SIMON IMEPURUNGU v. THE STATE
(2019)LCN/12891(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/YL/103C/2018
RATIO
EVIDENCE: ELEMENTS OF A CONFESSIONAL STATEMENT
“In law, can the Appellant be convicted on Exhibit A alone? When an accused person confesses to a crime in his extra judicial statement but in Court retracts or takes back what he had said, the practice is that before such an accused person is convicted on the confessional statement the Court looks for some evidence outside the confession which would make the confession probable. Nowadays, the need is compelling, I dare say. Over the years the Courts have adopted the practice recommended in R V Sykes (1913) 8 CAR 233 of subjecting a confessional statement to some close examination before relying on it to convict an accused person. The factors to be considered are:
1. Whether there is anything outside the confession to show that it is true.
2. Whether it is corroborated
3. Are the relevant statements made in it true as far as they can be tested?
4. Was the accused person one who had the opportunity of committing the offence?
5. Is the confession possible?
6. Is it consistent with other facts which have been ascertained and proved?
PW1 was the only prosecution witness in this case.” PER JAMES SHEHU ABIRIYI, J.C.A.
INTERPRETATION: MEANING OF ‘ALIBI’
“Alibi is a defence which seeks to persuade the Court that the accused person could not possibly be at the scene of the crime as he was somewhere else. In raising the defence of alibi, the accused person must at the earliest opportunity furnish the police with full details of the alibi, to enable the police check the details. Failure of the accused person to furnish the particulars of the alibi weakens the defence. See Sowemimo vs. The State (2004) 11 NWLR (Pt. 885) 515.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
SIMON IMEPURUNGU Appellant(s)
AND
THE STATE Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 2nd May 2018, in the High Court of Adamawa State holden at Yola in Suit No ADSY/25C/2017. In the High Court (Court below), the Appellant was tried and convicted for the offence of culpable homicide contrary to Section 221(b) of the Penal Code, Laws of Adamawa State. He was sentenced to death by hanging according to the Law.
According to the only witness called by the Respondent, the Appellant was brought from Toungo Divisional Police Headquarters to anti homicide Section SCID, Yola. He (PW1) was ordered to investigate. While he was interviewing the Appellant, he voluntarily gave him a confessional Statement Exhibit A.
Then Inspector Victor Alfred led them to the scene of crime and they recovered one ?single barrel? and registered it with the exhibit keeper.
The Appellant in Exhibit A stated that on 13th November, 2014 at about 4.00am Michael Timothy, Richard Ate and himself went hunting. On reaching the bush each of them went his separate direction. On 14th November, 2014 at about 6.45pm he saw something moving like a pig. Then he shot in that direction not knowing that it was his friend with whom they went hunting, that is, Richard Ate that he shot to death.
On 15th December, 2014 he returned home and was afraid to report to the police until he was arrested by the police at Toungo.
The defence of the Appellant was completely different from what is contained in Exhibit A reproduced extensively above.
In Court the Appellant stated that he was sitting in his house when the police came, arrested, and took him to Toungo police station and locked him up. When he asked the police the offence he committed the police told him that he killed somebody. He denied killing anyone. The police told him that he killed somebody in the bush while hunting. He denied going for hunting or killing someone.
He denied making Exhibit A.
After considering the evidence adduced by both parties, and addresses of learned counsel for the parties, the Court below found the Appellant guilty of the offence charged, convicted and sentenced him to death by hanging.
The Appellant has approached this Court by a notice of appeal dated and filed 6th July, 2018.
The notice of appeal contains ten (10) grounds of appeal.
From the ten grounds of appeal the Appellant in an Appellant’s Brief of Argument filed on 12th September, 2018 presented the following two issues for determination:
1. Was the Trial Court not wrong when it found that the Appellant did not raise timeously his defence of alibi, and thereby refused and failed to consider the Appellant?s alibi, even though same was neither investigated nor disproved by the Respondent? (Distilled from Ground 6 of the Notice of Appeal.)
2. Was the Trial Court correct when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of Culpable Homicide punishable with death, convicted and sentenced the Appellant to death? (Distilled from Grounds 1, 2, 3, 4, 7, 8, 9 and 10 of the Notice of Appeal.)
In a Respondent’s brief dated and filed 11th October, 2018, the Respondent also presented the following two issues for determination:
1. Was the trial Court not wrong when it found that the appellant did not raise timeously his defence of alibi and thereby refused and failed to consider the appellant’s alibi, even though same was neither investigated nor disproved by the respondent? (Distilled from ground 6 of the notice of Appeal)
2. Was the trial Court correct when it held that the respondent proved against the appellant beyond reasonable doubt the offence of culpable homicide punishable with death convicted and sentenced the appellant to death? (Distilled from grounds 1, 2, 3, 4, 5, 7, 8, 9 & 10 of the notice of appeal).
I prefer the two issues submitted for determination by the Appellant. I will therefore determine the appeal on these issues.
Arguing issue 1 learned counsel for the Appellant submitted that the Court below was wrong when it found that the Appellant did not raise timeously his defence of alibi and thereby refused and failed to consider it. The Appellant, it was submitted, raised the defence of alibi timeously immediately when he was arrested and taken to the Toungo police station. It is the law, it was submitted, that once an accused person raises the defence of alibi at the earliest opportunity, the burden shifts to the police to investigate and disprove same. Failure to investigate and disprove the alibi has the effect of creating reasonable doubt in the mind of the Court and a failure to prove the case against the accused person beyond reasonable doubt, it was submitted. The Court was referred to Ozaki vs. The State (1990) 1 NWLR (Pt. 124) 92, Abdullahi vs. The State (1985) 9 NWLR (Pt. 47) 115 at 127, Ede vs. FRN (2000) WRN 15 at 22, Chewmoh vs. The State (1986) 2 NWLR (Pt. 22) 331 at 343 and State vs. Ebami (2017) LPELR-43595.
It was submitted that the failure or refusal of the Court below to consider the defence of alibi raised by the Appellant was fatal to the judgment of the lower Court.
On issue 2 learned counsel for the Appellant submitted that in order to establish the offence of culpable homicide punishable with death, the prosecution must establish the following ingredients:
1. Death of the deceased;
2. That the death of the deceased has resulted from the act of the accused person; and
3. That the act or omission of the accused person, which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its probable consequence.
The Appellant, it was submitted, denied making Exhibit A in his evidence in chief and under cross examination. Therefore the Court below ought to have sought an independent corroboration outside the retracted confessional statement before convicting the appellant based on his alleged confession, it was submitted. We were referred to Okoh vs. The State (2014) LPELR-22589 SC page 27 to 28, Azabada vs. The State (2014) LPELR-23017 and The State vs. Masiga (Tsolo) 2017 LPELR-43474 SC page 14 ? 15.
Learned counsel for the Appellant submitted that the confessional statement Exhibit A was even inadmissible in evidence because the Appellant made the statement in Hausa Language and the PW1 recorded it in English.
It was submitted that the statement of an accused person made to the police must be written in the language in which it was made. The Court was referred to Ajidahun vs. The State (1991) 9 NWLR (Pt. 213) 33 at 41.
It was submitted that the testimony of PW1 did not corroborate Exhibit A as his evidence was hearsay.
It was submitted that no credible evidence was led to establish that the deceased died. This can be proved, it was submitted in any of the following ways:
(1) Evidence of a witness who saw the accused person killing the deceased.
(2) Medical evidence (e.g. autopsy report, death certificate etc) and
(3) Inference from circumstances in the case that create no room for doubt or speculation.
The prosecution, it was submitted, in order to prove culpable homicide punishable with death, must prove the cause of death and that it was the accused person that caused the death. The Court was referred to Adekunle vs. The State (1989) 5 NWLR (Pt. 123) 505.
The Court was referred to a finding of the Court below that the Appellant and no one else was responsible for causing the death of the deceased by shooting him with a gun which caused his death.
This finding, it was submitted, was not correct because the Court below also found that the deceased was in company of one other person Michael Timothy who was not called as a witness to testify.
It was submitted that the Respondent failed to prove the guilt of the Appellant beyond reasonable doubt as required by law. We were referred to Abokokuyanro vs. The State (2016) LPELR-40107 SC and Aigbadion vs. The State (2000) 7 NWLR (Pt. 666) 686 at 7041.
On issue 1 learned counsel for the Respondent argued that Appellant raised the defence of alibi at address stage.
It was submitted that it is appropriate to raise the defence of alibi timeously.
It was further submitted that the Appellant presented contradictory evidence about his whereabouts on the day the deceased was killed. In the circumstances the Appellant, it was submitted, did not establish his defence of alibi. The Court was referred to Ayan vs. The State (2013) 15 NWLR (Pt. 1376) 34 at 53.
Finally, it was submitted that it is not in all case that failure to investigate an alibi would be fatal to the prosecution?s case.
On issue 2, learned counsel for the Respondent submitted that the Court below was right in convicting the Appellant because he admitted in his confessional statement.
It was submitted that in order to sustain a conviction the prosecution must prove the following essential ingredients:
1. That the death a human being has actually occurred;
2. That such death has been caused by accused.
3. That the act was done with the intention of causing death or with intention of causing such bodily injury as ?
(a) The accused knew or had reason to know that death would be the probable and not only likely consequence of his act or
(b) That the accused knew or had reason to know that death would be probable and not only the consequence of any bodily injury which the act was intended to cause.
The Appellant, it was submitted, admitted committing the offence without duress and the said confessional statement was direct and unequivocal.
There is nothing wrong in law, it was submitted, in convicting an accused person on his confessional statement. The Court was referred to Achabua vs. The State (1976) 12 SC 63 at 68.
It is the law that in a criminal trial, the burden of proof lies upon the prosecution, throughout, to prove the guilt of the accused person and the burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden so that a wrong person will not be convicted for an offence he never committed. Failure to discharge this burden renders the benefit of the doubt in favour of the accused person.
The onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt.
The guilt of the accused person can be proved by:
(1) The confessional statement of the accused person; or
(2) Circumstantial evidence; or
(3) Evidence of eye witness of the crime. See People of Lagos State vs. Umaru (2014) 3 SCNJ 114 at 137, Igabele vs. The State (2006) 6 NWLR (Pt. 975) 100 and Kim vs. The State (1992) 4 NWLR (Pt. 233) 17.
The Appellant was convicted of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code.
By virtue of Section 221 of the Penal Code, the prosecution must prove the following:
(1) That a human being died;
(2) That his death was caused by the accused person;
(3) That the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All these ingredients must be proved before a conviction is secured. Failure to establish any of the ingredients would result in an acquittal. See the decisions of this Court in Akpa vs. State (2007) 2 NWLR (Pt. 1019) 500, Uwagboe vs. The State (2007) 6 NWLR (Pt. 1031) 606 and the decision of the Supreme Court in Adava vs. State (2006) 9 NWLR (Pt. 984) 152.
Alibi is a defence which seeks to persuade the Court that the accused person could not possibly be at the scene of the crime as he was somewhere else. In raising the defence of alibi, the accused person must at the earliest opportunity furnish the police with full details of the alibi, to enable the police check the details. Failure of the accused person to furnish the particulars of the alibi weakens the defence. See Sowemimo vs. The State (2004) 11 NWLR (Pt. 885) 515. In the instant case no statement made by the Appellant at the Toungo police station was tendered in Court. There is therefore no basis for the submission of learned Appellant’s counsel that the Appellant raised the defence of alibi in a statement he made to the police at Toungo police station. The very copious arguments of learned counsel for the Appellant on the defence of alibi should therefore be disregarded.
Issue 1 is therefore resolved against the Appellant.
The Court below relied on the confessional statement of the Appellant Exhibit A to convict him.
In law, can the Appellant be convicted on Exhibit A alone? When an accused person confesses to a crime in his extra judicial statement but in Court retracts or takes back what he had said, the practice is that before such an accused person is convicted on the confessional statement the Court looks for some evidence outside the confession which would make the confession probable. Nowadays, the need is compelling, I dare say.
Over the years the Courts have adopted the practice recommended in R V Sykes (1913) 8 CAR 233 of subjecting a confessional statement to some close examination before relying on it to convict an accused person. The factors to be considered are:
1. Whether there is anything outside the confession to show that it is true.
2. Whether it is corroborated
3. Are the relevant statements made in it true as far as they can be tested?
4. Was the accused person one who had the opportunity of committing the offence?
5. Is the confession possible?
6. Is it consistent with other facts which have been ascertained and proved?
PW1 was the only prosecution witness in this case.
It was a matter transferred from Toungo police station to SCID Yola for further investigation. PW1 was not an eye witness. He recorded the statement. That was all he did. I am not unmindful of his claim that he went to the scene of crime. This cannot be true because what he called a single barrel (whatever that means) that he purportedly recovered at the scene was not tendered in Court. There was therefore no other evidence before the Court below against which the confessional statement exhibit A could have been tested. See Bassey vs. The State (2012) 4 SCNJ 141 at 155 ? 156 and F.R.N vs. Barminas (2017) 15 NWLR (Pt. 1588) 177 at 214 – 215.
The Court below erred when it found that there was evidence that the Appellant was the last person seen with the deceased. There was no such evidence. The only evidence before the Court was Exhibit A. In that exhibit the Appellant stated that three of them, that is, the deceased, Michael Timothy and himself went hunting. There was therefore no basis also for the finding of the Court that no other person other than the Appellant could have shot the deceased.
Most surprising was the finding that the deceased was later found dead. There was no such evidence before the Court below.
The lower Court misled itself by the evidence it manufactured itself which was not led by the prosecution to convict the Appellant who purportedly confessed to the killing of the deceased.
The prosecution refused to call witnesses and adduce relevant evidence before the lower Court as if it had an inkling that the Court below would find evidence for it where there was none. The Court below referred to evidence adduced by the Respondent which was quite credible when it was only PW1 called who only recorded the statement of the Appellant and claimed that he recovered ?single barrel? which he did not tender in Court.
Issue 2 is resolved in favour of the Appellant and against the Respondent.
Issue 2 having been resolved in favour of the Appellant and against the Respondent the appeal should be allowed.
It is allowed by me.
The conviction and sentence of the Appellant by the Court below are hereby quashed. The Appellant is discharged and acquitted.
OYEBISI FOLAEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just rendered by my learned Brother, James Shehu Abiriyi, J.C.A.
I am at one with His Lordship that, the appeal is imbued with merit for the reasons well set out in the said leading judgment. I equally allow the appeal, set aside the judgment of the trial Court which convicted and sentenced the Appellant to death. Consequentially, I quash the charge preferred against the Appellant and discharge and acquit him accordingly.
SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the lead Judgment just delivered by my Lord, JAMES SHEHU ABIRIYI, JCA with whom I agree with his reasoning and conclusion. I have nothing useful to add but allow this appeal. The appellant is discharged and acquitted of the conviction and sentence at the High Court for Culpable Homicide punishable with death under Section 221(b) of the Penal Code, Laws of Adamawa State.
Appearances:
Fred OnuobiaFor Appellant(s)
Mohammed Umar (SSC II Ministry of Justice, Adamawa State)For Respondent(s)
