ALIYU v. STATE
(2021)LCN/5140(SC)
In The Supreme Court
On Friday, April 23, 2021
SC.494/2016
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Between
NURA ALIYU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
WHAT CORROBORATION NEED NOT CONSIST OF
The law is trite as established by the Supreme Court that corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See OGUNBAYO VS STATE (2007) 8 NWLR PT 1035, PG SC 157 AT 178 PAR E, 179 PARAS A-B. PER EJEMBI EKO, J.S.C.
HOW CRIMINAL GUILT OF AN ACCUSED PERSON CAN BE ESTABLISHED
It is now settled that criminal guilt of an accused person could be established either by confessional statement of the accused person, circumstantial evidence or evidence of an eyewitness otherwise known as direct evidence. See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Edamine v. The State (1996) 3 NWLR (Pt. 438) 350. PER JOHN INYANG OKORO, J.S.C.
WHERE THERE IS SUFFICIENT EVIDENCE TO BACK UP CONCURRENT FINDINGS BY LOWER COURT
In essence, the doctrine is well settled, that where there is sufficient evidence to back up concurrent findings of facts by both lower Courts, such unassailable findings ought not to be disturbed. Of course, the exception to the general rule is where it is so apparent there is a substantial error on the record, thus rendering the entirety of the findings perverse, thereby occasioning some miscarriage of justice or material breach of some fundamental principle of law or procedure. See OGOALA VS THE STATE (1991) 2 NWLR (Pt. 175) 509; (1991) 3 SCNJ 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 6-9 SC 153. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.
DUTY OF A LAWYER TO ASSIST THE COURT
A lawyer has a duty to assist the Court in attaining justice but not to engage himself in client/witness tutoring, distortion of material facts and any other conduct which is unbecoming of a legal practitioner. See MAGNA MARITIME SERVICES LTD & ANOR V. OTEJU & ANOR (2005) LPELR-1817 (SC); BILLE V. STATE (2016) LPELR-40832 (SC); OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC). PER ADAMU JAURO, J.S.C
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The charge defended by the Appellant alleges:
That you NURA ALIYU of No. 110, Zamfarawa Road, Funtua, Funtua Local Government Area of Katsina State on or about the 11th day of August, 2006 around 08.00 hrs at Government Girls Secondary School Funtua in Funtua Local Government within the Funtua Judicial Division committed the offence of culpable homicide punishable with death by doing an act to wit: stabbing one Jamilu Yahaya with a knife on the head and stomach with knowledge that such is likely to cause death and it it did cause his death and you thereby committed an offence punishable under Section 221 of the Penal Code.
The charge was accompanied with the Proofs of Evidence.
In the course of the trial, the prosecution, through the PW. 1, tendered in evidence, the confession of the Appellant, as the accused person, contained in Exhibits A and A1. The Appellant was represented by Counsel. The Counsel, after conferring with the Accused/Appellant, did not oppose or object to the confessional statement being admitted in evidence against the Defendant. Thus, the making and the voluntariness of the making of Exhibits A & A1, were seemingly no longer in issue. Exhibit A is the Hausa version of the statement; while Exhibit A1 was the English version.
However at page 32, upon the statement read to the Defendant in open Court the Appellant, as the Defendant, retorted, by way of correction;
That is not the correct statement I made. I actually used my shovel and not knife on the victim.
The voluntariness of the making of the confession, subject to the correction made by the Defendant, was at the trial Court, not in issue. Even when that was not an issue; the PW.2 at page 33 of the records was on hand to corroborate the PW.1 as to the voluntariness of the making of the confession in Exhibits A & A1.
He was not cross-examined on this aspect of his evidence. Facts not disputed and/or challenged are always taken as admitted and established.
However, in amazing desperation as it appears, the Appellant’s Counsel in paragraph 21 of the Appellant’s Brief submitted that –
In spite of unequivocal challenge on (sic) the confessional statement by the Appellant, the trial Court held that the denial amounted to a corroborative evidence of the confessional statement, and that the “corroborated confessional statement” together with the testimonies of the PW.1 and PW.4 are sufficient proof that the Appellant caused the death of the deceased. The lower Court also chose to align with the reasoning of the trial Court, by taking the view that there was no legitimate challenge to the confessional statement, and accordingly, the trial Court had no cause to seek corroborative evidence before relying on the confessional statement in convicting the accused person.
The lingua franca of the two Courts below is English Language.
Page 32 of the records is the proceeding of the trial Court written in simple laconic English that would not take a final year pupil of a Primary School preparing for his Common Entrance to comprehend. Here is a lawyer, before us at the Supreme Court appearing not to understand very simple English Language. And it is not to his credit to insist that he has come before us merely to confuse issues and thus, pander to the beer parlour gossip or glib that the lawyer is he who turns black into white and vice versa. This common man’s impression of the lawyer, though false, should of course be scandalous of us all lawyers!!
The Appellant’s lawyer is, like every lawyer, an officer of the Court enjoined not to do any act or conduct himself in any manner that will adversely affect the administration of justice. A deliberately mischievous distortion of facts, no doubt, is a conduct unbecoming which is not only capable of adversely affecting the administration of justice, but does actually affect the administration of justice. Every lawyer appearing in his professional capacity before a Court shall deal with the Court mostly candidly and fairly. Rules 30 and 32 of the Rules of Professional Conduct for Legal Practitioners, 2007 should, and indeed, offer very basic precept to every lawyer called to the Nigerian Bar and enrolled in the Supreme Court after Law School. It is not palatable to call an officer of this Court a liar, as I am tempted to call the Appellant’s Counsel.
My Lords, in open Court when Exhibits A & A1 were being proposed to the trial Court to be admitted in evidence as his confession to the alleged offence, the defence counsel, after due consultation, albeit briefly, informed the trial Court that they had no objection. Exhibits A & A1 were accordingly admitted in evidence unopposed. No issue of the confession being recorded involuntarily or oppressively (Section 29 of the Evidence Act, 2011) was raised. The PW.2, at page 33 of the record, further corroborated the PW.1, that confession (in Exhibits A & A1) was voluntarily recorded. He was not challenged or cross-examined. I do not, in the circumstance, agree with the Appellant’s Counsel that the mere fact of the Appellant proceeding to correct the slip in the statement as to the offensive weapon used on the victim — that it is a shovel, and not a knife, amounted to retraction of the confession. It was not.
In THE STATE v JAMES GWANGWAN (2015) 13 NWLR (pt. 1477) 600, Okoro, JSC, stated and I agree that a retraction means to say that something you had said earlier is not true or correct or that you did not mean it. It is therefore not a retraction to correct a mere slip in the previous statement in order that the substance of the previous statement may be more meaningful. It is not the law that a retracted confessional statement ceases to have probative value. Where a statement is subsequently retracted, after it had been admitted in evidence, and it forming part of the prosecution’s case, the trial Court is bound to consider its probative value viz-a-viz the retraction: EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; EKPE v. THE STATE (1994) 9 NWLR (pt. 368) 263; LEGI MOHAMMED v. THE STATE (2019) LPELR-46420 (SC).
When a Defendant retracts his previous statement to the Police Investigators, duly recorded under caution (and subsequently proved to have been made voluntarily), in his testimony in open Court at his trial; his testimony is usually treated as unreliable having been effectively rebutted. In the instant case, the purported retraction was being skillfully crafted to fit into the rule in UMANI v. THE STATE (1988) 1 NWLR (pt. 70) 270; (1988) 2 SC (pt. 1) 88 at 98 to the effect that when an extra-judicial statement is retracted by the alleged maker, both the statement and the testimony retracting it are advisedly taken as unreliable. I had earlier stated in this judgment that, notwithstanding the unwholesome antics of the Appellant’s Counsel, the purported retraction was not actually a retraction of his confession in Exhibits A & A1. The rules applicable to retracted statement will therefore not apply in the instant case.
Exhibits A & A1, are the confession of the Appellant made voluntarily. It was recorded by the PW. 1. The PW.2 corroborated the PW.1 that the Appellant voluntarily made the confession under caution. Apart from the defence not opposing its admissibility and admission in evidence; the Appellant further made corrections therein. In his subsequent defence testimony, as DW.1, the Appellant told the trial Court that “the police did not take (his) statement”. He was just flippantly enjoying the luxury of lie telling.
No eyewitness testified. The PW. 1, PW. 2 and PW. 3 were police crime investigators. The most material aspect of the evidence of PW. 1 and PW. 2 is that, the Appellant voluntarily confessed to the crime alleged and the confession was recorded in Exhibits A & A1. The evidence of the duo debunk the subsequent testimony of the Appellant that “the police did not take (his) statement”.
The PW. 4 was the medical officer who conducted the post mortem examination on the body of the deceased victim of the Appellant. The PW.4 issued his report in Exhibit C. PW. 4, adumbrating on his post mortem report, averred “that a sharp object must have been used to inflict the wound on the victim”. There is no reasonable doubt about that. The Appellant himself, correcting the prosecution, stated that he “actually used (his) shovel and not knife on the victim”. The cause of death, as found in Exhibit C, is not in any doubt. PW. 4 rushed the deceased “to the theatre for an emergency surgery” to save his life, but unfortunately he died before reaching the theatre. The PW. 4 described the injury thus —
“The injury was a stab injury. It involved the biggest intestine – and one of the biggest blood vessels. The stab wound penetrated those parts I mentioned”
In this case, actus reus is not in dispute. Exhibits A & A1 juxtaposed with Exhibit C and PW. 4’s testimony that a human being, inflicted stab wound with a sharp instrument affecting the victim’s biggest intestine and the biggest blood vessels, died just before reaching the theatre for repair surgery. The Appellant admitted his responsibility for this act resulting in the death of his victim.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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At trial and in his defence, the Appellant had set up self-defence for the first time. The very fact of this defence is ordinarily, an admission of both the actus reus and the intention to kill his victim (the alleged assailant) for the purpose of saving his own life. Section 59 of the Penal Code provides that “nothing is an offence which is done in the lawful exercise of the right of private defence”. The right of private defence includes (under Section 60 of the same Penal Code) the right to defend one’s own body against any unwarranted offence affecting human body.
Where a Defendant at the bar sets up the defence of self- defence, the issue is whether he had any reasonable apprehension of grievous hurt to, or death of, himself: IHIM v. THE STATE (1991) 2 NWLR (pt. 172) 622 at 638; AKPAN v. THE STATE (1992) 6 NWLR (pt. 248) 439 at 470. This reasonable apprehension of imminent danger of death or grievous hurt to the Defendant pleading self-defence, thus justifying the appropriate defence measures he took to protect himself, is one of facts to be proved by the defence. There is no such proof to the satisfaction of the trial Court and the defence was justifiably dismissed. The trial Court found, and I agree “that the defence of self-defence was raised by the learned counsel to the accused person in the written address”, and that “the accused (person) did not mention anything about it”. The cute answer to this, in my solidarity with the learned trial Judge, is in the words of Rhodes-Vivour, JSC, in SEGUN OGUNSANYA v. THE STATE (2011) 12 NWLR (pt. 1261) 401; (2011) LPELR-2349 (SC) pp 47-48
“No amount of brilliant address or playing to the gallery by counsel can make up for evidence to prove or defend a case in Court. The main purpose of an address is to assist the Court, and is never a substitute for compelling evidence.”
See also NIGER CONSTRUCTION LTD v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 SC at 792; DONATUS NDU v. THE STATE (1990) LPELR-1975 (SC) at 22.
The defence at the trial Court failed to appreciate the significance of Sections 131(1), 132 and 135(3) of the Evidence Act, 2011 providing-
131. (1) whoever desires any Court to give judgment as to any legal right or reliability dependent on the existence of facts which he asserts shall prove that those facts exist.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
132. the burden of proof in a suit or proceeding lies on that person who would fail if evidence at all were given on either side.
135(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant.
I agree with the two Courts below, in their concurrent findings of fact, that the Appellant herein did not prove the defence of self-defence he had latched on to as the last straw. Having failed in his justification for killing his victim, by the plea of the defence of self-defence, it does not lie in the mouth of the Appellant to say that the prosecution did not prove his intention to kill his victim, the deceased. Exhibits A & A1 in the circumstance stand tall, straight and resolute in attesting to his guilt. A Defendant at the Bar pleading the defence of self-defence takes risks in alternative. If the plea succeeds; he would have provided the justification in law for his criminal act or conduct. When it fails; the Defendant would be taken to have admitted the allegation of criminal offence brought against him.
Finally, I agree with the lower Court in its stance that intention to kill can be inferred from the manner the Defendant deployed and applied the offensive weapon to his victim. At page 167 of the record, the lower Court, per Abiru, JCA, stated and I endorse the statement to wit —
“Thus, in EJEKA v. 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. Similarly, in Nwokearu V. The State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the Appellant stabbed the Respondent in the stomach with a knife cutting through the deceased’s big intestines and the largest blood vessels in his body. This was an exhibition of a clear intention on the part of the Appellant to cause the death of the deceased. The Appellant admitted this much in his confessional statement when he said “l know that a knife of any kind is capable of killing once it is used to stab somebody, especially when it is used on somebody’s stomach”
Substituting a shovel for knife, as the Appellant wanted the trial Court to believe, should even be more outrageous.
Since 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 alleged offence (Section 28 Evidence Act, 2011); the Defendant on his confession alone, once the confession unequivocally shows the direct and positive involvement of the Defendant in the alleged crime, can be convicted for the alleged offence confessed to: ODUA v. FRN (2002) 5 NWLR (pt. 761) 615; ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 5; FABIYI v. THE STATE (2015) 6-7 SC (pt. 1) 83.
The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt. The appeal, lacking in substance, is hereby dismissed in its entirety. The decision appealed is hereby affirmed.
Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Ejembi Eko, JSC, in the judgment he just delivered and to underscore the support in the reasonings from which the decision came about, I shall make some remarks.
This appeal is against the judgment of the Court of Appeal, Kaduna Division or Court below or lower Court, Coram: Uwani Musa Abba Aji,.Abdu Aboki, JJCA (as they then were) and Habbe A.O. Abiru, delivered on the 8th day of December, 2015. In that decision, the lower Court upheld the decision of the High Court of Katsina delivered on 20th December, 2012 per Ibrahim M. Bako J. where the trial Court, found the appellant guilty of culpable homicide punishable under Section 221 of the Penal Code of Katsina and thereby sentenced the Appellant to death.
The background facts are well set out in the lead judgment and I shall not repeat them except circumstances warrant a reference to any part thereof.
On the 28th day of January, 2021 date of hearing, learned counsel for the Appellant, Mark Mordi Esq. adopted the brief of argument filed on 4/4/2018 and deemed filed on the 9/1/2019 and a reply brief filed on 26/1/2021 and deemed filed on 28/1/2021. He formulated two issue for determination, viz:-
I. Having regards to the entire circumstances of this case, whether the lower Court was right when it upheld the decision of the trial Court and in holding that the trial Court rightly relied on the Appellant’s Confessional Statements in convicting the Appellant? (distilled from Grounds 1 and 2 of the Notice of Appeal).
II. Whether the lower Court was right when it held that the Respondent had proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt? (distilled from Ground 2 and 3 of the Notice of Appeal).
Learned Director, Civil Litigation of the Ministry of Justice Katsina State, Abdurrahman Umaru for the Respondent, adopted the brief of argument filed on 10/3/2020 and deemed filed on 28/1/2021 and equally adopted the issues distilled by the appellant.
I see issue 2 as sufficient in the determination of the appeal.
ISSUE 2
Whether the lower Court was right when it held that the respondent had proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt.
Canvassing the stance of the Appellant, learned counsel contended that there was no doubt from the evidence that a person known as Jamilu Yahaya is dead but the question that arises is, if from the entire circumstances of the case, the prosecution had satisfactorily established by evidence that Appellant caused the death of the deceased and the answer is in the negative.
That the Appellant denied the confessional statement which the trial Court relied on, instead of properly evaluating the statement and this was fatal to the case of the prosecution. He cited Queen v Itule (1961) All NLR 462 etc.
It was further submitted for the Appellant that the evidence of PW.1 was hearsay and so of no effect. That there was no corroborative evidence with the alleged confessional statement as attended to by the Court below. He cited Iko v State (2001) 14. NWLR (pt. 732) 240-241 etc.
That the evidence of PW.1 and PW4 were not sufficient circumstantial evidence capable of corroborating the confessional statements in proving that indeed the Appellant caused the death of the deceased, Jamilu Yahaya.
It was advanced in argument by the Appellant that the prosecution had not discharged the burden of proof beyond reasonable doubt as required by law and so the Appellant should be discharged. He referred to Abdullahi v State (2008) All FWLR (pt.432) 1047.
That the Appellant’s challenge of the confessional statement affected the probative value that should be attached to the knife and the medical report.
In response, learned counsel for the Respondent contended that the trial Court was right to have relied on the confessional statement of the Appellant in his conviction. He cited Olabode v State (2009) 5 MJSC (pt.ll) 83 at 104-105 etc.
That the confessional statement alone was sufficient without corroboration to secure the conviction even though the trial Court had seen corroboration from other pieces of evidence and the prosecution proved the ingredients of the offence beyond reasonable doubt.
The case of the Respondent was that the Appellant on the 11th August, 2006, stabbed one Jamilu Yahaya on his head and stomach with a knife resulting to the death which act is an offence punishable under Section 221 of the Penal Code. At the trial, the Respondent called four witnesses and tendered 4 exhibits while the Appellant testified as a sole witness for the defence and tendered no exhibits.
The trial Court convicted the accused/appellant and sentenced him to death and that was affirmed by the Court below on appeal and this, upon a reliance on the confessional statements – Exhibits A and A1 in which Appellant confessed to killing the deceased. This confessional statement was reaffirmed by the Appellant when Exhibit A was read in open Court and he informed the trial Court that he used a shovel and not a knife to stab the deceased.
At this point, it needs be stated that a confessional statement made by an accused person and properly admitted without objection as in this case is the best guide to the truth of the role played by him and upon which alone the Court can convict. See Olabode v State (2009) 5 MJSC (pt.11) 83 at 104-105.
The Appellant contends that his statement that he used a shovel and not a knife on the deceased is a retraction of his confessional statement and so, the two Courts were in error in convicting him based on the confessional statement. On this, it has to be said that, it is trite in law that a Court can convict on the confessional statement of an accused person regardless of the fact that the accused resiled from it or retracted from it or retracted all together at the trial. In this instance, the retraction was not at the earliest opportunity such as when the statements were tendered but at the defence stage when the Appellant was testifying. Also, assuming even that the retraction was early, it does not affect the admissibility of the statement but puts the Court on notice on the weight to be attached and possibly the need for corroboration of the contents of the confession. See Akeem v State (2017) 18 NWLR (pt.1597) 340-341; FRN v lweka (2013) 3 NWLR (pt.1341) 285 at 336.
I see no reason to fault what the lower Court observed seen at page 103 of the record, when that Court stated thus:
“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, the confessional statement will be deemed to have been made voluntarily and its contents will be deemed true”.
The Court below relied on the cases of Osung v State (2012) 18 NWLR (pt.1332) 256; Ajibade v State (2013) 6 N WLR (pt. 1349) 25 at 44; Stephen v State (2013) 8 NWLR (pt.1355) 153 at 173.
Indeed, it is at the stage of tendering that objection to admissibility of accused’s statement can be made and where it is made thereafter as in the case at hand, it is treated as an afterthought. See Ehot v State (1993) 5 SCNJ 65 at 91. The Appellant did not retract the making of his confessional statement at the earliest opportunity of tendering it, but only raised in the course of the trial that he used a shovel and not a knife to attack the deceased. The later statement of the Appellant is not a retraction but an affirmation of his guilt of causing the death of the deceased. His statement is admission of guilt which carries no less weight than a written statement. See the Supreme Court case of F.R.N. VS IWEKA (2013) 3 NWLR PT. 1341, P. 25 AT 336 PARAS C-D.
Where the accused’s later statement is a denial of guilt, 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 explanation of this inconsistency is proffered. This is as rightly observed by the lower Court at page 104 of the printed records relying on the case of Gabriel v State (1989) 5 NWLR (pt. 122) 457; Ogoala v State (1991)2 NWLR (pt. 175) 509; Egboghonome v State (1993) 7 NWLR (pt. 306) 383; Oladotun v State (2010) 15 NWLR (pt.1217) 490; FRN v lweka (2013) 3 NWLR (pt. 1342) 285; Osuagwu v State (2013) 5 NWLR (pt.1347) 360
It is the contention of the Appellant in page 12 to 19 of his brief that exhibits A and A1 are not corroborated and that the evidence of pw1 and pw4 which the lower Court relied upon as corroborative evidence, are not sufficient in corroborating the confessional statement to the effect that the Appellant caused the death of the deceased. On this, it has to be pointed out that with or without corroboration, the Court was at liberty to convict the Appellant on his confessional statement even if it is retracted. See F.R.N VS IWEKA (SUPRA) at PG 336 PARAS A-C.
Therefore, a confession alone is sufficient without corroboration as there is no evidence stronger than the person’s own admission or confession. See IKPO VS STATE (2016) 10 NWLR PT 1521 SC 501 AT 530 G-H.
Even where there is desirability for corroboration, an evidence, no matter how slight of circumstances which makes it possible that the confession is true, is sufficient. See SULE VS STATE (2014) 14 NWLR PT 1420 SC 65 AT 88 PARAS F-G, PG 90-91 PARAS H-A.
The law is trite as established by the Supreme Court that corroboration need not consist of direct evidence that the accused person committed the offence nor need it amount to a confirmation of the whole account given by the witness, provided that it corroborates the evidence in some respect material to the charge. See OGUNBAYO VS STATE (2007) 8 NWLR PT 1035, PG SC 157 AT 178 PAR E, 179 PARAS A-B.
The lower Court rightly acted and relied on exhibit A and A1 alongside other corroborative evidences to affirm the conviction of the Appellant by the trial Court.
The Court below was correct in going along with what the trial Court did in the reliance placed on the confessional statement in the conviction of the Appellant.
The Appellant contends under this issue that the Respondent did not prove the second ingredient of Culpable Homicide, that the Appellant caused the death of one “JAMILU YAHAYA” as none of the prosecution’s witnesses actually saw the Appellant kill the deceased, there was no eyewitness and none of the labourers that actually witnessed the incident and told PW 1 were called to testify. I am aware of the fact and position of the law that the onus of proving an offence beyond reasonable doubt is always on the prosecution and never shifts, this onus was successfully discharged by the Respondent at the trial Court.
Although, none of the eyewitnesses that witnessed the killing of the deceased by the Appellant testified, the evidence adduced by the Respondent before the trial Court was overwhelming, convincing and direct to the guilt of the Appellant.
It is trite that an offence can be proved by either or all of the following ways:
(a) Evidence by eyewitness; or
(b) The confession of the accused; or
(c) Circumstantial evidence
See IGRI VS STATE (2012) 16 NWLR PT. 1327 PG 522 AT 541 PARAS B-C
The fact that the Appellant caused the death of the deceased and other ingredients of the offence were as rightly observed by the two lower Courts, proved beyond reasonable doubt through the confessional statement of the Appellant admitted as exhibit A and A1 and other independent corroborative evidences, particularly the evidence of PW 1 and PW4 which circumstantially linked the Appellant with the death of the deceased.
In a long line of judicial authorities of the Apex Court, proof beyond reasonable doubt means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. I shall cite just one, Oseni v The State (2012)5 NWLR (pt.1293)SC 351 at 388.
The Appellant had confessed to the commission of the offence in exhibit A and A1 and there is no evidence stronger than a person’s own admission or confession. See Ikpo v The State (2016) 10 NWLR (pt.1521) 501 at 530.
The burden on the prosecution to prove the offence against the Appellant beyond reasonable doubt does not translate to proof beyond the shadow of all doubt or proof to the hilt. Clearly, the prosecution has discharged the burden of proof beyond reasonable doubt as expected by the law. See Bolanle v State (2009) 15 NWLR (pt. 1172)1 at 10-11; Jua v State (2010) 9 NWLR (pt.1184) 243.
Clearly, there is no basis for this Court to interfere with the well grounded findings of the two Courts below and the ultimate conclusion reached. This appeal has no merit and I dismiss it.
I abide by the consequential orders made.
Appeal Dismissed.
JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Ejembi Eko, JSC and I entirely agree with his reasoning and the conclusion reached therein that this appeal has no merit and deserves to be dismissed. Though, I have no hesitation equally dismissing the appeal, I shall proffer a few comments of my own in support of the judgment.
I am of the view that the argument of learned Counsel for the Appellant in the main is, whether the Court below was right to affirm the conviction and sentence of the Appellant based on his retracted confessional statement. My simple and direct response to the poser is in the affirmative.
It is now settled that criminal guilt of an accused person could be established either by confessional statement of the accused person, circumstantial evidence or evidence of an eyewitness otherwise known as direct evidence.
See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Edamine v. The State (1996) 3 NWLR (Pt. 438) 350.
When it comes to admissibility and reliance on confessional statement to ground conviction, the Court must be satisfied that the statement was freely and voluntarily made. A retraction of confessional statement does not in any way affect its admissibility as long as there are other factors outside the confession pointing to its truthfulness. The Court is only obligated to consider the weight to be attached to the statement in view of the guidelines for assessing its truthfulness. See COP v. Alozie (2017) 7 NWLR (Pt. 1565) 368; Osetola v. State (2012) 17 NWLR (Pt. 1327) 251; Musa v. State (2017) 5 NWLR (Pt. 1557) 43.
In the instant case, the Appellant never retracted or resiled from his confessional statement as erroneously argued by his counsel. He only made a correction on the statement with respect to the exact weapon he used in killing the deceased. He substituted shovel for knife. He pleaded self-defence but never retracted the statement. Needless to say that the statement was admitted without objection, clearing the path for the Court to only consider his plea of self-defence.
The Appellant’s plea of self-defence having failed, the learned trial Judge was safe to rely on his confessional statement to convict him. It is for this reason and fuller reasons advanced in the lead judgment that I also dismiss the appeal. I abide by the orders made in the lead judgment.
Appeal Dismissed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice Ejembi Eko, JSC, has accorded me the privilege of reading, before now, the draft of the judgment just delivered. I concur with reasoning and conclusion reached therein, to the conclusive effect that the instant appeal is grossly devoid of merits, thus ought to be dismissed by this Court. It is indeed my honour and privilege, to adopt the reasoning and conclusion in question as mine.
In the instant case, Exhibit A1 (the Appellant’s confessional statement) is to the effect, inter alia, that while at the scene of the crime (Government Girls’ Secondary School, Funtua, Katsina State), the Appellant was abused by the deceased person. Allegedly, the deceased person also hit the Appellant on his back and hand with a shovel.
According to the Appellant, it was:
“At that point I brought out a knife from my waist and stabbed him twice on his head. The third one I stabbed him on the stomach and he fell down. From there I took to my heels to escape but the remaining labourers ran after me stoning me and got me arrested.”
It was the apt findings of the trial Court (page 57 of the printed record):
“That was why when PW 1 reached the scene after a report had been made to the police station, he met the other labourers holding the accused person while Jamilu Yahaya (the deceased) was on the ground in a pool of blood.
“This statement (Exhibits A & A1) is clearly consistent with other facts that have been established in the testimonies of the prosecution witnesses. ”
This also clearly prove that the accused person is responsible for the death of Jamilu Yahaya. That he stabbed him in the stomach intentionally and with the knowledge that death of Jamilu Yahaya was the probable and not only likely consequence of the act of stabbing.”
On the part thereof, the Court below, in a not so dissimilar passion, made some far-reaching findings to the following effect:
The records of appeal shows that the lower Court made a finding in the judgment that the confessional statement of the Appellant was freely and voluntarily made was direct, positive and unequivocal. This finding was not challenged on this appeal.
…
This Court, in the circumstances, fault the finding of the lower Court that the testimonies of the first and fourth prosecution witnesses constituted corroborative evidence proving the veracity of the contents of the confessional statement. The law is that a conviction can be sustained solely on such a confessional statement, even where it is retracted by the accused/defendant — Solola Vs. State (2005) 11 NWLR (Pt. 937) 460.
The Respondent thus led credible evidence before the lower Court to sustain the charge against the Appellant.
…. This appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Katsina State in charge No. KHT/FT/7C/2007 delivered by Honourable Justice Ibrahim M. Bako on the 20th of December, 2012 and the sentenced (sic) passed on the Appellant therein are hereby affirmed. These shall be the orders of this Court.
Most undoubtedly, the findings of the two Courts below, tantamount to what is jurisprudentially known as concurrent findings. Yet, it has been the consistent practice of this Court not to disturb concurrent findings of fact of the two Courts below, provided they are neither assailable nor perverse. See OBI I. EZEWANI VS. OBI ONWORDI (1986) 4 NWLR (Pt. 33) 27; NBC LTD VS. NGONADI (1985) 5 SC 317 @ 319; (1985) 1 NWLR (Pt. 4) 739; WOLUCHEM VS. GUDI (1981) 5 SC 291.
In essence, the doctrine is well settled, that where there is sufficient evidence to back up concurrent findings of facts by both lower Courts, such unassailable findings ought not to be disturbed. Of course, the exception to the general rule is where it is so apparent there is a substantial error on the record, thus rendering the entirety of the findings perverse, thereby occasioning some miscarriage of justice or material breach of some fundamental principle of law or procedure. See OGOALA VS THE STATE (1991) 2 NWLR (Pt. 175) 509; (1991) 3 SCNJ 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 6-9 SC 153.
As aptly postulated by my learned brother, Eko, JSC @ page 18 (lines 10-14) of the leading judgment:
‘The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt.”
That being the case, therefore, the instant appeal is grossly lacking in merits, and liable to be dismissed.
The appeal is accordingly hereby dismissed by me in the entirety thereof.
ADAMU JAURO, J.S.C.: I read in draft, the lead judgment of my learned brother, Ejembi Eko, JSC just delivered. I am in agreement with the decision and the conclusion contained therein.
The issues raised in the instant appeal have been sufficiently dealt with by my learned brother in the lead judgment just delivered. I however wish to add that every counsel is an officer in the temple of justice. Being desperate to win a case at all cost is a preposterous act that should not be exhibited by a counsel in the temple of justice. A lawyer has a duty to assist the Court in attaining justice but not to engage himself in client/witness tutoring, distortion of material facts and any other conduct which is unbecoming of a legal practitioner. See MAGNA MARITIME SERVICES LTD & ANOR V. OTEJU & ANOR (2005) LPELR-1817 (SC); BILLE V. STATE (2016) LPELR-40832 (SC); OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42763 (SC).
Touching on the merit of the appeal, I wish to add that after the Appellant stated in his confessional statement that that he killed the deceased with a knife, what difference does it make to his case to state in his trial that he indeed used a shovel on the deceased? The ingredients that the deceased died and that it was the act of the Appellant that caused his death have been admitted by the Appellant. On the last ingredient for the offence of culpable homicide punishable with death, which is that the act of the Appellant was intentional. The Appellant’s defence of self-defence could not have availed him because, such defence was only brought up for the first time during the address stage. No evidence was led by the Appellant to substantiate the defence and the trial Court was right to have discountenanced same and proceeded to convict the Appellant for the offence charged.
On the whole, the Appellant in this appeal failed to demonstrate that the concurrent findings of the two Courts below are perverse or not based on evidence before the Court. I too, hold that the appeal lacks merit. Same is equally dismissed.
Appearances:
Mark Mordi, Esq., with him, O. Aliu, Esq., D. D. Killi, Esq. and O. Ohwahwa, Esq., For Appellant(s)
Abdur-Rahman Umar, Esq., Director (Litigation) Katsina State with him, A. A. Ibrahim, A, D. P. P, Katsina State, For Respondent(s)
