ABUBAKAR v. STATE
(2022)LCN/15965(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, August 19, 2022
CA/ABJ/CR/297/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
SANI ABUBAKAR APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT THE FAILURE OF THE TRIAL COURT TO HEAR THE ADDRESS OF A PARTY, VITIATES THE TRIAL
On the issue of refusal of the trial Court to allow the appellant deliver his final written address, the law is trite that address forms part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right. See Haruna v. State (2016) LPELR-40262 (CA).
Furthermore, Section 258 (1) of the 1979 Constitution vests a right in the parties to make final address and where one of the parties makes his final address the other party must be given the opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem.
Similarly, in the case of Yirom v. Rikainyangbe & Anor., (2018) LPELR-44480 (CA) the Court of Appeal per Abiriyi, JCA, held:
“The failure of the Court below to provide the opportunity for parties to adopt their written addresses and to formally incorporate the written addresses as part of the proceedings at the trial offends the provision of Section 36 (3) of the 1999 Constitution (as amended) which dictates that proceedings of a Court must be held in public. The subsection does not excuse any aspect of the proceedings of Court to be held public except as provided under Section 36 (6) of the Constitution. The right provided under Section 36 (3) of the 1999 Constitution being a public right cannot be waived by any party to a suit. It is the law that where miscarriage of justice is deemed to have occurred as in the case where a constitutional provision relating to fundamental rights is breached such a matter is liable to be set aside no matter how well decided. PER ADAH, J.C.A.
WHETHER OR NOT IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE THERETO
Evaluation of evidence and ascription of probative value has been settled to be the primary duty of the trial Court that saw and assessed the credibility of the witnesses. See the case of Musa v. State (2019) LPELR-46350 (SC) Jolayemi & Ors v. Alaoye & Anor (2004) 12 NWLR (Pt 887) 322; Akinlagun & Ors., v. Oshoboja & Anor (2006) LPELR-348 (SC); Lafia Local Government v. The Executive Governor Nassarawa State & Ors (2012) 17 NWLR (Pt 1328) 94.
The trial Court has the duty to determine cases according to facts alleged and proved. The ingredients of the offence charged must be proven as required beyond reasonable doubt and to the satisfaction of the Court.
By the provision of Section 221 of the Penal Code, there are three ingredients which must be proven before one can secure conviction for the offence of Culpable Homicide. Thus:
1.) That the deceased died;
2.) That his death was caused by the accused;
3.) That the accused intended to either kill the victim or cause him grievous bodily harm. PER ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Niger State, sitting in Kontangora, in Suit No. NSHC/KG/12C/2013, delivered on the 30th day of September, 2014, Coram: Yusuf T. Usman, J., wherein the trial Court convicted the appellant for the offences of Theft and Culpable Homicide punishable with death.
The charge under which the appellant was arraigned, are reproduced hereunder as follows:
COUNT 1:
That you Sani Abubakar of Tabulutu Village on 17th April, 2011 at about 1030hrs in the bush of Mailaka Kontonkoro Village within Kontogora Judicial Division, did commit culpable Homicide Punishable with death by attacking one Lawali Mohammed on his head with the intention of causing his death and you thereby committed an offence punishable under Section 221 of the Penal Code and triable by the High Court.
COUNT 2:
That you Sani Abubakar of Tabulutu village on 17th April, 2011 at about 1030hrs in the bush of Mailaka Kotonkoro village within Kontagora Judicial Division, committed theft of Rams by taking them out of possession of Lawali Mohammed after killing him and thereby committed an offence punishable under Section 287 of the Penal Code.
The appellant entered a non-guilty plea when the charges were read to him. Thereafter, the matter went into full trial. The prosecution in order to prove his case, called one witness and tendered two exhibits (Exhibit A1 and A2). The Appellant opened his case and testified for his defense as DW1 and closed his case. In a considered judgment delivered on the 30th day of September, 2014, the trial Court found the accused person guilty of the offence of Theft and Culpable Homicide punishable with death.
Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court vide a Ten Ground Amended Notice of Appeal filed on the 22nd May, 2020 and deemed properly filed and served on 12th January, 2021. The Record of Appeal was transmitted to this Court on the 19th day of May, 2022.
In line with the rules of this Court, parties filed and exchanged their respective briefs of argument.
Counsel for the appellant distilled three issues in the Amended Appellant’s Brief of Argument dated 21st May, 2020, and filed 22nd day of May, 2020, but deemed properly filed and served on the 17th February, 2021, thus:
1. Whether the arraignment and trial of the appellant is not null and void having been conducted in violation of his constitutional right to fair hearing? (Grounds 1 and 2).
2. Whether the conviction and sentence of the appellant should not be set aside, the respondent having failed to prove the ingredients of the offences of culpable homicide and theft beyond reasonable doubt. (Grounds 3, 4, 5, 6, 7, 8 and 10).
3. Whether the proceedings of the trial Court predicated on an unsigned and unfiled charge is not a nullity and liable to be set aside. (Ground 9).
In response, counsel for the respondent adopted the three issues distilled by the appellant. The Respondent’s Brief of Argument was dated 23rd February, 2022 and filed on the 24th February, 2022, but deemed properly filed and served on 3rd March, 2022.
Since the parties have unanimously adopted the three issues, the three issues are hereby set down for consideration. I shall start with issue three first.
Issue Three:
This issue is – Whether the proceedings of the trial Court predicated on an unsigned and unfiled charge is not a nullity and liable to be set aside.
Learned counsel for the appellant submitted that the two count charge upon which the arraignment, trial, conviction and sentence of the appellant was predicated is contained at page 5 of the record of appeal. The charge is unsigned and thus a worthless or useless document. A legal process that is not signed is a useless document and thus no Court will attach any weight to it. Counsel relied on the cases of Kwara Investment Coy Ltd v. I. E. A. Garuba (2000) FWLR (Pt. 2) 198 at 216 (CA); Ezechukwu v. Onwuka (2003) FWLR (Pt. 175) 528 at 540; Alex v. Federal Republic of Nigeria (2018) 7 NWLR (1618) 228 at 239 PARAS. A-C.
Learned counsel for the Respondent submits that the charge was signed and filed, however the record of appeal compiled by the Appellant failed/omitted to include it on the records. Learned counsel urged this Court to dismiss the appeal, convict the appellant and return the verdict of guilty as charged as found by the learned trial Judge.
Learned counsel for the appellant in his Reply Brief of Argument stated that the respondent’s submission is not supported by the record of appeal because the record did not show that the said charge was either signed or filed. He further submitted that the Record of Appeal is the documentary account of what transpired in the trial Court. It is the reflection of the proceedings that took place in the Court below. The law is firmly established that parties and the Court are bound by the record of appeal. The record of appeal is also presumed to be correct and accurate until contrary is proved. Counsel relied on the cases of Onwuka v. Ononuju (2009) 11 NWLR (Pt. 1151)174; Ojeme v. Momodu (1994) 1 NWLR (Pt. 323) 685 at 697; Opara v. Paul & Ors (2019) LPELR-47678 (CA); Ogwe & Anor., v. IGP & Ors (2015) LPELR-24322 (SC); Osanebi v. Lawrence & Ors (2018) LPELR-46111 (CA). Counsel urged the Court to resolve the three issues submitted for determination in favour of the appellant and allow this appeal.
This issue has to do with the competence of the charge upon which the appellant was tried and convicted. In the case of Elekwachi Nwaji v. The State (2022) LPELR – 57247 (CA), this Court held per Oyewole, JCA, as follows:
“A trial begins with an arraignment of the accused person. For there to be a valid arraignment, there must be a valid charge in existence. Pursuant to Section 234 of the Administration of Criminal Justice Law of Ebonyi State, 2019 criminal trials in the High Court are by information. Section 239(2) thereof provides thus: An information shall be signed by a law officer or any person authorized by the Attorney-General in that regard. For a charge to be valid therefore, it must have been duly signed by a law officer. A law officer is defined in Section 2 of the said law as the Attorney-General of the State and includes such other qualified officers by whatever names designated to whom any of the powers of a law officer is delegated to by law or necessary intendment. It goes without saying that there is nothing within the said law contemplating or enabling the trial of an accused person on an unsigned charge or information. The amended charge upon which the appellant was tried is on page 32 of the record of appeal and it was obviously not signed although two names said to be from the Ministry of Justice, Ebonyi State were typed beneath the line meant for a signature. It may be argued that the failure of the appellant to objection to this defect before making his plea and undergoing trial had subsequently cured the deficiency. This argument is however defeated by the fact that the requirement for a charge to be signed goes beyond mere irregularity. It is a statutory requirement essential for the validity of a charge or information which cannot be deemed waived by conduct. See Ibrahim v. Lawal & Ors., (2015) LPELR – 24736 (SC), A.G. Bendel State v. A.G. of the Federation (1981) 10 SC 1 at 54, Ogbonna v. A.G. of Imo State (1992) 1 NWLR (Pt. 220) 647 at 696 and Menakaya v. Menakaya (2001) LPELR-1859 (SC). Furthermore, a charge forming the basis of criminal trial in the High Court is a legal document that must be signed. An unsigned document has been described as a worthless piece of paper unworthy of activating the jurisdictional competence of a Court. See Okeke v. The State (2019) LPELR – 47781 (CA), Maku v. Al-Makura (2016) LPELR 48123 (SC) and Ogudo v. State (2011) 18 NWLR (Pt. 1778) 1. The summary of the situation is that the jurisdiction of the trial Court was improperly activated in this instance by the unsigned charge. This fundamental defect has rendered the trial and conviction of the appellant invalid in line with the position taken by this Court in Sunday Izi v. The State (2016) LPELR 42064 (CA) and Ofoegbu v. State (2020) LPELR – 51895 (CA).”
Generally, there is no gainsaying the fact that an unsigned document lacks any validity in the eye of the law. A document that must be reckoned with must be authored by a human being with his names and particulars of his authority to sign the document. This is more apt in respect of an Originating Process where details of its competence cannot be toyed with. In our present clime, a charge that kick-starts the trial of a person for an offence must have the signature of the person who drafts the charge. It is the signature that authenticates the charge and give the public the notion that a person under authority of law framed and filed the charge indicting an accused and not a robot.
On this issue, the appellant argued that the charge was not signed and that an unsigned document is worthless before the eyes of the law. The law is therefore, firmly settled that an instrument that is unsigned is not only worth the paper on which it was prepared. A document which is not signed does not have any efficacy in law, the document is worthless and a worthless document cannot be efficacious. See Omega Bank (Nig.) Plc v. OBC Ltd (2005) LPELR-2636 (SC); Mohammed Ali v. The State (2020) LPELR-52805 (SC); Capt. Erizea v. Nigerian Army (2016) 10 NWLR (Pt. 1519) 52.
An unsigned document before a trial Court is dead on arrival, it is a nullity and amounts to a worthless document. From the record of proceedings before this Court, it is clear that the charge that was compiled and transmitted in the record of appeal to this Court was not signed neither was it shown that it was filed at the lower Court.
The record of appeal showed that there was an application for Leave to prefer a charge made by the office of the Hon. Attorney General of Niger State. (See pages 1 – 10 of the Record Appeal). This Leave was granted by the trial Court on 23rd September, 2013 by the trial Court. (See Page 11 of the Record of Appeal). What was required after the Leave of Court was obtained was for the office of the Director of Public Prosecutions to prefer the charge or file an information for the prosecution of the appellant. This was not done. The piece of paper used as a charge was the copy of the proposed charge filed along with the DPP’s application to prefer a charge. That document was headed charge but it was neither signed nor carrying the name of the author of the charge. This is a very serious blunder and has clearly knocked off the validity of any prosecution carried out in the instant case. I hold therefore, that this issue three is resolved in favour of the appellant. The whole proceeding conducted on this unsigned charge is a nullity.
I hold in the circumstance that the trial of the appellant was a nullity, it having been carried out on an incompetent charge. This definitely is sufficient to allow this appeal. I accordingly, on this issue, do allow this appeal and set aside the judgment of the trial Court delivered on 30th day of September, 2014.
My learned brothers, ours is a penultimate Court. It behaves us the duty to consider the merit of this appeal in case we are wrong. This then, leads me to consider issues one and two as earlier distilled.
Issue One:
This issue is – whether the arraignment and trial of the appellant is not null and void having been conducted in violation of his constitutional right to fair hearing?
Counsel for the appellant while canvassing this issue pointed out that the right of an illiterate accused to an interpreter in a criminal trial is one of such safeguards ordained by the constitution itself and it is sacrosanct. Counsel cited Section 36 (6) (e) of the CFRN. And further submitted that the need for an interpreter during arraignment and trial cannot be dismissed with a wave of the hand especially where the accused is an illiterate. Counsel relied on the cases of Ibrahim v. State (2015) All FWLR (Pt. 770) 1401 at 1416; Durwode v. The State (2001) FWLR (Pt. 36) 950 at 966 D-E; Egwumi v. State (2013) All FWLR (Pt. 678) 824 at 840 paragraphs D-E; Nwachukwu v. State (2007) All FWLR (Pt. 390) 1380 at 1399 at F-G.
Learned counsel for the appellant argued that the importance of the delivery of final address in both civil and criminal trials has been judicially sanctioned and upheld. And the fundamentality of a final address especially in a criminal trial cannot be over emphasized. Counsel relied on the cases State v. Lawal (2013) All — FWLR (Pt. 679) 1024 at 1036; Usen v. State (2016) All FWLR (Pt. 829) 1054 at 1064 to 1065; Kalu v. State (2017) All FWLR (Pt. 896) 1745; PML (Nig.) Ltd v. Federal Republic of Nigeria (2018) 7 NWLR (Pt. 1619) 448 at 476 to 477 H-B; GE International Operation Ltd v. Q. Oil and Gas Services (2015) 1 NWLR (Pt 1440) 244 at 266; Uzowulu v. Akpor (2015) All FWLR (Pt. 763) 1954 at 1981; Okpeh v. State (2017) All FWLR (Pt. 894) 1499.
In response, learned counsel for the respondent argued that it is not required that the trial Court would record that an interpreter was used to explain the charges to the accused person. It is enough that the Court recorded the fact that the proceedings was explained to the accused who understood. Counsel relied on the cases of Da’u v. State (2015) LPELR-40410 (CA); Mallam Madu v. State (1997) 1 NWLR (Pt. 482) P. 386; FRN v. Mohammed (2014) LPELR- 22465 (SC); Egwumi v. State (2013) All FWLR (Pt. 678) 840 paragraph D-E; Section 294 (5) of CFRN 1999.
Learned counsel for the appellant in his Reply Brief argued that from a careful reading of the record of appeal, one cannot find any place where the trial Court recorded on the date of arraignment and that an interpreter was provided for the appellant and that such an interpreter explained the charge to the appellant in Hausa language. It is trite that record of appeal, unless impugned, binds not only the Court but parties as well. Neither the parties nor Court can read into the records what they do not contain. Therefore, the respondent is bound by the record of appeal and cannot go outside the record and canvass to the appellate Court what they think is in their favor. Counsel relied on Dick v. Our and Oil Co. Ltd (2018) 14 NWLR (Pt. 1638) 1 at 29; Aghedo v. Adenomo (2018) 13 NWLR (Pt. 1636) 264 at 290; Mallam Madu v. State (1997) 1 NWLR (Pt 482) 386; FRN v. Mohammed (2014) LPELR-22465 (SC); Nwachukwu v. State (2007) All FWLR (Pt. 390) 11380 at 1399 at F-G; Chief Nimi Barigha-Amage v. Hon. Justice M.A.A. Adumein (2016) 1 NWLR Pt 1530 Pg. 364 at 21.
In the instant appeal, the appellant complained about breach of his right to fair hearing, claiming that he was not provided with an interpreter at the trial and he was also not given the opportunity to deliver his final written address. The respondent referred this Court to the record of the trial Court where the appellant took his plea and the trial Court recorded how the plea was taken and the appellant affirmed that he understood the charges read to him. The respondent stated that from the proceedings in the record of the lower Court it was clear that an interpreter was used to explain to the accused the charges read to him. In the case of Adamu v. State & Anor, (2022) LPELR-57554 (CA) Uwa, JCA, held as follows:
“It is trite that the procedure during arraignment is for the trial Court to record the name of the interpreter who read, interpreted and explained the charge to the accused person, but the failure or omission to reflect same in the record of proceedings is not always fatal to the proceedings so as to render the proceedings a nullity, it depends on the circumstances. Each case must be examined on its surrounding or peculiar circumstances, if the arraignment was carried out in a manner that is substantially regular, the procedure would remain valid. In such a situation, it would be presumed that the action of the Court has been done correctly and regularly until it is proved otherwise. Section 168 (1) of the Evidence Act, 2011 provides thus: (1) when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
Also in the case of Ode v. State (2020) LPELR-51151- (CA) Abdullahi JCA, It was decided that the object of arraignment is to ensure fair hearing to the accused person by ensuring that he understands the charge against him to enable him make defense after plea has been taken. The importance of arraignment is for the accused to understand the charges read to him and the Court has to show who read the charge and who interpreted it to the accused. See the case of Koleosho v. FRN (2014) LPELR-22929 (CA); Oyediran v. The Republic (1967) NMLR 122. See also the case of Moses v. State (2017) LPELR-51539 (CA).
In the instant case, and going by the record of proceedings, it is clear to me that there was nowhere in the record where it was recorded that there was an interpreter or an interpreter actually read and/or explained the charge to him, for there to be a proper and valid arraignment, the accused person shall be present in Court; the charge or information shall be read to him in the language he understands. After reading the charge of information, it shall be explained to him avoiding as much as possible the use of technical language, so as to ensure that he is acquainted with all the essential elements of the offence charged and the facts that gave rise to the offence charge. See also Section 36 (6) (a) of the 1999 Constitution; Section 215 of the Criminal Procedure Law (CPL).
In light of the foregoing, this Court is meant to be guided by the Record of the trial Court in the determination of this appeal, and from the records before this Court, there is nowhere in the said record where it was evident that there was an interpreter who conducted and also interpreted to the accused the charge before the Court, there was also nowhere in the record where it was shown that the counsel for the accused was present in Court during the arraignment. I find the arraignment of the accused defective and not in line with the extant laws and rules of the Court. But the appellant ought to have challenged that at the earliest time and not wait until on appeal. If an accused person wants to object to it he must do that timeously else, it will be deemed to be an afterthought. In the instant case, the record shows at page 12 that the two charges were read and explained to the appellant. The appellant pleaded not guilty to each of the two counts. The fact that the appellant did not plead the contrary means he understood the charge, because he won’t have answered what he does not understand.
On the issue of refusal of the trial Court to allow the appellant deliver his final written address, the law is trite that address forms part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right. See Haruna v. State (2016) LPELR-40262 (CA).
Furthermore, Section 258 (1) of the 1979 Constitution vests a right in the parties to make final address and where one of the parties makes his final address the other party must be given the opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem.
Similarly, in the case of Yirom v. Rikainyangbe & Anor., (2018) LPELR-44480 (CA) the Court of Appeal per Abiriyi, JCA, held:
“The failure of the Court below to provide the opportunity for parties to adopt their written addresses and to formally incorporate the written addresses as part of the proceedings at the trial offends the provision of Section 36 (3) of the 1999 Constitution (as amended) which dictates that proceedings of a Court must be held in public. The subsection does not excuse any aspect of the proceedings of Court to be held public except as provided under Section 36 (6) of the Constitution. The right provided under Section 36 (3) of the 1999 Constitution being a public right cannot be waived by any party to a suit. It is the law that where miscarriage of justice is deemed to have occurred as in the case where a constitutional provision relating to fundamental rights is breached such a matter is liable to be set aside no matter how well decided.
This issue is therefore, settled in favour of the respondent, the appellant was accorded fair hearing at the lower Court.
Issue Two:
This issue is – Whether the conviction and sentence of the appellant should not be set aside, the respondent having failed to prove the ingredients of the offences of culpable homicide and theft beyond reasonable doubt.
Learned counsel for the appellant submitted that the legal principle on the burden of proof in criminal cases is codified in Section 135 (1) of the Evidence Act, 2011. And the burden of proof in a criminal trial which derives from the accusatorial nature of Nigeria’s criminal justice system inherited from the common law has found blessing in the decisions of the Court. Counsel relied on the cases of Ononuju v. The State (2015) All FWLR (Pt. 810) 1198 at 1223 paragraph G; Elizabeth Ogundiyan v. State (1991) 3 NWLR (Pt. 181) 519 (1994) 4 SCNJ 44, (1991) 3 SC 100; Ejedegba v. State (2018) All FWLR (Pt. 942) 399 at419 C-E; Mbang v. The State (2011) All FWLR (Pt. 562) 1766 at 1781 to 1782 (CA); State v. Oladotun (2011) All FWLR (Pt 586) 399 at 422 Paras. D (SC); Oduneye v. The State (2001) 2 NWLR (Pt. 697) 311 at 328 E-F; Ogboka v. State (2017) All FWLR (Pt. 870) 1173; Ochani v. State (2017) All FWLR (Pt. 904) 1054 at 1069 to 1070 paragraphs H-A; Adava v. State (2006) All FWLR (Pt. 311) 1777.
Learned counsel for the appellant submitted that Exhibit A1 and A2 were wrongfully admitted by the trial Court and they ought to have been expunged from the records at the stage of judgment. The law is now settled that any computer generated evidence is admissible only upon the fulfillment of either of two conditions: the production of a certificate of authentication or the laying of an oral foundation in compliance with Section 84 (2) of the Evidence Act 2011. Counsel relied on the cases of Brilla Energy Ltd v. Federal Republic of Nigeria (2018) LPELR-43926 (CA); Henry Seriake Dickson v. Chief Timipre Marlin Sylva & 3 Ors., (2017) 8 NWLR (Pt. 1567) 167; Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534 (SC); Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 (SC); R v. Shepherd (1993) 1 All ER 225; Agbi v. Ogbeh (2006) All FWLR (Pt. 329) 941 at 972; Ogudu v. State (2012) All FWLR (Pt. 629) 1111.
Learned counsel for the appellant submitted that there is no independent evidence on record proffered by the prosecution in corroboration of Exhibit B. There is no evidence led to show that the contents of Exhibit B is true or that the appellant had the opportunity to commit the offences charged. It is the practice of your lordships to look out for independent evidence in order to be satisfied that the contents of the confessional statement is true. Counsel relied on the cases of Kanu v. King (1952) 14 WACA 30; Effiong v. State (1998) 8 NWLR (pt. 562) 362; Omoju v. Federal Republic of Nigeria (2008) All FWLR (Pt. 415) 1656 at 1674; Nwakoye v. State (2016) NWLR (pt. 850) 1183 at 1207 to 1208; Onu v. Idu (2006) All FWLR (Pt. 328) 691 at 715 paragraph D-F; Ifaramoye v. State (2017) All FWLR (Pt. 917) 1555; Ukeje v. Ukeje (2014) 11 NWLR (Pt. 1418) 384 at 403 to 404; Federal Republic of Nigeria v. Usman (2012) All FWLR (Pt. 632) 1639; Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 at 20; Shivero v. State (1976) 10 NSCC 197 at 1653 paras. C-H; Chinedu Eze v. State (2015) All FWLR (Pt. 811) 1394; Ayeni v. State (2016) All FWLR (Pt. 838) 917 at 931 to 932 paras. G-B; Salawu v. State (2011) All FWLR (Pt. 594) 35.
In response, learned counsel for the respondent submitted that the burden placed upon the prosecution in criminal trials is proof beyond reasonable doubt. Counsel cited the cases of Afolalu v. State (2010) 16 NWLR (Pt 1220) 584; Ismail v. State (2011) 47 NSCQR 89 Pg. 108 paras. D-F; Section 135 of the Evidence Act 2011; Section 221 (b) Penal Code.
Learned counsel for the respondent argued that objection to admissibility of a document that must be made when document is offered in evidence, where no objection is raised when offered, the document would be admitted and the opposing party cannot later complain on its admissibility unless the document by the law is inadmissible. It is also the law that where a document is wrongfully admitted in evidence, (though the Respondent did not concede that the photograph was inadmissible) the Court even excluding the photograph, had suffered evidence in the case to convict the appellant. Counsel relied on the cases of Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349 at Pp. 377-378.
Learned counsel for the respondent further submitted that where a confessional statement has admitted all the essential elements of an offence, and shows unequivocal, direct and positive involvement of the accused in the crime alleged, the Court can rely on it alone to convict the accused. Counsel relied on the cases of Major Amachree v. Nig. Army (2003) 3 NWLR (Pt. 807) 256; Odua v. FRN (2002) 5 NWLR (Pt. 761) 615; Enajike Okeremute v. The State (947/2017) Unreported); Karimu Sunday v. The State (2017) LPELR-42259 (SC); Emeka v. State (2013) LPELR-20867 (CA).
On the issue of Exhibits tendered before the trial Court, there was no objection as to the voluntariness of the statement of the appellant. The objection is that the appellant did not make the statement and that there was no foundation laid for the tendering of the statement. See the case of Ehot v. State (1993) 4 NWLR (Pt. 290) 644, the Supreme Court held:
“in a long line of cases, this Court has explained this position and an accused person alleging that he did not make a statement should not be under illusion that non est factum amounts to involuntariness (R. v. Igwe (1960) 5 FSC 55; (1960) SCNLR 158; Godwin Ikpasa v. Bendel State (1981) 9 SC. 7, 28; Obidiozo & Ors v. The State (1987) 4 NWLR (Pt 67) 748, 761)”
The denial of the appellant that he did not make the statement Exhibit B therefore, has nothing to do with admissibility of the statement. The learned trial Judge was correct to have admitted the confessional statement Exhibit B and relied on it.
On Exhibit A1 and A2, which were pictures or photographs, the allegation was that they were admitted in error being computer generated documents. By the provision of Section 258 of the Evidence Act, 2011, “Documents include books, maps, plans, drawings, photographs and also includes any matter express or described upon any substance by means of letter, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.
However, whenever a document is sought to be admitted in any Court of law, the most important and primary aim of the Court is the relevancy of the documents. The pictures were taken for the sole purpose of creating a nexus between the accused and the death of the deceased. In the instant case, the death of the accused was established and the accused confessional statement painted a picture of how the death of the deceased occurred.
The appellant also argued about whether the trial Court properly evaluated the evidence before it. Evaluation of evidence and ascription of probative value has been settled to be the primary duty of the trial Court that saw and assessed the credibility of the witnesses. See the case of Musa v. State (2019) LPELR-46350 (SC) Jolayemi & Ors v. Alaoye & Anor (2004) 12 NWLR (Pt 887) 322; Akinlagun & Ors., v. Oshoboja & Anor (2006) LPELR-348 (SC); Lafia Local Government v. The Executive Governor Nassarawa State & Ors (2012) 17 NWLR (Pt 1328) 94.
The trial Court has the duty to determine cases according to facts alleged and proved. The ingredients of the offence charged must be proven as required beyond reasonable doubt and to the satisfaction of the Court.
By the provision of Section 221 of the Penal Code, there are three ingredients which must be proven before one can secure conviction for the offence of Culpable Homicide. Thus:
1.) That the deceased died;
2.) That his death was caused by the accused;
3.) That the accused intended to either kill the victim or cause him grievous bodily harm.
The coming together of all three ingredients is what determines Murder in a particular case. Where a person is said to have murdered another person, there must be a nexus between the death and the act must be established beyond reasonable doubt. The cause of the death of the deceased must be proved. Where the cause of death has ascertained, the link between the cause of death and the act or omission of the accused alleged to have caused it must be established. It must also produce vital witnesses to testify for the prosecution. Before a trial Court comes to the conclusion that an offence has been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that the acts of the accused complained of come within the confines of the particulars of the offence charged. See Obasi v. State (2020) LPELR-49679 (CA); Ikwe v. State (2021) LPELR-54302 (CA); Edoho v. State (2010) 14 NWLR Pt. 1214 Pg. 651; State v. Isah (2019)1 NWLR (Pt. 1652) 139; Saleh v. State (2019) 8 NWLR (Pt. 1675) 416; Igabele v. The State (2006) 6 NWLR Pt. 975 Pg. 100.
In the present case, the evidence adduced before the trial Court was clear as it was shown in the confessional statement of the appellant where he admitted to the killing of the deceased. It was clear the deceased died as a result of the strikes he sustained from the accused. The lower Court evaluated the evidence properly and was right to arrive at such decision. The conviction and sentence of the appellant would therefore be proper.
From the circumstances of this case, having earlier nullified the proceedings and the trial of the appellant, the proper order to make in the overall interest of justice is to remit this case back to the trial Court for retrial. The leave granted by the trial Court for charge to be preferred against the appellant on 23rd September, 2013, is still extant. The Office of the Attorney General of the State shall prefer a proper charge before the trial Court for the appellant to be properly tried before another Judge of the Court.
This Order shall therefore, be served on the Hon. Attorney General of Niger State.
HAMMA AKAWU BARKA, J.C.A.: My lord Adah JCA, graciously made available to me a copy of the judgment just delivered in draft, to which I fully agree with the reasoning as well as the conclusion reached.
It is for the same reasons contained in the leading judgment that I also void the judgment of the lower Court, while ordering that the case be remitted to the State Chief Judge for trial afresh.
DANLAMI ZAMA SENCHI, J.C.A.: I was in a conference of the panel of justices that heard this appeal. The lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA just delivered captured and reflected my views expressed during the conference. I therefore agree entirely with the finding and reasoning in the lead judgment of my learned brother and I have nothing further to urge. Thus, the proceedings of the trial Court having been nullified, it is hereby Ordered that the case be remitted back to the Chief Judge of Niger State, Minna for retrial before another Judge on a proper charge preferred by the respondent.
Appearances:
B.O. Akinseye George, Esq. with him, O. Okeke, Esq. For Appellant(s)
F.A.R. Obi-Okafor, Esq. with him, J.M. Agbaduah, Esq. For Respondent(s)