AISHA MAHMUDA v. THE STATE
(2019)LCN/13228(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/J/77C/18
RATIO
CRIMINAL LAW AND PROCEDURE: WHETHER A PERSON WHO HAS PLEADED GUILTY TO AN OFFENCE CAN CHALLENGE THAT CONVICTION
I am of the opinion that the main issue here is rather whether the appellant who expressly pleaded guilty to the amended charge of culpable homicide punishable with death under Section 211 of the Penal Code can be heard to challenge her conviction for the same offence. Certainly not! Having expressly pleaded guilty to that charge, incidentally on a day she was represented by counsel, the only duty on the trial judge was to convict her and she cannot be heard to invoke the provisions of Section 36 of the 1999 Constitution on breach of her right to fair hearing. On similar facts, the apex Court (Tobi, J.S.C.) in Omoju v. F.R.N. (2008) ALL FWLR (PT 415) 1656 @ 1574, para. A-B, reasoned this way, saying that:
An accused person who pleads guilty to an offence is not entitled to a hearing. In other words, by entering a guilty plea, hearing is foreclosed, as the next and last procedural step of the judge is to convict and pass appropriate sentence.
See also Torri v. N. P.S. (2011) ALL FWLR (PT 601) 1388 @ 1406 where the apex Court (Onnoghen, JSC, later CJN) again confirmed that there is no right to defend after an accused person enters a plea of guilty.PER BOLOUKUROMO MOSES UGO, J.C.A.
CONFESSION: A CONFESSION IS SUFFICIENT TO CONVICT AN ACCUSED AND NEEDS NOT BE CORROBORATED AT ALL TIMES
What is more, in this case, besides the very clear evidence of P.W.1 regarding what transpired in that bush on the day the deceased was stabbed, appellant made a statement confessing to the crime. That alone can sustain her conviction. See Obasi Onyenye v. State (2012) LPELR-SC 306/2010 it was said by I.T. Mohammed, J.S.C. (now Ag. C.J.N.) that:
It is not in all cases that confession must be corroborated. Just not long ago this Court stated in the case of Olabode V. The State (2009) 11 NWLR (PT 1152) 254 that:
It is settled that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.
See also Idowu v. State (2000) 7 SCNJ 245 @ 286; Okeke v. State (2015) 11 NWLR (PT 1366) 435 (S.C.); Salawu v. State (2011) LPELR-9351 (SC) p. 36, 48.PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
AISHA MAHMUDA Appellant(s)
AND
THE STATE Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Borno State of 31/05/2017 convicting the appellant for the offence of culpable homicide punishable with death pursuant to Section 221 of the Penal Code. The charge alleged that appellant on 30/11/2016 caused the death of her husband Mahmuda Adamu by stabbing him with a knife.
It is common ground and also confirmed by the records that the charge as initially framed stated, erroneously, that she was charged under Section 221 (b) of the Criminal procedure Code, instead of the Penal Code. Nevertheless, appellant who was represented by counsel on her arraignment on 01/03/17 pleaded guilty to the charge.
Despite that express plea to the charge, the Court on its own entered a plea of not guilty for her and ordered the prosecution to call its witnesses to prove her guilt. The prosecution dutifully obliged and called four witnesses, including two police officers, PW1 and PW4, who separately investigated the case first at Biu Division where it was first reported and later at Criminal Investigation and Intelligence
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Department, Maiduguri when it was transferred there. Through these two witnesses it also tendered a confessional statement made by appellant in Hausa but translated to English language. Appellant raised no objection when it was produced by the prosecution as her confession to the crime, which, it was said, she further admitted before a Superior Police Officer who countersigned it. Her said confession was admitted in evidence as Exhibits A and A1.
The other two prosecution witnesses were Bello Abubakar (PW2) who said he was actually walking behind appellant and the deceased to his farm when he suddenly heard a cry from the deceased saying ?She stabbed with me a knife. She stabbed with me a knife.? The deceased then rushed to him and cried allowed again that the appellant had stabbed him with a knife. At that point, he said, the appellant was ?supplicating,? if I may use the exact word employed by the trial judge. P.W.2 said he asked the appellant where she was going to and she replied that she was not the one that killed him. He said he then approached the deceased and lifted up the cloth and saw that he was stabbed on the chest
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with a knife. Thereafter he went to their village to inform the deceased?s brother and, with others, they went to the farm with a vehicle and conveyed the deceased home from where he was later taken to the hospital. Under cross-examination, he maintained that the deceased was shouting and calling the name of the appellant his wife, saying that she had stabbed with a knife. He admitted, though, that he did not actually see appellant stab the deceased but maintained that it was only three of them ? himself, the appellant and the deceased – that were in the farm at that point.
The prosecution?s 3rd witness (P.W.3) was the deceased?s elder brother Habu Adamu. He said he was in Zaria, Kaduna where he works with Kaduna Electricity Distribution Company when he was informed that his brother the deceased had been stabbed to death in his farm by his wife the appellant. When he returned to their village and the appellant sighted him, he said, she came and knelt down and cried begging for forgiveness saying she had cheated herself and her son of his father. Even when she saw him in Court on the morning of his testimony, he continued, she came
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to him and knelt down to beg him.
In her defence appellant said on the day of the incident the deceased told her to prepare and go to the farm that he would join her later. She proceeded to the farm as advised with her baby on her back and was breastfeeding him when she suddenly heard her husband shouting. When she ran to the place where his cry was coming from, she saw him lying on the ground and crying. She then sat near him and also began to cry. Two of them were crying together, she said, when according to her P.W.2 came to the scene, asked what she did to appellant and went to the village while she stayed back and continued crying. Thereafter she said the vigilante of their village were coming with guns and the deceased asked to run away as he believed P.W.2 might have told the villagers that she killed him. She said she made her first extra-judicial statement, Exhibit C, at Biu Police Division, that when the Police told her that her baby would be taken away, she began to cry and told them she could not kill the father of her child. She ended her evidence by pleading with the Court to be ?lenient? with her.
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It was after her defence
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and her counsel proceeded to address the Court on that same day (24/4/2017) and pointed out the error in the charge that it seems it dawned on the prosecution for the first time that there was an error in its charge. That prompted it to apply to amend the charge by replacing the words ?Criminal Procedure Code? with ?Penal Code.?
That application was granted and the charge amended and read over to appellant. She again pleaded guilty to it (see page 19 of the records).
Thereafter, appellant?s counsel is recorded to have announced to the Court that: ?We stand by our earlier proceedings and we urge the Court to direct the prosecution to address the Court.? A.A. Usman for the prosecution there and then replied that he was ready to address and proceeded to do that. He was replied to by the defence, after which the trial judge in his judgment found appellant guilty as charged and sentenced her to death.
Appellant is dissatisfied with that judgment and has brought this appeal on five grounds, from which she formulated the following two issues:
1. Whether the trial judge was right when he convicted and
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sentenced her (appellant) to death based on her plea of guilty to the amended charge, having regard to the fact that she was charged with culpable punishable with death under the provision of Section 221 of the penal Code law of Borno State.
2. Whether the prosecution has proved its case beyond reasonable doubt, having regard to the testimonies of the prosecution witnesses.
On issue 1, appellant through her counsel Mr. A. B. Usman who also represented her at the trial drew our attention to the question the trial judge put to her upon amending the charge, namely: Court: Do you understand the charge,? and her answer to it which was ?I plead guilty to the charge.?
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Counsel argued that appellant did not answer that question so there was an omission which, according to counsel, went to the root of the proceedings and contravened Section 36 of the 1999 Constitution of this country guaranteeing her fair hearing. Counsel also complained that no witness was called after the amendment of the charge. While conceding that that was because appellant?s counsel at the trial agreed to stand by the earlier proceedings, the trial judge, he
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submitted, should not have agreed to it. The position of the law regarding the procedure to adopt after amending a charge was not followed and that caused miscarriage of justice, he argued. He argued since the charge was amended, the former proceedings before the Court cannot also stand. He cited no authority for that proposition but submitted that the procedure adopted by the lower Court offended the laws of the land so we should set it aside.
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On issue 2, it was argued that the ingredients of culpable homicide for which the appellant was charged are ?many,? and the prosecution had a duty to prove them beyond reasonable doubt to secure conviction but failed to do that. He submitted that whereas the evidence of the P.W.1 (the investigating police officer of C.I.I.D Maiduguri) was not direct, P.W.2 who was in the bush with the appellant and the deceased and heard the deceased say the appellant stabbed him admitted that he did not actually see appellant stab the deceased. On the other hand, the evidence of the deceased?s brother (P.W.3), counsel submitted, was not direct while the evidence of P.W.4 was in favour of the appellant, he having
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admitted that nothing was recovered at the scene of crime and appellant was not even arrested at the scene. Counsel closed his 4-page argument of both issues by urging us to allow the appeal and set aside the conviction of the appellant.
In response, the State argued that it proved appellant?s guilt beyond reasonable doubt and the trial Court right in finding him guilty as charged. Counsel on its behalf particularly referred us to the fact that appellant made a confessional statement as well as the evidence of P.W.1 who according to the State gave eyewitness evidence of the crime. It argued that the surrounding circumstances of the case, particularly the fact that appellant was alone with the deceased, also pointed unequivocally to the fact that she was responsible for his death by knife stab. It urged us to so find and dismiss the appeal and affirm the judgment of the trial judge.
I am of the opinion that the main issue here is rather whether the appellant who expressly pleaded guilty to the amended charge of culpable homicide punishable with death under Section 211 of the Penal Code can be heard to challenge her conviction for the same
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offence. Certainly not! Having expressly pleaded guilty to that charge, incidentally on a day she was represented by counsel, the only duty on the trial judge was to convict her and she cannot be heard to invoke the provisions of Section 36 of the 1999 Constitution on breach of her right to fair hearing. On similar facts, the apex Court (Tobi, J.S.C.) in Omoju v. F.R.N. (2008) ALL FWLR (PT 415) 1656 @ 1574, para. A-B, reasoned this way, saying that:
?An accused person who pleads guilty to an offence is not entitled to a hearing. In other words, by entering a guilty plea, hearing is foreclosed, as the next and last procedural step of the judge is to convict and pass appropriate sentence.?
See also Torri v. N. P.S. (2011) ALL FWLR (PT 601) 1388 @ 1406 where the apex Court (Onnoghen, JSC, later CJN) again confirmed that there is no right to defend after an accused person enters a plea of guilty.
What is more, in this case, besides the very clear evidence of P.W.1 regarding what transpired in that bush on the day the deceased was stabbed, appellant made a statement confessing to the crime. That alone can sustain her conviction. See
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Obasi Onyenye v. State (2012) LPELR-SC 306/2010 it was said by I.T. Mohammed, J.S.C. (now Ag. C.J.N.) that:
?It is not in all cases that confession must be corroborated. Just not long ago this Court stated in the case of Olabode V. The State (2009) 11 NWLR (PT 1152) 254 that:
?It is settled that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.
See also Idowu v. State (2000) 7 SCNJ 245 @ 286; Okeke v. State (2015) 11 NWLR (PT 1366) 435 (S.C.); Salawu v. State (2011) LPELR-9351 (SC) p. 36, 48.
I note that appellant did not even dispute the voluntariness of her confession as is common place these days in our Courts.
For all these reasons, I cannot see my way clear in interfering with appellant?s conviction; accordingly, I dismiss her appeal without hesitation and affirm the judgment of the trial judge.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read before now the judgment just delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA. I agree with
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the conclusion arrived thereat in dismissing the appeal. I too dismiss the appeal for the same reasons adduced in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I abide the conclusion reached therein.
The Appellant was charged before the High Court of Borno State with culpable homicide punishable with death. She was alleged to have killed her husband, Mahmuda Adamu, on the 30th of November, 2016 by stabbing him with a knife. The charged was brought pursuant to Section 221 of the Penal Code, but wrongly stated on the charge sheet as Criminal Procedure Code. The Appellant was represented by Counsel at her arraignment and the charged was read to her in the language she understood and she pleaded guilty thereto. The lower Court rightly entered a plea of Not Guilty and set the matter down for hearing. It is settled law that where an accused defendant pleads Guilty to a capital offence, the trial Court
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will record a plea of Not Guilty and set the matter down for trial ?Tobby Vs State (2001) 10 NWLR (Pt 720) 23, Federal Republic of Nigeria Vs Mohammed (2014) 9 NWLR (Pt 1413) 551, Nkie vs Federal Republic of Nigeria (2014) 13 NWLR (Pt 1424) 305.
The matter proceeded to trial and in the course of which Respondent called four witnesses and tendered exhibits in proof of its case against the Appellant and the Appellant alone testified in her defence. At the conclusion of the trial, Counsel to the Appellant addressed the lower Court wherein he pointed out, for the first time, the error in the charge sheet, i.e. that the charge was brought pursuant to the Criminal Procedure Code, instead of the Penal Code. The Respondent thereupon applied to amend the charge to reflect the Penal Code and the application was granted. The amended charge was read over to the Appellant and she again pleaded Guilty and the lower Court noted Not Guilty. Counsel to the Respondent thereafter adopted the earlier proceedings before the Court in proof of the amended charge. Counsel to the parties thereafter addressed the lower Court. The lower Court found the Appellant guilty
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as charged, convicted her and sentenced her to death.
The first contention of the Appellant in this appeal was as regards her arraignment. Counsel stated that upon the amendment of the charge, the charge was read to the Appellant in the language she understood and that in answer to the question asked by the trial Judge, “do you understand the charge”, the Appellant responded, “I plead guilty to the charge”. Counsel stated that there was an omission in the arraignment process as the Appellant did not answer the question posed to her by the trial Judge before pleading to the charge and that this was fundamental and went to the root of the entire proceedings. Now, an arraignment involves the taking of the plea of an accused defendant. The plea is an accused defendant’s formal response of guilty of not guilty or no contest to a criminal charge. It is the means by which an accused defendant joins issues with the State on a criminal charge. It is trite that one of the fundamental requirements of a valid trial in a criminal matter is a valid arraignment. In Idemudia vs state (1999) 7 NWLR (Pt 610) 202 at 219 B-C, Karibi-Whyte, JSC stated that:
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“A valid trial is posited on the fact of a valid arraignment. An arraignment as rationem ponere, that is calling on the accused to reckoning for the allegations of the offences against him. The laws of this country have made adequate provisions for the protection of the interest of the accused and the citizens in the proper administration of justice. Accordingly, the Court before whom an accused person is required to appear for reckoning in respect of allegations of offences, is required to observe certain constitutional requirements in Section 36(6)(a) and the provisions of Section 215 of the Criminal Procedure Law.”
Section 36(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that ‘every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence.’ The Courts have, in the interpretation of the laws on criminal prosecution, laid down some essential requirements that must be satisfled for there to be a valid arraignment and these are (a) the defendant must be placed before the Court unfettered unless the Court shall see cause
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otherwise to order; (b) the charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; (c) it must be read and explained to him in the language he understands; (d) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the defendant is entitled by law to service of a copy of the information the Court is satisfied that he has in fact not been duly served ? Kajubo Vs State (1988) 1 NWLR (Pt 73) 721, Olabode vs State (2009) 11 NWLR (Pt 1152) 254, Temitope Vs State (2011) 6 N WLR (Pt 1243) 289 and Olowoyo Vs State (2012) 17 NWLR (Pt 1329) 346.
These requirements are to ensure that an accused person gets a fair trial and he is not railroaded into jail. The law is that once an accused person appears physically before a Court and the nature and material details of the offence he is charged with are read and explained to him and he freely pleads to the offence, any omission in the recording of the proceedings of what transpired will not affect the validity of the arraignment
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? Udo Vs State (2005) 8 NWLR (928) 521, Solola Vs State (2005) 11 NWLR (937) 460, Olabode vs state (2009) 11 NWLR (1152) 254, Madu vs State (2012) 15 N WLR (1324) 405. This is particularly more so, as in the instant case, where the Appellant was represented by the Counsel at the arraignment; the same Counsel representing her in this appeal. It is trite that where an accused person was represented by Counsel at the time of the arraignment and he did not contest or challenge any aspect of the arraignment, the presumption is that all requirements of the law for a valid arraignment have been fully or at least, substantially complied with in line with the provisions of Section 168(1) of the Evidence Act, 2011 ? Akinlolu Vs state (2017) LPELR 42670(SC), Adunbi vs State (2018) LPELR 45005(CA).
I fail to see the omission alleged in the arraignment process by Counsel to the Appellant and even if such an omission did exist, there is nothing on record showing that Counsel raised any objection and made any issue of the said omission at the arraignment. It is clear from the records of the proceedings before the lower Court that all the requirements of a
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valid arraignment were complied with. The contention of Counsel to the Appellant was misconceived.
Counsel to the Appellant further stated that sequel to the amendment of the charge by Respondent at the close of trial, no new witnesses were called and that all the Respondent did was to adopt the proceedings that were conducted prior to the amendment. Counsel contended that this was wrong because upon the amendment, all the proceedings that stood before became spent and that the Respondent had the responsibility to call fresh evidence to prove the amended charge and that since this was not done, the procedure to be adopted after an amendment of a charge was not followed and that this occasioned a miscarriage of justice. With respect to Counsel to the Appellant, this contention has no basis either in case law or in the statutes. The law is that upon an amendment of a charge, the new charge is deemed to be the original charge before the Court from the date of the amendment ?Attah Vs State (1993) 7 NWLR (Pt 305) 257, Suleiman vs state (2017) LPELR 43353(CA). The amendment relates back to the date of the original charge and all the steps earlier taken
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in the proceedings stand and are not annulled ? Federal Republic of Nigeria vs Adewunmi (2007) 10 NWLR (Pt 1042) 399, Rufus vs State (2014) LPELR 22797(CA), Dasuki vs Federal Republic of Nigeria (2018) LPELR 43969(CA). Hence, it has been held that a charge can be validly amended even after final address of Counsel – Princent vs The state (2002) 18 NWLR (Pt 798) 49, Ayodele vs state (2011) 6 NWLR (Pt 1243) 309, Temitope vs The State (2011) 6 NWLR (Pt 1243) 289. There was no obligation on the Respondent to call any fresh or further evidence after the amendment of the charge against the Appellant.
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It was the further contention of Counsel to the Appellant that the Respondent did not prove the essential ingredients of the charge against the Appellant and that the lower Court was wrong to have convicted her on the strength of the evidence led. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the
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defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted ? Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde vs State (2014) 2 NWLR (Pt 1391) 298.
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On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person referred to in the charge against the Appellant as Mahmuda Adamu is dead. All the witnesses, the four prosecution witnesses and the Appellant as the sole defence witness, testified to the death of the deceased and the finding of the lower Court on the issue in the
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judgment was not appealed against by the Appellant.
On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant ? Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs state (2007) 5 NWLR (Pt 1027) 214, Ekpoisong vs State (2009) 1 NWLR (Pt 1122) 354, Illiyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link
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that cause of death with the act or omission of the person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence.”
On the cause of death, the second prosecution witness led unchallenged evidence that the deceased was hale and hearty and on the way to the farm, with the Appellant, when the deceased suddenly shouted that he had been stabbed in the chest and that he lifted up the clothes of the deceased and saw the stab wound on his chest and that the deceased died shortly thereafter and that he went back to the village to inform others and that they went and conveyed the deceased home and then to the hospital. The law is that, where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and -death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death ? Essien vs state (1984) 3 SC 14, Adekunle vs state (1989) 5 NWLR (Pt 123) 505,
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Azu vs state (1993) 6 NWLR (Pt 299) 303 and Akpa vs State (2008) 14 NWLR (Pt 1106) 72.
Thus, in Ben Vs State (2006) 16 N WLR (Pt 1006) 582, where the deceased was struck on the head with a stick and he fell down unconscious and never regained consciousness until he was pronounced dead some hours later in the hospital, the Supreme Court held that the trial Court rightly found that the cause of death was the lethal blow to the head without a need for medical evidence. In Adekunle Vs State (2006) 14 NWLR (Pt 1000) 717, where the deceased was shot by the defendant and rushed to the hospital for treatment and died on the next day, the Supreme Court that medical evidence was unnecessary and that the gun shot was the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased ?Jeremiah Vs State (2012) 14 N WLR (Pt 1320) 248. The evidence of the second prosecution witness was found credible by the lower Court and it
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thus constituted cogent evidence proving the cause of death of the deceased beyond reasonable doubt.
The second limb of the second ingredient of the offence of culpable homicide punishable with death is whether it was the act of the Appellant that caused the death of the deceased. It is settled law that in a criminal trial the prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive ? Emeka Vs state (2001) 14 NWLR (Pt 734) 666, Nigerian Navy vs Lambert (2007) 18 NWLR (Pt 1066) 300, Mbang vs State (2010) 7 NWLR (Pt 1194) 431, Dele vs State (2011) 1 NWLR (Pt 1229) 508, Ilodigwe vs State (2012) 18 NWLR (Pt 1331) 1.
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It is obvious from the records of appeal that the Respondent relied on both confessional statement and eye witness account in proving the guilt of the Appellant and that it was on the basis of these that the lower Court convicted and sentenced the Appellant. The Police Officers who investigated the case at Biu Police Division where the
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matter was first reported and later at the State Criminal Investigation Department in Maiduguri where the case was subsequently transferred, testified as the first and the fourth prosecution witnesses. The confessional statement of the Appellant made at the State Criminal Investigation Department in Maiduguri State Criminal Investigation Department in Maiduguri in Hausa language and its English translation were tendered as Exhibits A and A1. The confessional statement showed on its face that the Appellant was taken before a Superior Police Officer and before whom the Appellant admitted making the statement voluntarily and she signed and he counter signed.
The records of appeal show that the confessional statement was admitted without any objection from either the Appellant or from her Counsel. It is a settled principle in criminal litigation that where a confessional statement of an accused defendant is tendered in evidence without any objection or protest from the accused defendant or his Counsel, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true ? Osung Vs State (2012) 18 N WLR (Pt 1332)
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256, Ajibade vs state (2013) 6 NWLR (Pt 1349) 25 at 44 E-H, Stephen vs State (2013) 8 NWLR (Pt 1355) 153 at 173 D-H.
Further, the records of appeal show that the Investigating Police Officer who testified on the voluntariness of the confessional statement made by the Appellant was not cross examined on the making of the statement. The law is that, in such circumstances, the testimony of the witness on the making of the statement by the Appellant will be believed and any subsequent suggestion otherwise by the Appellant is to be treated as an afterthought ? Oforlete Vs State (2000) 12 N WLR (Pt 681) 415, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119, Chukwu vs state (2013) 4 NWLR (Pt 1343) 1, Egwumi vs state (2013) All FWLR (Pt 678) 824.
Furthermore, and very importantly, the records of appeal show that in her testimony in her defence before the lower Court, the Appellant made no reference to the confessional statement, Exhibit A and A1; she did not deny making the statement, she did not contest its contents or her signature thereon. She only referred to her confessional statement made at the Biu Police Division, Exhibit C.
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It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement ?Hassan vs state (2001) 15 NWLR (Pt 735) 184, Kazeem vs State (2009) WRN 43 and Osetola vs state (2012) 17 NWLR (Pt 1329) 251.
The Appellant did not raise and/or establish any of these situations in her evidence before the lower Court. All that the Appellant did in her testimony was to give evidence inconsistent with the contents of the confessional statement. The law is that where an accused defendant does not challenge the making of his confessional statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the confessional statement upheld unless a satisfactory
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explanation of the inconsistency is proffered ? Gabriel Vs State (1989) 5 NWLR (Pt 122) 457, Ogoala vs state (1991) 2 NWLR (Pt 175) 509, Egboghonome vs State (1993) 7 NWLR (Pt 306) 383, Oladotun vs state (2010) 15 NWLR (Pt 1217) 490, Federal Republic of Nigeria vs lweka (2013) 3 NWLR (Pt 1341) 285.
The Appellant admitted causing the death of the deceased in her confessional statement by stabbing him on the chest with a knife. In Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, the Supreme Court held that where an accused person confesses to an offence in his extra-judicial statement and had no objection to the statement being tendered and admitted in evidence and did not lead any cogent evidence in his testimony in Court resiling from the contents of the statement, there Would be no need to look for evidence outside the confession anymore. It is trite that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration ?Stephen Vs State (1986) 5 N WLR (Pt 46) 978, Yahaya Vs State (1986) 12 SC 282, Oseni vs State (2012)
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5 NWLR (Pt 1293) 351, Oladipupo vs State (2013) 1 NWLR (Pt 1334) 68, Abdullahi vs state (2013) 11 (Pt 1366) 435.
Additionally, the contents of the confessional statement were corroborated in material particulars by the testimony of the second prosecution witnesses who testified that he was walking behind the Appellant and her deceased husband on the way to the farm, when he suddenly heard a cry from the deceased that the Appellant had stabbed him with a knife and that the deceased rushed to him and cried aloud again that the Appellant had stabbed him with a knife and he lifted up the dress of the deceased and saw the stab wound on his chest. The confessional statement of the Appellant and the evidence of the second prosecution witness constitute cogent and credible evidence proving beyond reasonable doubt that the Appellant cause the death of the deceased.
The finding of the lower Court that the Respondent successfully proved the second ingredient of the offence of culpable homicide against the Appellant cannot be faulted.
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This takes us to the third requirement of the offence of culpable homicide punishable with death ? whether the
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Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as “specific intention” necessary for sustaining a murder charge. It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused ? Iden Vs State (1994) 8 N WLR (Pt 365) 719. Thus, in Ejeka vs State (2003) 7 NWLR (Pt 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased.
In the instant case, it cannot be contested that by stabbing the deceased with a knife on the chest the Appellant
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intended to cause the deceased grievous bodily harm. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of homicide punishable with death ? Nwokearu Vs state (2010) 15 NWLR (Pt 1215) 1, Njoku vs State (2013) 2 NWLR (Pt 1339) 548, Afosi vs state (2013) 13 NWLR (Pt 1371) 329. The finding of the lower Court that the evidence led by the Respondent proved the third ingredient of the offence of culpable homicide punishable with death beyond reasonable doubt cannot be impugn.
?Counsel to the Appellant did not canvass any credible arguments to warrant my interference with the findings and judgment of the lower Court. I find no merit in the appeal and I too hereby dismiss same. I affirm the judgment of the High Court of Borno State delivered by Honorable Justice F. Umaru on the 31st of May, 2017 in Charge NO BOHC/MG/CR/10/2017 and the conviction and sentence passed on the Appellant contained therein.
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Appearances:
T. A. Lenkat ,Esq. for A.B. UsmanFor Appellant(s)
A. S. Kaigama, Esq. (Principal State Counsel, Borno State Ministry of Justice) with him, A.A. Usman, Esq. (Senior State Counsel, Borno State Ministry of Justice)For Respondent(s)
Appearances
T. A. Lenkat ,Esq. for A.B. UsmanFor Appellant
AND
A. S. Kaigama, Esq. (Principal State Counsel, Borno State Ministry of Justice) with him, A.A. Usman, Esq. (Senior State Counsel, Borno State Ministry of Justice)For Respondent
