IBRAHIM FAARI SHAFIU v. THE STATE
(2019)LCN/12727(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2019
CA/A/263C/2013
RATIO
EVIDENCE: CONFESSIONAL STATEMENT OF AN ACCUSED
“Here in Nigeria there is a consensus of judicial opinion that the practice set out in the Judges Rules ‘accords with prudence and that where it is practicable, especially in serious cases of felony, where the only material evidence against an accused person is his confession contained in his Statement made to a junior police Officer that practice should be followed’. But the Federal Supreme Court in Nwigboko & Ors. v. The Queen (1959) 4 F.S.C. 101 at p.102 resolutely held: ‘We do not, however, agree with the Judge that where the practice is not followed, the Statement should necessarily be viewed with suspicion… We are not prepared to go to the length of laying down as a general rule that where it (the practice) is not observed the statement should be viewed with suspicion.’ The aim of the Judges Rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt.'” PER EMMANUEL AKOMAYE AGIM, J.C.A
EVIDENCE WEIGHT TO BE ATTACHED OF RETRACTED CONFESSIONAL STATEMENT
“The retraction may have a bearing on the weight to be attached to the retracted confessional statement. The tests to be applied in determining the weight to be attached to a retracted confession were laid down in R v Sykes (1913) 8 CR. APP. R. 233 and approved by the Supreme Court in Shazali v The State (1988) 12 SC (Pt. 11) 58 as sound and golden. The tests are as follows:- ‘The issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R v Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. 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 condition founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.’ See also Kareem v F.R.N (2002) 4 SC (Pt 11) 42.” PER EMMANUEL AKOMAYE AGIM, J.C.A
JUSTICES
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
IBRAHIM FAARI SHAFIU Appellant(s)
AND
THE STATE Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No.CA/A/263C/2013 was commenced on 19-6-2012 when the Appellant filed a notice of appeal against the judgment of the Kogi State High Court at Okene in criminal case No HCO/3CR/2010 delivered on 20-4-2012, convicting the Appellant and a co-accused of conspiracy to commit culpable homicide and culpable homicide punishable with death and sentencing each of them to death.
The notice of appeal contains six grounds for the appeal.
Both sides have filed, exchanged and adopted their respective briefs as follows: Appellant’s brief, Respondent’s brief and Appellant’s reply brief.
The Appellant’s brief raised the following issues for determination:
1. Whether the Trial Court was right when it held that the Prosecution has proved the offence of culpable homicide punishable with death as required by law as to warrant the conviction of the Appellant? (Grounds one and three of the Notice of Appeal)
2. Whether the Trial Court was right when it held that the failure of the Prosecution to produce and tender at the Trial Court the written statement made by the Appellant on 7th April 2010 in the custody of the prosecution did not amount to withholding of evidence; and whether that was fatal to the Prosecution’s case. (Ground four of the Notice of Appeal)
3. Whether the Trial Court was right and ought to have convicted the Appellant based solely and wholly upon an uncorroborated and untested extra-judicial statement that was contested and denied by Appellant, and/or the inadmissible, uncorroborated, contested and untested extra-judicial statement of a co-accused person. (Grounds two and five of the Notice of Appeal)
4. Whether the Trial Court properly evaluated the evidence and Exhibits A and D before it as required by Law before it relied on the said Exhibits to convict the 1st Appellant? (Ground six of the Notice of Appeal)
The Respondent’s brief raised the following issues for determination:
1. Whether the Lower Court was right in convicting the Appellant on the strength of his confessional statement, exhibits ‘A’ and exhibit ‘D’ which is the confessional statement of his co-accused person at the lower Court.
2. Whether the Respondent proved its case against the Appellant beyond reasonable doubt.
3. Whether the failure of the Respondent to tender the statement of the Appellant made on the 7th day of April, 2010 in respect of a different offence other than the offences the Appellant stood trial at the lower Court is fatal to the case of the Respondent.
I would determine this appeal on the basis of the issues raised for determination in the Appellant’s brief. I prefer to determine all the issues together as they all dwell on the evidence relied on by the Trial Court to convict the Appellant and the co-accused.
Learned Counsel for the Appellant opened his argument of these issues with the general submissions that to prove the ingredients of the offence of culpable homicide punishable with death under S. 221 (a) of the Penal Code with which the Appellant was charged, the prosecution was bound to prove that the death of a human being had actually taken place, that such death was caused by the Appellant and that his act or omission that caused the death was intentional with the knowledge that death was the probable or likely consequence of the act, that the prosecution did not adduce any legally admissible evidence upon which the Trial Court could have relied to convict the Appellant and that this Court should expunge the inadmissible evidence relied on by the Trial Court to convict the Appellant and discharge and acquit him. After these general submissions, Learned Counsel then proceeded to make arguments on specific aspects of the evidence relied on by the Trial Court to support the said general submissions.
Learned Counsel argued that the failure of the prosecution to attach the pre-trial or extra judicial written statements of its only two witnesses, PW1 and PW2, to the application for leave to prefer a charge filed along with the information to commence the criminal case against the Appellant and others in the Trial High Court rendered the proceedings incompetent and their subsequent evidence during trial an afterthought and inadmissible, liable to be expunged. For this submission he relied on the Judicial decisions in Ohwovoriole v FRN (2003) 2 NWLR (Pt. 803) 176 at 189, Gboko & Ors v The State (2007) LPELR ? 8300 (CA) and Obasi v The State (2012) LPELR 19950 (CA).
Learned Counsel for the Respondent argued in reply that the criminal case was commenced in accordance with the procedure in S. 185 of the Criminal Procedure Code Act( CPC) and Rule 3(2) (a) and (b) of the Criminal Procedure (Application for Leave to Prefer a Charge in the High Court) Rules, 1970, that the proofs of evidence which by these provisions should accompany the charge and the application for leave to prefer the charge, are not the pre-trial extra judicial written statements of the proposed witnesses, but the summary of what he or she shall say at the trial, that if the said Rules intended that the extra judicial written statements of a proposed witness be attached to the application, it would have stated so and that this objection ought to have been raised at the earliest stage of the trial and not now on appeal, that it is too late in the day to raise it. For these submissions, he relied on the Supreme Court decisions in F.R.N v Wabara (2013) 5 NWLR (Pt. 1347) 331 at 349-350 and Attah v State (2010) 10 NWLR (Pt.1201) 190 at 210.
Learned Counsel for the Appellant in the Appellant’s reply brief conceded that proof of evidence means summaries of the statement of witnesses to be called and that it is not the same as their written statements in keeping with the Supreme Court decision in FRN vs. Wabara (supra). He then changed the premise of his objection and argued that no proof of evidence was attached to the information or application for leave to prefer a charge except that of one Inspector Hamisu Lawal who was not a witness in the Trial, that this failure to attach the said proofs of evidence rendered the proceedings a nullity and that it was not too late to raise this objection for the first time in this appeal as it touches on the jurisdiction to entertain and hear the case.
Let me now consider the merit of the above arguments of both sides.
The criminal case leading to this appeal was commenced in the High Court of Kogi State at Lokoja in accordance with S. 185 (b) of the Criminal Procedure Code which provides that “No person shall be tried by the High Court unless – a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court”. The application for leave to prefer the charge was made in accordance with Rule 3(2) (a) and (b) of the Criminal Procedure (Application for Leave to Prefer a Charge in the High Court) Rules 1970 ? which provides that “where no proceedings have been taken under Chapter XVII of the Criminal Procedure Code, the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
a. There shall accompany the application proofs of evidence of the witnesses whom it is proposed to call in support of the charge;
b. The application shall include a statement that the evidence shown in the proofs will be available at the trial and that the case disclosed by the proofs is to the best of the knowledge, information and belief of the applicant, a true case.”
It is glaring that the proofs of evidence of the only two witnesses that testified in the trial for the prosecution did not accompany the charge or the application for leave to prefer the charge. The only proof of evidence that accompanied it is that of one Inspector Hamisu Lawal who did not testify as a witness in the trial.
The question thrown up by the arguments of both sides is whether the failure to attach the proofs of evidence of PW1 and PW2 to the charge or application for leave to prefer the charge at the commencement of the criminal case rendered their entire evidence an afterthought and inadmissible and the entire criminal proceedings a nullity.
It is beyond argument that Rule 3 (2) (a) and (b) of the Criminal Procedure (Application for Leave to Prefer a Charge in the High Court) Rules 1970 prescribes the procedure for applying for leave to prefer a charge. So the requirement to accompany the application with proofs of evidence of witnesses to be called in the trial is therefore a procedural one. See Oko vs. The State (2017) 17 NWLR (Pt 1593) 24 at 59. Being an issue of procedure, it ought to have been raised early at the commencement of the criminal proceedings, preferably, immediately after the charge is read to the accused before he or she pleads thereto. See Oko vs. The State (supra). In this case it was not raised throughout the trial until judgment and is now being raised for the first time in the Appellant’s brief and without any ground of appeal complaining against the judgment of the Trial Court on such a ground.
The argument of the Appellant objecting to the admissibility of the evidence of PW1 and PW2 and the competence of the criminal proceedings is incompetent as it is not based on any of the issues raised for determination in this appeal and is not based on any of the grounds of this appeal. It has no relationship with issue No. 1 under which it was argued. While issue No. 1 asks whether the Trial Court was right to have held that the prosecution proved the offence of culpable homicide punishable with death, the Appellant in the said argument objects to the competence of the entire proceedings and the admissibility of the evidence of PW1 and PW2 on the ground that their proofs of evidence did not accompany the charge. Any argument in an appeal that is not based on an issue raised for determination in that appeal and any of the grounds of appeal is incompetent and must be struck out. See Kala vs. Potiskum & Anor (1998) 1-2 SC 132 and Imo vs. State (1991) 11-12 SCNJ 144.
Assuming there is a ground of this appeal complaining against the judgment of the Trial Court on this ground and it is raised as an issue for determination in this appeal, it would still not be valid for consideration as it was not raised at the trial stage and it is too late to raise it in the appeal stage being a procedural matter. By not challenging the irregular procedure throughout the trial till judgment, the Appellant consented to the procedure of PW1 and PW2 testifying without their proofs of evidence having been earlier filed with the application for leave to prefer the charge or at any time before they testified and thereby waived his right to object thereto. Having consented to that procedure he cannot now complain against it after judgment in this appeal.
This restatement was made by the Supreme Court in Attah v State (supra) thusly- “In any event the appellant ought to have complained against the exercise of the discretion by the trial judge to grant the application to prefer the charge before the trial and not when the trial was concluded and, on an appeal, the last Court of resort, the Supreme Court. At the trial, evidence was adduced by the prosecution witnesses which was believed by the trial judge that the Appellant(s) committed the offences charged. In my view, such a complaint can only be valid before the trial land accordingly, where an accused person consented to his trial after even faulty exercise of discretion to prefer a charge, he cannot after the conclusion of the trial raise the complaint. In my view it is too late”. See also Oko v The State (2017) 17 NWLR (Pt. 1593) 24 at 69 held 21 in which the Supreme Court held 3 that “A party who did not object to a procedural irregularity at the trial Court would not be allowed to do so at the appellate stage of the proceeding. In this case, if there was any irregularity in the procedure relating to the written addresses at the trial Court, the appellant did not raise any objection at the trial Court. So, he cannot do so on appeal. (Oguno vs. State (2013) 15 NWLR (Pt. 1376) 1”.
For the above reasons, I hold that the said objection is not valid for consideration and is hereby struck out.
Let me now consider the merit of the objection.
The Appellant has not alleged or suggested that he suffered any prejudice or injustice by the failure to attach the proofs of evidence of PW1 and PW2 to the application for leave to prefer charge or to file same before they testified. It is clear from the record of appeal that the Appellant did not object to the admission of their evidence when they testified during trial, he cross examined them and in his final written address, in the trial, argued on the probative value of their evidence. There is nothing that shows that the Appellant suffered any injustice due to the failure to file the proofs of evidence of PW1 and PW2 before they testified as witnesses. The evidence of PW1 and PW2 is relevant to the fact in issue on this case.
There is no law precluding the admission of the evidence given by PW1 and PW2 without their proofs of evidence having accompanied the application for leave to prefer a charge or having been filed before their testimony. S. 2 of the Evidence Act 2011 provides that all evidence of relevant facts, shall, unless excluded by any legislation, be admissible in judicial proceedings. Since the appellant was not prejudiced by the failure to file the proofs of evidence of PW1 and PW2 with the application for leave to prefer a charge or to file same before they testified, the said failure would be treated as a mere irregularity that did not vitiate the proceedings or the evidence of PW1 and PW2. See Kwagshir v State (1994) 2 NWLR (Pt. 328) 592 at 593 in which this Court held that “the fact that the proof of evidence of a witness is not attached to the application for leave to prefer a charge does not preclude the prosecution from calling such a witness to testify. The witness, PW5 was entitled to testify and the trial judge was right to allow her to testify”.
This Court in that case described as a correct statement of the law, the holding of the trial Court in the judgment leading to the appeal to it that:-
The facts of the case of KWAGSHIR v. THE STATE are similar to the present case in material particulars. I agree with the Learned Attorney General on this. In that case PW5 was not listed as a witness in the list of witnesses and the summary of proof of his evidence was not attached to the information.
That is exactly what happened in this case. The trial High Court of Benue State per Ogbole J. held that-
“The issue for determination now is whether the prosecution can call additional witness who was not originally on the list of proof of evidence. Although the Criminal Procedure (Application for Leave to prefer a charge in the High Court) Rules, 1970 requires proof of evidence to be attached to the application and the same be made available to the defence, to my mind, failure of the prosecution make available additional witness who was not on the list of proof of evidence to the defence before the hearing does not vitiate the proceedings and neither does it occasion any miscarriage of justice if and only if the defence is allowed to cross-examine such witness. The provisions of Section 286 of the C.P.C. in any view are vide enough to allow any witness though not on the List of proof of evidence to give evidence if called by the Court or by the Attorney General or complainant or by the accused.”
On appeal to this Court, it was held per Mohammed JCA that: ?In my view, this is a correct statement of the Law. The fact that the proof of evidence of a witness is not attached to the application for leave to prefer a charge, does not preclude the prosecution from calling such a witness to testify. The witness PW5 was entiled to testify and the trial Judge was right to allow her to testify”.
In Egboma v State (Unreported Judgment in CA/ E/350/2009 delivered on 7-5-2013) this Court followed its said earlier decision in Kwagshir vs. The State on exactly similar facts. In Oko v State (supra), there was no application for leave to prefer the charge before the charge was filed and proceedings commenced. The Supreme Court held that “the failure of the respondent to seek the consent of the High Court Judge to prefer the charge against the appellant did not render the trial a nullity or liable to be struck out. (Okoro v State (2012) 4 NWLR (Pt. 1290) 351, Idemudia v State (1999) 7 NWLR (Pt. 610) 202.”
This Court in Egboma vs. State (supra) considered its decisions in Gboko & Ors v The State (supra) and Obasi v The State (supra) which rather held that the written statement of the witness must have accompanied the application for leave to prefer the charge before such witness can validly testify in the trial and that the absence of such written statement vitiated the witness testimony and refused to follow them. It held that what influenced its decision in Gboko v State is the view it took of the Supreme Court decision in Ohwovoriole v FRN (Supra). It held in that case that “by the authority of OHWOVORIOLE V. FRN (2003) 2 NWLR (pt 803) 176; (FWLR) (pt 141) 2019 the absence of the written statement of PW5 in the proof of evidence clearly makes the entire evidence inadmissible and any decision of the trial High Court based on it a nullity.
This Court in Egboma vs. The State held thusly- With due respects to that very erudite and distinguished panel of this Court, I do not think that the Supreme Court in the above case said anything near that. The case before the Supreme Court was a further appeal against the decision of this Court upholding the exercise of discretion by the trial High Court granting an application exparte for leave to prefer charges by information against the appellant. The Supreme Court laid down the law on what should be the relevant considerations in the exercise of such discretion. It stated the requirements for the grant of such leave. It held that in granting such leave the trial Court can only rely on the information, the proofs of evidence including extra judicial statements and the names of witnesses to decide whether or not to grant such leave and that it cannot go outside the above documents in exercising its discretion. The Supreme Court Per Kalgo JSC held that “An application for such leave is made pursuant to the provisions of the Criminal Procedure Code (Application to prefer a charge in the High Court) Rules 1970. Under the said rules, the application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at the trial, and proof of evidence (written statements) which shall be relied upon at the trial.”
The decision did not state that only witnesses on the list of witnesses and whose proofs of evidence were filed along with the information can testify in the trial. The case did not decide the consequence of non compliance with the above rules where a witness testifies without his proof of evidence and his name listed as a witness and filed along with the information.
The defence has not shown that the testimony of PW2 has disreputed the administration of criminal justice in any way and has not shown that he has suffered any miscarriage of justice thereby”.
This Court in Egboma v The State then held that “I do not think that it will help the course of justice to simply expunge the material and relevant evidence of a witness on the ground that his name and proof of evidence as a witness were not filed along with the information that commenced the criminal case. The remedy is in an objection timorously raised before the said witness testifies to enable the prosecution file the said processes and have them served on the defence. This is more pragmatic and realistic and responsive to the institutional inadequacies of our investigating and prosecuting agencies. Administration of criminal law cannot afford to disregard these inadequacies if it must realize the objective of criminal law and avoid defeating the legitimate public expectation of law enforcement. If criminal proceedings are struck down at the slightest irritation of the accused’s right to fair hearing, then few criminal trials can be sustained as only such few can avoid the pitfalls that are created by the inadequacies of the prosecution. The response of administration of criminal law is to develop some criteria for determining which procedural violation should or not vitiate criminal proceedings. The consideration that has emerged through the cases is whether the procedural non-compliance has brought administration of justice to disrepute and whether the accused whose right is infringed has suffered any miscarriage of justice thereby. These considerations are made on the basis of the peculiar facts of each case.”
I have no reason to depart from this Court’s decision in Egboma V State, which is later than the decision in Gboko V State.
Another argument of Learned Counsel for the Appellant is that exhibits D and D1 the confessional statements of 2nd accused were made and recorded through an interpreter, that the interpreter was not called to identify the said statement or give evidence concerning the interpretation, that therefore they ought to be expunged from the evidence in the case. For this submission, he relied on the judicial decisions inFRN v Usman (2012) All FWLR (Pt. 632) 1639 at 1652 and Nwaeze v The State (1996) 2 NWLR (Pt. 428) 1 at 20.
Learned Counsel for the Respondent did not respond to this argument.
Let me straight away state that the above argument of Learned Counsel for the Appellant is baseless. Exhibits D and D1 were recorded from the 2nd accused by the PW2 and interpreted from Ebira to English and English to Ebira by PW1 who testified concerning how they were made thusly- “PW1 Continues: This is all I did in respect of this case except that I was also the one who interpreted the statement of the 2nd accused person from English to Ebira and vice-versa when his statement was being recorded by Sgt. Taiwo Akin, a member of our team. We could not recover the corpse for post mortem because the corpse was burnt to ashes since 2008 by the accused persons and others now at large.”
PW2 who recorded the statements corroborated the testimony of PW1 on the interpretation of the statement thusly- “During the course of my investigations, I cautioned the 2nd accused person in English language and interpreted to him in Ebira language by Sgt. Louis Otu. Having understood it, he thumb printed it. After that, freely volunteered a confessional statement in Ebira language which was interpreted to me in English language by Sgt. Otu and I recorded. The statement was read over in English which was interpreted to the 2nd accused in Ebira, and having confirmed its correctness thumb printed it. I equally signed and wrote my name as the recorder while the interpreter also signed. The statement was recorded on 24th July, 2010, while the second statement was recorded on 27th July, 2010.
After the statement, I took him before our Superior Police Officer ACP Ayuba Ede who attested to the statement. If I see the statements, I can recognize them by my name and handwriting. The documents shown to me are the statements of the 2nd accused person.”
What is clear from the above evidence is that the police officer who recorded exhibits D and D1 and the interpreter who did the interpretation testified as PW1 and PW2. This satisfies the requirement of the law that for a statement obtained through an interpreter to be admissible in evidence, both the recorder of the statement and the interpreter must testify as witnesses concerning such interpretation. See Nwaeze v The State (1996) 2 NWLR (Pt. 428) 1 at 20 and FRN v Usman (2012) All FWLR (Pt. 632) 1639.
Learned Counsel for the Appellant also argued that the trial Court was wrong to have convicted the Appellant solely on the basis of exhibits A and D that were inadmissible, uncorroborated, untested, denied and contested by DW1 and DW2, the alleged makers, that the Appellant having positively and directly denied that he made exhibit A, and denied that the signature on exhibit A is his and that a superior police officer did not counter sign the statement as required by law, joined issue with the prosecution on its authorship, that the trial Court was wrong to have relied on it to convict the Appellant without first resolving the issue of the ownership of the signature on it and its authorship, that the absence of any endorsement or attestation by a Superior Police Officer on the face of exhibit D, coupled with PW1’s testimony that on 7-4-2010 he obtained a written statement from the Appellant and took him to a Superior Police officer, ACP Ayuba Ede, before whom he confirmed the statement as his and the Superior Police officer countersigned and attested same and the Appellant’s denial that he did not make exhibit ‘A’, render its authenticity and authorship doubtful, that the testimony of PW1 that after obtaining exhibit ‘A’ from the Appellant, he took the Appellant to ACP Ayuba Ede, who countersigned and attested same after the Appellant confirmed that he made exhibit ‘A’ is contradicted by the absence of such attestation on the face of exhibit A’ and affects its authenticity, that the doubt is compounded by the testimony of the Appellant as DW1 that he was indeed taken by PW1 to ACP Ayuba Ede in respect of the statement dated 7-4-2010 which he denied making and ACP Ayuba Ede ordered that he be given a paper to write his statement, which he did and that both the statement dated 7-4-2010 and the statement he wrote in the presence of ACP Ayuba Ede were not tendered in evidence on the flimsy excuse that the statement was in respect of another case.
Learned Counsel for the Respondent relying on the judicial decisions in Akinmoju v The State (2000) 4 SC (Pt. 1) 64 at 81, Idowu v The State (2000) 7 SC (Pt. 11) 50 at 80 and Dibie v The State (2007) 9 NWLR (Pt. 1038) 30 at 39 argued that the mere fact that the Appellant denied making exhibit A’ does not make same unreliable and does not preclude the Court from acting on it to convict.
Let me determine the merits of the above arguments.
I do not agree with the submission of Learned Counsel for the Appellant that the Trial Court did not resolve the issue of the authorship of exhibit A’ before relying on it to convict the Appellant and all the submissions related to the authorship of exhibit. I think that the Trial Court did resolve the issue of its authorship before relying on it to convict. It did so by holding that it had no doubt that exhibit A’ was a free, voluntary and truthful confession of guilt by the Appellant because of the detailed narrative of facts therein and concluded that the denial by Appellant that he did not make the statement is an afterthought and unworthy of any credit. The exact of the said part of the judgment of the trial Court that contains this decision reads thusly:-
“Exhibits A and D are confessional statements of the two accused persons regarding the level of their participation in the death of the deceased, but the two accused persons have each denied the said statements in their oral evidence before this Court. In my view, however, the denial does not, ipso facto, bar this Court from using it as part of the prosecution’s evidence to determine whether the prosecution has proved its case or not.
“there is nothing sacrosanct about retraction of confession. In Akpan vs. The State (2001) 15 NWLR (Pt. 737) 745 this Court held that once a confession of guilt is shown to have been made freely and voluntarily be it judicial or extra-judicial, if it is direct, positive and properly established, it constitutes proof of guilt and is enough to sustain a conviction so long as the Court is satisfied as to its truth.” See also the cases of Monsuru Solola and 1 Or vs. The State (2005) 5 SCNJ 139 at 154 and Moses Jua v The State (2010) 2 SCNJ 224 at 224 to the effect that a confession may be the best evidence for conviction. And in Silas Sule v. The State (2009) 6 SCNJ 65 at 85 to the effect that the Court can convict on a “Confessional statement alone even if the accused person resiles from it. A confessional statement is part of the evidence adduced by the prosecution”.
After a careful examination and study of exhibits A and D, I have no doubt in my mind that with the detailed account contained therein, it is a free, voluntary and truthful confession of guilt by the two accused persons, each stating the level of his participation in the crime. It is in the light of the above that I considered the oral evidence and denial of the two accused persons as an afterthought and unworthy of any credit.”
There is no ground of this appeal complaining against the above holdings of the trial Court that exhibit A’ was freely, voluntarily and truthfully made by the Appellant and that his denial that he did not make it is an afterthought and unworthy of any credit. By not appealing against these holdings, the Appellant accepted them as correct, conclusive and binding. See Adejobi & Anor vs. The State (2011) LPELR 97 (SC) and Iyoho vs. Effiong (2007) 4 SC (Pt. 111) 90.
Having accepted the said holdings as correct, the complain of the Appellant in ground five of this appeal and in the above argument of Learned Counsel for the Appellant that the trial Court erred in law for acting on exhibit A’ to convict the Appellant in the face of the Appellant’s denial of having made it and without first resolving the issue of the authorship of the statement is incompetent and not valid for consideration. As is obvious from the judgment of the trial Court, it did not proceed straight to act on exhibit A’ to convict the Appellant without first dealing with his denial of the authorship of the statement. It dealt with the issue and held that he made the statement and that his denial is an afterthought and unworthy of credit. It was after this determination that it relied on exhibit A’ as evidence of the guilt of the Appellant. Without challenging these holdings, it cannot be validly contended that the trial Court should not have relied on the said exhibit A’ to convict the Appellant without dealing with his denial of the authorship of the statement. A party in an appeal against a judgment cannot be heard to argue contrary to any finding or holding he has not appealed against. See Awote & Ors v Owodunni & Anor (1987) 5 SC 1 and Sparkling Breweries Ltd & ors v UBN Ltd (2001) 7 SC (Pt. 11) 146.
In any case, the requirement to take an accused who has made a confessional statement to a Superior Police officer, to confirm before that officer that he made the statement and the rule that the superior Police officer countersign the statement and attest that the maker confirmed making the statement before him are not rules of law but merely rules of administrative practice for the guidance of police officers in taking extra judicial cautionary and witness statements. Non compliance with the said rules do not affect the admissibility and use of the confessional statement.
The rules have their origin in the Judges Rules made by English Judges for the guidance of English Police Officers. Their application in Nigeria is judicially approved by several decisions. The Supreme Court in Ojegele v The State (1988) LPELR 2370 (SC) restated how they apply in Nigeria thusly: “The Judges Rules are rules made by English Judges for the guidance of English Police Officers. Nobody, however, disputes the wisdom behind those Rules. But having said that, it is necessary to add that the Rules are not Rules of law but merely Rules of administrative practice. They are rules made for the more efficient and effective administration of justice and therefore should never be used to defeat justice. Even in England the Court of Appeal felt bound to observe that “the Court must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth” – R. v. Richardson (1971) 2 Q.B. 484 at p.490: (1971) 2 All E.R. 777.
Here in Nigeria there is a consensus of judicial opinion that the practice set out in the Judges Rules “accords with prudence and that where it is practicable, especially in serious cases of felony, where the only material evidence against an accused person is his confession contained in his Statement made to a junior police Officer that practice should be followed”. But the Federal Supreme Court in Nwigboko & Ors. v. The Queen (1959) 4 F.S.C. 101 at p.102 resolutely held: “We do not, however, agree with the Judge that where the practice is not followed, the Statement should necessarily be viewed with suspicion… We are not prepared to go to the length of laying down as a general rule that where it (the practice) is not observed the statement should be viewed with suspicion.” The aim of the Judges Rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt.”
This Court in Babarinde & Ors v The State (2012) LPELR ? 8367 (CA) followed the Supreme Court decision in Ojegele v The State and held thusly:- “On the premise of facts differentials, therefore, I will decline to employ the principle enunciated in that case, Namsoh’s to the instant case at least not in the glaring absence of infraction of the stipulation in Order 6 of the Rules. At any rate, I have my doubts if the provisions of those Rules, offshoots of Judges’ Rules, are mandatory at all
29
cost as pressed upon by the learned counsel for the appellants. To bear me out in my doubts, I will take parties through some judicial authorities on this critical point. In the case of Ojegele vs. The State (1988) NSCC 276 at 282, Oputa, JSC, lucidly said of the Judges’ Rules, the forerunners or fore fears of the Rules, that: Nobody, however, disputes the wisdom behind those Rules. But having said that, it is necessary to add that they are Rules of administrative practice. They are rules made for the mere efficient and effective administration of Justice and therefore should never be used to defeat Justice. Even in England the Court of Appeal felt bound to observe that the Court must take care not to deprive themselves by new artificial rules of practice of the best enhances of learning the truth… The aim of the Judges Rules is to ensure that confessions are voluntary, that practice should never be stretched too far, for the protection of guilt. In the case of Nwaebonyi vs. The State (1992) 5 NWLR (Pt. 244) 698, it was held that the fact that a confessional statement did not contain the usual cautionary words, as required by the Judges’ Rules, Orders 3, 4 and 5 of the Rules, was not enough reason not to admit it in evidence. Also, see Nwigboke v. R. (1959) 4 FSC 26 08 (1959) SCNLR 248. Recently, in the case of Igago v. State (2001) 2 ACLR 104 at 120, Karibi-Whte, JSC, opined: Learned counsel to Appellant has referred to the breach by PW5, 6 and 7 of the Judges’ Rules in the manner the statements were recorded.
There is no evidence that the statements were in breach of the rules, as counsel did not refer to evidence of any breach. However, there is evidence that the statements Exhibits “A” and “B” were taken down after the usual caution had been administered. In any event there are rules of caution the non-observance of which is not necessarily fatal to the admissibility of the statement. see Uche vs. Queen (1964) 1 ALL NLR 195. It flows or stems from these ex cathedra authorities, particularly Igago’s case, which is latter in time to Namsoh’s case, that non-conformity which the Rules is not at all times inimical to the admissibility of pre-trial statements to the police. Being rules of procedure, albeit criminal procedure, where their strict observance is in collusion course with the need to do justice, a Court of law will bend towards dispensation of justice, especially if the former will be “for the protection of guilt”. That is the only way those rules will be accorded their rightful place or status of being subservient handmaids to justice. They can never rise to omnipotent masters ready to wrestle down justice, see Okaroh vs. State (1988) 3 NWLR (Pt. 81) 214 at 220. In sum, the minor or minute deviations from the prescription of Orders 6 and 7 (1) of the Rules, highlighted in the appellants’ brief of argument, are not potent enough as to have pernicious effect of not admitting exhibits 4, 5 and 6 by lower Court”.
In Smart vs. The State (2012) LPELR 8026 (CA) this Court again held that “The law is that the non-observance of the Judges Rules, that is, taking the accused before a Superior Police Officer for confirmation or attestation of his statement, is not necessarily ruinous or injurious to its admissibility. See EGBOGHONOME V. THE STATE (1993) 3 NWLR (Pt. 306) 393 and IGAGO V. THE STATE (1999) 14 NWLR (Pt. 637) 1 at 17, para. C.”.
I do not agree with the submission of Learned Counsel for the Appellant that the Trial Court was wrong to have held that the prosecution did not withhold from being tendered as evidence the written statement of the Appellant made on 7-4-2010. The part of the judgment of the trial Court complained against in this argument reads thusly:-
“I have considered the submissions of both Learned Counsel on this issue. Section 167 (d) of the Evidence Act, 2011, provides as follows:
“(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;”
When PW1 gave evidence before this Court, he did not state that there was any other statement made by the 1st accused person in his own handwriting on 7th, April, 2010, before ACP Ayuba Ede in respect of this case. However, when he was cross examined by the Learned Counsel to the 1st accused person, PW1, replied thus:
“The statement of the 1st accused person dated 7th April, 2010, is in respect of another case”
Apart from the above statement of PW1 under cross examination, he was not cross examined on any statement made by the 1st accused in Abuja before ACP Ede on 7th April, 2010. He was not cross examined that ACP Ede asked PW1 to discard exhibit A. In fact PW1 was not cross examined further on the existence of a statement made by the 1st accused person when PW1 stated that the statement made by 1st accused on 7th April, 2010, was in respect of another case, nor did the defence ask for the production of that statement of 7th April, 2010, to know whether it was in respect of this case or in respect of another case, or whether such evidence or document exists to contradict what PW1 has already stated, see John Mamuda Buba v The State (1994) 7-8 SCNJ 472 at 478.
In my view, the duty of the prosecution is to bring such evidence as it believes is sufficient to prove its case. The defence on the other cannot be denied nor can the prosecution withhold any evidence or document it believes will assist in his defence. Since PW1 has stated categorically that the statement of 7th April, 2010, is in respect of another case, it behoves on the defence to ask for its production in view of exhibit CR1 which alleges “various crimes ranging from murder, rioting, armed robbery”, against the 1st accused person, amount others.
I am therefore of the firm view that since PW1 had asserted that the statement of 1st accused person on 7th April, 2010, is in respect of another case, the question of withholding evidence by the prosecution does not arise.”
The reasons the trial Court gave for this holding are correct. The prosecution did not produce and tender in evidence the 7-4-2010 written statement of the Appellant in its custody, which statement, the PW1 who obtained it, testified is in respect of another case. Implicit in this testimony of PW1 is that the said statement is not related to this case and is therefore not relevant in this case. The Appellant was entitled to demand that the prosecution produce it on the ground that it was relevant to his defence. Upon such demand, the prosecution would be bound to produce the statement. If it fails to do so, then it can be pressured to have withheld such evidence because it is unfavourable to its case. The Appellant in the trial did not demand for the production of the statement by the prosecution. There was therefore no basis for invoking the presumption of withholding evidence provided for in S. 167(d) of the Evidence Act 2011 as follows-
“the Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case.
(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
This position is supported by the decision of the Supreme Court in similar circumstances in Aremu & Anor v The State (1991) 7 SCNJ 296. The apex Court considered that “there was nothing on record to show that a subpoena was served on the prosecution to produce the statements and it was not produced. The defence was entitled to call for the statements, if they existed,” and then held that “the Court of Appeal correctly held that it was difficult to hold that the non-production of the said statements amounted to suppression which would invoke the presumption of Section 148 (d) of the Evidence Act. The presumption arises when it is shown that the adverse party has suppressed a document which has been proved to be in its possession and which it has refused to produce after service of the notice”.
This Court in Adekoya v The State (2010) LPELR 3604 (CA) followed the Supreme Court decision in Aremu & Anor v The State and held that “the compiled record does not show any demand for the statements by the defence and the refusal of the prosecution to make them available to the defence. A demand had to be made first. The refusal to honour the demand must be established before the presumption of withholding evidence under Section 148 (d) of the Evidence Act may be invoked against the party withholding the document.”
It is not in dispute that the evidence on which the trial Court relied on to convict the Appellant are the Appellant’s confessional statement, exhibit A’. The Trial Court correctly restated the law that a conviction can be based on a free and voluntary confessional statement of an accused. The law on this point has been so restated in a long line of judicial decisions that it is now trite. In Mohammed v The State (2007) 11 NWLR (Pt. 1045) 303 at 320 the Supreme Court held that “Where an accused person confesses to a crime, in the absence of an eye witness of the killing, he can be convicted on his confession alone.” See also Ikpo v State (1995) 33 LRCN 587 at 588, Alapere v The State (2001) 2 SC 114 at 135, Idowu v The State (2000) 7 SC (Pt. 11) 50 at 62 and 64, Iluebeka v The State (2000) 4 SC (Pt. 1) 203 at 218 and Akinmoju v The State (2000) 4 SC (Pt 1) 64 at 67.
The fact that the Appellant denied making exhibit A’ could not have precluded the trial Court from relying on it after it held that the statement was the free, voluntary and truthful confession of the appellant. As the Supreme Court held in Akpan v The State (1992) 7 SCNJ 22, “It is well settled that a confessional statement does not become inadmissible merely because there is a subsequent retraction of the confession by its maker”. In Nwachukwu v State (2002) 7 SC (Pt. 1) 124, the Supreme Court held that “The fact that the accused did subsequently retract his confession does not mean that the Court cannot act on it and convict him accordingly as the circumstances of the case justify”. See also Ikpo & Anor v The State (1995) LPELR ? 1488 (SC).
The retraction may have a bearing on the weight to be attached to the retracted confessional statement. The tests to be applied in determining the weight to be attached to a retracted confession were laid down in R v Sykes (1913) 8 CR. APP. R. 233 and approved by the Supreme Court in Shazali v The State (1988) 12 SC (Pt. 11) 58 as sound and golden.
The tests are as follows:- “The issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R v Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. 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 condition founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.” See also Kareem v F.R.N (2002) 4 SC (Pt 11) 42.
Since the holding of the Trial Court that exhibit A’ is a free, voluntary and truthful confession is not challenged or appealed against and is thereby accepted by the Appellant as correct and binding, its reliance on the confession cannot be faulted and there would be no need to apply the R v Sykes test.
The argument of Learned Counsel for the Appellant that exhibit A’ is not corroborated by other evidence is of no moment because, as held by the Supreme Court in Mohammed v State (supra) “A free and voluntary confession alone is sufficient without further corroboration to warrant conviction”.
The Supreme Court in Nwachukwu v State (2002) 7 SC (Pt. 1) 124 also held that “it is however, desirable particularly if the confession is subsequently retracted that there should be some corroboration, no matter how slight, but a conviction will not be quashed merely because it is based entirely upon the evidence of a confession by the Appellant”.
The unchallenged holding of the trial Court that the confession is free, voluntary, and trustful, justifies the reliance on it alone without corroboration to convict. As held by the Supreme Court in Oseni v The State (2012) LPELR ? 7833 (SC) “It is the law that even without corroboration a confession is sufficient to support a conviction so long as the Court is satisfied of its truth.”
Learned Counsel for the Appellant also argued that the trial Court should not have relied on exhibit D, the confessional statement of Aminu Dio (2nd accused) to convict the 1st accused (Appellant). Learned Counsel for the Respondent did not respond to this argument.
Let me also consider the merit of this argument.
The Appellant was the 1st accused and Aminu Dio was the 2nd accused in the trial proceedings. Both were jointly tried. Exhibit A’ is the confessional statement of the Appellant while Exhibit D is the confessional statement of Aminu Dio. In Exhibit A’, the Appellant confessed to having participated in the killing of one Otandi and also mentioned that 2nd accused participated in the killing and the role he played. In Exhibit D, the 2nd accused confessed to his participation in the commission of the crime and stated the role played by the Appellant in the commission of the crime. Although the trial Court considered the exhibits together in its judgment, it determined the guilt of each accused on the basis of his own confessional statement. This is obvious from the portions of the judgment reproduced above. There is no doubt that this approach of the trial Court in not setting out the evidence relating to each accused separately, gives the impression that it relied on both confessional statements to convict each accused. But what is clear from the expressed words of the judgment is that the trial Court relied on each confessional statement to determine the case in respect of only the accused who made that confession.
The law on the use of a confession of an accused against a co-accused is prescribed in S. 29 (4) of the Evidence 2011 as follows “where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct”.
It is obvious from the express wordings of this provision that it excludes the use of such confession against a co-accused, only when the confession is made in the presence of the co-accused. The literal implication of this provision is that if the confession of an accused is not made in the presence of a co-accused, as in this case, then it can be used against the co-accused. The principle underlying the limitation of such exclusion to confessions made in the presence of the co-accused is not clear. Be that as it is, the Courts have applied that provision expansively and purposively to extend the exclusion to even confessions made in the absence of the co-accused. But the Supreme Court in Yongo & Anor v COP (1992) 4 SCNJ 113 has created an exception to or a modification of the rule that the exclusion applies to confessions made in the presence or absence of a co-accused, in its holding that “I think it is also settled that in a criminal trial where an accused incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against a co-accused. But where the prosecution or the police intend to use the statement against a co-accused then the prosecution or the police is bound to make a copy of the incriminating statement available to the co-accused.”
In the light of this decision of the Supreme Court, exhibit D could be used against the Appellant since it was attached to the application for leave to prefer the charge and was served on the appellant along with the said application and the charge at the commencement of the criminal case. For this reason, if the trial Court had relied on it as corroborating the confessional statement of the Appellant in exhibit A’, it would have been justified.
Let me now find out if exhibit A’ established that the Appellant committed the offence of culpable homicide punishable with death under S. 221(a) of the Penal Code.
Learned Counsel for the appellant relying on the judicial decisions in Michael v The State (2008) LPELR ? 1874 (SC), Ismail v The State (2011) LPELR – 9352, George v The State (1993) 6 NWLR (Pt. 297) and Ogbu v The State (2007) 3 FWLR (Pt. 377) 4193, correctly restated the
ingredients of the offence of culpable homicide causing death thusly:-
1. That the death of a human being has actually taken place
2. That such death was caused by the Appellant
3. That the act or omission of the Appellant that caused the death was intentional with the knowledge that death was the probable result.
Learned Counsel for the Respondent agreed with this restatement.
In exhibit A’ the Appellant stated that “he was born to the family of late Ibrahim Bello and Khadijat Ibrahim at Airport Quarters Area B, Abuja, went to RCM South Primary School Okene passed out in 2000, proceeded to Local Government Secondary School, Ohiana, Okene, and passed out in 2007 and proceeded to University of Jos where he was then 100 level student. He stated further:
“some times in 2008 in the afternoon, myself, Aliyu Isah Aka Osama aka Soso, Ojo aka Oscar armed with one FNC rifle, sheriff Abdulrazak, Mohammed Aka Maso, Salami Aka Idapo and others, were sitting down at Inya i.e Mama Seriya’s house who sells “Ogogoro” i.e Local Gin at Enyinare Area Okene. We were all there with one Otandi whose father’s name I don’t know, drinking Ogogoro and relaxing, suddenly, Otandi’s GSM hndset which I cannot remember the make, was ringing. As Otandi was answering the call, aka Soso asked him to put his phone on loud speaker to enable us here the discussion. During the process, myself and the people I earlier mentioned, heard the caller whose identity is not known to us, asking Otandi to meet him immediately at Promoter’s area Okene, to collect the sacrifice made of what we don’t know. I suspect the caller to be one of the people who are not in good term with us. Alias Soso immediately collected the handset from Otandi who took to his heals and ran towards Doctor Isiaka’s hospital at Enyinare.
We pursued him including Aminu Ojukwu who was armed with Ojo Oscar’s AK 47 rifle, Ally aka Osama, Ojo aka Oscar. We were able to catch Otandi, Ojo aka Oscar and Aminu aka Ojukwu used their rifles to shoot and killed the said Otandi Sherif, Ojo Oscar, Aminu Ojukwu and others, immediately roasted Otandi’s corpse by setting fire and burnt it. From there, we all left to our various houses. Nobody reported the matter to the police why we did that act is because we felt the late Otandi is trying to betray us although he never did that before”.
The trial Court held that this confessional statement in exhibit A’ established the above listed ingredients of the offence of culpable homicide punishable with death. The exact of the holding of the trial Court reads thusly:-
“Coming back to the 3rd issue, the first ingredient the prosecution must prove is that one Otandi is dead, it is the contention of the learned Counsel for both accused persons that the death of Otandi was not been proved beyond reasonable doubt. It is not in dispute that the corpse of the said Otandi was not recovered and no medical examination or report was tendered nor was any relation of the said deceased or any witness called to testify, leading to defence Counsel’s submission of the non-existence of such a person called Otandi in Okene.
According to PW1 the relations of deceased had fled their home and the body of the deceased burnt to ashes.
However, exhibits A and D are so graphically clear that there can be no dispute regarding the fact that one Otandi is dead. As the Supreme Court stated in Eyang Edim v. The State (1972) 7 NSCC 296 at 298:
‘No doubt there is no eye witness evidence as to accused killing the deceased, but there is the confession by accused. When confession is truly made and voluntary it is enough to found a conviction. In Kanu v The King (1952) 14 W.A.C.A. 30 the Court observed as follows:
“Corroboration by an eye witness cannot be obtained in all cases of murder. A voluntary confession of guilt, if it be fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone. See also R. V. Agagariga (1961) All N.L.R. 462.
It is true that the body of the deceased has not been recovered. But it is settled law that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction; Ogundipe & Ors v The Queen (1954) XIV W.A.C.A 458.” In this case the accused said he dumped the body of his victim into the river.”
From the evidence of the prosecution witnesses and exhibits A and D, the said Otandi was with the accused persons and others at that material time relaxing and drinking local gin. Problem started when they suspected that the deceased had sold then out, leading to his being pursued, shot and his body burnt. I have no doubt therefore that the said Otandi existed and I therefore hold that the prosecution has proved the death of Otandi beyond reasonable doubt.
Next is for the prosecution to prove, as required by law that the act of the accused persons caused persons caused the death of the deceased, that is to say, there must be a causal link between the act of the accused persons and the death of the deceased. As the Supreme Court stated in Patrick Oforlete v The State (2000) 7 SCNJ 162 at 186:
“In every case where it is alleged that death has resulted from the act of the accused person, a causal link between the death and the act must be established and proved; in criminal proceedings, beyond reasonable doubt. The first and logical step in the process of inch proof is to prove the cause of death… where the cause of death is ascertained, the act (or Omission) of the person alleged to have caused it.”
See also the case of Kada v the State (1991) 11 SCNJ 19 at 28 where the Supreme Court also stated that:
“Where an accused person is being tried for a capital offence like culpable homicide, it is a condition precedent that the connection between the act of the accused causing the death of the deceased and the death caused thereby must be established beyond reasonable doubt.”
Exhibits A and D represent a graphic and detailed account of how the deceased was killed. The deceased who was sitting with the two accused person and others now at large, heard the deceased’s phone ring, deceased was asked to put it on speaker, suspecting that the person on the other end belonged to the opposing camp, took the handset from the deceased who at the moment took to his heels. He was pursued by the two accused persons, Ojo Oscar (deceased) and others at large. 2nd accused person in Exhibit D stated further that upon catching up with the deceased close to Dr. Ishaku’s clinic at Enyinare, Okene, Ojo Oscar fired his gun which hit the deceased on his back and that he then shot the deceased on the chest and he fell down. Members of the gang then collected fire wood on the corpse of the deceased and “set it on fire and the corpse was burnt down.” It is clear that the action of the accused persons and his gang was actuated by the suspicion that the deceased had sold them out to a rival thug of another political party, as 2nd accused stated in exhibit D:
“…Where bush anger collected the mobile phone from him and scrolled through, there he saw one Adioziogu’s number gang out (through) to our opponent. Adiozogu are supporters of people’s Democratic Party “PDP” ? while my gang are thugs of Action Congress Party ‘AC”. ”
It was contended on behalf of the 1st accused that there is no evidence even from exhibit A that the 1st accused participated in the killing of the deceased. According to 1st accused statement, he suspected that the deceased was talking with “one of the people who are not in good term with us’; he and others chased the said deceased to Dr. Ishaku’s clinic area in Enyinare where he was killed. 1st accused also described how they gathered fire wood with which they burnt the corpse of the deceased. There is no denying the fact that 1st accused person was present with members of his gang that day, participated in the pursuit of the deceased to place he was killed and also participated in gathering the wood which was used to burn the deceased’s body. According to 1st accused in Exhibit A, they did what they did because “we felt the late Otandi is trying to betray us, though he never did that before.”
In pursuing the deceased along with members of his gang, 1st accused was engaged in unlawful purpose with a common object, I am therefore of the view that the fact that the 1st accused did not shoot the deceased will not be material in the circumstances. See Yangetor Angula V The State (1966) 4 NSCL 238 at 239, Jimoh Michael v The State (2008) 6 SCNJ 1 at 11 Usman Kaza v The State (2008) 2 SCNJ 373 at 396 and Samson Emeka v The State (2001) 6 SCNJ 259. The 1st accused person cannot therefore bring himself out of a common act of the gang which is the killing of the deceased. I therefore find that the prosecution has proved that the act of the accused persons caused the death of the deceased.
As to whether the act was done with the intention of causing death or that the accused knew that death will be the probable consequence of such act, I will again refer to exhibits A and D as stated earlier the confessional statements of the two accused persons are positive, direct, cogent and unequivocal regarding what led to the killing of the deceased, See Mustapha Mohammed & Anor. V The State (2007) 4 SCNJ 117 and Basil Akpa v The State (2008) 4 SCNJ 250. In this case where a member of the gang shot the deceased on the back and the 2nd accused person followed it by shooting the deceased in the chest, the accused persons must have intended to kill him. This intention was further buttressed when, not being satisfied with shooting him, collected fire wood, with which the body was burnt.
I have no doubt in my mind that the accused persons intended to kill the deceased. I have no doubt in my mind therefore that the acts of the accused persons in the shooting and burning of the body of the deceased where done with the intention of causing his death and I hold that the prosecution has proved this third ingredient of the offence beyond reasonable doubt.
I therefore hold that the prosecution has proved the offence of culpable homicide punishable with death contrary to S. 221 (a) of the Penal Code beyond reasonable doubt against the two accused persons.”
The 2nd accused confessional statement (exhibit D) upon which his conviction was based repeats what the Appellant said in exhibit A. After stating his bio-data and his marriage that has produced four children, 2nd accused said:-
“In his own statement to the police, exhibit D, the 2nd accused person having provided his bio data including his marriage that has produced four children went on to state:
“However I joined a gang of thugs in Okene through one Ojo Yusufu popularly called Ojo Oscar, the gang has been involving in crimes activities such as causing crisis, community unrest, fighting, rioting, robbery, disturbing the peace of the citizen in Okene, as rightly said Ojo Yusufu a.k.a Oscar Adazi Abe introduce me into this. He equally taught me how to handle and fire gun in 2007. The gang comprising of (1) Shafiu (2) Home boy (3) Tommy (4) Sunday a.k.a KaIla- (5) Jafaru a.k.a Jeff (6) Ojo Yusufu ak.a Oscar who is the leader of the gang and the gang Ammourer as well (7) Salami a.k.a Dapo (8) Jimoh ak.a Soso. Other member of the gang are (9) Ogelu (10) Bobby (11) Bush Anga and (12) Myself Aminu Dio a.k.a Ojukwu. These gang was responsible in the firing and killing of Otandi, and other related crimes in Okene Eba, Ahogede, Siaka Ozi Arube junction Okene and other areas.
Sometimes in 2008 I have actively participated together with the above mentioned gang in the killing and burning of one boy popularly called OTANDI, though I could not recollect the usual date and time, but the killing was in the afternoon. The gang I mentioned above i.e. (a) Myself Aminu Dio (b) Shafiu (c) Homeboy (d) Tommy (e) Sunday a.k.a Kalla (f) Jafaru (g) Ogelu (h) Ojo Oscar (1) Salami aka Dapo (j) Jimoh a.k.a Soso (k) Bobby and (i) Bush arga gathered at Onyi i.e Mama their relaxing, some were drinking and smoking including the said OTANDI. At a point Otandi, now late was receiving a phone call when Bush Anga collected the mobile phone from him and scrolled through there he saw one Adoziogu’s member who as one of our opponents amongst who Otandi was allege to have sold our gang, out (through) to our opponent. Adoziogu are supporters of People Democratic Party “PDP” while my gang are thugs of Action Congress Party “ACP”. While my gang are thugs of Action Congress Party “AC”. Suddenly Otandi took to his heel and we ran after him and gave him a hot chase we got Otandi along Isharku’s hospital Enyinare Okene. Ojo Oskar fire a shot at him which hits at his back, then I fired Otandi at his chest, he fell down and died. Thereafter (1) Dauda a.k.a Lekum (2) Tommy (3) Hassan a.k.a Fuckwoman and (4) Shafiu who is now arrested and others gathered some firewood’s on Otandi’s Corpse and set it on fire and the corpse was burnt down. Thereafter we all left the scene back to koke mother’s place and mama Seriya.
On the fateful day and time almost all with various type of rifles. (1) Shafiu was armed with AK 47 rifle with its Muzzle cut off, but welded, the butt of the rifle is burnt (2) Homeboy armed with one English gun, but name unknown (3) Sunday armed with K2 rifle, (4) Jafaru armed with beretta pistol he purchased from one boy name unknown from Ihima area as he told me, Jafaru also told me that the same boy from Ihima sold one beretta pistol to one popular boy caked Jobo he is another thug in Okene. Although Jafaru did not tell me the price of those beretta pistols. Now Jafau’s beretta pistol is with Isah a.k.a Blackman of Idoji Area Okene (5) Ojo Yusuf a.k.a Oscar was armed AK47 rifles (6) Salami a.k.a Dapo armed with S.M.G. rifle, (7) Bobby armed with K2 rifle (8) I was armed with FNC rifle now recovered (9) Bush Anga armed himself with Pump Action gun.”
As I had held herein, this exhibit D contain statements by 2nd accused that incriminated 1st accused (appellant) and the statement was served on the 1st accused at the commencement of the criminal case.
Learned Counsel for the Appellant has argued that there was no credible evidence of the identity of the person who died, that apart from calling him Otandi or Otandi of Okene, no further particulars of the identity of the person was established by the evidence, that the evidence did not identify his parents, apart from the evidence of PW1 under cross-examination that his father’s name was Mohammed, that no written statements were obtained from the said parents or any other relative of the deceased except the explanation of PW1 that the entire family of the deceased ran away from their homes, that there was no death certificate to show that somebody by the name of Otandi died, that PW1 and PW2 admitted they did not know the deceased, that no picture of the deceased was tendered in evidence, that PW1 who stated that he knew the deceased existed through published books and fact finding that he could not produce the published books and findings in evidence, that the claim that the corpse was burnt did not relieve the prosecution the burden to prove beyond reasonable doubt that a human being had been killed, that there was no autopsy report and that there was material contradiction on the identity of the deceased, as he is named Otandi in the charge, while PW1 named him Otandi of Okene exhibit A’.
Learned Counsel for the Respondent argued in reply that PW1 and PW2 testified that their investigation revealed that the deceased person was dead, that death occurred is not in dispute, that though there was no other eye witness of the event outside the Appellant and his cohorts, the Appellant admitted in exhibit A’ that it was their joint action that led to the death of the deceased, that the prosecution proved the death of the deceased beyond reasonable doubt.
Let me now consider the merit of the above arguments.
The evidence in exhibit A’ that after Otandi was shot dead, his assailants set fire to his corpse and burnt it explains why his corpse could not be recovered or found and also explains the absence of an autopsy report on the body.
The existence and identity of Otandi or Otandi of Okene was not in dispute because the defence did not contend that such a person did not exist and exhibit A’ states directly and positively that Otandi was in the company of the Appellant and his gang relaxing in a drinking place before they suspected him of betraying them to their enemies and for that reason they pursued him, killed him and burnt his corpse. DW1 (appellant) and the DW2 (2nd accused) in their testimonies in open Court merely denied knowing any person called Otandi who died. DW1 added that the only Otandi he knew was a musician in Ogaminana and he was still alive. There is a difference between saying that one does not know a person and saying that no such person exists or died. Since the defence of the Appellant is that he does not know the Otandi that was killed and not that Otandi did not exist or did not die, then the issue of the identity and existence of Otandi did not arise from the evidence before the trial Court, even though the trial Court determined it.
The testimony of PW1 in open Court that he does not know Otandi and had nothing to do with him is a retraction of his earlier extrajudicial statement in exhibit A’ admitting that Otandi whose surname he did not know was in their company in a drinking place, where they were relaxing and drinking local gin, when Otandi had a phone conversation with a person they considered their enemy and suspecting that he was betraying them to an enemy, they pursued him, shot him and burnt his body. The retraction in open Court of his confessional statement did not render it inadmissible or of no probative value as the trial Court had held that the confessional statement was free, voluntary and truthful.
The trial Court, after restating what the Appellant said in exhibit A’ concerning how Otandi was in their company, relaxing and drinking local gin with them and how they pursued, shot and killed him when they suspected from his telephone conversation with somebody in their presence that he had betrayed them to an enemy, specifically found or held that “I have no doubt therefore that the said Otandi existed and I therefore hold that the prosecution has proved the death of Otandi beyond reasonable doubt. There is no ground of this appeal specifically complaining against this specific finding or holding. By not appealing against it, the Appellant accepted it as correct, conclusive and binding upon him and cannot therefore argue contrary to the said finding.
Therefore his arguments that the existence, identity and death of Otandi was not proved are incompetent for being contrary to the finding he has accepted as correct and conclusive. See Awote vs. Owodunni (supra) and Sparkling Breweries Ltd vs. UBN Ltd.
Without complaining against this specific holding or finding, the general complain in ground 1 that the trial Court erred in law when it held that the offence of culpable homicide punishable with death had been established when the ingredients of the offence had not been proved, became unarguable in respect of the ingredient of the existence and death of the person killed.
In Exhibit A’, the Appellant admitted that their gang including himself, as a group pursued Otandi when he took flight, that when they caught up with him, Ojo a.k.a Oscar and Aminu a.k.a Ojukwu (2nd accused) used the rifles they were carrying to the knowledge of all members of the gang, to shoot and kill Otandi that Sherif, Ojo Oscar and Aminu Ojukwu and others immediately set fire to Otandi’s corpse, burning and roasting it and that they killed Otandi because they felt he was trying to betray them. The Appellant thereby admitted that their actions caused the death of Otandi and that the acts were intentional and were carried out with the intention to cause Otandi’s death and with knowledge that his death was a probable or likely consequence of the acts.
The argument of Learned Counsel for the Appellant that the trial Court having made a finding that some other person other than the Appellant shot Otandi, there was no basis upon which it could rightly and legally hold that the Appellant’s act caused the death of Otandi, is not valid. The feeling that Otandi was betraying the gang to their enemy was a common feeling of the gang and that was the common reason the gang had for pursuing him when he started running from them. The gang together pursued him. Members of the gang had riffle guns with them. There is no doubt that only some members of the gang shot and killed him and set fire to his corpse burning it. But all of them including the Appellant approved of the killing of Otandi and the burning of his corpse. This is obvious from the Appellant’s statement in exhibit A’ thusly- “From there, we all left to our various houses. Nobody reported the matter to the police. Why we did that act is because we felt the late Otandi is trying to betray us, although he never did that before”.
The trial Court held that- “in pursuing the deceased along with members of his gang, 1st accused was engaged in unlawful purpose with a common object, I am therefore of the view that the fact that the 1st accused did not shoot the deceased will not be material in the circumstances. See Yangetor Angula V The State (1966) 4 NSCL 238 at 239, Jimoh Michael v The State (2008) 6 SCNJ 1 at 11, Usman Kaza v The State (2008) 2 SCNJ 373 at 396 and Samson Emeka v The State (2001) 6 SCNJ 259. The 1st accused person cannot therefore bring himself out of a common act of the gang which is the killing of the deceased. I therefore find that the prosecution has proved that the act of the accused persons caused the death of the deceased”.
The common act of the gang pursuing Otandi and shooting at him was unlawful and the common purpose of the common act which was to kill him for betraying them is also unlawful. This common purpose is confirmed by their refusal to report the incident to the police and each rather went to his home as if nothing happened and the statement of the Appellant in exhibit A’ that “why we did that act is because we felt the late Otandi is trying to betray us…” This common purpose renders every member of the gang responsible for the death of Otandi irrespective of who amongst them actually shot and killed Otandi and burnt his corpse.
The principle of common intention statutorily prescribed in S. 8 of the Criminal Code Act Cap C38 Vol. 4 LFN 2004 postulates that “when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” See Enyinnaya v The State (unreported judgment of this Court in CA/E/409B/2007 of 28-3-2014) which applied this principle to affirm the conviction of the Appellant for the manslaughter of the deceased even though he was not the one that shot and killed him. In Eyorokoromo & Anor vs. The State (1983) LPELR ? 1188 (SC) the Supreme Court held that “in a concerted attack to prosecute an unlawful purpose, it is not the law to look for the person who struck the lethal blow. Everyone who partakes in the attack is equally guilty.” See also Ubierho vs. The State (2005) 2 SC (Pt. 1) 18, Alarape vs. The State (2001) 2 SC 164 and Mohammed vs. The State (1980) 3-4 SC 56.
Learned Counsel for the appellant argued that the finding of the trial Court that the gang by pursuing the deceased, engaged in an unlawful purpose with a common object is contradicted by its finding that before the pursuit of the deceased there was no prior scheme, plan or agreement to kill the deceased. I do not agree with this argument. The common purpose or common intention of the gang to kill the deceased is an inference the trial Court drew from their common action of pursuing the deceased when he started running from them and the statement of the appellant that they killed him because they felt he was trying to betray them. A prior plan or agreement is not necessary for a common purpose to arise or exist. It arises immediately the members of the group carried out the acts together and had knowledge of the likely consequences of their joint action.
The evidence shows that while the members of the gang and the deceased were relaxing and drinking, the members of the gang were not hostile to him and had no plans to hurt him. The problem started when the deceased received a phone call and engaged in a conversation with the caller, whom the other member of the gang suspected was their enemy. Their suspicion was confirmed when one of them seized the phone from him and found out that the caller belonged to a rival group. The deceased upon realising that he had been exposed started running away. The gang, who were heavily armed, with rifle guns started pursuing him, caught him and killed him. The trial Court rightly found that the pursuit and killing of the deceased occurred on the spur of the moment.
The finding of the trial Court that there was no prior plan or agreement to pursue the deceased and kill him was made in determining if the evidence showed that the appellant and others conspired to kill the deceased. The ingredients of conspiracy is different from the ingredient of common intention or common purpose while the existence of an agreement to carry out an act is necessary to establish conspiracy, it is not necessary to establish common purpose or intention.
It is obvious from the judgment of the trial Court that it properly evaluated the contents of exhibit A’ and the testimonies of PW1, PW2, DW1 and DW2 and other exhibits before relying on exhibit A’ to convict the appellant.
In the light of the foregoing, issues 1, 2, 3 and 4 are resolved in favour of the Respondent.
On the whole this appeal fails as it lacks merit. It is accordingly hereby dismissed. The judgment of the High Court of Kogi State delivered by S. O. Otu J. in HC0/3CR/2010 on 20-4-2012 including the conviction and sentence of the appellant therein is hereby affirmed and upheld.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the Judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in agreement with the reasoning and conclusion and orders reached therein.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
A.G. William Wobodo, Esq.For Appellant(s)
Mrs. R. A. Alfa (DPP MOJ Kogi State) with her, A. W. Zakari (Asst. Director), Mrs. R.L. Adamu (CLO), Mrs. A.L Okolo (SLO), M.M Tseja (LO) and T. W. Kemefa (LO)For Respondent(s)
