ABDULMAJID HASSAN v. THE STATE
(2019)LCN/12568(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/K/210/C/2018
RATIO
CRIMINAL LAW: INGREDIENTS OF HOMICIDE
“It is trite law that to establish the offence of culpable homicide punishable with death against an accused person, the prosecution must conjunctively prove the following ingredients beyond reasonable doubts:
a. That the deceased died;
b. That the death of the deceased was caused by the accused, and
c. The act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See the cases of ISMA’IL VS. THE STATE (2011) 17 NWLR (PT. 1277) 601; STATE VS. DANJUMA (1997) LPELR 3216 (SC) and MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: RETRACTION OF CONFESSIONAL STATEMENT
“On the aspect of confessional statement, the law is trite, that retraction of a confessional statement by an accused person does not render the said confessional statement inadmissible nor necessitate a trial-within-trial to be ordered. Indeed, the law is settled, that a retracted confessional statement would still be admitted in evidence subject to probative value to be attached to it at the stage of judgment. See the cases of ONYENYE VS. THE STATE (2012) LPELR 7866 (SC) and ADEKOYA VS. THE STATE (2012) 9 NWLR (PT. 1306) 539. Also, the law is well settled that the only condition whereby a trial-within-trial would be ordered is when the issue of voluntariness has been timeously raised with regard to the way and manner in which a confessional statement was obtained. Hence, when an accused merely denied having made a confessional statement, the law did not require that trial-within-trial shall be conducted or ordered. See the cases of HASSAN VS. THE STATE (2016) LPELR 42554 (SC); BABARINDE & ORS. VS. THE STATE (2014) 3 NWLR (PT. 1395) 568 and OGUDO VS. THE STATE (2011) LPELR ? 860 (SC); (2011) 18 NWLR (PT. 1278) 1.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
ABDULMAJID HASSAN Appellant(s)
AND
THE STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment):
This judgment is in respect of an appeal against the decision of the High Court of Jigawa State, sitting at Brinin Kudu delivered by Hon. Justice Ahmad Muhammad Abubakar, J., (hereinafter referred to as the lower Court and learned trial judge, respectively). The said judgment was delivered on the 17th day of March, 2017.
The accused person/appellant (hereinafter referred to as the appellant) was charged on a one count charge of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code Law, Cap. P3, Laws of Jigawa State, 2012 (as amended). The appellant was alleged to have attacked and assaulted one Ahmadu Auwalu who later died as a result of the attack. Additionally, that the said act was perpetrated with the requisite intention. The appellant was alleged to have engaged the deceased Ahmadu Auwalu in a fight and in the process stabbed him on the chest, and that the resultant injury led to the deceased’s death.
The prosecution/respondent (hereinafter referred to as the respondent) in its bid to prove the charge laid against the appellant, fielded six witnesses among whom were four eye witnesses. The respondent also tendered three documentary evidence as exhibits. They include the extra-judicial statements of the appellant in Hausa Language and its English translated version as well as the medical report which pertained to the death of the deceased. All the prosecution witnesses who were eye witnesses, testified to the fact that they saw when the appellant engaged the deceased and in the process of their scuffle, the appellant brought out a knife and stabbed the deceased on his chest. The deceased was said to have been initially taken to the house of their Village Head, Sakuwa Town in Gwaram Local Government Area of Jigawa State, before he was eventually rushed to the Cottage Hospital, Gwaram.
The appellant testified in his defence. He did not call any other person to testify on his behalf nor tender any documentary evidence. At the end of the trial, the learned counsel for the appellant duly addressed the lower Court, while the learned respondent’s counsel waived his right to address the Court. Thereafter, the lower Court adjourned the matter for delivery of judgment.
The learned trial judge in a reserved judgement and after undertaking an extensive review/evaluation of all the pieces of evidence adduced on both sides, found that the respondent has proved all the essential ingredients of the offence of culpable homicide against the appellant beyond reasonable doubts and accordingly convicted and sentenced the appellant to death by hanging.
Dissatisfied with the decision of the lower Court, the appellant has brought this appeal to this Court and filed his notice of appeal on the 20th day of March, 2018. This was consequent upon the grant of appellant?s application and order made by this Court, on the 13th day of March, 2018 whereby the appellant was given 14 days extension of time. Appellant’s appeal was predicated on two grounds of appeal. The said two grounds of appeal without their particulars are reproduced below:
GROUND ONE
The trial judge misdirected itself and erred in law by holding that the prosecution has proved the case of culpable homicide punishable with death against the appellant beyond all reasonable doubt?.
GROUND TWO
The learned trial judge solely relied on the evidence of the prosecution and convicted the appellant and failed to consider the testimony of DW1 thereby occasioning a miscarriage of justice?.
To prosecute this appeal, the appellant compiled, caused to be served on the parties and transmitted the record of appeal to the registry of this Court. Thereafter, the learned counsel for the parties duly filed their respective briefs of argument. The appellant?s brief of argument was settled by Muritala Abdul-Rasheed Esq. It was filed on the 10th day of May, 2018. The respondent?s brief of argument on the other hand was prepared by Yahaya Abdullahi Esq., Chief State Counsel, Ministry of Justice, Jigawa State. The said respondent?s brief of argument was filed on the 8th day of June, 2018.
For the determination of this appeal, the learned appellant’s counsel distilled two issues for resolution. Both issues are reproduced below:
1. Whether the prosecution sufficiently satisfied the legal requirement that the offence of culpable homicide be proved beyond reasonable doubt despite the material contradictions and inconsistencies in the testimonies of the prosecution witnesses (Distilled from Ground (1) of the Notice of Appeal).
2. Whether having regards to the evidence adduced at the trial Court, the learned trial judge gave a judicial and judicious consideration of the case of the appellant (Distilled from Ground 2 of the Notice of Appeal)?.
The respondent’s counsel also donated two similar issues for resolution in the determination of this appeal. The issues are reproduced below as follows:
2.01: Whether the trial Court was right when it held that the prosecution has proved the case of culpable homicide against the appellant beyond reasonable doubt.
2.02: Whether having regard to the evidence adduced at the trial Court, the learned trial judge gave a judicial and judicious consideration of the case of the appellant?.
As earlier observed, the two sets of issues distilled by the learned counsel for the parties are materially the same, save for little variation in the use of words, however, the set of issues donated by the learned appellant?s counsel is more comprehensive and has adequately captured the main complaints in this appeal including those raised by the learned respondent’s counsel. The said issues put forward by the learned counsel for the appellant are hereby adopted by me for resolution towards the determination of this appeal. The two issues due to their interconnection would be considered and resolved together.
ARGUMENT ON ISSUES
The learned counsel for the appellant set out in arguing Issue 1 by submitting, that in our system of administration of criminal justice, it is trite law that, the burden is on the prosecution to prove a case against the defendant beyond reasonable doubt, and the burden never shifts throughout the duration of the trial. He referred us to Section 135 of the Evidence Act, 2011; Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the cases of ALONGE VS. INSPECTOR GENERAL OF POLICE (1959) N. S. C. C. 169; MUSTAPHA VS. THE STATE (2007) 12 NWLR (PT. 1049) 637 and CHUKWU VS. THE STATE (2007) 13 NWLR (PT. 1052) 430 among others.
The learned counsel for the appellant also submitted, ‘that for the prosecution to succeed on a charge of culpable homicide punishable with death against the defendant, the following ingredients must be proved beyond reasonable doubt.
i. That death of a human being has actually occurred.
ii. That such death was caused by the accused.
iii. That the accused?s act was done with intention of causing death.
iv. That the accused know that death would be a probable consequence of his act.
v. That the deceased died as a result of injuries caused by the accused person”.
He referred us to the cases of THE STATE VS. DANJUMMAI (1996) 8 NWLR (PT. 469) 660 AT 668 and ADELEYE VS. THE STATE (2015) 3 NWLR (PT. 1446) 229.
The learned counsel for the appellant further argued that, apart from the first ingredient of the offence highlighted above, the respondent has failed to prove the remaining ingredients as required by law. The learned counsel contended, that the evidence of the respondent’s witnesses adduced in proof of the remaining ingredients were laced with contradictions and inconsistencies and ought not to be considered talkless of the same being accepted by the lower Court. Furthermore, the learned appellant’s counsel did a highlight and comparison of some of the pieces of evidence adduced by the respondent’s witnesses in a bid to expose the contradictions contained therein. He followed it up with the submission, that when a Court is faced with different versions of evidence, it must not pick and choose but refuse to accept and or rely on all the contradictory evidence due to inconsistency. He called in aid the decisions in the cases of JOHN AGBA VS. THE STATE (2007) ALL FWLR (PT. 147) 1102; ANTHONY ENAHORO VS. THE QUEEN (1965) NMLR, 265 and OMISADE VS. THE QUEEN (1964) NMLR, 67.
With respect to Issue 2, the learned counsel for the appellant hardly did any justice to the issue. Rather than addressing the pertinent points embedded therein, the focus was on aspects that are outside the appellant’s grounds of appeal. Nevertheless, the relevant pockets of salient points raised by the learned appellant’s counsel would be duly considered.
The learned counsel for the appellant argued, that the learned trial judge erred when he placed reliance on the confessional statement of the appellant, Exhibits A1 & A2. The learned counsel on one hand argued, that the content of the said confessional statement is inconsistent with the testimony of the appellant and ought to be rejected. He also argued, that the appellant having denied that he made any statement, the learned trial judge ought to have ordered that a trial-within-trial be conducted. Thus, he urged us to expunge the confessional statement from the record of credible and admitted evidence. He supported his stance with the cases of NWACHUKWU VS. THE STATE (2000) 7 NWLR (PT. 255) 525 and THE STATE VS. MATI AUDU (1971) NNLR, 91 among others.
In reply to the first issue, the learned counsel for the respondent submitted, that ?for the prosecution to succeed and secure conviction in the case of culpable homicide the following ingredients as enunciated in MUSA VS. THE STATE (2009) 6 – 7 SC must be proved altogether beyond reasonable doubt and the burden never shift. The ingredients are as follows:
1. That the deceased a human being died;
2. That the death of the deceased was caused by the accused person;
3. That the accused caused the death of the deceased intentionally or with the knowledge that death was probable consequence of his act?.
He referred us to the cases of SULE VS. THE STATE (2009) 7 NWLR (PT. 1169) 33 and AKPA VS. THE STATE (2008) 14 NWLR (PT. 1106) 72.
The learned respondent?s counsel submitted, that ?the guilt of an accused person may be proved through any or a combination of the following:
a. The confessional statement of the accused person,
b. The testimony of persons, who gave account of the crime,
c. Circumstantial evidence?.
He supported his submission with the case ofIGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100.
The learned counsel for the respondent maintained, that the respondent adduced credible evidence to establish all the ingredients of the offence of culpable homicide enumerated above, beyond reasonable doubts. The learned counsel stated further, that the alleged contradictions that may be found in the evidence adduced by the respondent?s witnesses are not material and do not touch on the important facts or ingredients of this case. Thus, he submitted, that the alleged contradictions and/or inconsistencies were rightly discountenanced by the learned trial judge. He referred us to the cases of EGWUMI VS. THE STATE (2013) 13 NWLR (PT. 1372) 525; OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109) 57 AT 80 and OKEREKE VS. THE STATE (NO. 1) (2016) 5 NWLR (PT. 1504) 69.
Furthermore, the learned respondent’s counsel did a brief review of what he considered to be the material evidence adduced by the respondent’s witnesses and then stated, that the witnesses were unanimous that it was the appellant who stabbed the deceased on the chest. Thus, he submitted that, the respondent has adduced sufficient evidence to prove the charge of culpable homicide punishable with death brought against the appellant.
On Issue 2, the learned counsel for the respondent submitted that the retraction of a confessional statement does not render it inadmissible. The retracted confessional statement would be admitted subject to probative value to be attached thereto. He referred us to the cases of EKURE VS. THE STATE (1999) 13 NWLR (PT. 635) 456 and THE STATE VS. ISAH (2012) 16 NWLR (PT. 1327) 613. The learned counsel further submitted, that it is only when an accused person challenged the voluntariness of his extra-judicial statement that a trial-within-trial would be ordered.
He called in aid the case of EKURE VS THE STATE (SUPRA).
Finally, on this issue, the learned counsel for the respondent submitted, that ‘contrary to the argument of the learned appellant’s counsel that the learned trial judge did not consider the evidence of the appellant, the learned trial judge considered all the evidence before him including that of the appellant given as DW1 and that was why he gave detailed consideration of all possible defences likely to avail the appellant but all had failed’. Thus, he urged this Court to resolve all the issues against the appellant and in favour of the respondent.
It is trite law that to establish the offence of culpable homicide punishable with death against an accused person, the prosecution must conjunctively prove the following ingredients beyond reasonable doubts:
a. That the deceased died;
b. That the death of the deceased was caused by the accused, and
c. The act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence. See the cases of ISMA’IL VS. THE STATE (2011) 17 NWLR (PT. 1277) 601; STATE VS. DANJUMA (1997) LPELR 3216 (SC) and MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467.
The parties in the instant appeal matter are ad idem that death had occurred in this case. The most unfortunate fact was that the deceased had died. What remains is the remaining two ingredients. The learned counsel for the appellant made powerful arguments and was persistent, that the evidence of the respondent’s witnesses were full of contradictions and should not have been relied upon by the learned trial judge. These contradictions as pointed out by the learned counsel for the respondent were mainly with regard to the surrounding circumstances of the incident that led to the death of the deceased. I have carefully perused and given due considerations to the testimonies of all the eye witnesses called by the respondent, and I do agree with the learned respondent’s counsel that all the witnesses were unanimous on the fact that the appellant stabbed the deceased with a knife on his chest and that the deceased died as a result of the injury which he sustained from the said vicious attack.
I also do agree that with the learned counsel for the appellant, that the witnesses called by the respondent gave varying accounts of how the imbroglio between the deceased and the appellant erupted as well as the events that occurred after the deceased was stabbed. These alleged contradictions do not however, touched on the main facts that are material and required to prove the guilt of the appellant.
It is common knowledge that we humans have varying degrees of recollection ability and the narration of stories jointly witnessed are hardly narrated with mathematical accuracy. Definitely, there are bound to be variations in the narrations of a single event witnessed by different persons, particularly with regard to the sequences or the surrounding circumstances. Some by virtue of their understanding and cognitive ability or disposition may exaggerate facts, while some may unintentionally withhold some facts. These variations do not however constitute material contradictions that should result in the total rejection of the whole evidence, provided the pieces of evidence adduced by the witnesses are sameness personified on the core essence of the event. In the instant appeal, the main or material facts are:
i. Whether Ahmadu Auwalu has indeed died;
ii. Who killed him or what caused his death?
iii. Was the deceased killed intentionally or did his assailant exposed him to danger or caused him grievous harm with the knowledge that the deceased will be grievously harmed/injured?
From the facts of the case, all the parties agreed that the said Ahmadu Auwalu has died and his death was caused by the appellant. From the facts of the case and the surrounding circumstances, it could be positively inferred that the appellant either intended to kill the deceased or caused him grievous harm. This could be decisively inferred from the evidence that the appellant stabbed the deceased on the chest and left him for dead as soon as he was done. There cannot be a better display of an intention to kill or cause grievous bodily harm than someone who stabbed a fellow human being in the chest and left him to his fate. The action of the appellant in this respect cannot be regarded as anything less than an avowed intention to kill or cause grievous bodily harm. In the light of the above reasons, I do agree with the learned trial judge that the contradictions embraced by the learned appellant?s counsel as having emanated from the evidence adduced by respondent’s witnesses are mere feather weight inconsistencies and they were rightly discountenanced by the learned trial judge.
What is more, where two or more persons who witnessed and event narrate or testify with respect to the said event and their testimonies are accurate to the minutest details, a Court of justice would be wary before acting on the testimonies, because the pieces of evidence presented by the witnesses must have raised the likelihood that their testimonies may have been doctored or rehearsed to achieve a particular purpose.
On Issue 2, a careful perusal of the judgment delivered by the lower Court would reveal, that apart from the defence specifically raised by the appellant, the learned trial judge went further to consider some other defences like provocation, self-defense, accident and insanity, were not specifically raised by the appellant but were available in law for him; and he found that none of these defences can avail the appellant in the light of all the pieces of evidence adduced by the parties. Having equally perused and dispassionately examined all the pieces of evidence adduced by the parties, I also agree with the learned trial judge that no credible defence has been disclosed in evidence that could have availed the appellant.
On the aspect of confessional statement, the law is trite, that retraction of a confessional statement by an accused person does not render the said confessional statement inadmissible nor necessitate a trial-within-trial to be ordered. Indeed, the law is settled, that a retracted confessional statement would still be admitted in evidence subject to probative value to be attached to it at the stage of judgment. See the cases of ONYENYE VS. THE STATE (2012) LPELR 7866 (SC) and ADEKOYA VS. THE STATE (2012) 9 NWLR (PT. 1306) 539.
Also, the law is well settled that the only condition whereby a trial-within-trial would be ordered is when the issue of voluntariness has been timeously raised with regard to the way and manner in which a confessional statement was obtained. Hence, when an accused merely denied having made a confessional statement, the law did not require that trial-within-trial shall be conducted or ordered. See the cases of HASSAN VS. THE STATE (2016) LPELR 42554 (SC); BABARINDE & ORS. VS. THE STATE (2014) 3 NWLR (PT. 1395) 568 and OGUDO VS. THE STATE (2011) LPELR ? 860 (SC); (2011) 18 NWLR (PT. 1278) 1.
In addition, contrary to the argument canvassed by the learned counsel to the appellant that, once the extra-judicial statement/confessional statement of an accused person contradicts his evidence or testimony in Court, both statements should be discountenanced; the position in this regard applies only to contradictory statements by a witness called by a particular party. If an accused person narrated a completely different story from the ones he contained in his confessional statement, the confessional statement could not be rendered unreliable by so doing. The confessional statement would still be regarded as good evidence against the accused. The contradiction would only affect the evidence of the prosecution if and only if, the accused is called as a witness for the prosecution (which is somewhat unlikely) or by a witness called by the prosecution itself. From the entire facts and circumstances of this case, the appellant has failed to show any potent circumstance or weighty ground(s) of law that could lead or move this Court to consider the volatile step of expunging his confessional statement which was tendered and admitted as Exhibits A1 & A2.
On the whole and based on all the reasons given above, the two issues adopted for resolution in the determination of this appeal are hereby resolved against the appellant and in favour of the respondent. The resolution of the two issues in the manner stated herein, has the inevitable but logical conclusion that this appeal is devoid of merit and it is accordingly dismissed by me. Thus, I do agree with the decision of the lower Court which led to the conviction of the appellant for the offence of culpable homicide punishable with death in Charge No. JDU/66C/2014 and the sentence passed on the appellant are accordingly affirmed/confirmed by me.
PRONOUNCEMENT.
ABBA AJI, JCA (as she then was) presided at the hearing of this appeal on the 29th day of October, 2018 and participated at the conference which was held thereafter and in respect thereof. However, she was subsequently elevated/appointed and sworn in as a honourable Justice of the Supreme Court on the 8th day of January, 2019.
IBRAHIM SHATA BDLIYA , J.C.A.: I agree.
Appearances:
Both learned counsel for the parties at the hearing of this appeal were absent; though on notice.For Appellant(s)
Both learned counsel for the parties at the hearing of this appeal were absent; though on notice.For Respondent(s)
