AMOS v. STATE
(2020)LCN/14089(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/YL/135C/2018
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
ALEX AMOS APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A DEFECT IN A CHARGE SHOULD BE RAISED TIMEOUSLY
Although the law is trite that a defect in a charge should be raised timeously, the Appellant in this appeal was granted leave on 31st January, 2019 to amend his notice of appeal in order to raise a fresh issue of law which according to him touches on the issue of jurisdiction. It is the law that the issue of jurisdiction can be raised at any stage even on appeal to the Supreme Court. However the issue of jurisdiction should be raised timeously not as in this case when trial in the Court below has been concluded. See the Supreme Court case of AG. of Lagos State Vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552. PER ABIRIYI, J.C.A.
WHETHER OR NOT A CHARGE AGAINST AN ACCUSED PERSON MUST BE SIGNED
The Courts are blind to any document that is not signed. That explains the provision of Section 200 of the Criminal Procedure Code Cap 39 Laws of Adamawa State 1997 which provides as follows:
“Charges may be as in the forms set out in Appendix B modified in such respects as may be necessary to adapt them to the circumstances of each case.”
The zombie charges contained in Appendix B indicate that a charge must be signed or sealed. A criminal trial is not a tea party but a grave responsibility entrusted on the State. It is for this reason that it is provided by the law that the charge against the accused person be signed. Any officer of the Ministry of Justice other than the Attorney General can validly sign a charge. A private Legal Practitioner who is a prosecutor in a criminal matter on behalf of the Attorney General is also entitled to sign the charge as the Prosecutor and representative of the Attorney General. See FRN Vs. Adewunmi (2007) 10 NWLR (Pt. 1042) 399 and FRN Vs. Osahon (2006) 5 NWLR (Pt. 973) 361. PER ABIRIYI, J.C.A.
PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON IN A CRIMINAL TRIAL
The law both ancient and modern is that in a criminal trial the accused person is constitutionally presumed innocent until the prosecution proves him guilty. The onus of proof of the guilt of the accused person never shifts. It is as “constant as the Northern star.” Even where an accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden of proving the guilt of the accused person. Failure to discharge this burden renders the benefits of the doubt in favour of the accused person. The slightest doubt raised by the accused person shall entitle the Court to resolve the doubt in favour of the accused. If an accused gives an account which is consistent with innocence and could be true, and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regard to his guilt. See Section 35 (5) of 1999 Constitution FRN (as amended), Akinfe Vs. State (1988) 3 NWLR (pt. 85) 729; Igabele Vs. State (2006) 6 NWLR (Pt. 975) 100, People of Lagos State Vs. Umaru (2014) 4 SCNJ 114 at 13, Okafor Vs. State (2006) 4 NWLR (Pt. 969) 1 and Okolo Vs. Commissioner of Police (1977) NWLR. Where the story of the accused if believed is capable of proving his innocence, there is a duty to investigate such story. The failure to investigate such story tantamounts to admission of the story. See Bozin Vs. State (1985) 2 NWLR (Pt. 8) 465 at 481. PER ABIRIYI, J.C.A.
THE ESSENTIAL INGREDIENT OF THE CRIMINAL OFFENCE OF MURDER UNDER THE PENAL CODE
Under the Penal Code there are three essential ingredients of the offence.These are; 1) the death of the deceased, 2) that the death was as a result of the act of the accused; and 3) that the accused knew that his act will result in the death or did not care whether the death of the deceased will result from his act. See State Vs. Danjuma (1997) LPELR 3216 SC page 23 – 24, Musa Vs. State (2009) LPELR – 1930 SC page 11 – 12 and Adamu Vs. State (2014) LPELR – 22696 page 21. PER ABIRIYI, J.C.A.
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON A RETRACTED CONFESSIONAL STATEMENT
The Court below apparently relied heavily on the confessional statement of the accused person to convict the Appellant for culpable homicide punishable with death. The Court below can convict an accused person on his confessional statement even if retracted. There is no evidence stronger than a person’s own admission or confession. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession is true. See the Supreme Court decision ofDibie Vs. State (2007) 9 NWLR (Pt. 1038) 309. To constitute a confession the accused person must clearly, precisely and unequivocally acknowledge or admit the offence charged. See The State Vs. Shonto (2019) LPELR – 47431 SC. PER ABIRIYI, J.C.A.
JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This appeal is against judgment delivered on 11th June, 2018 in the High Court of Adamawa State holden at Yola.
The Appellant and four others were tried on a five count charge of conspiracy, culpable homicide punishable with death, inciting disturbance, mischief by killing or maiming animals and causing disappearance of evidence contrary to Sections 96 (1)(a), 79 and 221 (b), 144 (1), 167 and 79 of the Penal Code, Laws of Adamawa State 1997. The Appellant and the four others were convicted on counts 1, 2, 4 and 5 but discharged on count 3 as the offence of inciting disturbance contrary to Section 114 (1) of the Penal Code was not proved beyond reasonable doubt. Briefly stated, the case of the Respondent is as follows:
According to the PW3 who is said to be an eye witness, on 18th January, 2017 he went out to rear their cows with Sale, Ori and Adamu. They got to a River where they wanted to give water to their cows. There was a farm nearby with a generator on. He saw one person he did not know. He told the others who were rearing the cows with him that the person would shoot at
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them. Then they started running away. They (not he now) pursued them. They entered among the cows. Adamu who was ten (10) years old was caught by the people who were pursuing them. He heard Adamu crying. He heard a gunshot.He then went and informed their father Buba of what happened. After that they went and reported at the Police Station.
They then went with the Policemen to the place Adamu was caught. They found blood stain and a sign of dragging. They found the cap of the boy with blood stain.
They went up to the river but could not find the body.
In an earlier extra judicial statement which he retracted, the Appellant stated that he saw the Fulani who had a few days earlier damaged his crops approaching with their herd. Then he called the 4th accused who organised the 2nd accused who was armed with a spear and the 3rd accused who was in possession of a bow and arrow and the 5th accused who was also armed with a spear to come because the Fulani who used to destroy his farm were coming to destroy his farm. He took the spear from the 5th accused person and went straight to attack the Fulani and returned the spear to the 5th accused person. People he
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called on phone went and attacked the Fulani. He heard a gunshot.
Appellant’s defence in Court is different from the statement he made to the Police. According to the Appellant, he was called at the SCIID, Yola. When he got there the Police told him that he killed another person and he denied. The Police started beating him and asked him the people who passed on the road by his farmland. As the Police continued to beat him, he gave them the names of the co-accused persons.
After considering the evidence of the witnesses called by the Respondent, exhibits tendered and the defence of the Appellant the Court below convicted the Appellant and the four others as pointed out earlier on four of the five counts charged but discharged him and the others on count 3.
The Appellant has proceeded to this Court by an original notice of appeal dated and filed on 8th August, 2018. On 31st January, 2019, the Appellant was granted leave to raise a fresh issue of law and to amend his notice of appeal. The amended notice of appeal filed on 29th January, 2019 was deemed duly filed and served on the 31st January, 2019. The amended notice of appeal contains seven
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grounds of appeal.
From the seven grounds of appeal, the Appellant presented the following two issues for determination:
(a) Whether the proceedings before the lower Court were not a nullity? – relates to ground (1) one of the amended notice and ground of appeal.
(b) Whether the prosecution proved the case against the Appellant to justify his conviction and sentence by the lower Court? – Relates to grounds 2 to 7 of the amended notice and grounds of appeal.
On its own part, the Respondent also presented the following two issues for determination:
(1) Whether the trial Court rightly assumed jurisdiction when it tried and convicted the appellant.(Distilled from ground 1).
(2) Whether from the totality of the evidence adduced, there was legally admissible evidence before the trial Court to support the judgment of the learned trial Judge that the prosecution proved its case beyond reasonable doubt.”(Distilled from grounds 2, 3, 4, 5, 6 and 7).
The issues formulated by both parties are similar though differently worded. I will therefore determine the appeal on the issues presented by the Appellant.
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On issue 1, learned Counsel for the Appellant submitted that in the absence of any signatures on the application to prefer a charge and the charge itself, the trial and conviction of the Appellant was a nullity and the entire proceedings and conviction of the Appellant should be set aside by the Court. The Court was referred to Izi Vs. The State (2016) LPELR – 42064 at 13 – 17 and several other authorities. The Court was referred to the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules 1970 Rule 3(1) which provides that an application for leave to commence trial in the High Court by information must be in writing and shall be signed by the applicant.
On issue 2, learned Counsel for the Appellant submitted that the evidence of the only eye witness (PW 3) did not link the Appellant with the commission of any of the offences for which he was charged. It was submitted that exhibit E which the Court below claimed was a confessional statement of the Appellant could not have been corroborated by the confessional statements of the co-accused persons exhibits A A1, B B1, C C1, and D D1 unless the Appellant adopted any of the statements
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which is not so in this case. Exhibit E, it was submitted, was not corroborated by the evidence of PW3.
Learned Counsel for the Appellant contented that the prosecution agreed that the statement of the Appellant exhibit E was not voluntarily made because the PW 6 said under cross-examination at the trial as PW 1 as follows:
“No we did beat the 1st Accused person and I don’t know where he sustained the injury if any.”
Learned Counsel for the Appellant found fault in the manner Exhibit E the statement of Appellant was recorded in English language even though the Appellant made the statement in Hausa language. It was submitted that in the absence of a Hausa version of the Appellant’s statement the Court below ought not have ascribed any weight to it as a confessional statement to convict the Appellant. Exhibit E, it was submitted, was not a confessional statement because PW 6 who recorded it said so. The Court was referred to the evidence of PW6. This was buttressed by the fact that the Appellant was not taken before a superior Police Officer with 3rd and 4th accused persons, it was submitted.
It was submitted that none
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of the prosecution witnesses gave evidence that the body of Adamu Buba was thrown into River Benue or that it was for the purpose of disappearance of evidence.
It was submitted that the Court cannot rely on the confessional statement of a co-accused to convict an accused person as the Court below did in this matter. The Court was referred to Hassan Vs. State (2017) 5 NWLR (Pt. 1557) 1 at 31. It was submitted that there was nothing in exhibit E showing that the maker admitted committing the offence. This is borne out of the fact that the Court below nowhere indicated which portion of the statement amounted to a confession.
It was submitted that there was no evidence to support the findings of the Court below at page 146 of the record.
It was submitted that there was nothing in exhibit E to suggest that there was an agreement to maim cows.
It was submitted that though the PW3 was said to be an eye witness his evidence did not implicate any of the accused persons in the commission of any of the offences for which they were charged.
The invitation to Tayi Sabagi, it was contended, was not to come and kill any Fulani or maim any cow but to
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come and help the Appellant drive away the cows from the farmland. That there was nothing in exhibit E to show that the presence of Tayi Sabagi, Alheri Pannel and Jerry Gideon with arms was at the instruction or consent of the Appellant it was further argued. Therefore the Appellant cannot be held responsible for the arms brought by Tayi Sabagi and others.
The Court was referred to the portion of exhibit E where the Appellant said, he did not know the Fulani man was killed. That he did not see the Fulani man’s corpse and did not take part in the killing and maiming.
On issue 1, learned Counsel for the Respondent submitted it is the duty of the counsel for the (Appellant) defence to raise the issue of defect in charge but this must be done at early stage of the trial by Appellant’s Counsel and that the Appellant must show that the defect in the charge amounted to a miscarriage of justice. The Court was referred to Ologunpese Vs. State (2018) LPELR – 44135 CA at 33, Amadi Vs. FRN (2008) 12 SC (Pt. 11) 5.
It was submitted that Ezi vs. State (2016) LPELR 42064 cited by Appellant’s Counsel is distinguishable from the instant
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matter.
On issue 2, learned Counsel for the Respondent submitted that on the totality of the evidence before the Court the conviction of the Appellant was supportable. It was submitted that an accused person can be convicted on his confessional statement alone even if retracted provided it is subjected to the laid down test under the law.
It is apparent in the instant matter, it was contended, that the Court below subjected the statement of the Appellant to the laid down test. The Court was referred to pages 144 and 145 of the record where the Court below found that the confessional statement of the Appellant was corroborated by evidence of PW 3, PW 4 and DW 1 (the Appellant himself).
Exhibit E, it was submitted, was self explanatory and the Court below was right to infer that the Appellant indeed participated in the commission of the offence.
Learned Counsel for the Appellant in a reply brief raised a new issue which should be ignored as a reply brief should be limited to answering any new point arising from the Respondent’s brief and no fresh issue for determination should be included. See Order 19 Rule 5 (1) of the Court of Appeal Rules 2016
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and Okpala Vs. Ibeme (1989) 2 NWLR (Pt. 102) 208 at 220.
It is the submission of the Appellant’s Counsel that only the Appellant is entitled to formulate issues for determination under Order 19 Rule 3 (1) of the Rules of this Court referred to above. It is his further submission that Order 19 Rule 4 does not vest on the Respondent same jurisdiction conferred on the Appellant by Order 19 Rule 3 of the Rules to formulate issues. With respect, learned Counsel for the Appellant this argument is borne out of his refusal to read in full Order 19 Rule 4. Order 19 Rule 4 reproduced immediately hereunder reads thus:
4 (1) The Respondent shall also within thirty days of the service of the brief for the Appellant on him file the Respondent’s brief which shall be duly endorsed with an address or addresses for service.
(2) The Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4), (5)
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and (6) of this Order.
It is clear from the foregoing that sub-rule 2 allows the Respondent to formulate issues for determination under Order 19 Rule 3 (1) of the Rules. See also Fabiyi Vs. Adeniyi (2000) 5 SC 31 at 42 and the decision of this Court in Kalu Vs. Uzor (2006) 8 NWLR (Pt. 981) 66. The Rules do not envisage that a Respondent must adopt the issues formulated by the Appellant. The law would be in a miserable state if judicial authorities (as learned Counsel for the Appellant argues) allow the Court which is not a party to the dispute to formulate issues but bar the Respondent the other party to the dispute the choice to formulate issues if he seeks to file a Respondent’s brief.
A reply brief is not to be used to repeat arguments already canvassed by the Appellant in the main brief. Where there is no new issue raised in the Respondent’s brief, the reply will be unnecessary. See Order 19 Rule 5 (1) of the Court of Appeal Rules 2016. See the decisions of this Court in Umeji Vs. AG. Imo State (1995) 4 NWLR (Pt. 391) 552 at 393 and E. I. I. A. Vs. C. I. E. Ltd (2006) 4 NWLR (Pt. 969) 114 at 128. The reply brief in this matter is not
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dealing with new points arising from the Respondent’s brief. I will therefore discountenance it.
Although the law is trite that a defect in a charge should be raised timeously, the Appellant in this appeal was granted leave on 31st January, 2019 to amend his notice of appeal in order to raise a fresh issue of law which according to him touches on the issue of jurisdiction. It is the law that the issue of jurisdiction can be raised at any stage even on appeal to the Supreme Court. However the issue of jurisdiction should be raised timeously not as in this case when trial in the Court below has been concluded. See the Supreme Court case of AG. of Lagos State Vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552.
The Courts are blind to any document that is not signed. That explains the provision of Section 200 of the Criminal Procedure Code Cap 39 Laws of Adamawa State 1997 which provides as follows:
“Charges may be as in the forms set out in Appendix B modified in such respects as may be necessary to adapt them to the circumstances of each case.”
The zombie charges contained in Appendix B indicate that a charge must be signed or
12
sealed. A criminal trial is not a tea party but a grave responsibility entrusted on the State. It is for this reason that it is provided by the law that the charge against the accused person be signed. Any officer of the Ministry of Justice other than the Attorney General can validly sign a charge. A private Legal Practitioner who is a prosecutor in a criminal matter on behalf of the Attorney General is also entitled to sign the charge as the Prosecutor and representative of the Attorney General. See FRN Vs. Adewunmi (2007) 10 NWLR (Pt. 1042) 399 and FRN Vs. Osahon (2006) 5 NWLR (Pt. 973) 361. Even a hasty look at the application to prefer the charge and the charge itself against the Appellant and the other co-accused persons shows the names of two State counsel but none of them signed either the application to prefer the charge against the accused persons or the charge itself. See page 3 – 8 of the record of appeal. There was therefore a feature in the charge which prevented the Court below from exercising its jurisdiction to try the Appellant. The matter did not come to the Court initiated by due process of law and upon fulfilment of a condition precedent to
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the exercise of jurisdiction. The trial was therefore an exercise in futility. See Madukolu Vs. Nkemdilim (1962) All NLR 587. The Charge against the Appellant and the other accused persons was inflicted with a death wound by learned State counsel who failed to sign it and it was dead on arrival in Court.
Issue 1 is therefore resolved in favour of the Appellant and against the Respondent.
In case I am wrong, I have decided to consider the appeal on the merits.
The law both ancient and modern is that in a criminal trial the accused person is constitutionally presumed innocent until the prosecution proves him guilty. The onus of proof of the guilt of the accused person never shifts. It is as “constant as the Northern star.” Even where an accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden of proving the guilt of the accused person. Failure to discharge this burden renders the benefits of the doubt in favour of the accused person. The slightest doubt raised by the accused person shall entitle the Court to resolve the doubt in favour of the accused. If an accused gives an
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account which is consistent with innocence and could be true, and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regard to his guilt. See Section 35 (5) of 1999 Constitution FRN (as amended), Akinfe Vs. State (1988) 3 NWLR (pt. 85) 729; Igabele Vs. State (2006) 6 NWLR (Pt. 975) 100, People of Lagos State Vs. Umaru (2014) 4 SCNJ 114 at 13, Okafor Vs. State (2006) 4 NWLR (Pt. 969) 1 and Okolo Vs. Commissioner of Police (1977) NWLR. Where the story of the accused if believed is capable of proving his innocence, there is a duty to investigate such story. The failure to investigate such story tantamounts to admission of the story. See Bozin Vs. State (1985) 2 NWLR (Pt. 8) 465 at 481.
The case against an accused person must be proved beyond reasonable doubt. But proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the society if it admitted of fanciful possibilities to deviate from the course of justice. See Agbo Vs. State (2006) 6 NWLR (Pt. 977) 545.
The Appellant was convicted on count 2 for culpable homicide punishable with death
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contrary to Section 221 of the Penal Code. Under the Penal Code there are three essential ingredients of the offence.These are; 1) the death of the deceased, 2) that the death was as a result of the act of the accused; and 3) that the accused knew that his act will result in the death or did not care whether the death of the deceased will result from his act. See State Vs. Danjuma (1997) LPELR 3216 SC page 23 – 24, Musa Vs. State (2009) LPELR – 1930 SC page 11 – 12 and Adamu Vs. State (2014) LPELR – 22696 page 21.
The Court below apparently relied heavily on the confessional statement of the accused person to convict the Appellant for culpable homicide punishable with death. The Court below can convict an accused person on his confessional statement even if retracted. There is no evidence stronger than a person’s own admission or confession. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession is true. See the Supreme Court decision ofDibie Vs. State (2007) 9 NWLR (Pt. 1038) 309. To constitute a
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confession the accused person must clearly, precisely and unequivocally acknowledge or admit the offence charged. See The State Vs. Shonto (2019) LPELR – 47431 SC.
The Appellant’s Counsel sought to fault Exhibit E because it was recorded in English even though the Appellant made it in Hausa language. Although statements of accused person should appropriately be recorded in the language in which they are made, there is nothing wrong where as in this case, there is no written statement of the Appellant in Hausa. See Olanipekun Vs. State (2016) 13 NWLR (Pt. 1528) 1000 at 118 and Jimoh Vs. The State (2014) 2 SCNJ 1 at 27. Learned Counsel for the Appellant tongue-in-cheek contended that the PW 6 admitted under cross examination that Exhibit E was not voluntary when he stated thus:
“No we did beat the 1st Accused person and I don’t know where he sustained the injury if any.”
Learned counsel for the Appellant deliberately shut his eyes to “no” and“ I don’t know where he sustained the injury if any”. If he did not, he would not have contended that the PW 6 admitted that the Appellant was
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beaten. The PW 6 did not admit that the Appellant was beaten.
I am however inclined to agree with Appellant’s Counsel that Exhibit E did not amount to a confession as held by the Court below. This is because even the PW 6 who recorded it did not find that it was confessional. That is why according to him, he did not take the Appellant before a superior police officer with 3rd and 5th Accused persons. I too have read the said Exhibit E and in no portion of it did the Appellant admit killing or participating in the killing of the boy in question. Assuming, both the prosecution witness and this Court are wrong that the statement of the Appellant Exhibit E was not a confession, was the Appellant rightly convicted by the Court below on the basis of the said confession? The Court below did not find anything outside the confessional statement which would make it probable that the Appellant committed culpable homicide punishable with death. The Court below acknowledged that evidence of PW 1 and PW 2 was hearsay evidence. The evidence of PW 3 who was the only eye witness did not implicate the Appellant in any way.
As learned Counsel for the Appellant rightly
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pointed out, the Court below relied on the statements of the other accused persons as what was outside Exhibit E to show that Exhibit E was true. This the Court below is not permitted to do. The statements of the Co-Accused Persons were wrongly treated by the Court below as the evidence of the statements. Such statements remain the statements of the makers only and not their evidence. The statements bind their makers only and nobody mentioned in them. See Mumuni Vs.State (1975) 6 SC 103. The statement of a co-accused person is different from his oral testimony in Court which is the evidence. However where evidence incriminating an Accused Person comes from the Co-Accused person, the Court is at liberty to rely on it provided the Co-Accused who gave such incriminating evidence was tried along with the Accused person. See State Vs. Ibrahim (2019) LPELR – 47548, Suberu Vs. State (2010) LPELR – 3120 SC and Nwodo Vs. State (2018) LPELR 46335 SC. In the instant matter the Court below erred when it found that the confessional statements of the Co-Accused Persons including Exhibit E show that there are other facts apart from their confessions to show that the
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confession of the Appellant Exhibit E was true.
The Court below also alluded to the fact that the evidence before the Court fixed the accused persons to the offence of culpable homicide punishable with death and it had no doubt that the Appellant committed the offence. The Court below did not point out such evidence before it that fixed the Appellant to the offence .I have looked at the evidence on the record and I am unable to see such evidence.
The Court below also found circumstantial evidence against the Appellant and the co-accused persons. Circumstantial evidence is as good as sometimes better than any other sort of evidence. There has to be a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. The evidence must be positive, compelling and with mathematical precision which point to the guilt of the accused. SeeUdor Vs. State (2014) LPELR – 23064 SC and Uyo Vs. AG. Bendel State (1986) LPELR – 3452 SC. In the instant case there was no circumstantial evidence pointing at the guilt of the Appellant.
From Exhibit E, the Appellant only made reference to some Fulani herders who approached the
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pond near his farm and he chased them away. The Appellant did not identify them. None of the witnesses called pointed to the deceased as one of the herders; not even PW 3 who merely stated that he saw somebody with a gun and he told the others that they should run because the person was going to shoot and they ran into the herd. It is not enough as the Court below stated that the victim and his co-rearers set out to rear their cows on that day. This was no compelling evidence pointing to the guilt of the Appellant.
Although the only eye witness called by the prosecution stated that the person he saw was holding a gun and it was a gunshot he heard, the Court below found that the boy was hacked to death without saying how it came to that conclusion. If it came to that conclusion on the basis of a confessional statement of a co-accused, then that was a perverse finding as a confessional statement of a co-accused is not his evidence but remains his statement as that co-accused did not repeat it in Court at the trial. SeeState Vs. Ibrahim (supra), Suberu Vs. State (supra) and Nwodo Vs. State (supra).
It is perplexing that immediately after having found the
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Appellant and the Co-Accused Persons responsible for hacking the “Fulani boy” to death on 18th January, 2017 on their confessional statements only, the Court below in the next paragraph of the judgment sought to justify the refusal/failure of the Respondent to tender the cap, shirt, trouser, cartridges, cutlass and spear which the witnesses for the Respondent claimed to have found at the scene of crime because often times culprits discard weapons after committing the crime. In the instant matter, the Respondent’s witnesses claimed to have found the enumerated items and they were with the exhibit keeper. So it was not a matter of the weapons being discarded. Rather it was a situation in which these items purportedly found at the scene of the alleged crime were not tendered in evidence. The failure to tender these items purportedly found at the scene of the alleged offence; casts a heavy doubt in the case of the Respondent and the Court below ought to have resolved the doubt in favour of the Appellant.
A trial Court is bound to comment on contradictions and inconsistencies in the prosecution’s case if any and their effect on the case. It
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should also be noted that there were contradictions and inconsistencies in the evidence of the witnesses called by the prosecution and the Court below made no comment on them and the effect they had on the case of the Respondent. Where there are contradictions and inconsistencies in evidence before a criminal Court such as cast reasonable doubt upon the guilt of the accused person, such an accused person should be given the benefit of the doubt and should not be convicted on the basis of such unreliable evidence. See State Vs. Danjuma (1997) LPELR – 3216 SC. In the instant matter, PW 1 claimed that he and the Police found two cartridges near the River (at the scene of the alleged offence) a day after the alleged offence. When they went back again (that was the second day after the alleged offence), they found a shirt and trouser of the deceased on a tree and took them to the Police. But PW 2 claimed that it was a cap they found at the scene the day after the incident and not two cartridges as PW 1 claimed. PW 2 under cross examination claimed that it was the cap, shirt and trousers that were found but he did not say they were found on a tree. PW 3 claimed it
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was a cap that was found the following day and not two cartridges as PW 1 claimed. PW 3 did not say it was a cap, shirt and trouser that were found the next day as PW 2 claimed under cross examination. Both PW 6 and PW 4 claimed it was three cartridges that were found not two as PW 2 claimed.
PW 4 added another dimension to the purported finds. He it was who claimed that one cutlass and a spear were found/recovered at the scene and registered with the Exhibit keeper. PW 5 claimed that some exhibits were recovered at the scene without being specific as to exactly what was recovered at the scene.
The evidence as shown above was violently contradictory and was therefore unreliable. The Court below should not have convicted the Appellant on this type of unreliable evidence for the alleged offence of culpable homicide punishable with death.
It is clear from the foregoing that the Court had no basis for convicting the Appellant on count 2 of the charge for the offence of culpable homicide punishable with death.
The Court below found count 4 also proved beyond reasonable doubt on the evidence adduced by the prosecution and the accused persons. The Court
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below did not point out which evidence adduced by prosecution established that the Appellant maimed any cow. I have looked at the evidence and it was only PW 4 who made the following assertion:
“We went to the ranch of the complainant/informant; we took photographs of cows that were maimed.”
The complainant did not give evidence that the Appellant was the person or one of the people that maimed the cows. The photographs which the PW 4 claimed he took of the maimed cows was not tendered in evidence. The Court below also failed to point out which evidence of “the Accused persons” showed that the Appellant maimed any cow. Exhibit E the Appellant’s statement to the Police contains no such evidence. The evidence could not have been found in Exhibit B which is the statement of a co-accused person and not his evidence. See Mumuni Vs. State (supra), State Vs. Ibrahim (supra), Suberu Vs. State (supra) and Nwodo Vs. State (supra).
It is clear from the foregoing that the Court below erred when it found the Appellant guilty of maiming cows contrary to Sections 79 and 330 of the Penal Code.
The Court below found count 5 proved
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beyond reasonable doubt against the Appellant. Exhibit E which is the cautionary statement of the Appellant contains no evidence that the Appellant threw the body of the deceased into River Benue. Exhibits, A A1, B B1, C C1 and D D1 cannot be such evidence because they are statements of co-accused persons and not their evidence. I have looked at the evidence of the co-accused persons in the record and none of them suggested that the body of the deceased Adamu Buba was thrown into River Benue by Appellant alone or by the Appellant in league with any other person. No other evidence was adduced by the prosecution to establish this detestable act. There was therefore no evidence to establish the finding of the Court below that the body of the deceased Adamu Buba was thrown into River Benue by the Appellant.
I now turn to the conviction of the Appellant on count 1 for conspiracy by the Court below. Black’s Law Dictionary 10th Edition defines conspiracy as an agreement by the two or more persons to commit an unlawful act, coupled with an intent to achieve the agreements objective. Conspiracy can be inferred from the acts of doing things towards a common end
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where there is no direct evidence in support of an agreement between the accused persons. SeeAdeboya Vs. State (2017) 1 SCNJ 62. The Court below found conspiracy proved beyond reason doubt. Firstly because of the evidence of six witnesses lined up. Again, I must say that the Court did not point out what each of the six witnesses or any of them said to suggest that the Appellant conspired with anybody. Again the Court below erred when it relied on statements of the co-accused persons to find conspiracy proved against the Appellant. Those are statements of the co-accused persons and not their evidence. The Appellant himself did not indicate in Exhibit E that there was any agreement between him and any of the co-accused persons to commit an illegal act. As shown in Exhibit E, the Appellant only called somebody to come to his assistance when he saw herders approaching his farm with cows. That person also organised three other people to join them. It is not illegal to ward off animals from the farmland of the Appellant.
The Court below also erred when it found the Appellant guilty of conspiracy.
Issue 2 is therefore resolved against the Respondent. Both issues
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having been resolved against the Respondent, the appeal is allowed. The conviction and sentences passed on the Appellant are hereby quashed. Appellant is discharged and acquitted.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by learned brother JAMES SHEHU ABIRIYI, JCA. My learned brother has comprehensively resolved the issues that arose in this appeal, I agree with his reasoning and conclusion arrived at in holding that the appeal succeeds and allowing same. I also allow the appeal for the same reasons. The conviction and sentence of the appellant are hereby set aside. The appellant is discharged and acquitted.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the judgment just delivered by my learned Brother James S. Abiriyi JCA. I agree with the reasoning and the conclusion in the lead Judgment that the Appeal should be allowed and is hereby allowed. I abide by the consequential orders contained in the Judgment.
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Appearances:
- S. Obende with him, F. Watafua, J. Attajiri and S. Wilson For Appellant(s)
- Y. Usman, Senior State Counsel Ministry of Justice Adamawa State with him Salihu Muhammad State Court 1 For Respondent(s)
