WASIU HAMZAT v. THE STATE
(2019)LCN/12894(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/IL/C.88/2016
RATIO
COURT AND PROCEDURE: BURDEN OF PROOF
“…Ogunbiyi JSC in C.O.P vs Amuta (2017) All FWLR (pt 879) 760 at 783 stated the position of the law thus:- The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecutions to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from the beginning of the trial right through to the end. This has been the position of the law ever since, and through the ages: Chianugo vs The state (2002) 2 NWLR (pt 750) 225, now statutorily expressed by Section 135 (1) and (2) of the Evidence Act. This duty imposed on the prosecution to prove the guilt of the accused person beyond reasonable doubt means no more than utilizing the three settled methods of proof, i.e direct evidence of an eye witness, circumstantial evidence and reliance on the confessional statement of an accused person voluntarily made, to by credible evidence prove the ingredients of the offence(s) for which the accused is being accused of. See Okashetu v The State (2016) AI FWLR (pt 861) 1262 -1287.” PER HAMMA AKAWU BARKA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“It is trite law that a confessional statement by an accused person which is direct, cogent and unequivocal where believed by the trial Court is enough to ground a conviction. See FRN vs. Emeka (2013) 3 NWLR, Ojegele vs The State(1988) 1 NWLR (pt 71) 414, Ogoala vs The State (1991) 2 NWLR (pt 175) 509, Akpan vs The State (1986) 3 NWLR (pt 27) 225. This position of the law is however qualified in the sense that where as in the instant case, the accused person retracts his statement, as not having been made by him, or where he denies the contents thereof, the Court must carefully consider the evidential value to place on such a statement. See Nwocha vs The State (2012) 9 NWLR at P. 571. In determining the weight/value to be attached to a retracted statement, the Court dutifully examines the statement, testing the veracity and the truthfulness of the said statement in the light of other credible available pieces of evidence, and looking into what is now acceptably termed as the six way test enunciated in a number cases includingAkpan vs The State (2000) 12 NWLR (pt 682) 607, Kareem vs FRN (2002) 8 NWLR (pt 770) 664, Ojegele vs The State 1 NWLR (pt 71) 414.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
WASIU HAMZAT Appellant(s)
AND
THE STATE Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of H.O.Ajayi J. of the Kwara State High Court of justice sitting in Ilorin, the Kwara State Capital in Suit No. KWS/58C/2013, between The State vs. Wasiu Hamzat delivered on the 23rd of September, 2104, wherein the appellant was convicted and sentenced to 25 years imprisonment.
It is evident from the record of proceedings that appellant was arraigned before the trial Court and charged with the following offence.
The charge
That you Wasiu Hamzat on or about the 8th of November, 2012 at Osin Odo Village via Afon within the jurisdiction of this Honorable Court did commit Culpable Homicide Punishable with death of one Dele Daudu by clubbing (hit) him with a wooden hoe on the head which eventually caused his death and you thereby committed an offence punishable under Section 221 of the Penal Code.
The one count charge on being read to the accused person to his understanding, appellant naturally pleaded not guilty, wherefore the prosecution proceeded to adduce evidence by calling five witnesses and also tendered exhibits marked as exhibits P1 – P3d; the appellant also testified in his defence at the end of which written addresses were ordered filed and adopted.
The vexed judgment delivered on the 23/9/2014, saw to the conviction of the accused person, and thereby sentenced to a prison term of 25 years.
Dissatisfied with the decision of the lower Court, the appellant with the leave of this Court granted on the 1st of June, 2016, filed a Notice of Appeal on the 2/6/2016 predicated upon eight grounds of appeal. The appeal proper having been entered to this Court on the 20th of September, 2016, parties proceeded to file in their respective briefs.
Naturally, the appellant filed in his brief first in time, which was on the 26/2/2018 duly regularized on the 13/3/2018. On receipt of the respondent’s brief filed thereafter, appellant filed a reply brief on the 20th day of February, 2019. On the 4th day of March, 2019, the learned counsel for the appellant identified and adopted the two briefs filed, urging the Court to allow the appeal, set aside the decision of the trial Court and eventually discharge and acquit the appellant.
In opposing the appeal, the state filed a respondent’s brief on the 8th day of February, 2019. This Court was urged upon the said brief adopted by the respondent counsel to dismiss the appeal.
In the brief settled by Chief R.O Balogun for the appellant, and at pages 3 – 4 thereof, three issues were formulated from the eight grounds of appeal raised for the determination of the appeal. Mr. Jimoh Adebimpe Mumini the learned Director Public Prosecution Kwara State, adopted the three issues formulated by the appellant at paragraph 2.1 of the respondent?s unpaginated brief.
I agree with the two learned legal counselors that the three issues identified by the appellant?s counsel and adopted by the respondent’s counsel, where considered would resolve the appeal before the Court. I therefore adopt the issues formulated and adopted in the resolution of the appeal, considering issues one and two at the same time.
Issue one
Whether the learned trial judge was right to have convicted and sentenced the appellant for the offence of Culpable Homicide Punishable with death when the alleged offence was not proved beyond reasonable doubt.
This issue was argued from pages 4 – 14 of the appellant’s brief, wherein leaned counsel restated the position of the law to the effect that any offence alleged against an accused person must be proved beyond reasonable doubt. He equally re-stated the ingredients of the offence of culpable homicide as being:
a. That a human being died.
b. That the death of the deceased resulted from the act of the appellant, and
c. The act of the appellant was intentional with the knowledge that death or bodily harm was its probable consequence. Edoho vs The State (2010) All FWLR (Pt 530) 1262 at 1294.
Examining the three basic ingredients which must be proved beyond reasonable doubt and cumulatively too, it was contended that though there is no dispute to the fact that the victim died, the other two ingredients i.e that the death of the deceased resulted from the act of the appellant, and that the act of the appellant was intentional with the knowledge that death or bodily harm was its probable consequence were not proved as demanded by law.
Learned counsel then analyzed the available evidence laid before the trial Court in line with the three agreed methods of proof viz:-
a. Eye witness account
b. Circumstantial evidence and
c. Confessional evidence as outlined in the case of Emeka vs The State (2001) FWLR (pt 66) 682 at 692 per Onu JSC, concluding that the offence alleged against the appellant was not proved as required by law.
Issue Two
Whether the purported confessional statement of the appellant (exhibit P2) ought to be relied upon by the learned trial judge convicting the appellant when same lacked probative value.
Herein learned counsel complained that the interpreter of exhibit P2 from Yoruba to English and vice versa was not called to testify as demanded in the case of Olalekan vs The State (2001) 12 SC (pt 1) 38 at 70 per Uwaifo JSC. Counsel also submitted that the statement was not subjected to the six way test enunciated in the cases ofEgharevba vs The State (2016) All FWLR (pt 829) 1071 at 1089 per Odili JSC, and Usen vs The State (2013) All FWLR (pt 689) 1131 at 1165.
He submitted further on the issue, that where all the six tests are examined against the purported confessional statement, the entire evidence of the prosecution being hearsay, the document exhibit P2 should be declared as being documentary hearsay and thereby inadmissible in evidence.
Issue three
Whether the learned trial Judge was right to have convicted and sentenced the appellant to a prison term of 25 years despite having found that the appellant was in a state of mental ill-health when the offence was committed.
Learned counsel referred to his submissions with respect to issues one and two, contending that since the lower Court having arrived at the conclusion that exhibit P2 is lacking in probative value, it stands to reason that the trial Court ought to have discharged and acquitted the appellant on those scores.
Assuming however, though not conceding that appellant killed the deceased, the trial Court having found and established that appellant was suffering from mental ill-health, lacked the mens rea to commit the offence. He referred to the holding of the lower Court at pages 73 and 75 of the record, and then further referred to the case of Edoho vs The state (Supra) to the effect that:
In order to establish the defense of insanity, the defense must first show that the accused was at the relevant time suffering from either mental disease or from natural mental infirmity. Then it must be established that the mental infirmity as the case may be, was such that at the relevant time, the accused was as a result deprived of capacity to
i. Understand what he was doing
ii. Control his actions
iii. Know that he ought not to do the act or make the omission if there is incapacity or defect of understanding, there can be no consent of will, the act is therefore punishable as a crime. R vs Omoni (1949) 12 WACA 511, Sanusi vs The State (1984) 10 SC 166, Anim vs The State (1979) 11 SC 91, Oladele vs The State (1993) 1 NWLR (pt 269) 394.
In conclusion, learned counsel alluded to contradictory findings and adverse conclusions by the trial Court, placing reliance on the cases of Shamaki vs Baba (2000) FWLR (pt 26) 1878 at 1888-1889, Amadasun vs Ativie (2010) All FWLR (pt 505) 1728 at 1751 and Saeed vs Yakowa (2013) All FWLR (pt 692) 1650 at 1684 on what is required in the writing of a valid judgment, contending that the trial Court made findings and then wrongly gave orders in sharp contrast to his own findings thus occasioning a miscarriage of justice.
He then alluded to some specific instances in the lower Court’s judgment and concluded that the appeal ought to be allowed and appellant discharged and acquitted accordingly.
In his response to the appeal, and specifically with regards to issue one canvassed, learned counsel for the appellant opined that the prosecution led more than enough cogent and compelling evidence in proof of the guilt of the accused person.
He referred to the decision of the English Court of Appeal, Miller vs Minister of Pensions (1942) 2 All ER 371 at 373 per Lord Denning, and stressed that proof beyond reasonable doubt does not translate to proof beyond a shadow of doubt.
Learned counsel also referred to the case of Emeka vs The State (supra) on the methods of proving offences, posits that although there was no eye witness account as to how the deceased person died, the statement of the appellant (P2) tendered without objection sufficed. He sought support on the legal principle in the case of Mustapha Mohammed vs The State Suit No. SC 184/2006 of 20/4/2007 per Niki Tobi JSC. He further submits that the appellant’s confessional statement was direct, cogent and compelling to the fact that appellant was responsible for the death of the deceased. Relying on the decision of Igbinovia vs The State 1981 2 SC 5 at 17-18 per Obaseki JSC, counsel is of the view that a confessional statement alone without corroboration is sufficient to ground a conviction where it is direct and straight forward.
He alluded to the contents of Exhibit P2, in urging the Court to hold that appellant?s confessional statement (exhibit P2) is sufficient evidence upon which the trial Court relied upon to convict the appellant.
On issue 2 argued by the appellant, learned counsel submitted that it is the primary duty of the trial Court to evaluate evidence and to ascribe probative value to admissible evidence before it, be it oral or documentary: Igbeke vs Emordi (2010) 11 NWLR (pt 1204) 1 at 7. He submitted that the prosecution had no cause whatsoever inviting the interpreter to testify on the reasoning that exhibit P2 was admitted without objection. He argued that the case of Olalekan vs The State (supra) cited by the appellant is not on all fours with the instant case, as there was no objection to the tendering of the appellant?s confessional statement.
On issue three, learned counsel though conceding to the fact that insanity is a known defense in law, maintained that it is not a defense that should be presumed by the Judge or the prosecution, but must be established by the defense. He then alluded to the case of Edoho vs The State (supra) insisting that there is nothing on the record to indicate that appellant raised the defense of insanity, which was not considered, and further that there was nothing to show that appellant?s mental infirmity, if any, deprived him of the capacity to understand what he was doing i.e that he killed the deceased. He argued that a certificate from a medical doctor attesting to his state of mind would have sufficed, contending that the appellant perfectly testified during his trial.
In conclusion, the learned Director of Public Prosecution is of the view that the lower Court’s reliance on the appellant’s (confessional statement) exhibit P2, which established the case against him beyond doubt and there being nothing before the Court raising the defense of insanity in favor of the appellant, the appeal should be dismissed as lacking in merit.
Resolution
I have earlier stated that issue one and two being interrelated would be examined at the same time by me.
Ogunbiyi JSC in C.O.P vs Amuta (2017) All FWLR (pt 879) 760 at 783 stated the position of the law thus:-
The constitutional provision on the presumption of innocence of an accused person is sacrosanct and settled. The burden is always on the prosecutions to prove the guilt of the accused and not his business to prove his innocence. He can decide to keep mute from the beginning of the trial right through to the end.
This has been the position of the law ever since, and through the ages: Chianugo vs The state (2002) 2 NWLR (pt 750) 225, now statutorily expressed by Section 135 (1) and (2) of the Evidence Act. This duty imposed on the prosecution to prove the guilt of the accused person beyond reasonable doubt means no more than utilizing the three settled methods of proof, i.e direct evidence of an eye witness, circumstantial evidence and reliance on the confessional statement of an accused person voluntarily made, to by credible evidence prove the ingredients of the offence(s) for which the accused is being accused of. See Okashetu v The State (2016) AI FWLR (pt 861) 1262 -1287.
The learned DPP rightly in my view concedes to the fact that there was no eye witness account of the alleged crime committed by the appellant. A calm perusal of the entire evidence on record attested to this fact. As rightly argued none of the people who alleged to have seen the appellant kill the deceased was called by the prosecution. Learned counsel however submitted that in his view the lower Court rightly relied on exhibit P2, the alleged confessional statement of the appellant tendered without objection to support the conviction and sentence imposed by the trial Court.
It is trite law that a confessional statement by an accused person which is direct, cogent and unequivocal where believed by the trial Court is enough to ground a conviction. See FRN vs. Emeka (2013) 3 NWLR, Ojegele vs The State(1988) 1 NWLR (pt 71) 414, Ogoala vs The State (1991) 2 NWLR (pt 175) 509, Akpan vs The State (1986) 3 NWLR (pt 27) 225. This position of the law is however qualified in the sense that where as in the instant case, the accused person retracts his statement, as not having been made by him, or where he denies the contents thereof, the Court must carefully consider the evidential value to place on such a statement. See Nwocha vs The State (2012) 9 NWLR at P. 571. In determining the weight/value to be attached to a retracted statement, the Court dutifully examines the statement, testing the veracity and the truthfulness of the said statement in the light of other credible available pieces of evidence, and looking into what is now acceptably termed as the six way test enunciated in a number cases includingAkpan vs The State (2000) 12 NWLR (pt 682) 607, Kareem vs FRN (2002) 8 NWLR (pt 770) 664, Ojegele vs The State 1 NWLR (pt 71) 414.
Learned counsel for the appellant now complains that the offence against the appellant was not proved beyond reasonable doubt, which is that the ingredients of the offence were not proved as required by law. It has been conceded and rightly too, that the death of a human being occasioned. The trial Court on the issue examined the evidence of the pw 2 ? pw 5, and also took into account exhibits P3a ? P3d, the photographs of the deceased Dele Daudu identified by the pw3 and pw4 to the inevitable conclusion that a human being Dele Daudu is deceased. This ingredient of the offence is proved. On the second ingredient of the offence, whether the death was caused by the accused now appellant, the lower Court at page 60 of the record noted that:
It is pertinent to state that all the prosecution witnesses testified that they were told that the accused person caused the death of the victim by hitting him on the head with exhibit P1, the wooden hoe handle, as aforesaid none of the said prosecution witnesses testified about who told them nor was the name of any person mentioned?.
This finding by the trial Court confirmed that no eye witness account was given as to how the appellant came about killing the deceased. In other words, the Court agreed with the appellant that all the oral evidence adduced is founded on hearsay, which is unhelpful to the prosecution. On the third ingredient, the Court also made the following finding:
On the third ingredient of the offence, that the act was done with the intention of causing death, I am of the candid and considered view that the prosecution had not adduced any evidence to prove that the accused person hit the victim (deceased) on the head with the said exhibit P1, the wooden hoe handle in order to or for the purpose of causing bodily injury or even death?.
Curiously, the trial Court having absolved the appellant of any wrong doing with respect to the 2nd and third ingredients of the offence of murder, swiftly turned round, somersaulted, and the trial Court purporting to place reliance on the case of Akpa vs. The State (2008) 7MJSC 77 @ 98, held that:
In view of the Supreme Court?s above quoted decision, and in view of the fact that the defense did not object the admissibility of the statement of the accused person in any way at the point of tendering, the Court can draw inference that the statement was voluntarily made by the accused and recorded voluntarily without any duress or promise and therefore could be admitted and acted upon as a confessional statement in convicting the accused of the offence charged.
The established position of the law is that a conviction stands only where there is proof beyond reasonable doubt, and since the two basic elements constituting the offence of murder has been found wanting by the trial Court, the somersault by the trial court is inexcusable.
Let me examine the question whether exhibit P2, the alleged confessional statement of the appellant can be relied upon by the trial Court in convicting him in view of the established fact that the interpreter who was said to have interpreted the accused statement from Yoruba to English and vice versa was not called, regardless of the fact that the statement was admitted without objection.
The Supreme Court in the case of Olalekan vs. The State (2001) LPELR 2561 (SC) also reported as (2001) 18 NWLR (pt. 746) 793 per Ogundare JSC, relying on the earlier decisions of R vs. Ogbuewu(1949) 12 WACA 483, and R vs. Gidado 6 WACA 60 reechoed the settled legal proposition thus:
The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.
The reasoning as stated in the judgment is that the evidence of the interpreter should relate to the questions put to the appellant on behalf of the interviewing police officer and the answers given to him by the appellant. See also the concurring decision of Uwaifo JSC quoted by the learned counsel for the appellant.
This Court in the case of Tayo vs. The State (2016) ALL FWLR (pt. 853) 1729 @ 1760 – 1761, per Daniel-Kalio JCA relying on the cases of Nwaeze vs. The State (1996) 2 NWLR (pt. 428), 1 @ 20 and FRN vs. Usman (2012) ALL FWLR (pt. 632) 1639 opined that:
It has to be said however, that where an interpreter was used in recording a confessional statement and a Court decides to rely on the truth of such a confessional statement in convicting an accused, the Court can only do so when the interpreter has been called to testify in order to confirm the veracity of his interpretation. Where that is not done, the confessional statement is inadmissible.
And in the recent decision of the Supreme Court on the issue, I. T. Muhammad, Ag. CJN confirmed the state of the law in the case of Bello vs. COP (2018) 2 NWLR (pt. 1603) 267 @ 320 ? 321 thus:-
The general requirement of the law in that where a confessional statement is interpreted from the ipex dixit of the accused, the interpreter should be called for cross examination as to what transpired in the process of interpretation/translation. In Olalekan vs. The State (2001) 12 SCNJ 94 at 109 ? 110 this Court per Ogundare JSC emphasized the point
So under the law, such statement recorded through an interpreter remains a hearsay and therefore inadmissible and can only be confirmed by the evidence of the interpreter as to the questions put to the accused persons by the interpreter and the answers given by the accused person whose statement was being taken in the language understood by him. FRN vs. Usman (2012) ALL WLR (pt. 632) 1655-1656. My lords as these statements did not meet the requirement of a valid confession; they ought not to have been admitted in evidence. I reject and expunge same from the record.? See also Oloye vs The State (2018) 14 NWLR (pt. 1640) 509 @ 528-530 per Ariwoola JSC.
The trial Court in the case before us down played this vital requirement on the premise that the exhibit was admitted without objection. Against the background of the case law just cited, it is obvious that the lower Court was wrong. What then is the way forward? Reacting to situations similar to the one before us, this Court clearly stated that:
The law is common knowledge that once a piece of evidence be it oral or documentary, is inadmissible in law it cannot be admitted in evidence in agreement or on no objection by the parties or consent of the Court. Even where such evidence is admitted by the Court, the trial Court has a duty to expunge same and not to rely on it in its decision. Okonji vs. Njokanma (1991) 7NWLR (pt.202) 131,Hyppolite vs. Egharevba (1998) 11 NWLR (pt. 575) 598, Olayinka vs. The State (2007) ALL FWLR (pt. 373) 163, Agbi vs. Ogbeh (2006) ALL FWLR (pt. 329) 941. Where the trial Court fails or omitted to expunge such inadmissible evidence and uses it in its decision, this Court has the power to expunge it from the record notwithstanding that the counsel at the trial Court did not object to its admissibility.?
The learned counsel for the appellant also kindly reminded me of the decision of this Court in the case of Prosper vs. State (2016) ALL FWLR (pt. 861) 1227 @ 1248, dealing with the same issue.
Let me also add that the mere fact that a document has been admitted without opposition does not make its contents sacrosanct. This is because there is a wide gap of difference between the admissibility of a document and its probative value. For whereas, admissibility is based on relevance, probative value depends on relevance and proof, and the fact that evidence whether oral or documentary has been admitted in evidence, does not mean that it has the weight ascribed therein. See Nyesom vs. Peterside (2016) 7 NWLR (pt. 1512 452, Haruna vs. AG of the Federation (2012) 9 NWLR (pt. 1306) 419.
Even then, and that notwithstanding, the state of the law is that where a statement has been retracted as in the instant case, the desirability of seeking corroborative evidence before basing a conviction on same however slight is desirable. See Queen vs. Itule (1961) 2 SCNLR 183, Ogudo vs. The State (2011) LPELR ? 860 (SC), Etisi vs. The State (2018) ALL FWLR (pt. 920) 33 @ 64. In the case at hand, the lower Court agreed with the appellant that all pieces of evidence adduced by the witnesses were all based on hearsay evidence, therefore the possibility of corroborative evidence to support the purported statement, of the accused/appellant, which in itself is hearsay evidence, remained farfetched, in fact unavailable.
On the question whether the statement was subjected to the six way test required in retracted extra judicial statements: Ogudo vs. State (2011) LPELR 860 SC, Kazeem vs. FRN (2002) 7 SCM 73, I must agree with the learned counsel for the appellant, that where exhibit P2 is examined against the six way test, the result would read that there is no relevant admissible evidence to substantiate the retracted statement. While I agree with the learned DPP, that even though an accused person can be tried and convicted solely upon his confessional statement, admitting that he committed the offence, such confession must be direct and positive, free and voluntarily made and proved to be true. SeeAbasi vs. State (1992) NWLR (pt. 260) 383, Isa vs. The State (2018) ALL FWLR (pt. 919) 90 @ 122, I must state emphatically however that contrary to the position held by the learned DPP, and surprisingly too, and the lower Court, there is no valid statement in the eyes of the law qualifying as being direct and unequivocal. Not only is the said exhibit P2 inadmissible in evidence, which I dutifully expunge, but that even were the statement to be admissible, as held by the lower Court, lacking in the quality upon which the trial Court could have without more taken the life of a human being, mental or otherwise. I see merit in the learned appellant?s counsel arguments and thereby resolve issues 1 and 2 in favor of the appellant.
The resolution of the third issue canvassed must equally be resolved against the state. The issue therein is whether the trial Court considered the mental state of ill health of the appellant before convicting him to 25 years imprisonment. The learned DPP while conceding that insanity is a known defense in law available to an accused person accused of having committed an offence maintained that the defense must be put forward by the defense, and that in the instant case, there was nothing on record to show the mental state of ill health of the appellant. The learned counsel is obviously not correct. The established position of the law is that the Court and indeed every Court worth its name, has a sacred duty of considering all the defenses available to an accused person whether or not such defenses are specifically put up by the accused or not. This duty on the Court must be done even where such defense appears weak or stupid. See Adelu vs. The State (2014) 13 NWLR (pt. 1425) 465, Uwaekweghinya V The State(2005) 9 NWLR (pt. 930) 227. More over once it is apparent as is deducible from the facts stated in the record, the Court must examine the defense raised or apparent in line with the decision of Edoho vs. The State (supra) relied upon by both parties.
The lower Court surprisingly in his judgment located at page 73 of the record, opined that:
I do not agree with the submission of the learned counsel for the prosecution that the prosecution has proved beyond peradventure that the accused person did know or has cause to know that his act would lead to no other end other than the death of the victim in the sense that if he was under probably mental insanity as stated, he would not have known that his act would lead to the death of the deceased.
Having so found, I wonder how the lower Court still meandered in concluding that the offence of murder was established by the prosecution in view of the settled position of the law that there cannot be proof beyond reasonable doubt without the proof of the mental capacity of the accused person. See Adelu vs. The State (supra) 465, Onuchukwu vs. The State (1998) 4 NWLR (pt.547) 576. From the foregoing, I have no hesitation totally agreeing with the learned counsel for the appellant that the trial Court in its confusion on many occasions deviated from his own findings and gave contradictory and far reaching conclusions and orders. The learned counsel is equally right referring to some instances of confusion in the judgment, i.e, on the effect of the mental health of the appellant which I just alluded to, and the link between the appellant and exhibit P2, earlier alluded to in the judgment. To ask the appellant as submitted by the learned DPP, and so held by the lower Court to produce evidence of his mental state, is not erroneous, but akin to asking the appellant to establish his mens rea, thereby negating the constitutional provision of innocence enjoyed by the accused now appellant. I rather hold the view and strongly too, expressed in the case of Isiaka vs. The State (2012) ALL FWLR (pt. 645) 381 @ 395 per Denton-West, supplied by the appellant?s counsel, that unless an offence is admitted by the accused person, it is and has always been the duty of the prosecution to prove the guilt of the accused person beyond reasonable doubt. This prosecution failed to do, and the issue must be and is hereby resolved in favor of the appellant.
Hence all the issues submitted upon having been determined in favor of the appellant, this appeal succeeds, and it is hereby allowed by me, and the judgment of H. O. Ajayi J, of the Kwara State High Court in Charge No. KWS/58c/2013, The State vs. Wasiu Hamzat, delivered on the 23/9/2014, whereof appellant was convicted of murder and sentenced to 25 years imprisonment is hereby set aside. In its place I hereby order that the appellant be discharged and acquitted forthwith.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, Barka, JCA, has served on me a draft of the Judgment just delivered by his Lordship. Having had the privilege of reading the said draft, the briefs of argument of the respective learned counsel vis-a-vis the records of appeal, I cannot but concur with the reasoning postulated in the Judgment, to the conclusive effect that the present appeal is meritorious. Hence, it’s my honour and privilege to adopt the said reasoning and conclusion as mine and accordingly allow the appeal, set aside the conviction and sentence, discharge and acquit the Appellant.
BALKISU BELLO ALIYU, J.C.A.: I was privileged with a preview of the judgment just read by my learned brother HAMMA AKAWU BARKA JCA. I agree with the reasoning and conclusion that the appeal is meritorious and deserve to be allowed. I allow the appeal and set aside the judgment of Kwara State High. Court delivered on 23/9/2014 by H,.O. Ajayi J. in charge NO:KWS/58C/2013; The State vs. Wasiu Hamzat. The conviction and sentence of the Appellant are hereby set aside by me. Instead, the Appellant is discharged and acquitted.
Appearances:
M.K.AbdulkadirFor Appellant(s)
J.A.Mumini (DPP, Kwara State) with him, Abdulmumeen Busari (SSC)For Respondent(s)
