ADAMU YAKUBU v. THE STATE
(2014)LCN/7259(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of June, 2014
CA/YL/4C/2014
RATIO
WHETHER A FREE AND VOLUNTARY CONFESSION OF GUILT IS SUFFICIENT TO GROUND A CONVICTION.
A free and voluntary confession of guilt by an accused person, if it is direct, positive, unequivocal, duly made and satisfactorily proved is sufficient to ground a conviction. See Nwachukwu v. State (2002) FWLR (Pt.123) 321, Arogundade v. State (2009) ALL FWLR (Pt.469) 409, Fatai v. State (2013) 2-3 MJSC 145. per ADAMU JAURO, J.C.A.
WHETHER THERE IS A NEED TO CORROBORATE A RETRACTED CONFESSIONAL STATEMENT
It is trite law that where a confessional statement is retracted, it is desirable to have corroborative evidence no matter how slight before convicting on it. The court has a duty to test the veracity of the statement, it must test the truthfulness or otherwise of the statement in line with other available evidence. See R v. Sykes (1913) 18 CAR 233, Kazeem v. State (2009) ALL FWLR (Pt. 465) 1749, Dawa v. State (1980) 8-11 SC 236, Ikpasa v. A.G. Bendel (1981) 9 SC 7, Bolanle v. State (2005) 7 NWLR (Pt. 925) 431 at 498, Obisi v. Chief of Naval Staff (2002) 2 NWCR (Pt. 751) 400 at 418-419. per ADAMU JAURO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
ADAMU YAKUBU – Appellant(s)
AND
THE STATE – Respondent(s)
ADAMU JAURO, J.C.A.(Delivering the Leading Judgment): The appeal herein is against the Judgment of the Taraba State High Court of Justice, sitting at Jalingo delivered on 18th October, 2013 in Suit No. TRSJ/12C/2009, wherein the Appellant was found guilty for the offence of culpable homicide and sentenced to death by hanging under Section 221(a) of the Penal Code Law.
By way of synopsis, the facts giving rise to this appeal can be packaged as follows: By an information dated 15th June, 2009 the Appellant was arraigned on a two counts charge for the offence of culpable homicide punishable with death contrary to Section 221(a) of the Penal Code Law and illegal possession of firearms contrary to Section 3(1) of the Robbery and Firearms (special provisions) Act, 1990. The said charges are as follows:-
“STATEMENT OF OFFENCE
COUNT 1: Culpable homicide punishable with death under section 221(a) of the Penal Code.
PARTICULARS OF OFFENCE
That you Adamu Yakubu on or about the 14th day of May, 2008 at a Forest on the road to Fali village in Donga Local Government Area of Taraba State within the Takum Judicial Division committed culpable homicide punishable with death to wit: you shot one Yusufu Yakubu your elder brother with a single barrel gun on the Head and the back with the intention of causing his death and he died.
STATEMENT OF OFFENCE
COUNT 11: illegal possession of firearms contrary to section 3(1) of the Robbery and Firearms Special Provisions Act, 1990.
PARTICULARS OF OFFENCE
That you Adamu Yakubu and Umaru Wakili on or about the 14th day of May, 2008 at a thick forest on the road to Fali village within Takum Judicial Division committed an offence to wit: You were severally found in possession of one locally made single barrel dane gun and one locally made single barrel gun without licence.
Dated this 15th day of June, 2009”
On the 7th March, 2012 when trial commenced, the Appellant pleaded not guilty to both counts. The prosecution called a single witness (PW1), one Haruna Abdullahi an investigating Police Officer with the Nigeria Police Baissa Division in support of its case. The prosecution tendered exhibits A, A1 and B through PW1 during his evidence in chief, while exhibit C was tendered by the defence through PW1 under cross examination. Exhibit A and A1 are photographs of the deceased, while Exhibit B is the alleged confessional statement of the accused. Exhibit C is the extra Judicial statement of PW1 made as an investigating Police Officer in the case. The Appellant testified as DW1 being the sole witness for the defence and denied ever making any statement to the Police that he committed the offence of culpable homicide, he also denied having a brother called Yusufu Yakubu, the alleged deceased person.
Upon the conclusion of hearing, written addresses were filed, exchanged and adopted in court. In a Judgment delivered on 18th October, 2013, the Appellant was discharged on the second count for illegal possession of firearms, but convicted on the first count of culpable homicide and sentenced to death by hanging under section 221(a) of the Penal Code Law of Taraba State. Hear the court in its Judgment on pages 59 to 60 of the record:-
“From the evidence before me i.e. the evidence of PW1 and the recorded statement of the accused, I hold that the prosecution has proved the offence of culpable homicide punishable with death under section 221 of the Penal Code. I therefore find you Adamu Yakubu guilty under section 221 of the penal code for causing the death of Yusufu Yakubu.
As regards the offence of illegal possession of firearms, the prosecution did not prove that the accused had no licence to possess a dane gun. I therefore discharge and acquit him on court two.
(sgd)
Hon. Justice E. A. Garba
(Judge) 18/10/2013
Allocutus: None.
Court: Sentence.
Having found you guilty under section 221 of the penal code for causing the death of Yusufu Yakubu, I hereby sentence you Adamu Yakubu to death by hanging. May God have mercy on you.”
Apparently displeased and distressed by the verdict of the lower court sending him to the gallows, the Appellant challenged same vide a Notice of Appeal dated and filed on 26th November, 2013. The said notice of appeal is anchored upon two grounds of appeal. In compliance with the Rules of Court, parties filed and exchanged their respective briefs of argument. The appellants brief as settled by F. K. Idepefo Esq, is dated 22nd February, 2014 and filed on 25th February, 2014. The respondents brief dated 20th March, 2014 and filed on 21st March, 2014 and settled by A. Y. Shitta Esq, D.P.P Taraba State Ministry of Justice.
On 14th April, 2014 the date fixed for hearing the appeal, Mr. F. K. Idepefo for the Appellant though duly served hearing notice, wrote an application for adjournment. The adjournment was however not granted, hence the Appellant’s Brief of Argument was deemed duly argued in line with Order 18 Rule 9(4) of the Court of Appeal Rules 2011. Mr. Hamidu Audu, Director of Public Procurement, Ministry of Justice, Taraba State, leading Mr. C. R. Shaki State Counsel II, and Mr. Z. Y. Usman, State Counsel II, for the Respondent, adopted the Respondent’s Brief and relied on the arguments contained therein. He urged the court to dismiss the appeal and affirm the Judgment of the lower court delivered on the 18th October, 2013.
The Appellant submitted a sole issue for determination from the two grounds of appeal on page 6 of the Appellant’s Brief, as follows:-
Whether from the totality of the evidence adduced at the trial, the learned trial Judge decided rightly when he considered Exhibit “B” as a confessional statement of the Appellant and convicted him for the offence of culpable homicide punishable with death contrary to Section 221(a) of the Penal Code Law of Taraba State (Distilled from Grounds 1 and 2 of the Appellant’s Grounds of Appeal).
The Respondent on its part, formulated two issues for determination on page 4 of the Respondent’s Brief, namely:
“a. Whether from the totality of the evidence adduced by the Respondent before the trial High Court for the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code, the essential ingredients of the offence had not been proved.
b. Whether or not the trial Court breached any of the essential steps in Criminal Procedure which are meant for the protection and benefit of the Appellant in his conviction and sentence.
ISSUE ‘A’ relates to Grounds ONE and TWO of the Appellant’s Grounds of Appeal.
ISSUE ‘B’ relates to Grounds ONE of the Appellant’s Grounds of Appeal.”
The lone issue for determination nominated by the Appellant is quite comprehensive and all encompassing, hence will be adopted in the resolution of this appeal. By way of passing, I wish to observe that the two issues formulated by the Respondent run foul of the rule against prolixity and proliferation of issues, because two issues were distilled from ground one. The rule against proliferation of issues is to the effect that a party cannot distill more than one issue from a single ground of appeal, but an issue for determination can cover several grounds of appeal. See African Petroleum Ltd v. Owodunmi (2010) 15 NSCQR 308, Leedo Presidential Hotel Ltd v. B. O. N. (Nig) Ltd (1993) 1 NWLR (Pt. 269) 334 at 347, Oyekan v. Akinyinwa (1996) 7 NWLR (Pt. 459) 128.
SOLE ISSUE
It was contended that the conviction and sentence imposed on the Appellant for the offence of culpable homicide punishable with death was solely based on exhibit “B”. In support, reference was made to the pronouncement of the learned trial Judge on page 57 lines 11-19 of the record. It was submitted that the Appellant who testified as DW1, denied ever making exhibit “B”. The Appellant posited that it is a correct statement of the law that a court can convict upon a voluntary statement of an accused person. It was however argued that before a court can convict on alleged confessional statement, certain conditions must be fulfilled, namely:-
1. Where the accused denied making the statement put forward as confessional statement, it amounts to a plea of non est factum and the court must determine whether or not the accused made the statement before using it against him and
2. Where after considering the defence of non est factum, the court is satisfied that the statement is that of the accused, it must subject the alleged voluntary confessional statement to a veracity test.
The Appellant submitted that the foregoing procedural steps must be followed before a court can convict on a confessional statement. It was argued that the failure of the lower court to adhere to the aforementioned procedural steps amounts to a miscarriage of Justice, which will lead to a reversal of its Judgment. In support, reference was made to the following cases. Gambo v. State (2011) ALL FWLR (pt. 602) 1609 at 1640, Umoeru v. C.O.P. (1977)7 SC 13 at 29.
It was argued that when Exhibit “B” was to be tendered, an objection to the effect that it was not made by the Appellant was raised. It was further contended that the Appellant in his evidence denied having made Exhibit “B”, but stated that his evidence in court was what he told the police. In effect, it was submitted that the Appellant properly raised the defence of non est factum in his evidence. It was argued that if the lower court had considered the defence of non est factum, it would have come to the conclusion that the Appellant did not make Exhibit “B”. In support, reference was made to the following cases:- Olusanya v. State (2012) ALL FWLR (pt. 656) 573 at 584-585, Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367. The Appellant urged the court to hold that failure to resolve the defence raised by the Appellant occasioned a miscarriage of Justice.
In making an alternative argument to non est factum, it was submitted that the lower court was wrong in convicting the Appellant on Exhibit “B” without subjecting it to a veracity test. The Appellant posited that the courts over the years have laid down a veracity test to which a confessional statement will be subjected to, before convicting on it. In support, reference was made to the case of Adekoya v. State (2013)ALL FWLR (Pt. 662) 1632 at 1652. It was submitted that apart from the investigating police officer that testified as the only witness for the prosecution, there was no eyewitness that identified the Appellant with the alleged offence. It was argued that it was wrong to have convicted the Appellant based on Exhibit “B”, when there was no corroborative evidence on record linking the Appellant with the alleged offence. As for the ingredients of culpable homicide punishable with death, reference was made to the case of Adava v. State (2006) 30 WRN 171 at 185-186.
The Appellant submitted that the tendering of a confessional statement alone, cannot ipso facto support a conviction. It was argued that apart from being satisfied that the statement is voluntary, the court must also be satisfied that there are facts in evidence which shows that the confession is true. In support, reference was made to the case of Omoju v. F.R.N (2008) ALL FWLR (Pt. 415) 1656 at 1673. It was contended that the lower court, improperly relied on Olabode v. State (supra), in holding that a confessional statement can be a basis for conviction without corroborative evidence. In concluding, the court was urged to resolve the case in favour of the Appellant and set aside the conviction and sentence for the offence of culpable homicide punishable with death.
The Respondent started by listing the essential ingredients for the offence of culpable homicide, under section 221 (a) of the Penal Code Law. In support of the ingredients, reference was made to the following cases. State v. John (2013)11 SCM 172 at 178, Michael v. State (2008) 162 LRCN 132 at 135. The Respondent submitted that the guilt of an accused person can be proved by either confessional statement, evidence of eyewitnesses or circumstantial evidence. In support, reference was made to the following cases: Abirifon v. State (2013) 9 SCM 1 at 3, Igabele II v. State (2002) 2 NCC 125. The Respondent further submitted that once the ingredients for the offence have been proved to the satisfaction of the court, the charge is said to be proved beyond reasonable doubt. In support, reference was made to the following cases: State v. John (2013) 11 SCM 172 ALL ER 372, Joseph v. State (2011) 16 NWLR (Pt. 1273) 226, Olayinka v. State (2007) 30 NSCQR 149 at 159. The Respondent posited that the offence of culpable homicide punishable with death does not require corroboration before conviction can be founded.
The Respondent posited that the lower court was right in convicting the Appellant based on the evidence of a single witness and that the Appellant cannot dictate to them, the number of witnesses to be called. It was contended that the Appellant was rightly convicted on the strength of Exhibit “B”, his statement alone. In support, reference was made to the following cases:- Abirifon v. State (2013) 9 SCM1, Edhigere v. State (1996) 8 NWLR (Pt. 464) 1 at 10, Dogo v. State (2013) 221 LRCN 164 at 168. It was submitted that Exhibit “B”, coming from the Appellant himself is stronger than the evidence of an eyewitness. In support, reference was made to the following cases:- Basil Akpa v. State (2008) LRCN 186 at 192, Emoga v. State (1997) SCNJ 518 at 529, State v. Rabiu (2013) 220 LRCN 107 at 111-112.
It was contended that intention can be inferred from the nature of weapon used and the part of the body on which the injury was inflicted. In support, reference was made to the following cases:- Nwokearu v. State (2013) 9 SCM 124 at 129, Michael v. State (2008)162 LRCN 132. It was submitted that the cause of death can be inferred even in the absence of a medical report. In support, reference was made to the following cases: Ogbu v. State (2007)2 NCC 355 at 358, Ubam v. State (2003)12 SCM 310, Olabode v. State (2007)2 NCC 711 at 715-713. It was also argued that the lower court was right in convicting the Appellant upon the evidence of a single witness. In support, reference was made to the following cases: Eke v. State (2011)200 LRCN 143 at 156, Ochiba v. State (2012) 204 LRCN 139 at 145. It was also contended that the failure to tender the gun in evidence as an Exhibit is not fatal, as it does not constitute one of the ingredients for the offence charged. In support, reference was made to the case of Olayinka v. State (2007) 30 NSCQR 149 at 162.
The Respondent posited that it is now too late in the day for the Appellant to complain that Exhibits A and A1 were wrongly admitted in evidence. In support, reference was made to the following cases: Shurumo v. State (2011) 196 LRCN 199, Oseni v. State (2012) 208 LRCN 151 at 156.
It was argued that the lower court complied with essential steps in criminal procedure for the protection of an accused, and that an accused person can be convicted solely on a confessional statement alone. In support, reference was made to the case of Ikemson v. State (1989)2 NWLR (Pt. 110) 455 at 458. It was contended that Exhibit “B” was obtained in compliance with Judges Rules and Police practice of investigation. In support, reference was made to the following cases: Ajayi v. State (2013)8 NCC 1 at 4, Olatinwo v. State (2013)8 NCC 82 at 84, Suleiman v. C.O.P. (2008) 162 LRCN 157 at 164. It was submitted that the purported denial of Exhibit “B”, by the Appellant does not ipso facto render it inadmissible. In support, reference was made to the following cases: Nwocha v. State (2012) 9 NWLR 575, Odeh v. FRN (2008) 13 NWLR (Pt.1103)1.
The Respondent posited that the entire trial was in compliance with Sections 161, 187 and 242 of the Criminal Procedure Code. It was also maintained that it is not the law, that an accused person must be arrested at the scene of crime before his conviction can be allowed to stand. It was argued that the appeal is founded on technicalities as opposed to substantial Justice. In support, reference was made to the following cases: Ogbomo v. State (1983)1 NSCC 224, State v. Gwanto & Ors. (1983) 1 NSCC 104. In concluding, the Respondent urged the court to dismiss the appeal as lacking in merit and affirm the conviction and sentence of the Appellant by the trial court as same is well founded in law, not perverse and has not occasioned any miscarriage of Justice to the Appellant.
By Section 36(5) of the 1999 Constitution (as amended), every person charged with a criminal offence is presumed innocent, until he is proved guilty. This provision, simply translated is what is known as the principle of presumption of innocence. The burden of establishing the guilt of an accused person is on the prosecution and the standard is beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. See also Woolmington v. D.P.P. (1935) A.C. 462, Bakare v. State (1987)1 NWLR (Pt.52) 579, Dibie v. State (2007)9 NWLR (Pt. 1035)30, Emeka v. State (2001) 14 NWLR (Pt. 734) 666. Where the standard of proof beyond reasonable doubt is not attained, the benefit of doubt will be in favour of the accused person. See Abdullahi v. State (2008)17 NWLR (Pt. 1115) 203, Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538, State v. Danjuma (1997)5 NWLR (Pt. 506)512.
The law is settled that for a charge of culpable homicide punishable with death to succeed, the prosecution must prove the following ingredients of the offence:-
a. That the death of a human being has actually taken place.
b. That such death has been caused by the accused.
c. That the act was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
It is trite law that the aforementioned ingredients must co-exist before such a conviction can be secured and failure to establish any of the ingredients will result in an acquittal. See State v. John (2013)11 SCM 172 at 178, Adava v. State (2006) 30 WRN 171 at 185, Michael v. State (2008) 162 LRCN 132 at 135, Omoju v. FRN (2008) ALL FWLR (Pt. 415) 1656 at 1673, Gambo Musa v. State (2009) 39 NSCQR 358.
In the discharge of its onerous responsibility, the prosecution can prove the guilt of an accused person through any of the following ways, namely:-
a. The evidence of an eyewitness;
b. A confessional statement; and
c. Circumstantial evidence.
See the following cases: Igabele v. State (2007)2 NCC 125 ratio 6, Abirifon v. State (2013)9 SCM 1 at 3 ratio 2. The contention of the Appellant in the instant case is that the prosecution has failed to prove the offence of culpable homicide punishable with death.
The prosecution called a single witness (PW1) in support of its case, namely the investigating police officer attached to Divisional Police Office Baissa. The prosecution tendered Exhibit “A” and “A1” (photographs of the deceased) and Exhibit “B” alleged confessional statement through PW1, in the course of his evidence in chief. Exhibit “C” was tendered by the defence through the same witness under cross examination. Exhibit “C” is the statement made by PW1 as an investigating Police Officer. It is noteworthy to mention at the onset, that PW1 was not an eyewitness to the crime. The gist of the evidence of PW1 is to the effect that on 14-5-08, while on duty at Divisional Police Office Baissa, one Buba Baba Mijinyawa, Chairman of Vigilante group brought three suspects, the Appellant inclusive and alleged that they killed one Yusufu Yakubu. Based on the information, PW1 went to the scene of crime with a photographer who snapped the photographs of the deceased, tendered as Exhibit “A” and “A1” and thereafter conveyed the corpse to Baissa Model Hospital for post mortem. On 15/5/2008, PW1 recorded the statements of the suspects, and that of the Appellant tendered through him as Exhibit “B”.
There was no direct or circumstantial evidence in proof of any of the ingredients of culpable homicide punishable with death. The only evidence before the lower court, upon which it convicted the Appellant was the alleged confessional statement. The finding of the lower court to that effect is as follows:-
“Now what is the evidence before this court? Certainly there is no eyewitness account. We are only left with the recorded statement of the accused. Exhibit “B” is the statement the accused made to the police at Baissa.”
See page 57 lines 1 to 5 of the record of appeal.
A preliminary consideration will be made to the law in relation to confession, in view of the fact that the conviction of the Appellant was based on the alleged confessional statement, Exhibit “B”. Section 28 of the Evidence Act, 2011 provides, 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 the crime”
See Sule v. State (2009) ALL FWLR (Pt. 481) 809 at 830, Afolalu v. State (2010) 7 SCNJ 354, Edhigere v. State (1994) 5 NWLR (Pt. 344) 312 at 321. For a confession to be admissible in evidence, it must be voluntary.
A free and voluntary confession of guilt by an accused person, if it is direct, positive, unequivocal, duly made and satisfactorily proved is sufficient to ground a conviction. See Nwachukwu v. State (2002) FWLR (Pt.123) 321, Arogundade v. State (2009) ALL FWLR (Pt.469) 409, Fatai v. State (2013) 2-3 MJSC 145.
The complaints of the Appellant in this appeal are two fold, namely:-
i. That he raised a defence of non est factum in relation to the alleged confessional statement but it was not considered but he was convicted solely on the said Exhibit B; and
ii. That Exhibit “B” was not subjected to any veracity test before using same to convict him.
The respondent on its part, relied on the fact that mere retraction of a statement does not ipso facto render it inadmissible. Furthermore it was the contention of the respondent that a court can convict on confessional statement alone, without any need for corroboration.
Indeed as earlier stated in this Judgment, voluntariness is the basis for admissibility of a confessional statement. See Section 28 of the Evidence Act, 2011. Hence where a challenge is made to the admissibility of a confessional statement based on involuntariness, a trial within a trial must be conducted to determine the voluntariness or otherwise of the statement before it is admitted. See Section 29 of the Evidence Act. See also Okaroh v. State (1988) 3 NWLR (Pt.81) 214, Alarape v. State (2001)2 SCNJ 162, Eke v. State (2011) ALL FWLR (Pt. 566) 430, Olabode v. State (2009) ALL FWLR (Pt. 500) 607, Lateef v. FRN (2010) ALL FWLR (Pt. 539) 1171. On the other hand, a confession is not inadmissible, merely because an accused person denies having made it. See Sule v. State (2009) ALL FWLR (Pt. 481) 809, Enijima v. State (1991) 7 SCNJ 318, Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367.
It is trite law that where a confessional statement is retracted, it is desirable to have corroborative evidence no matter how slight before convicting on it. The court has a duty to test the veracity of the statement, it must test the truthfulness or otherwise of the statement in line with other available evidence. See R v. Sykes (1913) 18 CAR 233, Kazeem v. State (2009) ALL FWLR (Pt. 465) 1749, Dawa v. State (1980) 8-11 SC 236, Ikpasa v. A.G. Bendel (1981) 9 SC 7, Bolanle v. State (2005) 7 NWLR (Pt. 925) 431 at 498, Obisi v. Chief of Naval Staff (2002) 2 NWCR (Pt. 751) 400 at 418-419.
In determining whether a confession is true, the test as laid down in R. v. Sykes (supra), to the following effect is adopted:-
i. Is there anything outside the confession to show that it is true?
ii. Is the statement corroborated
iii. Is the statement of fact made in the confession, so far as can be tested, true?
iv. Did the accused person have the opportunity of committing the offence charged?
v. Was the confession possible?
vi. Is the confession consistent with other facts which have been ascertained and proved at trial.
See Ogudo v. State (2011) 12 SC (Pt.1) 71 at 89-90, Nwaebonyi v. State (1994) 5 NWLR (Pt.343) 138 at 150, Ikemson v. State (1989) 3 NWLR (Pt.110) 455 at 468, Bature v. State (1994) 1 NWLR (Pt.320) 267. In Ikpo v. State (1995) 9 NWLR (Pt.421) 540 at 554, the Supreme Court held as follows:-
“It is desirable to have outside the accused persons confession, some corroborative evidence no matter how slight of circumstances which make it probable that the confession is true and correct, as the courts are not generally disposed to act on a confession without testing the truth thereof.”
The lower court did not refer to, let alone apply the above tests to the alleged confessional statement before relying on it, in convicting the Appellant. There was nothing outside the confession to show that it was true. The chairman of the vigilante group in Baissa, who apprehended the accused person was never invited to testify. The two other people arrested along with the Appellant were also not invited to give evidence. There was no scintilla of evidence outside the alleged confession to show that it was true or corroborate it. This has surely left a yawning gap in the evidence of the prosecution which should be resolved in favour of the Appellant.
On the issue of non est factum, the Appellant clearly raised it in his evidence before the lower court. The evidence of the Appellant as DW1 on pages 34 to 36 is hereby reproduced:-
“DW1: Male, adult, affirms and speaks Hausa. I am Adamu Yakubu. I am 24 years old. I was living in Kpawula in Kurmi Local Government. I am a farmer.
On Sunday 11/5/2008 I was on my farm together with my parents. My parents gave me maize to bring home for threshing and grinding. I left the farm with the maize coming to Kpawola village. I saw a Fulani on the way and we were going together with him. I became afraid because he was having a gun in a polythene bag.
I asked him where he was coming from. He told me he was coming from Fali. I asked him what was in his bag. He told me that it was a gun and that he was hunting. He said he was taking the gun to Baissa for repairs. We were going together and came to a village called Gidan Buba. I decided to rest for a while and he too joined me in resting. While resting some vigilante group confronted us and asked us where we were coming from. I told them I was from the farm going to grind maize when I met the Fulani man on the way. They on the other hand asked the Fulani man where he was from. He told them he was from Fali. They further asked him what was in his bag. He said it was a dane gun being taken to Baissa for repair. He told them that he was a hunter. They further asked for his licence as a hunter. He said he had none. They told him that since he had no licence they would take him to the police. So instead of allowing me to go they took both of us to the police in Baissa.
Later a report was brought to the police station that someone was found dead on the way. On hearing this the police now said we were the ones who killed the man. They said they were bringing us to Jalingo and they brought us to Jalingo.
While at the CID office one policeman Simon Angu called me into his office where I narrated all that happened and he recorded it down. After recording he asked me to thumbprint the statement and I did. Two of us were in the State CID i.e. myself and the Fulani man. I do not know why they released the Fulani man when he was the one who was found with the gun.
I don’t know Inspector Haruna Abdullahi. I made a statement to the police in Baissa but I did not admit committing,
Cross-examination: I am a farmer. I do not have any senior brother. I have never used a grinding machine. I only take corn for grinding. What I told this court is what I told the police. It was the Fulani man who was found with the gun.
Reexamination: Nil”.
The Appellant attacked Exhibit “B” as not being his statement. The lower court has a duty to make a finding as to whether the Appellant made the statement or not before using it to convict him. The apex Court, per Onu JSC in Aiguoreghian v. State (2004) 3 NWLR (Pt.860) 367 at 403 F-G stated thus:-
“It is noteworthy to stress that the terms “retraction” and “resile from” have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for, where the very making of the statement is in issue, the retraction cannot arise at that stage. It is in this wise that I agree that where an accused person sets up a defence of non-est factum in relation to a confessional statement what he has done is not a retraction but a denial of the making of the statement.”
In Terhire Dega v. State, appeal No; CA/YL/5C/2014 of 27th May, 2014, My Lord J. H. Sankey JCA in a similar situation had this to say on page 16 of the Judgment:-
“As earlier stated, no finding was made by the lower Court on this issue of fact as to whether or not the Appellant made the statement. What this means is that had the lower Court given heed to the testimony of the Appellant and believed that he did not make the confessional statement ascribed to him, the Appellant would have been discharged and acquitted since the entire decision convicting him of the offence of armed robbery was based on this document.”
The failure of the learned trial Judge to determine whether or not the Appellant made the statement before convicting him on same is fatal to the case. The trial court was wrong in relying on the point, that a court can convict on confessional statement alone to convict the Appellant on Exhibit “B” in the peculiar circumstances of this case, where the Appellant has disowned authorship of same and there is nothing outside the confession to confirm whether it is true.
Consequent upon the foregoing, the lone issue for determination is hereby resolved in favour of the Appellant. The appeal is meritorious and is hereby allowed. The judgment of the Taraba State High Court of Justice, Jalingo delivered on 18th October, 2013 in Suit No.TRSJ/12C/2009, convicting and sentencing the Appellant to death for the offence of culpable homicide punishable with death contrary to section 221(a) of the Penal Code Law of Taraba State is hereby quashed and the sentence is set aside. In its stead, a verdict of discharge and acquittal is hereby entered in favour of the Appellant.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead judgment of my Lord Adamu Jauro, J.C.A. just delivered.
My Lord has adequately dealt with the lone issue in the appeal and I agree entirely with the reasons given therein as well as the conclusion that the appeal is meritorious. I adopt the judgment as mine.
I abide by the consequential orders made in the said lead judgment.
JUMMAI HANNATU SANKEY, J.C.A.: I have read, before now, the judgment of my Lord Jauro, J.C.A. just delivered.
For the same reasons canvassed in the aforesaid judgment, which I respectively adopt as mine, I too find the Appeal meritorious.
I also consequently allow it. I set aside the judgment of the Taraba State High Court sitting at Jalingo delivered on 18th October, 2013 in Suit No. TRSJ/12C/2009, and quash the order of conviction and sentence of death made.
I endorse the verdict of discharge and acquittal of the Appellant entered in its stead.
Appearances
No representation for the Appellant
Mr. F. K. Idepefo, counsel on record for the Appellant, sent in a letter seeking an adjournment.For Appellant
AND
Mr. Hamidu Audu, Director Public Procurement, Ministry of Justice, Taraba State, with Mr. C. R. Shaki State Counsel II, and Mr. Z. Y. Usman, State Counsel IIFor Respondent
