ABDULKADIR v. STATE (2021)

ABDULKADIR v. STATE

(2021)LCN/15183(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/YL/100C/2020

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

ABUBAKAR ABDULKADIR APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN PLACED ON THE PROSECUTION FOR THE CONVICTION OF AN ACCUSED

The Grundnorm creates a rebuttable presumption of innocence on any person who is charged with the commission of an offence and the Evidence Act 2011 in Sections 131 and 135, contains provisions to the effect that in order for the presumption of innocence to be rebutted, the guilt of such accused person must be established beyond reasonable doubt by the Prosecution. Section 135 of the Evidence Act 2011 provides thus: “135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant. In line with the above, it is trite law that in order for a Court to convict an accused person of an offence, every ingredient of the offence as gleaned from the law creating the offence must be established by the Prosecution beyond reasonable doubt. The Supreme Court in the case of OBIDIKE v. STATE (2014) LPELR-22590(SC) per KEKERE-EKUN, J.S.C. (P. 55, paras. A-B), succinctly restated the aforementioned principle of law thus: “The duty of the prosecution in a criminal trial is to prove its case against the accused persons beyond reasonable doubt. In order to do so it must prove every ingredient of the offence beyond reasonable doubt. See: Yongo vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; (1992) 4 SCNJ 113; Alor v. The State (1997) 4 NWLR (Pt.501) 511.” SEE:ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A); ORISAN v. PEOPLE OF LAGOS STATE(2019) LPELR-46509(CA); and UZOMA v. STATE(2013) LPELR-20650(CA). PER JAMILU YAMMAMA TUKUR, J.C.A.

CIRCUMSTANCE WHERE AN ACCUSED MAY BE CONVICTED FOR A LESSER OFFENCE THAN THE ONE CHARGED

Generally, an Accused person may only be convicted for an offence or charge which he has been informed in the language he understands and which he has pleaded to in accordance with the provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), but where a Statute provides for conviction of a lesser offence than the one charged and where the particulars and the circumstances of the original offence charged are the same or similar to the lesser offence, if the Judge is convinced that the evidence led by the Prosecution, though not of a nature as to secure conviction for the offence charged, but a lesser offence, the Judge is at liberty to convict for that offence. The Supreme Court in the case of AMADI v. STATE (2019) LPELR-47041(SC) (Pp. 19-24, Paras. E-C) Per NWEZE, J.S.C., reiterated the propriety of convicting an Accused for a lesser offence other than the one charged thus: “As shown in the leading judgment, the offence created under Section 222 (6) of the Penal Code is a lesser offence compared to the offence under Section 221 of the Code which attracts the death penalty. Above all, the lesser offence under Section 222 (6) (supra) is not only a kindred offence with the actual offence charged, its ingredients are, equally, embedded in the actual charge under Section 221 of the Code (supra), Ezeja v The State [2008] All FWLR (pt. 428) 256, 268 – 269. The Court of Appeal, [lower Court, for short], was, therefore right when it invoked its powers under Section 218 (2) of the Criminal Procedure Code to substitute the appellant’s conviction under Section 221 of the Penal Code with a conviction under Section 222 (6) of the Code. In The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, this Court held that: It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence. See, Okwuwa v. The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by law. [Italics supplied for emphasis]. In Agugua v The State (2017) LPELR -42021 (SC) 54 -55; E.A, this Court explained that: …the offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove. The law is that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113.” See: SALIU v. STATE (2018) LPELR-44064(SC); STATE V. IHEANACHOR (2019) LPELR-49301(CA); and SOPHIANO v. STATE (2019) LPELR-48952(CA). PER JAMILU YAMMAMA TUKUR, J.C.A.

POSITION OF THE LAW REGARDING WAYS BY WHICH THE CHARGE AGAINST AN ACCUSED MAY BE PROVED

The Supreme Court in the case of ADAMU v. STATE (2019) LPELR-46902(SC) (P. 59, Paras. A-D) Per MUHAMMAD, J.S.C. reiterated the various means by which the Prosecution may establish the guilt of an Accused thus: “It is long settled that the prosecution on whose shoulders the burden of proving the charge against an accused beyond reasonable doubt may do so in any of or a combination of the three ways, to wit:- (i) By direct evidence from witnesses to the commission of the crime by the accused; (ii) The direct, positive and unequivocal voluntary confessional statement of the accused satisfactorily established as having been made by the accused; (iii) Circumstantial evidence which points to the accused alone as being the perpetrator of the offence. See EMEKA V. STATE (2001) 14 NWLR (PT 734) 666 at 683 and JULIUS ABIRIFON V. THE STATE (2013) LPELR – 20807 (SC).” See: OLASEHINDE v. STATE (2016) LPELR-41337(CA). PER JAMILU YAMMAMA TUKUR, J.C.A.

WHAT IS SENTENCING; CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH A SENTENCE

Sentencing is the last stage of a criminal trial that resulted in the conviction of an Accused Person. At this stage, the State acting through the trial Court imposes punishment on the Convict within the ambit of the law. Sentencing as rightly alluded to by both counsel in this appeal is mainly within the jurisdictional competence of a trial Court and the Appellate Court will only interfere with a sentence, which is an exercise of discretionary power of the trial Court where: (i) the discretion was wrongly exercised; (ii) the exercise of the discretion was tainted with substantial irregularity; (iii) there is miscarriage of justice, or (iv) it is in the interest of justice to interfere. SEE: DAVID v. CP, PLATEAU STATE COMMAND (2018) LPELR-44911(SC); AND ADEJUYIGBE v. FRN (2017) LPELR-43801(CA). PER JAMILU YAMMAMA TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Taraba State in Case No. TRSJ/34C/2017, delivered by Honourable Justice HON JUSTICE J.F. AGYA, on 23rd July, 2019, against the Appellant.

The facts of the case which culminated in this appeal is that the Respondent upon complaint and investigation by the Police, acting on the belief that the Appellant intentionally caused the death of one Ali Gimba a boy of 4 years of age by slaughtering and cutting him into pieces, proffered a one count charge of culpable homicide punishable with death under Section 221 (a) of the Penal Code against the Appellant.

On arraignment, the Appellant pleaded not guilty and trial commenced. At close of trial, in a judgment delivered on 23rd July, 2019, the lower Court held that the Prosecution had failed to establish Appellant’s guilt beyond reasonable doubt, with regards to the offence charged, but relying on the provisions of Section 218 (2) of the Criminal Procedure Code, Laws of Taraba State convicted the Appellant of:
1. Being in possession of human remains under

Section 216(e) of the Penal Code, Laws of Taraba State; and 2. Unlawful possession of human head under Section 219 of the Penal Code, Laws of Taraba State on grounds that the evidence at trial did prove the Appellant’s guilt beyond reasonable doubt and consequently sentenced him to two (2) years imprisonment without an option of fine, and five (5) years imprisonment without an option of fine, respectively, to be served consecutively.

Dissatisfied, the Appellant appealed the decision via a Notice of Appeal filed on 10th October, 2019, with five grounds of appeal.

The Appellant’s Brief of Argument is dated and filed on 10th December, 2020, but deemed as properly filed on 19th January, 2021. Appellant’s counsel formulated two issues for determination to wit:
1. Whether in view of the evidence on record before the trial Court and the Supreme Court’s decision in the case of Olayinka v. The State (2007) 4 SC (Pt.1) 210, (2007) 9 NWLR (Pt.1040) 561, LPELR-2580(SC) inter alia, the conviction of the Appellant under Sections 216(e) and 219 of the Penal Code, Laws of Taraba State was/is proper? (Grounds 1, 2, 3, and 4)
2. Whether the learned

trial Judge exercised his discretion judiciously and judicially when he convicted the Appellant to 2 and 5 years imprisonment without an option of fine or without taking into consideration the time already spent in custody by the Appellant? (Ground 5)

The Respondent’s Brief of Argument is dated 9th February, 2021 and filed on 12th February, 2021.
Respondent’s counsel adopted the Appellant’s issues for determination.
There is no doubt that the two issues formulated by the Appellant in this appeal fully captures the pith of the appeal and I will proceed to determine the appeal on those two issues.

ISSUE ONE:
WHETHER IN VIEW OF THE EVIDENCE ON RECORD BEFORE THE TRIAL COURT AND THE SUPREME COURT’S DECISION IN THE CASE OF OLAYINKA V. THE STATE (2007) 4 SC (PT.1) 210, (2007) 9 NWLR (PT.1040) 561, LPELR-2580(SC) INTER ALIA, THE CONVICTION OF THE APPELLANT UNDER SECTIONS 216(E) AND 219 OF THE PENAL CODE, LAWS OF TARABA STATE WAS/IS PROPER? (GROUNDS 1, 2, 3, AND 4)

Learned counsel for the Appellant argued that the Prosecution did not establish any of the elements of the offences for which the Appellant was convicted,

though not charged with, that is: being in possession of human remains and unlawful possession of human head under Sections 216(e) and 219 of the Penal Code, Laws of Taraba State, particularly the crucial element of the Appellant being found in possession of or control of human remains, head or skull, beyond reasonable doubt, which is the standard of proof mandatorily placed on the Prosecution in every criminal trial.
He relied on: Sections 131(1), 132 and 135(1) of the Evidence Act 2011; and Ani v. The State (2009) 176 LRCN P.212 at 224 R.2.

Learned Counsel further argued that the failure of the Police to produce the statement made by the Appellant at Sunkani Police Station, meant that the statement would have been unfavourable to the Prosecution’s case and more significantly constitutes a breach of the Appellant’s fundamental right provided for in Section 36(1) and (6)(b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) as they failed to provide the Appellant with all the facilities he required to fairly defend the case against him at trial, which resulted in the inability of the trial Judge to properly test the credibility of Exhibits “A” and “A1”.

He referred to the cases of Sam Onyejiuwa Chinekwe v. Anthony Akubueze Chinekwe (2010) 12 NWLR (Pt.1208) 226 at 231; Tsokwa Motors (Nig) Ltd v. UBA Plc (2008) All FWLR (Pt.403) P.1240 at 1255A-B R.3; and Olayinka v. State (2007) 4 SC (Pt.I) 210 at 222-223.

Learned counsel also argued that the evidence on record reveals that the Appellant successfully impeached Exhibits “A” and “A1” by denying he made them and demonstrating the clear difference between his normal way of signing documents by writing his name, which is how he signed the statement made at the Sunkani Police Station and the way Exhibits “A” and “A1”. were signed, that is affixing of thumb print. He pointed out that Exhibit C which emanated from the Respondent at trial also helped to impugn Exhibits “A” and “A1”,and that the learned trial Judge failed to apply the relevant tests in deciding whether to rely on a confessional statement that had been retracted, as the reasons for relying on same, that is the evidence from the PW1, to the effect that the police

had a normal practice of taking statements from a suspect upon arrest, do not conclusively establish the fact that the Appellant made the statement contained in Exhibits “A” and “A1”.
He relied on: Kazeem v. State (2009) All FWLR (Pt.465) 1749 at 177C-D, R.5, 1773 D-E, R.6

Counsel submitted that there are fundamental inconsistencies and contradictions in the Respondent’s case at trial which creates legal doubt, in that the PW6 testified in Court that he found the Appellant with human remains, but in Exhibit ‘C’ made by the same PW6 at the earliest opportunity on 6th May, 2017, he stated that another person entirely, that is Sambo Abubakar, as the person he found with human remains. Counsel also pointed out the contradiction in the testimonies of PW6 and PW2, who both claimed to be the first at the scene of the crime, both claim to be the one who forced open the door, found the Appellant with the human remains and both claim to be the person who took the Appellant to the Sunkani police station. He submitted that the foregoing isn’t just contradictory, but logically impossible, as their individual claims

to be the first to carry out the aforementioned actions cannot be true at the same time and the Court cannot be sure who among them carried out the acts or whether they even happened at all, a doubt which ought to be resolved in the Appellant’s favour.

He relied on the following cases: Onykwelu v. ELF Petroleum (Nig) Ltd (2009) 173 LRCN P.186 R.5; Akalonu v. The State (2005) 4 LRCNCC P.123 at 136JJ-137A R.5; Ani v. The State (2009) 176 LRCN P.212 at 232, R.6; Suberu v. The State (2010) 183 LRCN P.55 at 79, R.8; State v. Cintali (2002) 3 LRCNCC (Reprint 2008) 167 at 177 R.3; C.O.P v. Nwogwu (2002) 3 LRCNCC P.216 at 22 R.6; Wuya v. Maja’a Local Government Kafanchan (2013) All FWLR (Pt.659) P.1171 at 1193-1194 R.14; and State v. Anyeateolu (2002) 3 LRCNCC P.236 at 279, R.12.

Counsel also submitted that a proper examination of the evidence available at trial would have led to the decision to jettison the contents of Exhibits “A” and “A1” and reliance on the Appellant’s testimony to the effect that the Appellant never committed the crime convicted for, but was asleep in his room when he was suddenly accosted by a mob and later taken to the Police Station.
He relied on the case of Kazeem v. State (supra) at 1779D R.14.

On the other hand, learned counsel for the Respondent argued that the Respondent at trial, in an attempt to prove the offence of culpable homicide punishable with death against the Appellant did prove beyond reasonable doubt the offences of being in possession of human remains and being in possession of human head punishable under Sections 216(e) and 219 of the Penal Code. Learned counsel predicated the foregoing on the argument that the evidence of PW3, PW4, PW5 and PW6 did directly and/or circumstantially link the Accused and none other to the commission of the crime which the lower Court convicted him for.

He relied on: Section 135 of the Evidence Act 2011; Olomolu v. State (2013) 2 NWLR (Pt.1339) P.580; Anyasodor v. The State (2018) 6 SCM P.20 @ 21 para 2; Olowoyo v. State (2012) 17 NWLR (Pt.1329) P.346; and Danjuma v. The State (2019) 9 SCM P.47 para 9.

Counsel also argued that the combined effect of the uncontroverted evidence of PW3, PW4, PW5, and PW6, which was corroborated by PW1, DW2(Appellant) and Exhibits “A”

and “A1”, is that the learned trial Judge was correct in holding that the Respondent proved the case for the offences which the Appellant was convicted beyond reasonable doubt.

He submitted that an examination of the introductory part of Exhibit “A” and the introductory part of the Appellant’s evidence at trial helps to establish the fact that the Appellant made the statement contained in Exhibit A in the course of investigation as the contents of both statements are similar and are information within the exclusive preserve of the Appellant. Counsel posited that the fact that some piece or pieces of evidence before the Court does not prove a particular offence doesn’t mean it cannot be relied upon when it proves other offences, and would not amount to a breach of fundamental right to fair hearing in that regards. He also pointed out that mere denial of making a statement does not mean such statement may not be relied upon by the Court to ground a conviction in deserving circumstances.
He referred to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Learned counsel argued that contrary to the Appellant’s position that the learned trial Judge failed to apply the proper tests for relying on a retracted confessional statement, there were external evidence corroborating Exhibits “A”, including Appellant’s defence, the evidence of PW3, PW4, PW5 and PW6.
He referred to the case of Kazeem v. State (2009) All FWLR (Pt.465) 1749 at 1773.

Counsel submitted that there was no material contradiction in the Respondent’s case at trial, as the mistake in Exhibit “C” can be explained by the fact that PW6 at the time of making the statement had not yet mastered the Appellant’s name, a mistake which was rectified by the PW6 clearly identifying the Appellant in the dock as the person arrested at the crime scene and eventually taken to the Police Station. He argued that there was also no material contradiction between the testimony of the PW6 and PW2, especially in light of the evidence of PW3, PW4, PW5 and PW1, which are cogent, consistent and manifestly points to the Appellant as the one who committed the offence. Counsel further argued that for any contradiction to render evidence

unreliable, the Accused must show that such contradiction occasioned miscarriage of justice.
He referred to the cases of Eromosele v. FRN (2018) 4 SCM P.37 @ P.38; Anyasodor v. The State P. 23 at 24 para 8; and Adoba v. The State (2018) 9 SCM P.36 Ratio 8.

RESOLUTION OF ISSUE ONE
The Grundnorm creates a rebuttable presumption of innocence on any person who is charged with the commission of an offence and the Evidence Act 2011 in Sections 131 and 135, contains provisions to the effect that in order for the presumption of innocence to be rebutted, the guilt of such accused person must be established beyond reasonable doubt by the Prosecution.
Section 135 of the Evidence Act 2011 provides thus:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.

In line with the above, it is trite law that in order for a Court to convict an accused person of an offence, every ingredient of the offence as gleaned from the law creating the offence must be established by the Prosecution beyond reasonable doubt. The Supreme Court in the case of OBIDIKE v. STATE (2014) LPELR-22590(SC) per KEKERE-EKUN, J.S.C. (P. 55, paras. A-B), succinctly restated the aforementioned principle of law thus:
“The duty of the prosecution in a criminal trial is to prove its case against the accused persons beyond reasonable doubt. In order to do so it must prove every ingredient of the offence beyond reasonable doubt. See: Yongo vs. C.O.P. (1992) 8 NWLR (Pt.257) 36; (1992) 4 SCNJ 113; Alor v. The State (1997) 4 NWLR (Pt.501) 511.”
SEE:ONWE v. STATE (2017) LPELR-42589(SC) (Pp. 65-66, Paras. E-A); ORISAN v. PEOPLE OF LAGOS STATE(2019) LPELR-46509(CA); and UZOMA v. STATE(2013) LPELR-20650(CA).

Generally, an Accused person may only be convicted for an offence or charge which he has been informed in the language

he understands and which he has pleaded to in accordance with the provisions of Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), but where a Statute provides for conviction of a lesser offence than the one charged and where the particulars and the circumstances of the original offence charged are the same or similar to the lesser offence, if the Judge is convinced that the evidence led by the Prosecution, though not of a nature as to secure conviction for the offence charged, but a lesser offence, the Judge is at liberty to convict for that offence.
The Supreme Court in the case of AMADI v. STATE (2019) LPELR-47041(SC) (Pp. 19-24, Paras. E-C) Per NWEZE, J.S.C., reiterated the propriety of convicting an Accused for a lesser offence other than the one charged thus:
“As shown in the leading judgment, the offence created under Section 222 (6) of the Penal Code is a lesser offence compared to the offence under Section 221 of the Code which attracts the death penalty. Above all, the lesser offence under Section 222 (6) (supra) is not only a kindred offence with the actual offence charged, its ingredients are,

equally, embedded in the actual charge under Section 221 of the Code (supra), Ezeja v The State [2008] All FWLR (pt. 428) 256, 268 – 269. The Court of Appeal, [lower Court, for short], was, therefore right when it invoked its powers under Section 218 (2) of the Criminal Procedure Code to substitute the appellant’s conviction under Section 221 of the Penal Code with a conviction under Section 222 (6) of the Code. In The Nig Air Force v Kamaldeen (2007) LPELR -2010 (SC) 24; C-D, this Court held that: It must be shown that the particulars and the fact and the circumstances of the original offence charged are the same or similar to the lesser offence. See, Okwuwa v. The State (1964) 1 All NLR 366 where this Court stated in a passage thus: The lesser offence is a combination of some of the several particulars making up one offence charged: in other words, the particulars constituting the lesser offence are carved out of the particulars of the offence charged.” Under our criminal jurisprudence the power of a Court exercising criminal jurisdiction to convict on alternative offences or lesser offences is limited and cannot be exercised outside the limits laid down by

law. [Italics supplied for emphasis]. In Agugua v The State (2017) LPELR -42021 (SC) 54 -55; E.A, this Court explained that: …the offence of attempted robbery is a lesser offence than the robbery charged. The ingredients are less onerous to prove. The law is that before an accused can be convicted for a lesser offence, the ingredients of the lesser offence must be subsumed in the original offence charged and the circumstances the lesser offence was committed must be similar to those contained in the offence charged. See The Nigerian Air Force v. Kamaldeen [2007] 2 SC 113.”
See: SALIU v. STATE (2018) LPELR-44064(SC); STATE V. IHEANACHOR (2019) LPELR-49301(CA); and SOPHIANO v. STATE (2019) LPELR-48952(CA).
In this appeal, there is no doubt that the learned trial Judge was eminently empowered to convict the Accused for the offence of being found in possession of human remains and being found in possession of human head by virtue of Section 218 (2) of the Criminal Procedure Code, Laws of Taraba state which provides thus:
“When a person is charged with an offence and facts proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it.”

The fact that the evidence adduced at trial was insufficient to establish the offence charged does not mean that the evidence did not establish the offence the Accused was convicted for beyond reasonable doubt. A careful examination of the evidence at trial reveals that the totality of the Prosecution’s case at trial indeed establishes beyond reasonable doubt that the Accused was found with human remains and human head at the crime scene, in a sack.

The fact that a statement was not brought forward and the so called confessional statement was retracted does not also mean that the clear, cogent testimonies of eye witnesses who saw the Accused with human remains should be jettisoned.
The Supreme Court in the case of ADAMU v. STATE (2019) LPELR-46902(SC) (P. 59, Paras. A-D) Per MUHAMMAD, J.S.C. reiterated the various means by which the Prosecution may establish the guilt of an Accused thus:
“It is long settled that the prosecution on whose shoulders the burden of proving the charge against an accused beyond reasonable doubt may do so in any of or a combination of the three

ways, to wit:- (i) By direct evidence from witnesses to the commission of the crime by the accused; (ii) The direct, positive and unequivocal voluntary confessional statement of the accused satisfactorily established as having been made by the accused; (iii) Circumstantial evidence which points to the accused alone as being the perpetrator of the offence. See EMEKA V. STATE (2001) 14 NWLR (PT 734) 666 at 683 and JULIUS ABIRIFON V. THE STATE (2013) LPELR – 20807 (SC).”
See: OLASEHINDE v. STATE (2016) LPELR-41337(CA).
In convicting the Accused for the lesser offences punishable under Sections 216(e) and 219 of the Penal Code, the lower Court at page 139 of the record, held thus:
“The evidence of PW2, PW3, PW4 PW5 and PW6 and exhibits “A” the extra judicial statement of the accused establish unequivocally that the accused was on or about 27th April, 2017, found in possession of human remains which include a human head. There is no evidence to show that the accused had possession of the human head for any lawful purpose. By his own admission in exhibit “A” the human remains found in his possession were to be used in

connection with Juju. I therefore find as proved against the accused the offences of being in possession of human remains under Section 216 (e) of the Penal Code Laws of Taraba State and being in unlawful possession of human head under Section 219 of the same Penal Code.”
From the foregoing, it is clear that the judgment of the lower Court was not solely based on the retracted confession as alleged by Appellant’s counsel, rather, the learned trial Judge with a holistic view of the entire case chose to rely on the testimonies of the Prosecution Witnesses coupled with the retracted confession, which in his opinion was true in light of other established facts. This is proper in law, as the correct principle of law with regards to situations such as this instant one, where an Accused person denies making the statement sought to be tendered by the Prosecution is that such statement is still admissible only that in relying on it, as to its truthfulness, there would be need for corroboration. There was ample corroboration in the case leading to this appeal. Even if the statement is taken out of the evidence at trial, the testimonies of the Prosecution Witnesses is enough to convict the Appellant for the offences he was convicted for.

Appellant’s attempt to raise the issue of inconsistency in the Respondent’s case would not avail him to impugn the judgment of the lower Court as there was no material contradictions in the oral testimonies of the Prosecution Witnesses such as would vitiate the dependability of their evidence. The crucial factor is whether the witnesses called and evidence furnished establish the case beyond reasonable doubt as required by the law and in this appeal, the answer is in my view in the affirmative.
See:Ikenne v. The State (2018) LPELR-44695(SC); Orisan v. People of Lagos State (2019) LPELR-46509(CA); and Afolalu v. State (2010) LPELR-197(SC).
In light of the above, this issue is resolved against the Appellant.

ISSUE TWO:
WHETHER THE LEARNED TRIAL JUDGE EXERCISED HIS DISCRETION JUDICIOUSLY AND JUDICIALLY WHEN HE CONVICTED THE APPELLANT TO 2 AND 5 YEARS IMPRISONMENT WITHOUT AN OPTION OF FINE OR WITHOUT TAKING INTO CONSIDERATION THE TIME ALREADY SPENT IN CUSTODY BY THE APPELLANT? (GROUND 5)

Learned counsel argued that the learned trial Judge failed to properly exercise his discretion with regards to the sentence handed down in the case at the end of trial and conviction, as relevant factors such as the Appellant’s age and time spent in detention were not taken into consideration, and that if they had been taken into consideration, the lower Court would have passed a sentence of fine or lesser term of imprisonment than the seven years handed down.
He relied on the cases of Uket v. FRN (2008) All FWLR (Pt.411) P.923 at 935F-G, R.3; Bello v. Yakubu (2008) All FWLR (429) P.475 at 487E R.6, 487F-G R.6.

On the other hand, learned counsel for the Respondent argued that the lower Court properly exercised its discretion in sentencing the Appellant to seven years imprisonment, as all the relevant facts were examined and the sentence was not excessive as the section which empowers the Court to sentence for the offences include the option of imprisonment and fine, which is even harsher than the sentence passed.
He relied on: Sections 216(e) and 219 of the Penal Code; Eromosele v. FRN (2018) 4 SCM P.40 @ 41 para 12; Uket v. FRN (2008) All FWLR (Pt.411) P.923.

RESOLUTION OF ISSUE TWO
Sentencing is the last stage of a criminal trial that resulted in the conviction of an Accused Person. At this stage, the State acting through the trial Court imposes punishment on the Convict within the ambit of the law.
Sentencing as rightly alluded to by both counsel in this appeal is mainly within the jurisdictional competence of a trial Court and the Appellate Court will only interfere with a sentence, which is an exercise of discretionary power of the trial Court where: (i) the discretion was wrongly exercised; (ii) the exercise of the discretion was tainted with substantial irregularity; (iii) there is miscarriage of justice, or (iv) it is in the interest of justice to interfere.
SEE: DAVID v. CP, PLATEAU STATE COMMAND (2018) LPELR-44911(SC); AND ADEJUYIGBE v. FRN (2017) LPELR-43801(CA).
The provisions of the law which govern the appropriate sentences to pass in these circumstances are contained in Sections 216 (e) and 219 of the Penal Code, Laws of Taraba State, which provide thus:
216. “whoever- (e) is in possession of or has control over any human remains which are used or are intended to be used in

connection with the worship or invocation of any juju, shall be punished with imprisonment which may extend to two years or with fine or with both.”
219. “whoever receives or has in his possession a human head or skull within six months of the same having been separated from the body or skeleton with the intention that such head or skull shall be possessed by any person as a trophy, juju or charm shall be punished with imprisonment which may extend to five years or with fine or with both.”
From the above, it is clear that the two sentences passed by the lower Court upon conviction is fully in line with the relevant provisions of the law and the Appellant herein has not furnished any special reason why this Court ought to interfere with the sentencing.
This issue is also resolved against the Appellant.

The fallout of the resolution of the two issues raised in this appeal against the Appellant is that the appeal is bereft of merit and is accordingly dismissed.

The judgment of the lower Court delivered on 23rd July, 2019 in case No. TRSJ/34C/2017 The State V. Abubakar Abdulkadir wherein the Appellant was convicted of

the offences of being in possession of human remains, and unlawful possession of human head contrary to Sections 216(e) and 219 of the Penal Code Laws of Taraba State and Sentenced to a cumulative sentence of seven years imprisonment is hereby affirmed.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft copy of the judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. His lordship has adequately and comprehensively resolved the issues that arose in this appeal, I adopt same as mine in holding also that the appeal is bereft of merit and it is accordingly dismissed. The judgment of the trial Court is hereby affirmed.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

P. Atsev Esq. holding the brief of B. Vaatsav Esq. For Appellant(s)

Hamidu Audu (DPP), Taraba State with him, C. R. Shaki, State Counsel I Taraba State Ministry of Justice For Respondent(s)