sakaba Local Government Area of Kebbi State was said to have stabbed one Danjuma Nere with a knife at the back and this resulted in the death Danjuma Nere. The eye -witness account has it that on the fateful day, the Appellant and the deceased were engage in fisticuffs and that after all efforts on his part to separate the duo had failed, he abandoned the fighting duo in order to alert their mother whose farm was nearby. He said that upon his return to the scene of crime, he met the lifeless body of the deceased. The Appellant was therefore charged with the offence of Culpable Homicide punishable with death, an offence punishable under Section 221(b) of the Penal Code. In the course of trial, the Appellant testified for himself and called no witnesses. His extra-judicial statement, which was tendered without an objection was admitted into evidence as Exhibit ‘S1’.
Although the question of the voluntariness and the veracity of the confessional statement of the Appellant admitted as Exhibit ‘S1’ was not no made an issue in this trial, learned Appellant’s Counsel nevertheless raised issues as to the sufficiency of the said Exhibit vis–vis the reliability of the evidence of the sole witness, i.e., the PW1 who was the eye-witness of what transpired on the fateful date in question. These issues were no doubt subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law. Learned Appellant’s Counsel, while rooting for a verdict of an acquittal had contended that the second and third ingredients of the offence of culpable homicide punishable by death.
The settled position is that for the prosecution to succeed in establishing the offence of culpable homicide punishable with death, all the ingredients of the offence as contained in Section 221 of the Penal Code must be proved or established to the satisfaction of the Court thus;
1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence.
The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. See the cases of MUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015)11 NCC at page 40-41.
Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of culpable homicide rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as corollary to the above, is the fact and from which the prosecution gets a modicum of succor that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012. At page 8 of the printed records of Appeal, a reproduction of Exhibit ‘S1’, the English translation of the Appellant’s extra Judicial statement to the Police reads as follows;
”On 7-2-2012 at about 14.00 hours my Father sent for my Junior Brother by name, Gambo to call me, that he want to see me to his house. I went to the house and made him, he told me that about the Cow in my House he want to sell it and prepare Gambo’s marriage but I told him I will not accepted for selling the Cow, then Danjuma told me that they most sell that Cow and prepare Gambo’s marriage. Then he got me beating and it is that time I was in position of knife I remove it and stabbed him side of his stomach. That is all what I knowing.”
Learned Respondent’s Counsel had contended that it is established principle of law that a free and voluntary confession of guilt whether judicial or extra-judicial if it is direct and positive and properly established is sufficient to ground a conviction. He cited the cases of SOLOLA vs. STATE (2005) 11 NWLR (PT. 937) 460; IDOWU vs. STATE (2000) 7 S.C. (PT.11) 203.
It would be recalled however, that Exhibit ‘S1’ was in the course of trial tendered across the Bar and was admitted as confessional statements of the Appellant without an objection. Section 27(1) of the Evidence Act (As amended) defines a confession thus:
”A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
It is further provided in Sub-section 2 that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”
Against this backdrop, it is important to note that the Appellant, in the course of his evidence-in-chief before the lower Court, neither denied not retracted the said Exhibit ‘S1’, which learned Appellant’s Counsel had made his duty to deny here on Appeal. To make matters rather worse and as revealed by the printed records in this case, the said Statements were not even challenged on grounds of involuntariness or any other grounds at all.
Arising from this position, in which the voluntariness or otherwise of the Appellant’s Statement was neither raised nor challenged at the trial, this Court therefore finds and holds that the prosecution proved affirmatively that Exhibit ‘S1’ was voluntary confessional Statement of the Appellant. Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the prosecution, which this prosecution succeeded in doing as expected in this case. See the cases of JOSHUA ADEKANBI vs. AG WESTERN NIGERIA (1961) All NLR 47; R vs. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR 60 at 65 SC on the issue.
On the question of weight to be attached to a confessional statement whether retracted or not retracted the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject.
The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?
In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case where there has been a retraction by the accused. It is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20.
That the learned Appellant’s Counsel had produced a very incisive and formidable brief of argument in challenging the lower Court’s decision is not in doubt. But the failure to have challenged and confronted material points in an opponent’s case at the time it mattered most is a major setback to the Appellant’s Appeal even at this stage of this case. See the case of OKOSI vs. THE STATE (Supra) where the Supreme Court per BELGORE, JSC delivering the lead judgment in the case, had this to say;
”In all criminal trials, the defense must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, opinion and not that of an expert and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box.
The witness should be cross-examined to elucidate facts disputed, for it is late at the close of the case to attempt to negotiate what was left unchallenged.”
The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. Appellant cannot in the circumstances of this case feign ignorance of the likely consequences of his action. The Appellant was seen having a fight with the deceased one moment and another moment, the deceased had been stabbed at the back with a knife. The stab of a knife in any part of the body clearly shows an intention to kill or cause bodily injury, which the law defines as constituting the offence of homicide.
To rather make matters worse for the Appellant, he is not exonerated under the doctrine of last seen.
This doctrine simply means that the law presumes that the person last seen to be with the deceased bears full responsibility for his death.
Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. It is the duty of the Appellant to give an explanation relating to how the deceased met her death. This, of course is clearly missing in the instant Appeal. Rather than give an explanation of how the deceased met his death in this case, the Appellant gave a confessional statement. In the absence of a satisfactory explanation, a trial Court and an Appellant Court will be justified in drawing the inference that the accused person killed the deceased. See the cases of IGABELE vs. STATE (2006) 6 NWLR (PT. 975) 100; STEPHEN HARUNA vs. ATTN-GEN. FED. (2012) LPELR-7821 (SC); MADU vs. THE STATE (2012) LPELR-7867 (SC).
To this end, this Appeal is moribund and lacks merit and it is accordingly dismissed. The judgment of the High Court of justice of Kebbi State and sitting at Zuru Judicial Division delivered by SABI’UBALA SHU’AIBU, J. in Case No. KB/ZR/HC/7c/2013, delivered on the 4th day of April, 2014 is hereby affirmed.
HUSSEIN MUKHTAR, J.C.A.: I have had the privilege of reading in advance, the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I am in agreement with the entire reasoning therein and the conclusion that the appeal is bereft of substance.
The unmeritorious appeal cannot but be dismissed. I subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the opportunity of reading in advance the judgment of my learned brother, Frederick O. Oho, JCA. After due consideration of the essential facts of the case and close examination of the applicable law, I agree with him that the appeal lacks merit and should be dismissed. The law is that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. See Idowu Vs The State (2000) 7 SC (Prt. 11) 50 at 62.
In the instant case, the voluntariness or otherwise of the appellant’s confessional statement Exhibit ‘S1’ was neither raised nor challenged at the trial Court, and this Court will be justified in holding that same was voluntarily made by the appellant. Thus, the appeal is lacking in merit, it is accordingly dismissed.
Appearances:
HUSSAINI ZAKARAYAU ESQ.For Appellant(s)
M. U. MAKERA ESQ., (DDPP Ministry of Justice, Kebbi StateFor Respondent(s)
