ADAMU v. STATE (2020)

ADAMU v. STATE

(2020)LCN/14523(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/S/39C/2019

Before Our Lordships

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

MUHAMMAD ADAMU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

INGREDIENTS OF THE OFFENCE OF CULPABLE HOMIDICE PUNISHABLE WITH DEATH

This being an Appeal involving a trial for the offence of culpable Homicide punishable with death, for the prosecution to succeed in establishing the offence, all the ingredients of the offence as contained in Section 221(a) of the Penal Code must be proved or established to the satisfaction of the Court thus;
1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence.
The position of the law is that a person is clearly guilty under Section 221 (a) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury, which the act was intended to cause. See the cases ofMUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; MAIYAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015) 11 NCC at page 40-41. PER OHO, J.C.A.

BURDEN OF PROOF IN CRIMINAL TRIALS

Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of culpable homicide rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as amended and plethora of decided authorities on the subject. What should perhaps, be stated here as a corollary to the above, is the fact that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.

b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012. PER OHO, J.C.A.

WHETHER OR NOT A RETRACTION OF A CONFESSIONAL STATEMENT RENDERS THE CONFESSION INADMISSIBLE

The position is that even if the Appellant had done that the settled position of the law is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”PER OHO, J.C.A.

WHETHER OR NOT THERE IS A RULE OF LAW OR PRACTICE OF GENERAL APPLICATION IN HOLDING AN IDENTIFICATION PARADE

The general position of the law, however is that there is no positive rule of law or practice of general application which requires the holding of an identification parade on every occasion. Every case must be considered on the evidence adduced and its own particular pretrial circumstances. See the case ofALABI vs. THE STATE (1993) 7 NWLR (PT. 307) 511 AT 523. The issue of identification becomes essential when the case of the accused depends wholly or substantially on the correctness of the identification and which the defense alleges to be mistaken. It is only in such a situation that the Judge is expected to warn the jury or himself of the special regard for caution before convicting the accused in reliance to the correctness of the identification. See the case of ABUDU vs. THE STATE (1985) 1 NWLR (PT.1) 55. See also the case of CHRISTOPHER OKEREKE UKPABI vs. THE STATE (2004) LPELR- 3346 (SC) where the Supreme Court per UWAIFO, JSC had to say on the subject;
“It is true that whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused, and the defense alleges that the identification was mistaken, the Court must closely examine the evidence. In acting on it, it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of the doubt”. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Sokoto State, Sokoto Judicial Division, in Charge No: SS/16C/2013 delivered on the 8-6-2016, Coram A. M. LAMIDO, J (as he then was), wherein the learned trial judge found the Appellant (along with others) guilty of the offences of voluntarily causing grievous hurt, culpable homicide, criminal conspiracy and sentenced him to death by hanging for the offence of criminal conspiracy. Before the said trial Court, MOHAMMAD ADAMU (hereinafter referred to as the “Appellant”) was arraigned along with others on a four Count Charge, which reads thus;
1. “That you Murtala Isah (M), Bilal Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammed, and Ali Kahiri (M) (At large); Dangiyawa (M) (At large), Manju (M) (At large), Fatihu (M) (At large), Dan Asabe (M) (At large) all of Rumbukawa Area of Sokoto North Local Government Area Sokoto State, on or about the 6th day of April 2012 at about 23-24:00 hours at Tsalibawa Area of Sokoto North Local Government Area within the

Sokoto Judiciary Division, did agree to do an illegal act, to with you attacked Mustapha Aliyu Ango, Shazaliyu, U Sahabi, Muntari Abubakar Ibrahim Gandi, Muhammadu Macca Sanusi Ahmed, Mustapha Abdullahi, Adamu and Sulaiman Muhammed all of Tsalibawa area of Sokoto North Local Government Area with swords, cutlass, machete, and sticks in which Mustapha Aliyu Ango and Sanusi Ahmed died, and the same act was done in pursuance (sic) of the agreement thereby committed an offence punishable under Section 97 of the Penal Code;
2. “That you Murtala Isah (M), Bilal Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammed, and Ali Kahiri (M) (At large); Dangiyawa (M) (At large) Manju (M) (At large), Fatihu (M) (At large), Dan Asabe (M) (At large) all of Rumbukawa Area of Sokoto North Local Government Area Sokoto State, on or about the 6th day of April 2012 at about 23-24:00 hours at Tsalibawa Area of Sokoto North Local Government Area within the Sokoto Judiciary Division, voluntarily cauused grievous hurt on one Shazaliyu U, Sahabi, Muntari Abubakar, Ibrahim Gandi, Muhammed Maccah, Adamu, Mustapha,

Abdullahi, all of Tsalibawa Area of Sokoto North Local Government area with swords, cutlass, machete and sticks thereby committed an offence punishable under Section 248 of the Penal Code;
3. “That you Murtala Isah (M), Bilal Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammed, and Ali Kahiri (M) (At large); Dangiyawa (M) (At large), Manju (M) (At large), Fatihu (M) (At large), Dan Asabe (M) (At large) all of Rumbukawa Area of Sokoto North Local Government Area Sokoto State, on or about the 6th day of April, 2012 at about 23-24:00 hours at Tsalibawa Area of Sokoto North Local Government Area within the Sokoto Judiciary Division, did commit culpable homicide punishable with death in that you caused the death of one Mustapha Aliyu Ango (M) and Sanusi Ahmad (M) of the same address as by doing an act of attacking him with swords, cutlass, machete and sticks which resulted to his death, with the knowledge that death would be the probable consequences of your act, and thereby committed an offence punishable under Section 221 (a) of the Penal Code;
4. “That you Murtala Isah (M), Bilal

Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammed, and Ali Kahiri (M) (At large); Dangiyawa (M) (At large), Manju (M) (At large), Fatihu (M) (At large), Dan Asabe (M) (At large) all of Rumbukawa Area of Sokoto North Local Government Area Sokoto State, on or about the 6th day of April 2012 at about 23-24:00 hours at Tsalibawa Area of Sokoto North Local Government Area within the Sokoto Judiciary Division, did commit culpable homicide punishable with death in that you caused the death of one Sanusi Ahmad (M) and of the same address as by doing an act of attacking him with swords, cutlass, machete and sticks which resulted to his death, with the knowledge that death would be the probable consequences of your act, and thereby committed an offence punishable under Section 221 (b) of the Penal Code.”

It is important to note at this stage that the Appellant was charged as the 6th accused person along with the 1st, 5th, 7th – 8th accused persons while the 9th – 14th accused persons are at large. The 5th – 8th accused persons pleaded not guilty to the amended charges and the Prosecution

called a total of 13 witnesses (PW1 – PW13) and tendered in evidence 11 Exhibits. After the last amendment was granted, the accused persons all pleaded not guilty and elected not to bring or adduce further evidence. Counsel for the 6th accused person rested his case on that of the Prosecution. At the close of the case for the defense, Counsel to the parties filed written Addresses, which can be found at pages 192 – 201 of the record of appeal.

On the 8th day of June, 2016 the learned trial judge delivered a well-considered judgment and found the Appellant guilty of the offence of voluntarily causing grievous hurt, culpable homicide and criminal conspiracy. The Appellant was thereafter sentenced to death by hanging. The judgment of the High Court can be found at pages 235-291 of the record of appeal. Dissatisfied with this judgment, the Appellant has appealed against his conviction and sentence to the Court vide a Notice of Appeal dated 11-7-2016. This is at pages 292-297 of the record of appeal. There are Four (4) grounds of Appeal filed.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of four (4) issues for the determination of this

Appeal as follows;
1. Whether the Prosecution proved the offence of voluntarily causing grievous bodily hurt? (Ground 1);
2. Whether the prosecution proved the case of culpable homicide beyond reasonable doubt against the Appellant to warrant his conviction? (Grounds 2);
3. Whether the Prosecution proved the offence of criminal conspiracy beyond reasonable doubt? (Grounds 3); and
4. Whether the Judgment of the Court occasioned a miscarriage of justice?

On the part of the Respondent, a total of two issues were nominated for the determination of this Appeal thus;
1. Whether looking at the evidence adduced before the trial Court, the Prosecution has proved its case beyond reasonable doubt. (Grounds 1, 2, 3.)
2. Whether looking at the record of proceedings of the Lower Court, the judgment of the Lower Court can nevertheless be said to have occasioned a miscarriage of Justice. (Ground 4).

SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the Prosecution proved the offence of voluntarily causing grievous bodily hurt?
Learned Appellant’s Counsel submitted that the Prosecution failed to prove

the offence of voluntarily causing grievous hurt against the Appellant as the ingredients of the offence were not proven beyond reasonable doubt against the Appellant. It was further submitted that the burden of proving all the elements of an offence rests squarely on the Prosecution and that the standard of proof required is proof beyond reasonable doubt. According to Counsel, the burden of proof in a criminal case rests solely on the Prosecution and it is static as it never shifts, even where the accused in his statement to the police admitted committing the offence. See AWOSIKA vs. THE STATE (2010) 9 NWLR (PT. 1198) 149. As far as the ingredients of the offence of voluntarily causing grievous hurt are concerned, which the Appellant was charged with, are clear and specific. He said that to establish the offence of voluntarily causing grievous hurt, the Prosecution has to prove that:
a. That the accused caused by his act bodily pain, disease or infirmity to the complainant; and
b. That he did so intentionally or with the knowledge that the act would cause hurt.
See JOSEPH BILLE vs. THE STATE (2016) LPELR-40832(SC)

The contention of Counsel is that failure of the prosecution to prove any of these ingredients is fatal to its case. See BOZIN vs. THE STATE (1985) 7 NWLR (PT. 8) 465 @471; ONYEDIKACHI OSUAGWU vs. THE STATE (2016) LPELR 40836 (SC). Counsel next submitted that the ingredients of the offence of voluntarily causing grievous hurt were not proven beyond reasonable doubt in respect of the Appellant. For instance, Counsel submitted that the prosecution was not able to successfully prove that the Appellant caused by his act bodily pain, disease or infirmity to PW7. Counsel also reiterated that during the trial of the Appellant before the Lower Court, the learned trial judge relied on the evidence of PW7, PW4, PW8, in convicting the Appellant. (See page 265 of the record).

As far as Counsel is concerned, the finding of the learned trial judge is incorrect. He pointed out that the evidence of the PW7 at the trial Court is that on 06/04/12 at about midnight, he was at a Tea Seller’s Joint where he ordered for a plate of noodles. He said that he was eating and facing the Tea Seller when he was hit with a stick tied with a sprocket at the back of his head by the 1st accused. He

further said that the 1st accused attempted to hit him again with the stick but that he, the PW7 held it and the 2nd accused hit him with a cutlass on his back and arm.

At this point, Counsel said that the PW7 said that when he turned he saw that his attacker was the 2nd accused and that as his attention was focused on the 2nd accused, the 1st accused pulled away the stick PW7 was holding and hit him the PW7 on the forehead and the PW7 fainted. According to Counsel, the PW7 in his testimony in open Court claimed that he knew all the accused persons and mentioned the name of all the accused persons except the 6th accused person. For this reason, Counsel argued that the evidence of the PW7 did not specifically mention the Appellant as one of the attackers at the earliest opportunity. In addition, Counsel stated that nowhere was the Appellant’s name specifically mentioned or identified as “one of the boys” who attacked the PW7 and that the PW7 did not link the Appellant to the offence. Counsel referred to the case of MR. DONALD O. IKOMI & ORS vs. THE STATE (1986) LPELR-1482(SC), where Supreme Court per NNAMANI, JSC held thus;

“Even if the depositions and statements attached to the information disclose an offence, an accused person should not be put on his trial if there is no link between him and that offence. If the Judge grants consent to prefer information in the absence of such link such information is bound to be quashed.”

The argument of Counsel that followed is that the evidence of the PW7 was not credible as it did not link the Appellant to the offence and that Learned Trial Judge was wrong to rely on the evidence of the PW7, which was speculative to convict the Appellant despite the fact that the available evidence did not link the Appellant to the offence. See the observations of OBASEKI, JSC in the case of SAMUEL BOZIN vs. THE STATE (SUPRA).

Learned Counsel also contended that speculation, suspicion, conjecture, proposition, hypothetical situations, presumptions or intuition cannot be a substitute for proof beyond reasonable doubt. He then submitted that the PW3 and PW5’s testimony is riddled with speculation and suspicion in all ramifications that no reasonable tribunal would convict the Appellant on the evidence adduced thereon. Counsel cited the case of

STATE vs. SQN.LEADER O.T. ONYEUKWU (2004) LPELR-3116 (SC). Accordingly, Counsel further argued that a Court of law cannot speculate that the Appellant attacked the PW7 when there was no evidence to draw such a conclusion. See THE STATE vs. JOHN OGBUBUNJO & ANOR. (2001) LPELR-3223(SC). He also argued that it was germane in such a circumstance to have had an identification parade as PW7 claimed to have known the Appellant but that nowhere in their evidence was his name mentioned. See SUNDAY NDIDI vs. THE STATE (2007) LPELR-1970(SC), where the apex Court per ADEREMI, JSC held thus:
“Whenever the case of an accused person depends wholly (as in the instant case) or substantially on the correctness of the identification of the accused or defendant which defence alleges to be mistaken a trial judge must warn himself of this special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identity.”

Counsel also referred to the testimonies of the PW7 where he said that: “it was very dark when the incident occurred…the attackers were many and I don’t know most of them

and…was confused as a result of the beatings received from the 1st and 2nd accused persons”. (See pages 129 -130 of the record of appeal). The argument of Counsel here is that this piece of evidence goes to show that it was dark at the time of the incident and it was improbable that PW7 would have identified or recognized the Appellant in the crowd as the attacker in the middle of the night with little or no lighting in the area. Counsel further argued that although the PW7 claimed to know the Appellant in open Court, the evidence of PW7 did not link the Appellant to the offence in anyway. Again, Counsel argued that although the PW7 was eating and facing the tea seller while he was attacked from behind, that this is sufficient to disorient him and confuse him during the incident, coupled with the fact that the PW7 claimed to be attacked by the 1st and the 2nd accused persons at the same time. (See page 130 of the record of appeal where PW7 admitted to be confused as a result of the unexpected beatings).

It was further argued by Counsel that at about 12. 00 am, it is always a known fact that it is usually dark. In the further argument of Counsel,

being suddenly attacked by a crowd of boys in the dark, one would be confused, disoriented and as such one’s ability to be able to recognize things around one would be considerably reduced. Counsel said that as a result, the learned trial judge was wrong not to have placed his minds on the fact that one cannot possibly see in the dark, contrary to the testimony of PW7. For this reason, Counsel argued that the learned trial judge failed to take judicial notice of the fact that it is always dark at night and thus visibility will be difficult at that time, when it held that the evidence of PW7 was direct. Counsel cited the case of SUNDAY NDIDI vs. THE STATE (Supra) in support.

In spite of the learned trial Judge’s judgment that the evidence against the Appellant was direct evidence, Counsel next picked holes on the evidence of the PW4 and PW8. He said that contrary to the finding of the Trial Judge, there was no evidence before the Court that qualified as direct evidence to prove the identity of the Appellant. According to Counsel, the evidence of the PW4 in pages 121 -122 of the record of appeal was that he was sitting down at Yahuza’s shop when the

1st accused hit Sanusi on the head with a stick and that Sanusi fell on PW4, and when he realized that the 1st accused and his boys came for a fight, he ran away. Counsel said that the PW4 ran and only came back later and found the PW7 injured on the head.

In respect of the evidence of the PW8, who testified that he saw the 1st accused hit Sanusi and recalls that the PW7 was injured, Counsel submitted that the evidence of the PW4 and PW8 was hearsay evidence as PW4 and PW8 did not witness the grievous hurt inflicted on the PW7 and could not possibly give direct evidence of the incident. Counsel also submitted that the evidence of the PW4 and PW8 did not specifically mention the Appellant as one of the attackers and thus failed to identify the Appellant as the person who caused the grievous hurt on PW7.

Counsel also contended that the evidence of identification given by the PW4 and PW8 was not credible and failed to link the Appellant to the offence; that PW4 and PW8 in their evidence in Court claimed that the 1st accused and his boys accosted them. (See pages 121 – 122 & 130-132 of the record of appeal); but that nowhere was the Appellant’s

name specifically mentioned or identified as: “one of the boys”. Counsel further contended that the term: “his boys” could be anyone other than the Appellant and that the Learned trial Judge was wrong to have relied on the evidence of PW4 and PW8, which was speculative to convict the Appellant despite the fact that the available evidence did not link the Appellant nor place the Appellant at the scene of the crime. See Samuel BOZIN vs. THE STATE (SUPRA); MR. DONALD O. IKOMI & ORS vs. THE STATE (SUPRA).

Arising from the foregoing, Counsel submitted that the PW4 and PW8’s testimony are speculative and thus, not cogent evidence to be relied upon to convict the Appellant. See the STATE vs. SQN. LEADER O.T. ONYEUKWU (SUPRA). Counsel added that a Court of law cannot speculate that the Appellant was: “one of the boys”, when there was no evidence to draw such a conclusion from. See THE STATE vs. JOHN OGBUBUNJO & ANOR. (SUPRA). It was also submitted that the hearsay evidence of the PW4 and PW8 could not have corroborated the evidence of the PW7 and that for this reason, the learned trial judge was wrong to have so concluded that the evidence of the PW4 and

PW8 the evidence of the PW7 more so, when both pieces of evidence did not link the Appellant to the offence. (See page 265 of the record of appeal). (See also pages 121 & 131 of the record of appeal).

Learned Appellant’s Counsel also contended that the learned trial judge erred in his judgment when he accepted and relied on the alleged confessional statements of the Appellant in convicting him for the following reasons:

The first of these is that there is nothing implicating the Appellant in his confessional statement (Exhibit C and C 1) and thus the Learned Trial Judge was wrong to convict the Appellant for the offence of voluntarily causing grievous hurt. (See page 271 of the record of appeal). The argument of Counsel is that contrary to finding of the learned trial judge at page 271 of the record of appeal, none of the statements made by the Appellant (Exhibits C and C 1) is confessional under Section 28 of the Evidence Act 2011, as the statements are more in consonance with denials than admissions. Counsel cited the case of DANLAMI OZAKI & ANOR vs. THE STATE (SUPRA), where OBASEKI, JSC held thus:

“On examining the exhibit, it is clear that it is not a confessional statement, for nowhere in the statement did the 2nd Appellant admit or state that he committed the culpable homicide charged.”

Arising from the foregoing, Counsel submitted that the Learned Trial Judge was wrong to have convicted the Appellant on the basis of his confessional statement when same did not incriminate him. Counsel further charged that despite the manifest inconsistency, which distorted and did not clearly proof that the Appellant committed the offence, the trial judge still went ahead to convict the Appellant. He added that the Court cannot pick and choose what to believe and what not to believe. See ONUBOGU vs. STATE (1974) 9 SC 1 AT 17 -21; UCHECHI ORISA vs. THE STATE (2018) LPELR-43896 (SC). Counsel also argued that in so far as Exhibit C and C1 are not confessional, that this raises reasonable doubts, which ought to have been resolved in favour of the Appellant. Against the backdrop of the foregoing, Counsel contended that where there are gaps or conflicting versions in the evidence adduced by the Prosecution an Appellate Court will take the version favorable to the accused.

See CLARK EJUREN vs. COP (1961) ALL NLR 478.

Learned Counsel also contended that the Court below placed unnecessary weight on Exhibits L1 and K1 which photographs of PW7 whereas the person who tendered them was not the maker. He argued that the Court below placed undue on these Exhibits- L1 and K1 tendered by the PW13 and that these at best were nothing but documentary hearsay evidence, which the Court in corroborating the evidence of PW7, PW4, and PW8. Counsel further argued that where the maker of a document is not called to testify, the document would not be accorded probative value notwithstanding that they are certified and that any evidence adduced by a witness, who is not the author, on the contents of those documents would be hearsay and therefore inadmissible. In other words, he said that any such document tendered by a person who is not the maker deprives the other party the opportunity to cross-examine on it for the purposes of determining its veracity and that no probative value will be accorded such a document. See FRN vs. SARAKI (2017) LPELR-43392(CA); AGBANIMU vs. FRN (2018) LPELR-43924(CA).

The argument proffered by Counsel is that the Prosecution did

not establish the identity of the Appellant to the offence charged and that the lack of mensrea required in establishing criminal responsibility shall fail and that the Prosecution failed in establishing any existing circumstances presented by the evidence available to the trial Court which could conclusively and irresistibly point to the guilt of the Appellant herein. See MANNIR LIMAN (ALIAS MANGWASO) vs. THE STATE (2016) LPELR-40260 (CA). Counsel urged this Court to hold that the second ingredient of voluntarily causing grievous harm i.e. “that he did so intentionally or with the knowledge that the act would cause hurt” was not proved against the Appellant and accordingly enter a verdict of discharge and acquittal in favour of the Appellant.

ISSUE TWO:
Whether the prosecution proved the case of culpable homicide beyond reasonable doubt against the Appellant to warrant his conviction? (Grounds 2)
In arguing this issue, learned Counsel contended that the ingredients of culpable homicide for which the Appellant was tried and convicted must co-exist before a conviction could be secured. In other words that the three ingredients of the offence must

be proved together and that failure of the Prosecution to prove anyone of these means failure of the charge itself. See YUSUF SAIDU DANBABA vs. THE STATE (2018) LPELR-43841 (SC).

In respect of the instant Appeal, Counsel submitted that the ingredients of the offence of culpable homicide were not proven beyond reasonable doubt. On account of the first ingredient, Counsel conceded on behalf of the Appellant that the Prosecution succeeded in proving the death of Mustapha Aliyu Ango; that is to say that the death of human being took place. However, on the second ingredient, dealing with the question of whether death was caused by the acts of the Appellant, Counsel referred to pages 275 and 278 of the record, where the learned trial judge stated thus;
“In the case at hand, there is the evidence of PW3 and PW5 who were all present when the 1st accused in company with all the accused hit the late Mustapha Aliyu Ango with an axe on the head and they fled to save their lives. This piece of evidence was not shaken on cross examination.
There is also the medical report admitted in Evidence as Exhibit B. It emanates from the Usman Dan fodio University

Teaching Hospital Sokoto which describes the cause of death of Mustapha Aliyu as severe head due to head injury 2nd assault. Both PW3 and PW5 testified that the 1st accused hit the deceased Mustapha Aliyu Ango on the head. These two independent pieces of evidence without doubt strengthen on another and concluded that the deceased Mustapha Aliyu Ango dies as a result of the injuries he inflicted on him by the 1st accused and his group. It is therefore safe to hold that it is the act of the accused persons that caused the death of Mustapha AliyuAngo”.

Against the backdrop of the foregoing, Counsel submitted that the Learned Trial Judge was wrong in believing the evidence of PW3 and PW5 as to the identity of the Appellant. He said that the PW3 & PW 5 testified that they met the 1st accused with his boys who were about 14-20 in number that night. (See pages 119-120 & 123-124 of the record of appeal). According to Counsel, the evidence of the PW3 and PW5 did not specifically mention the Appellant as one of the attackers and that nowhere was the Appellant’s name specifically mentioned or identified as “one of the boys”. Indeed he argued that; “the 1st

accused and his boys” could be anyone other than the Appellant. For this reason, he said that the evidence of the PW3 and PW5 did not link the Appellant to the offence. Counsel cited the case ofMR. DONALD O. IKOMI & ORS vs. THE STATE (SUPRA).

Counsel argued that the learned trial Judge was wrong to rely on the evidence of PW3 and PW5 which were speculative to convict the Appellant despite the fact that speculation, suspicion, conjecture, proposition, hypothetical situations, presumptions or intuition cannot be a substitute for proof beyond reasonable doubt.

In respect of Exhibit B tendered by PW10, Counsel argued that the Exhibit only established the cause of death and thus, failed to link the Appellant with the death of the deceased. According to Counsel, the identification evidence of PW3 and PW5 heavily relied on by the learned trial judge, was fraught with doubt as to the identity of the Appellant and failed to show a link between the Appellant and the death of Mustapha Aliyu. Against the backdrop of this position, Counsel submitted that the learned trial Judge erred in his judgment when he accepted and relied on the alleged confessional

statements of the Appellant in convicting him when the statement itself was not confessional. Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE THREE:
Whether the Prosecution proved the offence of criminal conspiracy beyond reasonable doubt? (Grounds 3)
In respect of the offence of conspiracy, Counsel contended that since there is no construction to tell the thoughts of a man on his face, the Courts resort to making deductions or inferences from the overt acts or omissions of the parties to the conspiracy, so as to determine whether or not there has been a conspiracy. He added that it is an offence of inference to be made from certain criminal acts of the parties to the conspiracy done in pursuance of their common criminal purpose. See IYARO vs. THE STATE (1988) 1 NWLR (PT. 69) 256; OYAKHIRE vs. STATE (2006) 15 NWLR (PT. 1001).

This position notwithstanding, learned Appellant’s Counsel still contended that the ingredients of the offence of conspiracy were not proven beyond reasonable doubt in the instant case as there must be an agreement between two or more persons to do an illegal act or an act which

is not illegal by illegal means, which was not the case in the instant case. As far as Counsel was concerned the Prosecution was not able to successfully prove that there was an agreement between the Appellant and the 1st, 5th, 7th – 8th accused persons.

On the retracted Appellant’s statement, Counsel submitted that the learned trial judge was wrong to have inferred that the Appellant was guilty of criminal conspiracy on the said inconsistent and unreliable statement. It was further submitted that the eye witness evidence relied upon by the Court is speculative and raises reasonable doubt in the light of the fact that PW3, PW5, PW7, PW8, PW4 claimed that they identified or saw the 1st accused and his boys in the dark.

Counsel further contended that the Learned Trial Judge erred in law by going against established principles that have ordains that the confessional statement of a co-accused person is not evidence against an accused unless it was made in the presence of the accused and he adopted it by words or conduct. See Sections 8 (2) and 29 (4) of the Evidence Act, 2011 as amended. As a result of this, Counsel contended that when more

persons than one are jointly charged with a criminal offence, and one of them makes a confession, and such a statement is given in evidence, the Court shall not take such statement into consideration against a co-accused unless such co-accused adopts it. He cited the cases of DANLAMI OZAKI vs. THE STATE (SUPRA); ALO vs. STATE (2015) SCNJ. P.405 AT 449 and STATE vs. ONYEUKWU (2004) 22 L.R.C.W. P.5245 AT 5267.

For this reason, Counsel submitted that the evidence contained in confessional statements of 1st, 5th, 7th – 8th accused persons cannot be relied upon by the lower Court to sustain the conviction of the Appellant unless there is evidence that the Appellant adopted them. See FATILEWA vs. STATE (2008) LPELR-1251 (SC); DARE JIMOH vs. THE STATE (2014) LPELR-22464 (SC). The argument of Counsel is that the Appellant, from the records, neither adopted the confessional statement of the 1st, 5th, 7th – 8th accused by word nor by his conduct. And that the 1st, 5th, 7th – 8th accused persons’ confessional statement could not have been used against the Appellant to establish an agreement to do any illegal act. Counsel cited the case of ALBAN AJAEGBO vs. THE STATE

(2018) LPELR-44531(SC). Counsel urged this Court to hold that the third ingredient of criminal conspiracy was not proved against the Appellant and accordingly enter a verdict of discharge and acquittal in favour of the Appellant.

ISSUE FOUR:
Whether the Judgment of the Court occasioned a miscarriage of justice? (Grounds 4)
In arguing this issue, Counsel submitted that the learned trial judge was wrong to have granted the Prosecution leave to amend the charge and resume proceedings after the 90 days provided by the Constitution for delivery of judgment had lapsed. This Court was told that the final written address of Prosecution and defence was adopted on 15th April, 2015 and the Court accordingly adjourned the matter to 14th May, 2015 for judgment. Counsel further said that the matter was further adjourned to 25th June, 2015 but that the Court did not convene until the 10th November, 2015 and further adjourned to 8th December, 2015 for judgment. This Court was also told that the Court next convened on 25th January, 2016 and held that the judgment was not ready and further adjourned to 1st February, 2016. (See page 223 of the record of

appeal).

Counsel told Court that on the 8th February, 2015 the Prosecution informed the Court that the matter was for Judgment but applied to amend its charge based on the Court’s observation and (see page 224 of the record of appeal) that the learned trial judge granted the Prosecution’s application to amend the charges on 15th February, 2016 approximately seven (7) months after the 90 days’ period allowed by the Constitution for delivery of judgment (see pages 224 – 234 of the record of appeal).

Counsel contended that after granting the application of the Prosecution to amend the charges, the trial judge directed the Prosecution to regularize their charge without a fresh trial and that only Counsel for the 1st, 3rd – 7th accused persons filed additional written addresses while the Counsel for the 2nd and 8th accused persons did not file additional written addresses.

As a result of the foregoing, Counsel submitted that the procedure adopted by the learned trial judge was wrong in law because from the date the final address was adopted, the learned trial judge had a mandatory duty to give its judgment within 90 days and that the learned trial

judge failed to give its judgment within 90 days and went ahead to re-open its case after it had become functus officio. Counsel further submitted that the learned trial judge was wrong in law to have granted the application seven (7) months after the 90 days’ period allowed by the Constitution for delivery of judgment. In looking at the facts and circumstances of this case, Counsel argued that it is clear that the grant of the application to amend the charge made on 15th February, 2016 was made seven (7) months after the 90 days’ period allowed by Section 294(1) of the Constitution, 1999 as Amended at a time when the trial Court had no jurisdiction to make any order for the effective adjudication of the dispute before it as the lower Court had become functus officio by the effluxion of the statutory 90 days imposed by Section 294 (1) of the 1999 Constitution.

Counsel cited the case ofCHIEF HAROLD SODIPO vs. LEMMINKAINEN OY & ANOR (1985) LPELR- 3088(SC), where the Supreme Court per ANIAGOLU, JSC held thus:
“In that case the trial judge reconvenes the parties and their Counsel for them to argue the problematic point. I envisage two situations

that could arise:
(i) After reserving judgment, but within the 3 months period Allowed by Section 258(1) of the Constitution, a trial judge faced with a problem, as I had earlier stated, reconvenes the Court for the parties and their Counsel to argue a fresh point, contained in the pleadings or to re-argue a point or points on which he had earlier received addresses; and (N) After reserving judgment, but beyond, and outside, the 3 months period allowed by Section 258(1), the trial judge purports to reconvene the parties and Counsel for a fresh, or a continued, argument on the case or some aspects of it. It appears to me that the matter revolves on the issue of jurisdiction. Once a judge has reserved judgment after conclusion of evidence (where evidence was taken) and final addresses, he must deliver his judgment within three months thereafter. If he waits and does nothing till the three months are over he is functus officio and has no more the jurisdiction to deliver the judgment. But within the three months period he is still seised with the case and can exercise all the powers he has been given by Law in respect of the case. One of these powers is to

recall counsel and parties for further argument. It appears to me to be a dangerous fetter on the power of the judge, which may well occasion grave injustice, to hold that within the 3 months period, if the judge discovers something warranting a reconsideration of his stand in the case, or a fresh research by all concerned is needed, he could not take immediate steps to put right the situation, but must proceed to deliver an unjust judgment, all because he had already “reserved” judgment. It appears to me that within the 3 months allowed him, a Judge must be free to use any or all of his powers in the interest of the administration of justice. In the situations posed as (i) and (N) above, my answer is that the trial Judge can carry out (i) above, but not (N).”

Against the backdrop of the foregoing, Counsel contended that the learned trial judge’s inordinate delay in delivering judgment on 5th June, 2016 eleven (11) months after the 90 days’ period allowed by the Constitution, occasioned miscarriage of justice to the Appellant. According to Counsel the learned trial judge’s evaluation of evidence bears no mark of freshness and his findings of fact are not

supported by credible evidence. He said in addition, that the delay apparently and obviously affected the Court’s perception, appreciation and evaluation of the case and that if the mind of the Court was impaired thereof then the intervention of the Appellate Court is called for. Counsel further contended that the inordinate delay in granting the application and delivering the Judgment outside the statutory period caused the Learned Trial Judge to lose sight of the processes and thus led the Court into the commission of three fundamental errors, which led to a miscarriage of justice thus;
(a) Firstly, the delay caused the Court to shut its eyes to the obvious and thus failed to take judicial notice of the fact that one cannot possibly see in the dark and consequently relied on the weak identification evidence of PW3, PW5, PW7, PW4 and PW8 to convict the Appellant for the offence of voluntarily causing hurt and culpable homicide.
(b) Due to the delay, the Court convicted the Appellant based on Exhibit C and C1 which contained no confession to the commission of the offence.
(c) Due to the delay, the Court convicted the Appellant for the offence

of voluntarily causing grievous hurt, culpable homicide and criminal conspiracy on the basis of weak eye witness evidence of PW7, PW3, PW5, PW4 and PW8 which did not link the Appellant to the offence.
(d) Due to the delay, the Court mixed up the evidence of the Prosecution and committed an error by convicting the Appellant based on the inadmissible hearsay evidence of PW4, PW8 and PW13. The gap between the adoption of first written and the date of judgment was too long, making the trial Judge lose touch with the evidence which resulted to the erroneous finding of the Court that the hearsay evidence of PW4 and PW8 was direct evidence.
(e) Due to the delay, the Court violated the principle of law in Section 8 (2) & 29 (4) of the Evidence Act and thus committed an error by convicting the Appellant for the offence of criminal conspiracy based on the confessional statement of the 1st, 5th, 7th – 8th accused person which was inadmissible against the Appellant. The Learned Trial Judge clearly forgot that the Appellant did not adopt the confessional statement of the 1st, 5th, 7th – 8th accused persons by word or conduct in his evidence.

(f) Due to the delay, the Court lost bearing on the indices and the antecedents of the case, which reflected in the conviction and sentencing of the Appellant.

Counsel cited the case of DENNIS AKOMA & ANOR vs. OBI OSENWOKWU & ORS (2014) LPELR- 22885(SC), ONNOGHEN, JSC held thus;
“Where it is apparent, on record that the trial Court has lost touch or grasp of the evidence led or has forgotten the demeanor of the witnesses, it will be demonstrably clear that the delay complained of has led to a miscarriage of justice and such a decision is liable to be set aside by an Appellate Court under Section 294 of the 1999 Constitution, as amended.”

Furthermore, BODE RHODES-VIVOUR, JSC held thus:
“A trial judge watches the demeanour of witnesses to see how readily they answer questions, were they evasive, contradictory of vague. What was the reaction of the witnesses when confronted with evidence, be it documentary which suggests that their testimony is un-true. It is after the above that the judge can attach weight to the evidence of witnesses and that can only be done when the judge sits in his study to prepare the judgment. A trial judge

preparing a judgment after 90 days would have forgotten all the above or his memory would have faded on those issues. Now, miscarriage of justice usually depends on the circumstances of the case. There would be miscarriage of justice when an error can be seen in the proceedings/judgment, and had it not been for the error a decision more favourable to the party that lost would have been given. There is a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining?”

Learned Counsel also submitted that denial of liberty is the miscarriage of justice and that the memory of the Learned Trial Judge who prepared judgment eleven (11) months after the 90 days would have faded and as such lack the ability to properly evaluate evidence. The trial Judge had lost his impressions of the trial due to such inordinate delay. Counsel urged this Court to resolve this issue in favour of the Appellant and to hold that the conviction and sentence of death by hanging passed upon the Appellant by the Court below is liable to, in the circumstance, be set aside and quashed by this Court, for being perverse.
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RESPONDENT;
ISSUE ONE:
Whether looking at the evidence adduced before the trial Court, the Prosecution has proved its case beyond reasonable doubt. (Grounds 1, 2, 3.)
By way of a preamble, learned Respondent’s Counsel gave a brief background to the events leading to the arraignment, trial and conviction of the Appellant at the Court below. He told this Court that the Appellant was tried along with seven (7) others for the offences of criminal conspiracy; voluntarily causing grievous hurt and culpable homicide punishable with death contrary to Sections 97, 248 and 221 (a) of the Penal Code respectively and sentenced to death by hanging for the offences of criminal conspiracy, voluntarily causing grievous hurt and culpable homicide contrary to Sections 97, 248 and 221 (a) of the Penal Code. Counsel next contended that in proving the offence of criminal conspiracy contrary to Section 97 of the Penal Code, the prosecution is required to prove the following elements:
i. That there is an agreement to do an illegal act by two or more persons;
ii. That some acts were done in furtherance of the agreement; and
iii. That each of the conspirators

participated in the agreement.

In support of this argument, he cited the cases of – AJAYI vs. STATE (2013) 8 NCC 1; PATRICK NJOVENS vs. STATE (1973) 1 NMLR 331. According to learned Counsel, Exhibits “C” and “C1”, which are the Hausa and English versions of the Appellant’s statement, clearly exposed how the agreement to commit the crimes was hatched and carried out by the Appellant and his co-accused at Tsalibawa Area during which Mustapha Aliyu Ango and Sanusi Ahmad were killed and others injured.

In proving conspiracy, Counsel argued that the law is that, once the Prosecution established evidence of an agreement to commit a crime on the part of an accused person aimed at committing a crime as in this case, a trial Court will be right to convict the accused person for the offence of conspiracy. SeeSALAWU vs. STATE (2015) 11 NCC1; SHODIYA vs. STATE (1992) 3 NWLR (PT. 230) 457; AJAYI vs. STATE (SUPRA). In the light of the foregoing, Counsel urged this Court to hold that the Prosecution has proved the offence of criminal conspiracy contrary to Section 97 of the Penal Code against the Appellant and that the Lower Court was right in convicting and

sentencing him for same.

In respect of the offence of voluntarily causing grievous hurt contrary to Section 248 of the Penal Code, the submission of Counsel is that the Appellant, having participated in the commission of the offence jointly with his group members as indicated by his confessional statement marked as Exhibit “C” and “C1” and evidence of witnesses, he is accordingly guilty as a principal. See ALAO vs. STATE (2015) 11 NCC 430; OYAKHIRE vs. STATE (2006) 15 NWLR (PT. 1001) 157.

As it has to do with the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code, Counsel contended that the Prosecution is required to prove the following elements:
i. That a human being died;
ii. That it was the act of the accused that caused the death; and
iii. The accused intended to cause the death.

Counsel cited the cases of HARUNA vs. A.G.F. (2012) LPELR-7821; SALAWU vs. STATE (SUPRA); FRANK UWAGBOE vs. STATE (2008) 12 NWLR (PT. 1102) 621. On account of the first ingredient Counsel submitted that the PW7 (Shazaliyu Umar), PW4 (Jamilu Ahmed) and PW9 (Salmanu Shehu) all testified to the fact that

they know Mustapha Aliyu Ango and Sanusi Ahmad, and all the two have since been killed. In respect of the second ingredient, the submission of Counsel is that the testimonies of the PW3 and PW4 (Hali Hamadu and lamilu Ahmed) were to the fact that the Appellant and his co-accused persons came to their area armed with cutlasses and sticks and attacked them leading to the sustenance of injuries by others and subsequent death of Mustapha Aliyu Ango and Sanusi Ahmad.

Learned Counsel also drew attention to the statement of the Appellant admitted as Exhibits “C” and “C1”, which he said corroborated the evidence of the PW4 as the Appellant confessed to have been amongst the other accused persons who included Bilal Baba Attah, whose appeal was dismissed by this Court after affirming the conviction and sentence of the Lower Court in Appeal No. CA/ / /2019. It was also contended by Counsel that from the evidence of PWS 1, 3, 4, 5, 6, 7, 8 and 9, it is clear that the attack against the victims was a joint act in which the Appellant confessed in his statement to have participated. Counsel therefore submitted that a voluntary confession of guilt that is coupled with a clear

proof that a crime has been committed by the accused (as in this case), is acceptable as a satisfactory evidence on which the Court can convict. Counsel cited the cases of – NKIE vs. FRN (2015) 11 NCC 179; OGOALA vs. STATE (1991) 2 NWRL (PT. 175) P; ILIYASU vs. STATE 509 (2015) 11 NCC 300.

Counsel also contended that in a charge for an offence, which is linked with conspiracy, that the presence of the accused where the offence is committed together with prior knowledge of the conspiracy, means participation. Counsel cited the cases of SALAWU vs. STATE (SUPRA); BUJE vs. STATE (1991) 4NWLR (PT. 185) 287. It is also contended that where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the commission of the crime and that what each of the participant did in furtherance of the commission of the crime, is immaterial. He said that the mere fact that the common intention manifested itself in the execution of the common object, is enough to render each of the accused person in the group guilty of the offence. See ALAO vs. STATE (2015) 11NCC 430; NWANKWOALA vs. STATE (2006) 14 NWLR (PT. 1000) 663;

OYAKHIRE vs. STATE (2006) 15 NWLR (PT. 1001) 157; IKEMSON vs. STATE (1989) 3 NWLR (PT .110) 455.

On account of the third ingredient, Counsel argued that the Law presumes that a man intends the natural and probable consequences of his act. SeeGARBA vs. STATE (2000) 2 SCNQR 402 AT 413 PAR. F; AKINKUNMI vs. STATE (1987) 3 SC 152. The argument of Counsel still is that the evidence of PWS 1, 3,4, 5, 6, 7, 8 and 9 who testified before the trial Court, gave evidence to the fact that the Appellant and his co-accused persons were armed with various dangerous weapons including swords, axes, cutlasses, machetes and sticks among others, which they used in attacking their victims. Counsel therefore submit that from the nature of the weapons the Appellant and his group were armed with, the part of the body of the victims they attacked, showed that they clearly intended to kill right from the onset. In the light of the totality of the foregoing, it was also submitted by Counsel that the Prosecution proved all the elements of the offences with which the Appellant was convicted and sentenced, and therefore proved its case beyond reasonable doubt. Counsel urged the Court to so

hold. See AJAYI vs. STATE (2013) 8 NCC 1; ALABI vs. STATE (1993) 7NWLR PT. 307 P.5

ISSUE TWO:
Whether looking at the record of proceedings of the Lower Court, the judgment of the Lower Court can nevertheless be said to have occasioned a miscarriage of Justice. (Ground 4).
In arguing this issue, Counsel submitted that before a decision of a trial Court can be set aside on grounds of delay in delivering its judgment under Section 294 of the 1999 Constitution of the Federal Republic of Nigeria as amended relating to the question of miscarriage of Justice, the party complaining must show:-
i. Apparent appearance on the face of the record that the trial Court has ‘lost touch’, or grasp of the evidence led;
ii. Evidence that the trial Court has forgotten the demeanour of the witnesses; and.
iii. Evidence of error in the judgment establishing that if not because of the error the judgment would have favoured the party that lost (the appellant in this case).

See AKOMA vs. OBI (2014) LPELR- 22885; CHUKWU vs. STATE (2007) 13 NWLR (PT. 1052) 430; MAGAJI vs. ODOFIN (1978) 45C 91.

The contention of learned Counsel is that the

Appellant did not establish any of the conditions required by law to justify the grant of his requests on the issue. He added that pages 105 – 180 of the record of appeal reveals how the proceedings of the Lower Court was conducted. Also that pages 244 – 249 of the record, is a reproduction of the evidence of the Prosecution witnesses; while pages 250 – 262 of the record, is the Lower Court’s consideration of the legal argument by Counsel of both parties in the case. Again, pages 262 – 290 of the record, is the evaluation of the entire evidence led by the Prosecution at the trial Court.

In the light of the foregoing, Counsel submitted that no miscarriage of justice had been occasioned in the entire proceedings and judgment of the Lower Court to warrant the setting aside of the judgment of the Lower Court and he urged this Court to so hold.

As it has to do with the submission of Appellant’s Counsel that there is no evidence that the Appellant caused grievous hurt to the PW7, and that the PW7 did not mention the name of the Appellant as one of his attackers at the earliest opportunity, Counsel contended that the Appellant’s Counsel submissions are

incorrect as the Appellant in his statement marked as Exhibit “C” and “C1” confessed to have participated in the commission of the offences with which he was convicted and sentenced. He argued that the offences being jointly committed by the Appellant and his group and in his presence, he is equally liable as a principal. See ALAO vs. STATE (2015) 11 NCC 430 AT 439 RATIO 5; SALAWU vs. STATE (2015) 11 NCC1 RATIO 2; BUJE vs. STATE (1991) 4 NWLR (PT. 185) 287 AT 298.

Also in respect of the submission of the Appellant since it was dark and in the night when the incident happened, that it was improbable to recognize or identify the Appellant, Counsel argued that Appellant’s Counsel forgot that under cross-examination both the PW3 and PW4 testified to the fact that it was not very dark as there was light reflection from the tea seller’s stand where they were seated and could recognize the faces of each other. Counsel further referred to the Appellant’s confessional statement admitting his participation in the commission of the crimes.

On the argument of Appellant’s Counsel that there is nothing incriminating in the statement of the

Appellant marked as Exhibits “C” and “C1″, Counsel argued that this cannot be true as the statement gave graphic details of the role of the Appellant in the commission of the crimes and that the statement is purely confessional in nature as it suggested the inference that the Appellant participated in the commission of the crime.

On the issue of the non-conducting of an identification parade, it was submitted by Counsel that since the Appellant had identified himself in the commission of the crimes and also linked by the evidence of some witnesses, identification parade is not necessary. See ADEYEMI vs. STATE (2004) 11 NWLR (PT. 376) RATIO 13 AT 387; UKPABI vs. STATE (2004) 11 NWLR (PT. 881) 439 AT 442; IKEMSON vs. STATE (1989) 3 NWLR (PT. 110) 455 AT 479.

In respect of the Appellant’s submission that it was wrong for the trial Court to allow the Prosecution to amend the charges earlier filed, Counsel argued that that submission did not represent the position of the law, as a trial Court has the discretionary power to allow the Prosecution to make amendments to its charges before judgment is given. SeeNDUKWE vs. STATE (2005) 1NCC 572.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Counsel further brought to the Court’s attention that the Appellant did not call any evidence after the close of the Prosecution’s case, as he rested his case on that of the Prosecution. It is contention of Counsel that when an accused person rests his case on that of the Prosecution, it means that the accused person does not wish to place any facts other than those of the Prosecution and that it also signifies that the accused person does not wish to rebut any allegations made against him. SeeAJIBADE vs. STATE (2013) 8 NCC 221; ALI vs. STATE (1988) 1NWLR (PT. 68) P. 1. Finally, Counsel submitted that the Prosecution having proved its case beyond reasonable doubt against the Appellant, that this Court should dismiss the Appeal for lacking in merit and affirm the judgment of the Lower Court.

RESOLUTION OF APPEAL
The facts of this case in a nut-shell is that on the 6th of April, 2012 at about 2300hrs the Appellant along with seven (7) others, while armed with swords, cutlasses, machetes, clubs and sticks attacked some people at Tsalibawa Area of Sokoto in the Sokoto North Local Government Area of Sokoto State. In the process, the Appellant and

the others jointly caused the death of one Mustapha AliyuAngo and one Sanusi Ahmad and as well as injuring a number of persons, some of whom are Shazaliyu, Sahabi, Muntari, Abubakar and others. The Appellant and the others were subsequently arrested and arraigned before the High Court of Justice of Sokoto State on the 24th of July, 2013 for the offences of criminal conspiracy, voluntarily causing grievous hurt and culpable homicide punishable with death contrary to Sections 97, 248 and 221(a) of the Penal Code respectively. In the course of investigation, the Appellant made confessional statements, which were admitted into evidence and marked as Exhibits “C” and “C1”.

At the close of trial, the Appellant along with his co-accused persons were convicted of the offences of criminal conspiracy, voluntarily causing grievous hurt and culpable homicide contrary to Sections 97, 248 and 221(a & b) of the Penal Code respectively and sentenced, along with the others to death by hanging for the aforesaid offences.

On the part of the Appellant, the said Muhammad Adamu, his defense was characterized by a series of denials as he now seemed to know nothing

about anything. He denied making a confessional statement and such sundry pieces of defenses, which is common place with criminals of his ilk who are always of the belief that it pays to commit crimes and when caught, cook up Machiavellian devices usually characterized by a catalogue of denials all with the intention of pulling wool, supposedly across the face of Court. He queried the fact that there was no identification and called no witnesses in assisting to drive his defence.

guilty under Section 221 (a) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury, which the act was intended to cause. See the cases ofMUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; MAIYAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015) 11 NCC at page 40-41.

Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.

At page 31 of the printed records of Appeal, a reproduction of Exhibit C1, the English translation of the Appellant’s extra-Judicial statement to the Police reads as follows;
“…That on Friday 6-4-2012 around 10.00 pm Sani (Nesta) came and told us that Tsalibawa group want to fight us and we told him to tell them that we are ready so we went to Maiganddus’ house at Bazza area we met his absence. From there we moved to Tsalibawa at exactly 11.00 pm where we started fighting. Unfortunately fighting continues. I am not with cutlass but hold a big stick. Before I reach front (sic) I saw Ango inside gutter (sic) he fell down and Murtala Isa beat him with big stick (sic) first then he fell. Meanwhile I confirm that Ali Yarkantaga and Dangiwaya used cutlass and hit Ango which led him to dead (sic). Furthermore, the names of other people are as follows: Sadiku of Rumbukawa, Fodio of Rumbukawa, Bilal and Naziru Mai Jankai of Rumbukawa

area and other two of Marinawa area fatahu and Danbaba. So on the process Ango’s Father took him to hospital then I went to Marinawa area…”

Learned Appellant’s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would be recalled however, that Exhibits C and C1 were in the course of trial admitted as confessional statements of the Appellant without an objection. Section 27 (1) of the Evidence Act (As amended) defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”
It is further provided in sub-section 2 that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

Against the backdrop of this position, it is important to note that the Appellant, in the course of his evidence-in-chief before the lower Court, did retract from the said Exhibits C and C1. The position is that even if the Appellant had done that the settled position of the law is that a

retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”

The only contention of learned Appellant’s Counsel concerning the extra-judicial statements was that there was nothing incriminating or implicating in the so called confessional statements weighty enough for the learned trial Court to have relied and convicted the Appellant thereupon. The contention of learned Appellant’s Counsel in some way amounts to denying that the Appellant was culpable. But the position remains in law, that a mere denial

without more, even if it had been done at the earliest opportunity, cannot, on the bare facts of the case, lend any iota of weight to the denial. Apart from the fact that the denial is a bare statement bereft of any supporting facts, it is by and large, standing only on the ipsi-dexit of the Appellant. To make matters rather worse and as revealed by the printed records in this case, the said statements were not even challenged on any grounds at all during the course of trial.

Arising from this position, in which the voluntariness or otherwise of the statements were neither raised nor challenged at the trial, this Court therefore finds and holds that the prosecution proved affirmatively that Exhibits C and C1 were voluntary confessional statements of the Appellant.

In addressing the issue of whether the learned trial Court rightly found that the ingredients of culpable homicide punishable with death had been established in this case, it is rather clear that from the testimonies of the prosecution witnesses 1, 3, 4, 5, 6, 7, 8, and 9 and from the contents of Exhibits C and C1, which are the statements of the Appellant tendered at the lower Court

without objection, I am unable to disagree with learned Respondent’s Counsel that the prosecution did not prove its case to the hilt. These witnesses gave evidence to the effect that the Appellant and his Co-Accused persons were armed with various dangerous weapons including sword, axes, cutlasses, machetes and sticks which they used freely in attacking their victims.
The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. Appellant and his cohorts on that fateful day of the incident cannot in the circumstances of this case feign ignorance of the likely consequences of their actions.

The evidence on record shows that the Appellant and his gang members, upon being told that the Tsalibawa group were itching for a fight, began to move around, looking for them and when they eventually found them, fighting began. In the course of the fight,

dangerous weapons were readily deployed in the attack. It was not as if the Appellant and his gang members did not have the opportunity of backing down from the fight the result of which took the lives of a number of persons.

On the grouse of the Appellant’s Counsel arising from the failure of the Prosecution to have conducted an identification parade involving the participation of the Appellant and his cohorts, in order to confirm the identities of the culprits who participated in the mayhem of the 6-4-2012, it is important to state categorically here, that no such identification parade was necessary when by the Appellant’s own showing vide his Exhibits C and C1 he clearly announced himself to have been on the scene of crime on the fateful day.
The general position of the law, however is that there is no positive rule of law or practice of general application which requires the holding of an identification parade on every occasion. Every case must be considered on the evidence adduced and its own particular pretrial circumstances. See the case ofALABI vs. THE STATE (1993) 7 NWLR (PT. 307) 511 AT 523. The issue of identification becomes

essential when the case of the accused depends wholly or substantially on the correctness of the identification and which the defense alleges to be mistaken. It is only in such a situation that the Judge is expected to warn the jury or himself of the special regard for caution before convicting the accused in reliance to the correctness of the identification. See the case of ABUDU vs. THE STATE (1985) 1 NWLR (PT.1) 55. See also the case of CHRISTOPHER OKEREKE UKPABI vs. THE STATE (2004) LPELR- 3346 (SC) where the Supreme Court per UWAIFO, JSC had to say on the subject;
“It is true that whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused, and the defense alleges that the identification was mistaken, the Court must closely examine the evidence. In acting on it, it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of the doubt”.
The question of whether an Accused person is properly identified as the one who was a party to the commission of the offence is a question of fact to be considered by the trial

Court on evidence adduced for that purpose. In the instant case, as the drift in the evidence of the parties seem to suggest, it cannot be said that the case of the Appellant is one that depended wholly or substantially on the correctness of the identification of the Appellant. In OCHIBA vs. THE STATE (2011) LPELR- 8245 (SC) the Supreme Court per ADEKEYE, JSC said;
“The purpose of identification evidence in all criminal trials is to show that the person charged with the offence actually committed the offence. It is not in every case that identification parade is necessary. Where the prosecution witness has necessary knowledge of the accused person, identification parade is not necessary. If the evidence of a lone witness is believed his identification of an accused person can sustain a conviction even on a charge of murder.”(Underline, that of Court for emphasis)

As it is glaring from the lower Court’s judgment, the Court did not rely on the question of identification alone in reaching its decision. The Court relied on the Appellant’s confessional statements in Exhibits C and C1. It is settled point of law that a confession alone is

sufficient to support a conviction without corroboration so long as the Court is satisfied with the truth of the confession. See JAMES OBI ACHABUA vs. THE STATE (1976) 12 SC 63.

On the offence of conspiracy, it is important to state that the proof of the offence of conspiracy by direct evidence is a difficult thing to achieve as criminals activities are usually hatched in secrecy. For this reason, the offence of conspiracy is usually deduced from what each of the conspirators did to enhance or further any secret agreement between them. In the instant case, the evidence of the Appellant in his Exhibits C and C1 and as well as those of the prosecution witnesses 1, 3, 4, 5, 6, 7, 8 and 9; the evidence before the Court gave vivid account of how the Appellant and his gang members moving in droves wielded dangerous weapons and caused mayhem at the scene, which led to the death of persons.
The position of the law is that once there is in existence, an agreement or a form of consensus or an arrangement between two (2) or more persons to carry out a common criminal purpose then the offence of conspiracy is established. See KAZA vs. STATE (Supra); OBOSI vs. THE STATE

(1958) NMLR 19; LAWSON vs. THE STATE (1975) 4 SC (REPRINT) 84. The Appellant herein, cannot claim not to know the other suspects who went with him to seek out the persons with who they fought killing some persons in the process. In addition, reading through the length and breadth of the printed records, there was nowhere the Appellant made any efforts, claiming not to know the other suspects with whom he fought the other group as comrades-in-arms. I cannot help but to agree with learned Respondent’s Counsel that the offence of conspiracy was proved to the hilt.

On the question of the delay in delivering judgment in this case at the lower Court, under Section 294 of the 1999 Constitution of the Federal Republic of Nigeria as amended relating to the question of miscarriage of Justice, the party complaining must show:
a. Apparent appearance on the face of the record that the trial court has ‘lost touch’, or grasp of the evidence led;
b. Evidence that the trial Court has forgotten the demeanour of the witnesses; and.
c. Evidence of error in the judgment establishing that if not because of the error the judgment would have

favoured the party that lost (the appellant in this case).
See AKOMA vs. OBI (2014) LPELR- 22885; CHUKWU vs. STATE (2007) 13 NWLR (PT. 1052) 430; MAGAJI vs. ODOFIN (1978) 45C 91. It is rather glaring that the Appellant did not establish any of the conditions required by law to justify the grant of his requests on the issue. In the light of the foregoing, this Court therefore finds and holds that no miscarriage of justice had been occasioned in the entire proceedings and that this does not whatsoever justify setting aside the judgment of the Lower Court.

In the final analysis, this Appeal is moribund and without merit and it is accordingly dismissed. Consequently, the judgment of the learned trial Court delivered by A. M. LAMIDO, J (as he then was) in Charge No: SS/16C/2013 on the 8-6-2016, is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother Oho, JCA. I fully agree with his reasonings and conclusion that this appeal is moribund and devoid of any merit. I too accordingly dismiss it and affirm the judgment of the trial Court delivered in charge NO.

SS/16c/2013 on 8th June, 2016.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, FREDERICK. O. OHO JCA, and I agree entirely with his reasoning and conclusions. The appeal is hoax, a fluke and worthless in the extreme. Justice demands that the guilty person should be convicted. In the depth and loneliness of their graves at Tsalibawa Area of Sokoto North Local Government Area of Sokoto State, the bodies of Mustapha Aliyu Ango and Sanusi Ahmad feels no pain, but their soul cries out loudly and clearly to the high heavens for Justice. Equally the Rambukawa and Tsalibawa communities whose norms has been desecrated are also crying out loudly for Justice. There is no life that is more important than the other. Due to the need to protect and preserve human life the two religions, Islam and Christianity are in agreement that if a person kills one human being, it is like he has killed a whole nation.

It is for this reason that I too dismiss the appeal. I abide by the consequential order in the lead judgment.

Appearances:

KELECHI OBI, ESQ. For Appellant(s)

MOHAMMED MOHAMMED, ESQ. (DPP M.O.J. Sokoto) For Respondent(s)