AUWALU v. STATE
(2020)LCN/14498(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, July 02, 2020
CA/KN/612A/C/2016
Before Our Lordships:
Abubakar Datti Yahaya Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Amina Audi Wambai Justice of the Court of Appeal
Between
NAZIRU AUWALU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
INGREDIENTS TO SECURE A CONVICTION FOR CULPABLE HOMICIDE PUNISHABLE WITH DEATH
It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298. PER ABIRU, J.C.A.
MEANING OF BURDEN OF PROOF OF THE GUILT OF AN ACCUSED PERSON
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. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, 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. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”
This statement has been adopted and has been severally reiterated by Supreme Court in several cases. PER ABIRU, J.C.A.
WHETHER OR NOT WHERE THERE IS EVIDENCE THAT A DECEASED PERSON WAS HALE AND HEARTY BEFORE THE OCCURENCE OF AN OFFENDING ACT AND DEATH, THE DEATH WILL BE ATTRIBUTED TO THE ACT EVEN WITHOUT MEDICAL EVIDENCE OF THE CAUSE OF DEATH
It is trite that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death – Essien Vs State (1984) 3 SC 14, Adekunle Vs State (1989) 5 NWLR (Pt 123) 505, Azu Vs State (1993) 6 NWLR (Pt 299) 303 and Akpa Vs State (2008) 14 NWLR (Pt 1106) 72. Thus, in Ben Vs State (2006) 16 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.
Also, in Adekunle Vs State (2006) 14 NWLR (Pt 1000) 717, where the deceased was shot by the defendant and was rushed to the hospital for treatment and died on the next day, the Supreme Court held that medical evidence was unnecessary and that the gun shot was the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased – Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248. Thus, the standpoint of the law, from the evidence led, is that the cause of death of the deceased was the stab wounds to his body, including to his chest. The lower Court was thus correct when it found that the Respondent thus led cogent evidence proving the cause of death of the deceased beyond reasonable doubt. PER ABIRU, J.C.A.
WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER ABIRU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
It is trite law that findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State delivered in Suit No K/27C/2012 by Honorable Justice A. T. Badamasi on the 25th of January, 2016.
The Appellant, as the second accused person, was charged along with one other with conspiracy to cause death and culpable homicide punishable with death under Sections 97 and 221 (b) of the Penal Code of Kano State. The Appellant was alleged to have, with the one other and others at large, conspired to cause the death and to have caused the death of one Mustapha Abubakar on the 22nd of May, 2011 in Gwammaja Quarters in Dala Local Government Area of Kano State by stabbing him with knives on his chest and back with the knowledge that death would be the probable consequence of his act. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called three witnesses and tendered exhibits in proof of its case against the Appellant and the Appellant testified as the third defence witness and he called one other witness, the first defence witness, in his
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defence.
At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to fifteen years imprisonment on the first count of conspiracy to cause death and to death by hanging on the second count of culpable homicide punishable with death. The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated the 18th of April, 2016 and containing four grounds of appeal to be filed. The records of appeal were compiled and transmitted to this Court on the 9th of December, 2016 and they were deemed properly compiled and transmitted by the Court on the 11th of January, 2018.
In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 8th of February, 2018 on the same date. In response, Counsel to the Respondent filed a notice of preliminary objection challenging the competence of the appeal as well as a brief of arguments, both dated the 30th of May, 2019, on the 13th of June 2019. The Respondent’s brief of arguments was deemed properly filed and served on the 3rd of June, 2020. At the hearing of
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the appeal, Counsel to the Respondent withdrew the notice of preliminary objection, along with the arguments canvassed thereon in his brief of arguments, and they were accordingly struck out. Counsel to the parties relied on and adopted the arguments on the substantive appeal contained in their respective briefs of arguments as their oral submissions on the appeal.
Counsel to the Appellant distilled only one issue for determination in the appeal and it was:
Whether, having regard to the evidence adduced before the trial Court, the learned trial Judge was right to hold that the Respondent proved the charges of criminal conspiracy and culpable homicide punishable with death against the Appellant beyond reasonable doubt.
In arguing the issue for determination, Counsel reiterated the established principles of law that in criminal trials, the burden is always on the prosecution to prove the guilt of an accused person beyond reasonable doubt in order to dispel the constitutional presumption of innocence and that in doing so, the prosecution is expected to prove all the ingredients of the offence charged beyond reasonable doubt and any failure to do so will
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be resolved in favour of the accused person and he referred to the cases of Oseni Vs State (2012) All FWLR (Pt 482) 1044, Madu Vs State (2012) All FWLR (Pt 641) 1416, Obidike Vs State (2014) All FWLR (Pt 733) 1899. Counsel stated that if at the end of the trial, there is reasonable doubt created by the evidence given either by the prosecution witnesses or by the defence witnesses, the prosecution cannot be said to have proved its case beyond reasonable doubt and the accused person is entitled to an acquittal and he referred to the cases of Udosen Vs State (2007) 10 QCCR 84, Akawo Vs State (2011) All FWLR (Pt 597) 624 and Almu Vs State (2009) 4 MJSC (Pt II) 147.
Counsel stated that the ingredients of the two offences charged had been stated and restated by the Courts in several cases such as Kaza Vs State (2008) 12 QCCR 146 and Iliyasu Vs State (2013) LPELR 20766 (CA) and that it is trite that where a charge of conspiracy is founded on the same facts as the substantive charge, as here, the proper approach is to first deal with the substantive charge because the success or failure of the substantive charge will determine the charge of conspiracy and he
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referred to the case of Amachree Vs Nigerian Army (2003) 3 NWLR (Pt 807) 274. Counsel stated that in the present case, there was no eye witness to commission of the offence by the Appellant and that the lower Court relied entirely on the confessional statement of the Appellant, Exhibit E, in convicting him. Counsel stated that it was trite law that where a trial Court desires to rely solely on a confessional statement to convict an accused person, the statement must pass the six-way test as laid down in decided cases such asIkemson Vs State (1989) NWLR (Pt 116) 45 and Nwachukwu Vs State (2002) NWLR (Pt 782) 543.
Counsel stated that there was no evidence outside the confessional statement, Exhibit E, to justify the conviction of the Appellant and that the lower Court wrongly relied on the evidence of the first and third prosecution witnesses that they witnessed a quarrel between the deceased and some persons, including the Appellant, as corroborating evidence for Exhibit E. Counsel stated that this was because the evidence before the lower Court was that the quarreling and the stabbing of the deceased took place at different times and at different places
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and that since the charge against the Appellant was not for quarreling with the deceased, but for his stabbing, the evidence of someone witnessing the quarreling cannot stand as corroboration for the stabbing of the deceased. Counsel stated that, as found by the lower Court in the judgment, none of the three prosecution witnesses witnessed the commission of the offence, stabbing of the deceased, and there was thus no way the evidence of any of them could corroborate the contents of Exhibit E and that the fact of the presence of the Appellant at the place of quarrel between the deceased and some persons cannot be a ground for the lower Court’s finding that the Appellant had the opportunity of committing the offence.
Counsel stated that Exhibit E was the confessional statement made by the Appellant at Dala Police Station and complained about the failure of the Respondent to tender the extra judicial statement that the Appellant made at the State Criminal Investigation Department after his transfer there from Dala Police Station. Counsel stated that the third prosecution witness gave evidence of the making of such statement by the Appellant at the
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State Criminal Investigation Department and that he recorded the statement and that the failure to tender the statement was fatal as the Respondent had a duty to tender all statements made by the Appellant to the Police either at the time of his arrest or subsequently and irrespective of whether or not the statement is in favour of the Appellant and he referred to the cases of Ogudo Vs State (2012) All FWLR (Pt 629) 111 and Eyop Vs State (2013) All FWLR (Pt 681) 1571. Counsel lampooned the finding of the lower Court that the failure of the Respondent to tender any such statement was not fatal because the Appellant did not admit in his testimony that he made such statement to the Police and that the Appellant testified that he was only forced to thumbprint a statement made up by the Police.
Counsel stated further should this Court find that the lower Court was correct that the Respondent proved its case against the Appellant beyond reasonable doubt, the Court was under a duty to consider all defences raised by the evidence in the records of the Court even if the Appellant did not specifically raise them and regardless of whether the defences are weak or
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stupid and he referred to the cases of Ada Vs State (2008) All FWLR (Pt 427) 17 and Hassan Vs State (2011) All FWLR (Pt 567) 747. Counsel stated that the Appellant raised the defence of alibi in his defence as the third defence witness and that this was corroborated by the first defence witness and the testimonies of the witnesses on the point were not challenged, denied, contradicted or controverted. Counsel stated that the Respondent failed to disprove the defence of alibi raised by the Appellant and that the defence should thus enure to the benefit of the Appellant and he referred to the case of State Vs Azeez (2008) All FWLR (Pt 424) 1423.
Counsel concluded his arguments by urging the Court to find that the lower Court was in error when it found that the Respondent proved its case against the Appellant beyond reasonable doubt and to consequently allow the appeal and set aside the judgment of the lower Court as well as the conviction of and sentence passed on the Appellant.
In his response, the learned Attorney General of Kano State who appeared for the Respondent posited the issue for determination thus: whether the trial Court rightly convicted
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the Appellant on the onus of proof beyond reasonable doubt vested on the Respondent? In answering the question, learned Counsel referred to the case of Posu Vs State (2011) LPELR 1969(SC) in reiterating the law on burden of proof in criminal cases and also the case of Alufohai Vs State (2014) LPELR 24215(SC) in restating the established principle of law that there are three ways of proving the guilt of an accused person and he stated that the Respondent relied on confessional statement and circumstantial evidence in proving the guilt of the Appellant. Counsel stated that the Appellant confessed to the stabbing of the deceased several times and which led to his death in the extra judicial statement made to the Police and that the confessional statement passed the test of voluntariness as it was admitted by the lower Court after conducting a trial within trial.
Counsel stated that it was trite law that an accused person can be convicted solely on a confessional statement that is direct, positive and unequivocal even without corroboration and he referred to the cases of Achabua Vs State (1976) 12 SC 63, Nwaebonyi Vs State (1994) 5 NWLR (Pt 343) 138,
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Galadima Vs State (2012) LPELR 15530(SC) and Adeyemi Vs State (2015) All FWLR (Pt 790) 1201 as well as Section 29 (2) of the Evidence Act. Counsel stated that, additionally, the confessional statement passed the six-way tests laid down by the Court as it found corroboration in the testimonies of the first and third prosecution witnesses, whose evidence were in concord with the contents of the confessional statement, and also in the knives and other offensive weapons recovered and in the medical report of the death of the deceased. Counsel reproduced the definition of what amounts to corroborative evidence as contained in the case of Iko Vs State (2001) 14 NWLR (Pt 732) 221 and stated that lower Court was correct when it found that the confessional statement of the Appellant was corroborated by the evidence of the first and third prosecution witnesses.
Counsel proceeded to refer to the case of Esseyin Vs The State (2018) LPELR 44476 (SC) in asserting the meaning and potency of circumstantial evidence in proving the guilt of an accused person and stated that the circumstances as made out in the testimonies of the first, second and third prosecution witnesses,
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including the quarrel that occurred between the deceased and the Appellant and others, when coupled with the confessional statement of the Appellant furnished a strong basis for the findings of the lower Court. Counsel referred to the cases of Sa’adu Vs State (2018) LPELR 44709(CA) and Ochani Vs The State (2017) 12 SCM 120, amongst other, in reiterating the ingredients of the offence of culpable homicide and stated that all the ingredients of the offence were proved beyond reasonable doubt by the confessional statement and the circumstantial evidence in the testimonies of the first to the third prosecution witnesses and that they also proved the offence of conspiracy to cause death.
Counsel response to the arguments of Counsel to the Appellant on the failure of the Respondent to tender the statement made by the Appellant at the State Criminal Investigation Department was jumbled, however in his oral adumbration, the learned Attorney General stated that the finding of the lower Court that the failure of the Respondent to tender any such statement was not fatal was correct because the Appellant did not admit in his testimony that he made any such
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statement to the Police and that the Appellant testified that he was only forced to thumbprint a statement made up by the Police. Counsel stated that the Appellant did not state the miscarriage of justice that he suffered by the failure of the Respondent to tender a statement he said that he did not make.
Counsel concluded his arguments by urging the Court to find no merit in the appeal and to dismiss same and to affirm the judgment of the lower Court along with the conviction of and the sentences passed on the Appellant.
The Appellant, as the second accused, was charged along with one other with conspiracy to cause death and culpable homicide punishable with death. The Appellant was alleged to have, with one other and others at large, conspired to cause the death and to have caused the death of one Mustapha Abubakar by stabbing him with knives on his chest and back with the knowledge that death would be the probable consequence of his act. The Courts have stated that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone
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constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola Vs State (2009) 7 NWLR (Pt 1139) 148 and Yakubu Vs Federal Republic of Nigeria (2009) 14 NWLR (Pt 1160) 151. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Sule Vs State (2009) 17 NWLR (Pt 1169) 33, Ajuluchukwu Vs State (2014) 13 NWLR (Pt 1425) 641.
Proof of actual agreement is not always easy to come by and thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual person pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design – Usufu Vs State (2007) 3 NWLR (Pt 1020) 94, Tanko Vs State (2008) 16 NWLR (Pt 1114) 597 and Yakubu Vs State (2014) 8 NWLR (Pt 1408) 111.
As rightly stated by Counsel to
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the Appellant, the proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy count had been made out in answer to the fate of the charge of conspiracy – Osetola Vs State (2012) 17 NWLR (Pt 1329) 251 and Jimoh Vs State (2014) 10 NWLR (Pt 1414) 105. In considering the complaints of the Appellant in this appeal therefore, this Court will start with the findings made by the lower Court on the substantive offence of culpable homicide, and from there consider whether the charge of conspiracy was properly sustained by the Respondent.
It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The
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onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298.
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. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, 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
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– Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt but nothing short will suffice.”
This statement has been adopted and has been severally reiterated by Supreme Court in several cases.
On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person referred to in the charge against the Appellant as Mustapha Abubakar is dead. All the prosecution witnesses and the second and third defence witnesses, testified to the death of the deceased and the Respondent
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tendered a medical report issued by the Murtala Muhammad Specialist Hospital, under the auspices of the Kano State Hospital Management Board, and signed by a Dr M. A. Bahafsine, confirming the death of the deceased as Exhibit D. Further, the finding of the lower Court on the issue in the judgment was not appealed against by the Appellant.
On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant – Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt 1122) 354, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus:
“In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal
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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.”
On the cause of death, the Respondent tendered the medical report of death as Exhibit D and which stated that the deceased was brought in dead into the hospital around 10.35pm on the 22nd of May, 2011 and that a stab wound was noticed on the upper right flank of the chest. The contents of the medical report were consistent with the evidence of the first prosecution witness who testified that the deceased was stabbed on several places on his body including on the chest and that he died while he was being conveyed to the hospital. The first prosecution witness gave evidence that he was with the deceased around 8pm on the day of the incident and that he settled a quarrel between the deceased
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and some persons, including the Appellant, and that he escorted the deceased home. The second prosecution witness testified that the skirmish and in course of which the deceased was stabbed took place sometime after 9pm on the day. In other words, the evidence showed that the deceased was hale and hearty as at after 8pm, was involved in a skirmish and stabbed on his body, including on his chest around after 9pm and he was certified dead by 10.35pm when he was taken to hospital.
It is trite that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death – Essien Vs State (1984) 3 SC 14, Adekunle Vs State (1989) 5 NWLR (Pt 123) 505, Azu Vs State (1993) 6 NWLR (Pt 299) 303 and Akpa Vs State (2008) 14 NWLR (Pt 1106) 72. Thus, in Ben Vs State (2006) 16 NWLR (Pt 1006) 582, where the deceased was struck on the head with a stick and
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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.
Also, in Adekunle Vs State (2006) 14 NWLR (Pt 1000) 717, where the deceased was shot by the defendant and was rushed to the hospital for treatment and died on the next day, the Supreme Court held that medical evidence was unnecessary and that the gun shot was the cause of death. The rationale for this position, which is founded on sound logic and common sense, is that since that act is the most proximate event to the death of the deceased, it should be regarded as the deciding factor even where it may be taken as merely contributory to the death of the deceased – Jeremiah Vs State (2012) 14 NWLR (Pt 1320) 248. Thus, the standpoint of the law, from the evidence led, is that the cause of death of the deceased was the stab wounds to his body, including to his chest. The lower Court was thus correct when it found that the Respondent thus led cogent evidence proving the cause of death of
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the deceased beyond reasonable doubt.
This takes us to the second limb of the second ingredient of the offence of culpable homicide punishable with death; whether it was the act of the Appellant that caused the death of the deceased. It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.
It is obvious from the records of appeal that the Respondent relied on both confessional statement and circumstantial evidence in proving the guilt of the
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Appellant and that it was on the basis of these that the lower Court convicted and sentenced the Appellant. The third prosecution witness, Inspector Musa Abdullahi, a Police Officer attached to the State Criminal Investigation Department, Kano, tendered the confessional statement of the Appellant as Exhibit E; this was the confessional statement that the Appellant made at Dala Police Station upon his arrest.
The records of appeal show that the Counsel to the Appellant objected to the admissibility of the confessional statement on the ground of involuntariness and consequent on which the lower Court conducted a trial within trial. The records show that in the course of the trial within trial, the Police Officer at Dala Police Station who recorded the confessional statement of the Appellant testified for the Respondent while the Appellant testified as his sole witness. The records show that at the conclusion of the trial within trial and submissions of Counsel to the parties thereon, the lower Court delivered a considered Ruling wherein it rejected the contention of the Appellant and found that the statement was made voluntarily and admitted the statement
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in evidence.
Exhibit E reads thus:
“On 22/5/2011 at about 0900pm, myself and Samaila and Umar alias Dan Damaru, we were walking along Layin Kooka Gwammaja Qts Kano. On reaching Kan Gada, we saw Mustapha and Dan Asuba fighting. Then the three of us stopped to separate the fight. In the process Shuaibu Hukuma, the elder brother to Mustapha came and started cautioning us and we told him we were only separating them. Then Mustapha brought out a small knife and cut the three of us who came to separate the fight with the knife while Shuaibu Hukwuma was there standing and watching us. And when we told Shuaibu Hukwuma, he said we are the ones who brought our self into the fighting. Then the three of us left Hukwuma Shuaibu, Mustapha and Dan Asuba sitting down while Mustapha and Dan Asuba were still exchanging words. Then myself, Samaila and Umar Dan Damaru all splitted to our respective homes.
Then later at about 10.00pm, I came out of our house when Sabiu Iliasu alias Abokwoi sent one small boy to me that I should hurry up and come, Mustapha is around. Then I went immediately to Kan Gada where I met (i) Sabiu alias Abokwoi (ii) Samaila Dan
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Kura, (iii) Dan Husseini, (iv) Cidi Ali. Then later Umar Dan Damaru came and join us and everybody was holding knife including myself with exception of … Then we all rushed towards Jibrin Mai Mama Joint, running towards Mustapha who was trying to run away. In the process Sabiu alias Abokwoi swept Mustapha’s leg and he fell down and all of us brought out our knifes and Sabiu was the first to stab him Mustapha before the rest of us including myself started stabbing Mustapha until he died. We were not aware that he was dead. Until one of my uncle Rabiu started cautioning us. Then we all left to our respective homes. Then later (i) Shuaibu alias Hukwuma, (ii) Haladu, (ii) Sulei Burda came to our house holding knife and Haladu was threatening that he is going to kill everybody in the house. And later the three of them grabbed Sabiu Abokwoi dragging with him while I was hiding in one of the rooms in our compound. While I overheard my late brother Hashiru Iliasu came out and was cautioning them that they are not supposed to enter into our compound while I did not hear any response from them. Then later Police arrived our compound and arrested Sabiu and
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Samaila. Then after Police left with all our weapons, then my Grand Mum … asked me to run away. Then I fled to Kura LGA of Kano State until day before yesterday when I came back being 7/8/2011. Then Police came and arrested me in our house …”
The confessional statement contained on its face an attestation showing that the Appellant was taken before a Superior Police Officer, Supol Bello Gambo (ASP) who said he confirmed from the Appellant that the Appellant made the statement voluntarily without use of force or duress and the Officer signed and the Appellant too signed.
Counsel to the Appellant contended that the lower Court ought not to have made use of the confessional statement to convict the Appellant without subjecting it to the six-way tests laid down by the Courts and that there was no evidence outside the confessional statement corroborating its contents. This Court considers it necessary to make a clarification on this point. It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the
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following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (Pt 1329) 251.
In other words, the accused defendant must show either (i) that he did not make the statement at all; that it was make-believe or (ii) that he made the statement, but that the making of the statement was involuntary. An accused defendant cannot rely on both situations in impeaching his extra judicial statement to the Police because they are mutually exclusive.
Where the accused defendant contends that he did not make the statement, a trial Court will admit the statement and postpone the use to be made of the statement to the stage of evaluation of evidence, at the conclusion of hearing, and it is obliged to subject the statement to the six-way test at that stage to determine its probative value. Where the accused defendant contends involuntariness in the making of the statement, the
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trial Court must conduct a trial within trial at that stage to determine the issue of voluntariness and would only admit the statement into evidence where it finds that it was voluntarily made – Onyenye Vs State (2012) LPELR 7866(SC), Ofordike Vs State (2019) LPELR 46411(SC), State Vs Ibrahim (2019) LPELR 47548(SC), Sale Vs State (2020) 1 NWLR (Pt 1705) 205.
The Appellant, in the instant case, contested his confessional statement on the ground of involuntariness. The lower Court conducted a trial within trial and delivered a considered Ruling wherein it found that the Appellant made the statement voluntarily. It is trite law that findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings – Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138. The Appellant did not appeal against the Ruling of the lower Court on the trial within trial either at the time it was delivered or as part of this appeal against the final judgment. The law is that, in these circumstances, the finding of
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the lower Court on the voluntariness of the confessional statement is binding on the parties and conclusive and cannot be tampered with by this Court – Ogbu Vs State (2017) 8 NWLR (Pt 1567) 236, Emeka Vs Okoroafor (2017) 11 NWLR (Pt 1577) 410 and Interdrill (Nig) Ltd Vs United Bank for Africa Plc (2017) 13 NWLR (Pt 1581) 52.
It is trite law that if a confessional statement is admitted after a trial-within-trial, an accused person cannot argue that he did not make the confession voluntarily without first impugning the trial-within-trial – Bouwor Vs State (2016) 4 NWLR (Pt 1502) 295, Lalapu Vs Commissioner of Police (2019) 16 NWLR (Pt 1699) 476, Sale Vs State (2020) 1 NWLR (Pt 1705) 205.
By not appealing against the findings made in the trial-within-trial, the Appellant accepted the finding of the lower Court that he made the confessional statement voluntarily to be true and correct. It is trite law that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration. In such circumstances, there is no need for a trial Court
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to look for evidence outside the confessional statement – Stephen Vs State (1986) 5 NWLR (Pt 46) 978, Yahaya Vs State (1986) 12 SC 282, Oseni Vs State (2012) 5 NWLR (Pt 1293) 351, Oladipupo Vs State (2013) 1 NWLR (Pt 1334) 68, Abdullahi Vs State (2013) 11 NWLR (Pt 1366) 435, Idoko Vs State (2018) 6 NWLR (Pt 1614) 117, State Vs Ahmed (2020) LPELR 49497(SC). This is premised on the reasoning that what an accused person says against his interest without police influence is most likely to be true – Ikemson Vs State (1989) 3 NWLR (Pt 110) 455, Ike Vs State (2010) 5 NWLR (Pt 1186) 41, Shurumo Vs State (2010) 19 NWLR (Pt 1226) 73, Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Alao Vs State (2019) 17 NWLR (Pt 1702) 501.
A read through the above reproduced contents of the confessional statement of the Appellant shows that they are direct, positive and unequivocal on the part the Appellant played in causing the death of the deceased. There was thus no obligation on the lower Court to look for evidence outside the confessional statement. It could safely convict the Appellant solely on the basis of the confession. A Court is enjoined to look for evidence
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outside a confessional statement where the maker retracts the statement and/or resiles from it and there is thus a contest on its veracity, and this is when the six-way test is relevant. It is irrelevant where an accused person admits that he voluntarily made a confessional statement and the confession is direct, positive and unequivocal as to his guilt – Igba Vs State (2018) 6 NWLR (Pt 1614) 44, Essien Vs State (2018) 6 NWLR (Pt 1614) 167, Fulani Vs State (2018) LPELR 45195 (SC), Hamza Vs State (2019) LPELR 47858(SC) or (2019) 16 NWLR (Pt 1699) 418. In Ogu Vs Commissioner of Police (2018) 8 NWLR (Pt 1620) 134, the Supreme Court made the point thus:
‘Of all methods of proving the guilt of an accused person beyond reasonable doubt, a confessional statement, which is voluntarily made and which is direct, positive and satisfactory proved, is the most potent of all coming as it were, “from the horse’s mouth”. A free and voluntary confession of an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a
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confession by itself is sufficient without further corroboration to warrant a conviction …’
The records of appeal show that, notwithstanding the above, the lower Court did look outside the confessional statement for corroborative evidence and it found it in the testimonies of three prosecution witnesses. The lower Court noted that the three prosecution witnesses gave evidence on the initial quarrel that took place between the deceased and the Appellant and others and which the first prosecution witness resolved and it found that this evidence tallied with the contents of the confessional statement. Counsel to the Appellant submitted that the evidence of the witnesses on the initial quarrel cannot qualify as corroborating evidence because the place and timing of the quarrel was different from the place and timing of the stabbing of the deceased.
The first prosecution witness, the senior brother of the deceased, testified that around 8.15 pm on the day of the incident, one Nasiru Dan Asuba came along with eight of his friends including, Appellant, one Sabiu, Umar, Hussaini and Sidi to meet the deceased and a quarrel developed between
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Nasiru and the deceased over some money issues. The witness stated that he was present thereat and that he made efforts to resolve the quarrel and that one of Nasiru’s friends hit the deceased on his back and the deceased retaliated and that he settled the quarrel and directed the deceased to go back home. The evidence of the first prosecution witness tallied in every material particular with opening portion of the contents of the confessional statement of the Appellant. The third prosecution witness testified that in the course of the investigation they recovered some weapons from the Appellant and his cohorts and two knives and something called garrior were admitted in evidence as Exhibits B, B1 and C. This piece of evidence tallied with the contents of the confessional statement where the Appellant said that upon the arrest of two of his co-assailants, the Police recovered their weapons.
These pieces of evidence, while, on their own, might not constitute cogent and credible evidence to sustain the charge against the Appellant, they amount to adequate corroborative evidence of the contents of the confessional statement of the Appellant. The
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Supreme Court has stated that the nature of the corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission – Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525, Ubierho Vs State (2005) 5 NWLR (Pt 919) 644, Nguma Vs Attorney General, Imo State (2014) 7 NWLR (Pt 1405) 119, State Vs Gwangwan (2015) 13 NWLR (Pt 1477) 600, Famuyiwa Vs State (2018) 5 NWLR (Pt 1613) 515, Sale Vs State (2020) 1 NWLR (Pt 1705) 205. Thus, it has been held by the Supreme Court that even medical evidence of the nature of injury inflicted on a deceased in a murder trial can act as corroborative evidence of a confessional statement of an accused person – Gira Vs State (1996) 4 NWLR (Pt 443) 375 and Igri Vs State (2012) 16 NWLR (Pt 1327) 522. Counsel to the Appellant was thus
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incorrect when he contended that the evidence of the first and third prosecution witness did not act as corroborative evidence for the confessional statement.
The evidence before the lower Court revealed that the Appellant formed a common intention with others to attack the deceased and that the Appellant and the others did attack the deceased in furtherance of the intention and that the deceased died by reason of the attack. The principle of common intention in criminal cases postulates that where more than one person are accused of joint commission of a crime, it is enough to prove that all participated in the crime and what each did in furtherance of the commission of the crime is immaterial. The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence –Ikemson Vs The State (1989) 3 NWLR (Pt 110) 455,Nwankwoala Vs State (2006) 14 NWLR (Pt 1000) 663, Asimi Vs State(2016) 12 NWLR (Pt 1527) 414, Ude Vs State(2016) 14 NWLR (Pt 1531) 122,Oladejo Vs State (2018) 11 NWLR (Pt 1630) 238,Balogun Vs State (2018) 13 NWLR (1636) 321.
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InAlarape Vs The State(2010) FWLR (Pt. 41) 1872 at 1898 – 1894 the Supreme Court, per Iguh JSC said of the principle thus:-
“The point that needs to be emphasized in these sorts of cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute an unlawful purpose, an offence of such a nature of such purpose is committed, each of them is deemed to have committed the offence. In such circumstances, the Court, once the execution of the common intention or design is established, would be right in asserting that it does not matter on such facts which of the accused person does what. This is for the simple reason that under such circumstances a fatal blow, though given by one of the accused persons involved, is deemed in the eyes of the law to have been given by the rest of his co-accused person. The person actually delivering the blow is said to be no more than the hand by which the others all strike.”
The lower Court was correct when it found that the act of the Appellant caused the death of the deceased.
This takes us to the third ingredient of the offence of culpable homicide punishable
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with death, whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden Vs State (1994) 8 NWLR (Pt 365) 719,Ejeka Vs State (2003) 7 NWLR (Pt 819) 408. In the instant case, it cannot be contested that by joining others in inflicting multiple stab wounds on the body and upper right chest of the deceased, the Appellant intended to cause the deceased grievous bodily harm. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder
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– Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Njoku Vs State (2013) 2 NWLR (Pt 1339) 548, Afosi Vs State (2013) 13 NWLR (Pt 1371) 329. The lower Court was correct when it found that the Respondent led credible evidence to prove the third ingredient of culpable homicide.
This Court finds that the lower Court was correct in its finding that the Respondent led credible and cogent evidence to prove the offence of culpable homicide punishable with death against the Appellant and that it was also correct in inferring from the evidence led that the Appellant did conspire with the other assailants to cause the death of the deceased.
Counsel to the Appellant made heavy weather of the failure of the Respondent to tender a statement that he alleged the Appellant made at the State Criminal Investigation Department in the course of the investigation and he said this was fatal to the case of the Respondent and he referred to the cases of Ogudo Vs State(2012) All FWLR (Pt 629) 111 and Eyop Vs State (2013) All FWLR (Pt 681) 1571. It is correct that in those cases and also in the case of People of Lagos State Vs Umaru (2014) LPELR 22466(SC), the Supreme
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Court stated that the prosecution has a duty to tender at trial all extra judicial statements, favourable or unfavourable, made by an accused person in the course of investigation. However, before the duty can arise, it is commonsensical that there must be no dispute as to the making of the extra judicial statement between the parties. In the present case, the Appellant denied making any extra judicial statement at the State Criminal Investigation Department and testified that any statement he was alleged to have made was obtained involuntarily; so which statement is the Appellant complaining that the Respondent did not tender? The one he said he did not make, and that, if made at all, was involuntarily made? Further, the law is that before the duty on the prosecution to tender at trial all extra judicial statements made by an accused person in the course of investigation can be escalated to amount to withholding evidence and thus raise presumptions in favour of the accused person, there must be evidence that the accused person made a demand of the prosecution, by a subpoena or otherwise, for the production of the extra judicial statement and that the
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demand was turned down or refused by the prosecution – Aremu Vs State(1991) 7 NWLR (Pt 201) 1, Busari Vs State (2015) LPELR 24279(SC), Egwuche Vs State (2018) LPELR 43975(CA), Okere Vs Inspector General of Police (2018) LPELR 44178(CA), Robert Vs Inspector General of Police (2018) LPELR 44176(CA), Ewugba Vs State (2018) 7 NWLR (Pt 1618) 262. This Court in the case of Adekoya Vs The State (2010) LPELR 3604 (CA) made the point thus:
“The compiled record does not show any demand for the statements by the defense, and the refusal of the prosecution to make them available to the defense. A demand had to be made first. The refusal to honor the demand must be established before the presumption of withholding evidence under Section 149 (d) of the Evidence Act may be invoked against the party withholding the document.”
There is nothing on the record of this Court showing that the Appellant and/or his Counsel demanded the Respondent to produce the alleged extra judicial statement made by the Appellant at the State Criminal Investigation Department and that the Respondent turned down the request. Counsel to the Appellant admitted in open
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Court, in course of arguing the appeal, that they made no demand for the production of the said statement. The submission of Counsel to the Appellant that the failure of the Respondent to tender the alleged statement in the lower Court was fatal to the case against the Appellant is baseless, in the circumstances.
Counsel to the Appellant again chided the Respondent for failure to investigate the defence of alibi raised by the Appellant in the course of his oral evidence in his defence as the third defence witness and stated that the lower Court was in error when it failed to find on the defence in favour of the Appellant. It is trite that the defence of alibi is a matter that is exclusively within the knowledge of an accused person and thus the burden is always on the accused person to provide at the earliest opportunity the materials or data of where he was at the time of the commission of the crime so as to enable the Police investigate the facts of the defence and the earliest opportunity has been held by the Courts to be in the course of interrogation of the accused person by the Police. Where the defence is raised by an accused person for the first
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time in the witness box, as in the instant case, it is treated as an afterthought and the failure to investigate it will not, in such circumstances, vitiate the judgment of the lower Court – Sowemimo Vs State (2004) 11 NWLR (Pt 885) 515, Azeez Vs State (2005) 8 NWLR (Pt 927) 312, Ndidi Vs State (2007) 13 NWLR (Pt 1052) 633, Adeyemi Vs State (2011) 5 NWLR (Pt 1239) 1, Opeyemi Vs State (2019) 17 NWLR (Pt 1702) 403, Sale Vs State (2020) 1 NWLR (Pt 1705) 205.
Further, it is settled law that where the prosecution leads strong and positive evidence which fixes the accused person at the scene of the crime and which evidence the Court accepts, any plea of alibi raised by the accused person naturally collapses – Olaiya Vs State (2010) 3 NWLR (Pt 1181) 423, Afolalu Vs State (2010) 16 NWLR (Pt 1220) 584 and Sunday Vs State (2010) 18 NWLR (Pt 1224) 223. In the instant case, the clear, cogent and explicit contents of the confessional statement of the Appellant, Exhibits E clearly negate the plea of alibi raised by the Appellant. The plea was unavailing of the Appellant and the rejection of the defence of alibi by the lower Court cannot be faulted.
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All in all, this Court finds that all the contentions of Counsel to the Appellant against the judgment of the lower Court were not well conceived and it has not been persuaded to tamper with the findings of the lower Court. This appeal fails and it is hereby dismissed. The judgment of the High Court of Kano State delivered in Suit No K/27C/2012 by Honorable Justice A. T. Badamasi on the 25th of January, 2016 is affirmed along with the conviction of and the sentenced passed on the Appellant. These shall be the orders of the Court.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading Judgment of my learned brother Abiru JCA just delivered and I agree with his reasoning and conclusion. When a person employs the use of a lethal weapon to inflict wounds on the Chest of another person, he must have intended to kill or cause such serious bodily harm, that he knew would probably lead to his death. This is what the trial Judge found rightly, in his judgment. I agree with him. This appeal has no merit and I dismiss it. I affirm the judgment of the trial Court delivered on 25th January, 2016.
AMINA AUDI WAMBAI, J.C.A.: My learned brother, HABEEB ADEWALE
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OLUMUYIWA ABIRU, JCA, obliged me a draft copy of the judgment just delivered. Having gone through the judgment, I am in agreement with the reasoning and the conclusion therein that there is no merit in this appeal.
The Appellant in Exhibit A said “… Then we all rushed towards Jibrin Mai Mama Joint, running towards Mustapha who was trying to run away. On the process Sabiu alias Abokwoi swept Mustapha’s leg and he fell down and all of us brought out our knifes and Sabiu was the first to stab him Mustapha before the rest of us including myself started stabbing Mustapha until he died”.
Who else can say it better than the Appellant himself?
Although the Appellant resiled from the Confessional statement whereon he made the revelation Supra the said confessional statement was a product of a trial within trial. It is trite law that a confessional statement admitted after the mini trial called the “trial within trial” which has not been challenged, requires no further verification and an appellate Court will be loath to interfere with the finding of the lower Court admitting the statement as voluntary confessional statement.
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See ESANGBEDO VS. THE STATE(1989) 4 NWLR (PT. 113) 57.
Upon such a confessional statement notwithstanding its retraction, the Court is entitled to convict the maker even without any corroboration. SeeGALADIMA VS. THE STATE (2012) 16 NWLR (PT. 1333) 610; OGUDO VS. THE STATE (2011) 18 NWLR (PT. 1278).
I therefore adopt the fuller reasons of my learned brother in dismissing this appeal, being devoid at any merit. Consequently, the conviction and sentence imposed on the Appellant by the lower Court in its judgment delivered on 25th January, 2016 in Suit No. K/27C/2012 are hereby affirmed.
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Appearances:
S. Gadanya, with him, A. A. Dabo, Usman Aliyu, M. K. Mustapha, J.H. Adamu and Y. M. Kurawa For Appellant(s)
Ibrahim Mukhtar, A.G, Kano State, with him, S. A. Ma’aji, DPP, K. A. Hashim, SC, M.N. Faruk, SC and A. A. Bello, SC, all of Ministry of Justice, Kano State For Respondent(s)
