AMINU ADAMU v. THE STATE
In The Court of Appeal of Nigeria
On Monday, the 18th day of August, 2014
UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
AMINU ADAMU – Appellant(s)
THE STATE – Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kaduna State High Court sitting in its Zaria Judicial Division in charge No KDH/Z/3C/2009 delivered by Honourable Justice Dogara Mallam on the 19th of April 2013. The Appellant was charged before the lower court with culpable homicide not punishable with death under section 224 of the Penal code. The Appellant was alleged to have caused the death of one Ibrahim Abdullahi on the 10th of October, 2007 at Royal Primary School, Tudun Jukun in Zaria Local Government Area of Kaduna State by stabbing the deceased on the chest with a cow horn with knowledge or having reason to know that death was a probable consequence of the act.
The Appellant pleaded not guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called four witnesses while the Appellant called two witnesses. At the conclusion of trial, and after final addresses of counsel, the lower court delivered a considered judgment wherein it found the Appellant guilty as charged and sentenced him twenty-one years imprisonment. The Appellant was dissatisfied with the judgment and he filed a notice of appeal dated the 9th of July, 2013 against it. The notice of appeal contained three grounds of appeal.
In arguing the appeal before this court, counsel to the Appellant filed a brief of arguments dated the 19th of September, 2013. Counsel to the Respondent responded by a brief of arguments dated and filed on the 23rd of October, 2013 and the brief of arguments was deemed properly filed on the 6th of February, 2014. At the hearing of the appeal, counsel to the Appellant was present in court while counsel to the Respondent did not attend Court despite the service of hearing notice on him.
Counsel to the Appellant relied on and adopted the arguments contained in the Appellant’s brief of arguments while the Respondent’s brief of arguments was deemed adopted and argued under the provisions of Order 18 Rule 9 (a) of the court of Appeal Rules 2011.
In his brief of arguments, Counsel to the Appellant recounted the brief facts of the case made out by the Respondent against the Appellant in the lower Court, gave summary of the testimony of each of the prosecution witnesses and of the defence witness and stated the highlights of the judgment of the lower court. Counsel thereafter distilled three issues for determination in this appeal and these were:
i. Whether the trial Court was right to have convicted the Appellant on the basis of a confessional statement which was full of doubt and discrepancies.
ii. Whether the interpretation of the nature of the wound allegedly inflicted by the Appellant on the deceased could be ascertained by a mere viewing of a photograph as opposed to proof by scientific or forensic means.
iii. Whether the prosecution has discharged the standard of proof as required by law to warrant the conviction of the Appellant.
Counsel argued the three issues together and he prefaced his arguments with the restatement of the established principles of law governing burden of proof in criminal matters and he referred to several case law authorities and the provisions of section 138 of the Evidence Act and he quoted from the decision in Miller vs Minister of Pensions (1974) 2 All ER 372 on the meaning of proof beyond reasonable doubt.
Counsel asserted that evidence which would ground a conviction in a criminal matter may either be direct or circumstantial and for circumstantial evidence to be reliable, it must be so cogent and compelling as to lead to only one conclusion and he referred to several case law authorities including the case of Onah Vs State (1985) 3 NWLR (Pt.12) 236. Counsel also restated the necessary ingredients of the offence of culpable homicide not punishable with death as laid down in a plethora of case law authorities and which must be proved beyond reasonable doubt to sustain a charge against an accused person and he stated that in the instant case, the Respondent failed to discharge the onus of proof on it as the testimonies of the prosecution witnesses were full of material contradictions and that as such a reasonable doubt was cast on the guilt of the Appellant which ought to have resolved in his favour.
Counsel referred to the confessional statement of the Appellant tendered as Exhibits P1 and P1A and stated that it cannot be said to have been made freely and voluntarily and that though the objection to the statement was overruled by the lower court after a trial within trial was conducted, the testimony of the Appellant in the course of his defence on the humiliation and torture he was subjected to and which led to the confessional statement was not challenged or contradicted by the Respondent. Counsel stated that the Superior Police Officer, one ASP Bako Kagoma, who was said to have translated the confessional statement into English language and endorsed same was not called as a prosecution witness and that this amounted to withholding evidence which if produced would have destroyed the case of the Respondent and was thus fatal to the case of the Respondent on the voluntariness of the confessional statement; he referred to the provisions of section 167 of the Evidence Act and several case law authorities on the point.
Counsel stated further that the glaring differences between the three thumbprint impressions on the Hausa version of the confessional statement, Exhibit P1, and the three thumbprint impressions on the English version of the confessional statement, Exhibit P1A, all of which were said to have been made by the Appellant, also raise questions on the voluntariness of the statement. Counsel stated that it is settled law that for a confessional statement to be relied upon to sustain a conviction, it must be direct, positive and proper in law and that the burden of proving affirmatively the voluntariness of a confessional statement was on the prosecution and he referred to the case of Auta vs The State (1975) NNLR 60, amongst others. Counsel said the Respondent failed to prove that the confessional statement was made voluntarily and that it was proper in law and that the lower court was thus in error when it relied on the confessional statement to found the guilt of the Appellant.
On the cause of death of the deceased, Counsel stated that only one, the first prosecution witness, out of the four prosecution witnesses testified to facts relating to the cause of death of the deceased and that none of witness gave evidence that the death was caused by the Appellant. Counsel traversed through the testimonies of the first, third and fourth prosecution witnesses to show that none of them was at the scene of the crime when the injury that caused the death was inflicted on the deceased and he stated that there was no evidence in the entire proceedings that the Appellant stabbed the deceased and that no prosecution witness testified that he saw the Appellant with a knife or any other instrument before, during or after the incident and no such instrument was tendered in evidence, counsel said that there was no evidence linking the Appellant with the cause of death of the deceased and that the totality of the evidence against the Appellant was that he was present when the first prosecution witness saw the body of the deceased and that mere presence at the scene of a crime was not sufficient to prove guilt and he referred to the case of Azumah vs R (1950) 13 WACA 87. Counsel stated that the finding of the lower Court that the Appellant must have known that the blow or the stab was likely to cause death was not supported by any evidence and it cannot thus be allowed to stand and he referred to the case of Ajoke Vs Bello (1992) 1 NWLR (Pt.218) 380.
It was the further argument of counsel to the Appellant that the question of whether or not death was the probable consequence of the alleged act of the Appellant in the instant case was one of fact to be determined on the peculiar circumstances of the case and that the relevant factors to be taken into consideration include (i) state of health of the accused and the deceased at the material time; (ii) the ages and the physical conditions of the accused and the deceased at the material time; (iii) the type of weapon used by the accused and the nature of the injury inflicted by the accused and the part of the body of the deceased struck; (iv) the length of time between the time of cause of injury and time of death; and he referred to the cases Adamu vs Kano Native Authority (1956) SCNLR 65 and Bakuri vs State (1965) NMLR 163.
Counsel stated that it was the testimony of the first defence witness, and as confirmed by Exhibit D1, that the Appellant was fourteen years old at the time of the incident and that it is beyond reasonable doubt that a young boy of that age would know or have reason to know that stabbing another young boy was probable and only not likely to result in the death of the person stabbed. Counsel stated that the interpretation of the wound and the attendant consequences ascribed to it by the lower Court on a mere viewing led the Court into error as Same was not based on scientific Proof.
Counsel urged this court to resolve all the issues in favour of the Appellant and to set aside the judgment of the lower Court.
In his own brief of arguments, Counsel to the Respondent identified two issues for determination in the appeal and these were:
i. whether the learned trial Judge was right to have convicted the Appellant on the basis of the confessional statement in Exhibit P1 and P1A more so when the evidence of PW1 (IPO) was to the effect that the Appellant was never tortured or humiliated by the Police to confess to the crime.
ii. Whether the learned trial Judge was right to have held that the prosecution proved the offence of culpable homicide not punishable with death under section 224 of the penal Code against the Appellant beyond reasonable doubt.
In arguing the first issue for determination, counsel defined what constitutes a confession and he referred to the provisions of section 27 (1) of the Evidence Act and several case law authorities and he restated several times over the long established principle that a free and voluntary confession of guilt, whether judicial or extrajudicial, if it is direct and positive and properly established, is sufficient proof of guilt and is enough to sustain a conviction and a court can rely on it alone to convict an accused. Counsel stated that it was never the contention of the Appellant before the lower court that he was tortured of humiliated into making the confessional statement, father the Appellant, under cross-examination, denied making any statement to the Police but admitted thumb printing Exhibit P1 and P1A and that the statement cannot thus by any stretch of imagination be said to be involuntary and coerced and it was admissible. Counsel said that the confessional statement was voluntary and free and its voluntariness was not challenged and that the statement was consistent in itself and that the testimony of the second prosecution witness on how the statement was made and thumb printed by the Appellant and endorsed by a Superior Police officer corroborated the fact of the confessional statement being direct, free, voluntary and positive.
Counsel stated that the second prosecution witness was not cross examined on the fact of the making of the statement and that the implication was that the Appellant accepted the truth of the testimony and he referred to the case of Oforlete Vs The State (2000) 12 NWLR (Pt.681) 415. Counsel stated further that the Appellant, as the first defence witness, said under cross-examination that the first prosecution witness who recorded the statement did not torture or humiliate him and that he did not know the policemen that were alleged to have tortured and humiliated him. Counsel stated that the confessional statement met all the formal requirements for extra-judicial statement laid down in the case in Kim Vs. State (1992) 4 NWLR (Pt.233) 17 and that the confessional statement was direct, clear and positive and that the failure to can the Superior police officer who endorsed the statement as a prosecution witness cannot be fatal in the circumstances of this case and that the rower court was right in relying on the confessional statement to convict the Appellant.
On the second issue for determination, counsel restated that the settled statement of law on burden of proof in criminal cases and also the ingredients of the offence of culpable homicide not punishable with death as laid down in decided cases and which the prosecution must prove in order to succeed and he referred to several case law authorities. Counsel also reiterated the established modes by which a charge can be proved against an accused person and also that the cause death can be inferred where the deceased died immediately and he also referred to case law authorities. Counsel stated that the Respondent called four witnesses in proving the guilt of the Appellant and he traversed through the testimonies of the four prosecution witnesses and stated that the fact of the death of the deceased was clearly established by the witnesses and that their testimonies on the point were not challenged and also that the testimonies of the first and third prosecution witnesses that the deceased told them shortly his death that it was the Appellant that stabbed him with animal horn amounted to a dying declaration and that this established that it was the act of the Appellant that caused the death of the deceased and he referred to the case of Akpa vs The State (1994) 8 NWLR (Pt.361) 226.
Counsel stated that the testimonies of the first and third prosecution witnesses were not shaken under cross examination and their evidence on the dying declaration of the deceased was not challenged and that considering the fact that the deceased died almost immediately after the attack, made the contention of the counsel to the Appellant that the failure of tender the instrument of attack was fatal misconceived and he referred to the case of Onyia Vs The State (2006) 11 NWLR (Pt.991) 292.
Counsel stated that the fourth prosecution witness also gave evidence that when he questioned the Appellant on the incident, the Appellant confessed to committing the crime and that this testimony of the witness was not challenged or controverted by the Appellant and that the lower court was under an obligation to believe and act on the evidence and he referred to the case of Ada vs The State (2008) 13 NWLR (Pt.1103) 149. Counsel stated that all these pieces of evidence clearly linked the Appellant with the cause of death and that it was the act of the Appellant that was responsible for the death of the deceased.
On the question of intent to kill, Counsel stated that it was always very difficult to prove intention by express means and that as such it is usually implied from the nature of the weapon used and the part of the body where the injury was inflicted and he referred to the case of Michael vs The State (2008) 13 NWLR (Pt.1104) 361.
Counsel stated that the law is that a man intends the natural consequences of his act and where by an unlawful act he causes another person grievous bodily harm leading to death of that person, he is presumed to have intended to kill that person and would be guilty of murder irrespective of his intention. Counsel stated that from the testimonies of the first, second and fourth prosecution witnesses and that of the Appellant, it was not in dispute that there was a fight between the deceased and the Appellant and in the course of which the Appellant stabbed the deceased with an animal horn on the chest and that the only inference deducible was that it was the unlawful act of the Appellant that led to the death of the deceased and that it was on this basis that the lower court convicted and sentenced the Appellant. Counsel stated that the emphasis placed on the age of the Appellant by the counsel to the Appellant as a basis for not implying the necessary intention was unfounded in law and there is no statutory provision that supports the submission and that age was only relevant in deciding whether to send the Appellant to prison or to a borstal home in the event of a conviction.
Counsel urged this court to dismiss the appeal and affirm the decision of the lower Court.
Reading through the above arguments of the counsel to the parties, it is obvious that the central issue for determination in this appeal is whether the Respondent led credible, cogent and sufficient evidence before the trial court to sustain the charge against the Appellant.
The Appellant was charged with culpable homicide not punishable with death.
Culpable homicide not punishable with death is akin to manslaughter and it is an unintentional killing of a human being and such killing is not pre-meditated but accidental, in the sense that it was not intentional. It is trite that for a prosecution to secure a conviction for culpable homicide not 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 voluntary act of the defendant; (iii) that the act of the defendant resulting in the death of the deceased was unlawful, rash or negligent; and (iv) that, in the circumstances of the case, the act of the defendant was not such as would amount to culpable homicide punishable with death – State vs Bello Ayinde (1976-77) NNLR 38, Babalola vs State (1978-79) NNLR 31 and Idowu vs State (2000) 12 NWLR (Pt 680) 48.
It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act vests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. 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 not 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.
It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke vs State (2013) 16 NWLR (Pt.1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt.1395) 568.
It was not in contest in this matter that the person said to be the deceased in the charge against the Appellant. Ibrahim Abdullahi, is dead and neither is it in contest that he died on or about the 10th of October, 2007 at Royal Primary School, Tudun Jukun in Zana Local Government Area of Kaduna State. Both the Appellant and the Respondent conceded this fact and, there was cogent evidence establishing the fact before the lower Court.
On the second ingredient of the offence of whether it was the act of the Appellant that caused the death, the law is that to establish this ingredient beyond reasonable doubt, the Prosecution 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.1021) 214 and Ekpoisong vs State (2009) 1 NWLR (Pt.1122) 354. This point was made by the Supreme Court in the case of 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 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”
Now, it is it is trite law that in a criminal trial the prosecution may prove the guilt of the defendant 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.
In finding for the Respondent on the second ingredient, the lower court stated, in the judgment, thus:
“I believe the evidence of the prosecution that one Ibrahim Abdullahi on or about the 10th day of October, 2007 died as a result of a fight between him (deceased) and the accused Person.
The relevant portion of Exhibit P. 1(a), the confessional statement of the accused person reads as follows:
‘We start argument with Ibrahim Abdullahi which extend us to start abusing ourselves which leads us to live (sic) the place and met at one bush which we start fighting when he beat me up. I remove out a horn and stabbed him on the chest which made him to laid down on the ground and left him lying down on the ground and run back home, which I later heard information that he died. That is all I know.”
The relevant portion of Exhibit P. 1(a) reproduced above is to the effect that the accused person and the deceased Ibrahim Abdullahi were engaged in a heated argument that degenerated into an exchange of abusive and insultive language between the duo. That was not enough as the two decided to leave the vicinity as there were on lookers there to a secluded and isolated place where they fought and the deceased beat the Accused and the Accused used an animal horn to stab the deceased on the chest and left him there on the scene and went home.
I believe the evidence of PW1 that as he tried to carry the deceased on his back the deceased died on the spot. Exhibit P. 2(a) is the Photograph of the corpse of the deceased
The Accused admitted in Exhibit P. 1(a) that he fought with the deceased and that he stabbed the deceased with a horn and inflicted injury to the deceased resulting to his death. It is therefore the act of the Accused that led to the death of the deceased as the deceased died on the spot soon after he was stabbed by the Accused.
The Accused testified in his defence to the effect that he and the deceased fought at an isolated or secluded place in a primary school and the deceased stabbed him with a scissors which could not penetrate his body. The scissors fell down and both of them struggled to pick it from the ground but he got the scissors first and used same to stab the deceased. In his statement in Exhibit P. 1(a) and his evidence in open court as DW1 the Accused admitted fighting with the deceased and stabbing him. The statement of the Accused in Exhibit p. 1(a) is a direct admission of facts constituting the charge of commission of the offence charged. In other words, the statement of the Accused is Exhibit P. 1(a) is a rendition of the events that led to the death of the deceased and which events or account of the Accused Person has owned up to…
Exhibit p. 2(a) the photographs of the corpse of the deceased show or reveal a stab wound on the left hand collar bone of the deceased…
The evidence of PW3 to the effect that the deceased upon hearing his voice as he approached the locus in quo cried out to him “Oga Leader Aminu has killed me, he has stabbed me with an animal horn”, is a confirmation and corroboration of the confessional statement Exhibit P. 1(a).
The piece of evidence quoted above and uttered by the deceased when death was imminent is a dying declaration as to the cause of death of the deceased and is admissible.” (See Pages 84 to 85 of the records)
The lower Court found that it was the injury inflicted on the deceased in the course of the fight between the deceased and the Appellant that caused the death of the deceased. This finding was supported by the testimony of the first prosecution witness who stated that he arrived the scene of the fight shortly after the incident and that he saw the deceased approaching and falling down and getting up and he picked up and carried the deceased on him back but that the deceased died before he could go far and that when he conveyed the deceased to the hospital, in the company of the police, the deceased was pronounced dead by the Medical Doctor. The third prosecution witness, who similarly arrived at the locus of the crime shortly after the fight, corroborated the testimony of the first prosecution witness that the deceased died on the spot and that the matter was reported to the Police who conveyed the deceased to the hospital where he was confirmed dead by the Medical Doctor. The second prosecution witness confirmed the story of the first and third prosecution witnesses that deceased was pronounced dead upon arrival at the hospital by the Medical Doctor.
It is settled law 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, Azu Vs State (1993) 6 NWLR (Pt.299) 303, Aiguoreghian Vs State (2004) 3 NWLR (Pt 860) 367, Akpa Vs State (2008) 14 NWLR (Pt 1106) 72. Thus, in Ben Vs State (2006) 16 NWLR (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. 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 NWLR (Pt.1320) 248. This court finds that the Respondent thus led cogent evidence on the cause of death of the deceased.
On the second limb of the second requirement in a charge of culpable homicide not punishable with death – whether the Respondent proved beyond reasonable doubt that it was the act of the Appellant that led to the cause of death of the deceased, the records of appeal show that the Respondent did not lead direct eye witness account and that it relied on the confessional statement of the Appellant and the circumstantial evidence contained in the testimonies of the first, third and fourth prosecution witnesses. The lower Court relied on both the confessional statement and circumstantial evidence to find the guilt of the Appellant.
Counsel to the Appellant complained about the reliance placed by the lower court on the confessional statement of the Appellant maintaining that the confessional statement was not voluntary and was obtained by torture and humiliation of the Appellant and was thus inadmissible. This was the first ground of appeal of the Appellant and the first issue for determination formulated by his counsel. The record, of appeal show that the issue of involuntariness of the confessional statement was raised when the second prosecution witness, the Investigating Police Officer, sought to tender the statement and this necessitated the lower Court to conduct a trial-within-trial and in the course of which the Respondent and the Appellant called a witness each. In a considered Ruling delivered on the trial-within-trial on the 27th of January, 2011, the lower Court disbelieved the story of the Appellant on the issue of torture and it found that the confessional statement was voluntary and free and it admitted the statement in evidence. The first ground of appeal of the Appellant and the first issue for determination formulated by his Counsel were indirectly against the Ruling of the lower Court, though it was not so expressly stated.
It is trite law that where the issue of involuntariness of a confessional statement is raised by an accused person, the onus is on the prosecution to prove beyond reasonable doubt the voluntariness of such confessional statement – Obidiozo Vs The State (1987) 4 NWLR (Pt.67) 748, Gbadamosi Vs The State (1992) 9 NWLR (Pt.266 465, Emeka Vs State (2001) 14 NWLR (Pt.734) 666 and Bright Vs State (2012) 8 NWLR (Pt.1302) 287.Â Â The sole witness called by the Respondent in the trial-within-trial was one Sergeant Ibrahim Umar, the Investigating Police Officer, and he gave evidence that he did not know the Appellant before the incident and he continued thus:
“On the 10/10/07 I was on duty at the Divisional Police Headquarters Zaria City when a case of culpable homicide was reported at the Station by one Saidu Haruna of Tudun Jukun. The case was referred to me for further investigation. I conveyed the corpse of the victim to Gambo Sawaba General Hospital, Zaria City for examination.
The doctor confirmed the victim dead. The relations of the victim wrote an application for the corpse to be released to them for burial and same was approved without any post mortem examination being conducted on the corpse, I recorded the statement of the Accused Person under caution in Hausa language and thereafter translated same into English. The Accused person thumb printed the statement. I took the statement before my superior who read the statement in Hausa to the Accused person and he agreed that he made same voluntarily and he, the Accused person thumb printed the statement again. The superior police officer endorsed the statement. …”
The witness was not cross-examined either by the Appellant or by his counsel. The Appellant testified on his behalf in the trial-within-trial and his evidence went thus:
“… I recall my first appearance in court in respect of the trial within trial on the 23/2/2010. I recall the evidence of PW1 on that date concerning my making a statement to the police. I recall, I denied making the statement voluntarily. I was at home sleeping when I heard someone calling at the door or gate. My father went and met them and the police told him that they had come for his son, Aminu. They informed him that I had fought someone and killed him. My father called me and they took me away to the police station for investigation after handcuffing.”
The Appellant testified that at the police station he was searched but nothing incriminating was found on him and then he was put in a cell. The Appellant continued thus:
“The following day I was taken to a room where I was interrogated as to what happened and I killed a Person. I denied killing someone but admitted fighting somebody. The policeman interrogating me brought a stick and told me if I did not tell him the truth, he would kill me with the stick. I then told him that I only fought the man but I did not kill him. He asked me to undress and I did and he left me for 5 minutes and thereafter asked me to put back my clothes and I did. After he finished recording my statement he asked me to thumbprint same and I did after he hit me with a stick when I told him I did not know how to thumbprint. He forcefully took my thumb and put on a black ink and thumb printed the document.
Thereafter, I was taken to the cell. Thereafter, I was taken to a certain room called “red curtain” and the first thing they did to me was to beat me on my legs with a big stick. I was told to admit killing the deceased or else they would kill me. They tried their worst and I still remained adamant. I was placed in a bench and thoroughly beaten. I was handcuffed and cuffs were used on my legs too and hung upside down. I started bleeding from the nose and thereafter became unconscious. When I woke up I found myself in the cell and I asked what brought me there and I was told the police … I could not eat for 4 days…”
Under cross-examination, the Appellant stated, in part, that he was not tortured by the Investigating police officer, the prosecution witness, who recorded his statement and he could not remember the police men who tortured him and that he did not make any statement at the police station.
As stated earlier, the testimony of the sole prosecution witness in the trial within trial was not contested, contradicted or disparaged by cross examination; the witness was not at all cross-examined by the Appellant or by his Counsel. The law is that, in such circumstances, the testimony of the witness will be believed and any subsequent statement of the Appellant seeking contradict the testimony will be treated as an afterthought – Oforlete Vs State (2002) 12 NWLR (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, Ishaya Vs. State (2013) All FWLR (Pt.696) 588. This point was succinctly made by Belgore, JSC (as he then was) in Okasi Vs. State 1989) 2 SCNJ 183 at 188 – 189 thus:
“In all criminal trials the defence must challenge all the evidence it wishes to dispute by cross-examination. This is the only way to attack any evidence lawfully admitted at trial. For when evidence is primary, admissible in the sense that it is not hearsay or opinion and not that of an expert, and an accused Person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross-examined to elucidate fact disputed, for it is late at the close of the case to attempt to negative what was left unchallenged; it is even an exercise in futility to demolish it on appeal and it is like building a castle in the air to find fault in such evidence in this court.”
Further, the Appellant did not deny that it was the Investigating Police officer, the sole prosecution witness in the trial within trial, who recorded his said confessional statement and he said under cross-examination that this particular police officer did not torture him. It is clear from the testimony of the Appellant that the alleged torture by policemen he did not know took place after his confessional statement has been recorded by the Investigating Police officer. It is settled law that for an inducement, threat or promise to make a confessional statement irrelevant and therefore inadmissible, two conditions must be present (i) it must have reference to the charge against the defendant; and (ii) the defendant should believe that by making the statement he would gain advantage and avoid evil even if temporarily.
A confessional statement becomes involuntary, if the statement could not normally have been made but for the “inducement, threat or promise” emanating from a person in authority. In another language, a confessional statement is involuntary if it is made in response to some allurement or pressure by the police or any person in authority – Okonkwo Vs State (1998) 8 NWLR (Pt 561)) 210. It must be obvious from the testimony of the defendant that the allurement of pressure played on his mind as the time he made the statement. It is clear in the instant case, that the alleged torture, if any, of the Appellant played no part in the mind of the Appellant as at the time his confessional statement was recorded.
In the circumstances, this court cannot fault the finding of the lower court that the Respondent led cogent evidence to prove that the confessional statement of the Appellant was made voluntarily and freely and without any coercion, threat or inducement. The failure of the Respondent to call the Superior Police officer who endorsed the confessional statement of the Appellant cannot in any way be fatal to the case against the Appellant as the Respondent was bound to call witnesses sufficient to prove its case – Ishaya vs State (2013) All FWLR (Pt 696) 588.
In the said confessional statement, the Appellant stated in part thus:
“…We start argument with Ibrahim Abdullahi which extend us to start abusing ourselves which leads us to live (sic) the place and met at one bush which we start fighting when he beat me up. I remove out a horn and stabbed him on the chest which made him to laid down on the ground and left him lying down on the ground and run back home, which I later heard information that he died. That is all I know.”
In addition to the confessional statement, there was evidence in the testimony of the third prosecution as to what the deceased informed him as to the cause of his injury shortly before his death and the lower Court treated the piece of evidence as amounting to a dying declaration and it found corroboration for the contents of the confessional statement of the Appellant in the piece of evidence. The third prosecution witness, the Youth Leader of the Vigilante Group, testified, in part, thus:
On 10/10/07 at about 7.00pm there was a misunderstanding between the Accused and Ibrahim Haruna. I appealed to them not to go further with the hot exchange of words and I left.
After I left the Accused and the said Ibrahim Haruna now deceased … went to a secluded place where they engaged themselves in a physical combat and the boys or children that gathered around them rushed to call me. Myself and Baba Karami, Abubakar Garba went to see what was happening. As we approached the scene. I saw Ibrahim crawling on his knees and as soon as he had my voice telling them to stop fighting he cried out ‘Oga Leader, Aminu has killed me, he has stabbed me with an animal horn.” I then told him ‘you are not dead, you are still alive.’ we then hastened up to pick him up and as we tried to put him in my car to convey him to the hospital he gave up the ghost…”
Section 40 (1) of the Evidence Act 2011 states that a statement made by a person as to the cause of death, of as to any of the circumstances of the events which resulted in his death, in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of making it hope of recovery. Section 40 (2) say, that the said statement shall be admissible whatever may be the nature of the proceeding in which the cause of death comes into question. This provision is a codification of the common law doctrine of dying declaration and the rationale for which was stated in 1789 by Eyre C B in R Vs Woodcock (1789) 1 Leach 500 at 502 thus:
“The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice.”
A dying declaration is a statement made by a person who may die from injury received from a person whom the deceased person identified as the person who inflicted on him the injury that eventually caused his death.
The conditions under which such statement is admissible under our Evidence Act are (i) the person who made the statement must have died before the statement, written or verbal, is tendered in evidence; (ii) the statement must relate to the cause of death of the Person who made the statement; (iii) The statement is admissible in whatever proceeding in which the cause of death comes into question: it is not only relevant in a trial for murder or manslaughter of the maker of the statement; and (iv) the maker of the statement must believe himself to be in the danger of approaching death, though he may have hopes of recovery: in other words he need not have lost all hope of life or be in settled hopeless expectation of death. The belief in the danger of approaching death is subjective and not objective. The person making the declaration must believe himself to be in danger of approaching death and it is not something that can be inferred from surrounding circumstances or the opinion of third parties – Mome Garba & Ors Vs R (1959) SCNLR 402, Okoro Vs. State (2007) 2 NWLR (Pt.1019) 530, Okoro Vs State (2012) 4 NWLR (Pt.1290) 351, Ezeugo Vs State (2013) 9 NWLR (Pt 1360) 508.
Applying these principles to the facts of this present case, it cannot be contested that the statement made by the deceased to the third prosecution witness that the Appellant stabbed him with an animal horn qualified as a dying declaration and it corroborates the confessional statement of the Appellant.
Also, the fourth prosecution witness, a Newspaper Reporter, testified that the Appellant had been reported to the village council in the past on three occasions for stabbing people with a knife and that the incident leading up to this case was the fourth one and that when he questioned the Appellant about this fourth incident, the Appellant admitted that he committed the offence. This portion of the testimony of the witness was not touched upon under cross-examination and it was not contradicted or controverted by the Appellant in his testimony in his defence. The admission of the Appellant to the fourth prosecution witness that he stabbed the deceased was an oral confession and the law is that an oral confession carries no less weight than one made in writing – Jua Vs State (2010) 4 NWLR (Pt.1184) 217, Dawai vs State (2013) LPELR-20759 (CA). The oral confession also goes to support the contents of the written confessional statement of the Appellant.
These were evidence of facts outside the confessional statement that point to the truth of the facts contained in the confessional statement. They corroborate the facts in the confessional statements. It is trite that a conviction can be sustained on a free and voluntary confession of a defendant notwithstanding that he retracted the confession – Solola vs State (2005) 11 NWLR (Pt 937) 460, Osuagwu vs State (2009) 1 NWLR (Pt.1123) 523, Arogundade vs State (2009) 6 NWLR (Pt.1136) 165, Oseni vs State (2011) 6 NWLR (Pt.1242) 138 on the whole, this court cannot but agree with the lower court that the Respondent led cogent and credible evidence to establish beyond reasonable doubt that it was the act of the Appellant that caused the death of the deceased.
Counsel to the Appellant and to the Respondent made heavy weather of the issue of whether of not the lower court was correct in finding that the Appellant had the intention of killing the deceased. It is correct that the lower court found in its judgment that from the nature of the injury inflicted on the deceased, the Appellant “must have intended to cause the death of the deceased or to cause such bodily injury that was likely to cause the death of the deceased.” It appears to this Court that the Counsel to the Appellant, counsel to the Respondent and the lower court apparently lost sight of the charge preferred against the Appellant. This was obvious in the arguments canvassed in the respective briefs as all the cases referred to in both briefs of arguments were in respect of the charge murder.
The Appellant was charged with culpable homicide not punishable with death, as opposed to a charge of culpable homicide punishable with death. The “specific intention” requirement is an indispensable essential only in a charge of culpable homicide punishable with death and it is not an indispensible requirement in establishing the offence of culpable homicide not punishable with death. In fact, it is the absence of the specific intention to cause death that ameliorates an offence from culpable homicide punishable with death to the offence of culpable homicide not punishable with death. This point was made by the Supreme Court in the case of Shosimbo vs The State (1974) All NLR 603 where the court stated that “for the offence of manslaughter it is not necessary to prove any intent to kill or do grievous bodily harm provided there is proof that the unlawful act of the accused caused some harm to the deceased which harm caused his death.” The position was reiterated by the Supreme Court in Idowu Vs State(2000) 12 NWLR (Pt.680) 48, Ejeka Vs State (2003) 7 NWLR (Pt 819) 408, Egbirika vs State (2014) LPELR-22009 (SC).
Thus, to establish the offence of culpable homicide not punishable with death, the charge preferred against the Appellant, it was not necessary for the Respondent to establish that the act of the Appellant which caused the death of the deceased was done intentionally or with knowledge that death or grievous bodily harm was its probable consequence. It is sufficient if the Respondent proved that the said act of the Appellant was unlawful, unauthorized and inexcusable in law and/or that it was rash and reckless without due regard or consideration for its consequences and/or that it was negligent – State vs Bello Ayinde (1976-77) NNLR 38 and Babalola Vs State (1978-79) NNLR 31. The evidence before the lower court was that the Appellant and the deceased engaged in a fight and in the course of which the Appellant stabbed the deceased with an animal horn in the chest. There was no evidence that the deceased was armed with any object in the course of the fight and neither was it suggested that the Appellant acted in self-defence out of fear for his life as to make his act excusable in law. It is cannot be contested that, on the state of the evidence led in this matter before the lower Court, the act of the Appellant in stabbing the deceased in the chest with an animal horn and which act caused the death of the deceased was not unlawful and/or that it was not rash and reckless without due regard for its consequences.
Counsel to the Appellant seemed to suggest that because of the young age of the Appellant, fifteen years at the time of commission of the offence, he cannot be said to have appreciated the consequences of his action and cannot thus be said to have had the intention to kill the deceased. Without engaging the counsel to the Appellant on this submission, it was not his suggestion that young age of the Appellant made his action of stabbing the deceased with an animal horn lawful or excusable in law and neither did he say that it meant that the said action of the Appellant was not rash or negligent. The issue of the age of the Appellant was thus not relevant in reaching a decision of whether or not the Appellant was guilty of culpable homicide not punishable with death. The lower court was thus on firm ground when it found that the Respondent led credible, cogent and strong evidence to establish the offence of culpable homicide not punishable with death against the Appellant.
The Appellant has not given this Court any reason in this appeal to disturb the judgment of the lower court. In conclusion, this appeal fails and it is hereby dismissed. The judgment of the Kaduna state High court sitting in its Zaria Judicial Division in charge No KDH/Z/3C/2009 delivered by Honourable Justice Dogara Mallam on the 19th of April 2013 and the sentence passed therein on the Appellant is hereby affirmed. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.
UWANI M. ABBA AJI, J.C.A.: I was privileged to have read in advance the leading judgment just delivered by my learned brother H.A.O. Abiru, JCA in this appeal. I am in full agreement with the reasons given and the conclusion reached in the said judgment, that the appeal is devoid of any merit. I adopt the reasoning and conclusion as mine. I have nothing more to add. Accordingly I also dismiss the appeal for lack of merit and affirm the judgment of the lower court delivered on the 19th April, 2013.
I endorsed the consequential order as to costs.
AMINA AUDI WAMBAI, J.C.A.: I have had the privilege of reading the lead Judgment delivered by my learned brother, Habeeb A. Olumuyiwa Abiru, JCA.
I agree with the sound reasoning and conclusion reached by my learned brother that the appeal lacks merit and should be dismissed. I also find no merit in this appeal and accordingly dismiss same.
Fausat Abdul Salaam with Isyaku Abdul Rahman For Appellant
No appearance For Respondent