FRIDAY CHRISTOPHER v. THE STATE
(2019)LCN/13416(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of June, 2019
CA/A/638C/2016
JUSTICES:
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
FRIDAY CHRISTOPHER – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
The position of the law remains certain that in order to ground a conviction of an Accused or Defendant of any criminal offence for which he is charged, the prosecution must in line with Section 135 of the Evidence Act 2011 prove the offence alleged against the Defendant/Accused beyond reasonable doubt, It means all the ingredients or elements of the offence charged must be cumulatively proved or established. The onus is squarely on the prosecution. See:-
1. FRANCIS OMOSAYE VS THE STATE (2014) 10 NWLR (PART 1404) 484 AT 506H – 507A where I. T. MUHAMMED, JSC now Ag. CJN said:-
“It is equally in tandem with our Constitution (Section 36(5) of the Constitution 1999 as amended) which covers an accused with garment of presumption of innocence. The trial Court must at all time, presume a person innocent until proved guilty, the onus which rests on the shoulders of the prosecution.”
2. SEBASTIAN 5. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTUGI JSC (LATER CHIEF JUSTICE OF NIGERIA (Rtd) said:
“In criminal proceedings the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”
3. THE STATE VS JAMES GWANG WAN (2015) 9 SCM 253 AT 267H TO 268 A – Bper OKORO JSC who said:
“It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo v. Commissioner of Police (1992) LPELR – 3528 (SC), (1992) 4 SCNJ 113, Ogundiyan v. State (1991) LPELR – 2333 (SC), (1991) 3 NWLR (PT 181) 519, Akibge v. TOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9SC 1 at 20, Babuga v. State (1996) LPELR 701 (SC), (1996) 7 NWLR (pt 460) 297.”PER IGE, J.C.A.
THE OFFENCE OF CULPABLE HOMICIDE
By virtue of Section 220 of the said Penal Code Law, an offence of Culpable Homicide punishable with death is committed when a person does an act with the intention of causing death or bodily injury which is likely to cause the death of another human being which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act. I can do no better than to draw strength from decisions of the apex Court in the land. Suffice to refer to the cases of:-
1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G – H TO 34A – D per RHODES-VIVOUR, JSC who said:-
Culpable homicide is defined in Section 220 of the Penal Code.
It reads:
“220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such a rash or negligent act, commits the offence of culpable homicide.
In Smart v. State (2016) 1-2 SC (Pt. II) p. 41, (2016) 9 NWL.R (Pt.1518) 447 at page 479-480, paras. H-A, I explained proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt.
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
See State v. John (2013) 1 NWLR (Pt.1368) p. 337.”
2. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 D – E per SANUSI, JSC who said:-
“The charge the accused/appellant stood trial on is culpable homicide punishable with death, contrary to Section 221 (b) of the Penal Code. The ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain conviction are:-
(a) That death of a human being was caused;
(b) That such death was caused by the accused person;
(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew or had reason to believe that by his action, death will be the probable and not only likely consequence of his act.”
3.ABUBAKAR P. DAJO V THE STATE (2019) 2 NWLR (PART 1656) 281 AT 295 H TO 296 A-B per GALINJE, JSC who said:-
“Now, in order to prove the offence of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients: –
“1. That the death of a human being has taken place.
2. That such death was caused by the accused.
3. That the act that led to the death of the deceased was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act.
All the three ingredients must be proved conjunctively before a conviction can be secured. See Oguno v The State (2011) 7 NWLR (Pt. 1246) 314; Gira v The State(1996) 4 NWLR (Pt. 443) 375; Adava v. The State (2006) 9 NWLR (Pt: 984) 152; Akpa v. State (2007) 2 NWLR (Pt. 1019) 500; Uwagboe v. State(2007) 6 NWLR (Pt. 1031) 606.” PER IGE, J.C.A.
WHETHER OR NOT THE ELEMENT OF CULPABLE HOMICIDE CAN BE PROVED OR ESTABLISHED BY DIRECT OR CIRCUMSTANTIAL EVIDENCE
Now all elements of an offence including that of culpable homicide punishable with death can be proved or established by direct or circumstantial evidence. It can also be proved by the confessional statement of the Accused or the Defendant. See:-
1. OKON ETIM AKPAN V THE STATE (2016) 8 SCM 1 AT 7 F-G per PETER-ODILI, JSC who said:-
“In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, anyone of the following means is acceptable, that is:
Direct evidence also known as evidence of eye-witness or witnesses;
Confessional statement of the accused person; Circumstantial evidence. See Emeka v State (2002) WRN 37 or (2006) 6 SCNJ 259.”
2.SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 – 186 F – H per SANUSI, JSC who said:-
“In all criminal cases the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) All NLR 139.
It is apposite to say that in order to prove an offence the prosecution can use any of the following modes of proof namely:
(1) Evidence of eye witness or witnesses; or
(2) Confessional statement of the accused; or
(3)Through circumstantial evidence.”PER IGE, J.C.A.
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Niger State of Nigeria contained in the decision of the said Court delivered on 5th day of September, 2016.
The Appellant was arraigned on 2nd February, 2016 before the said Court on one Count Charge as follows:-
“That you Friday Christopher, on or about the 7th day of September, 2013 in Korokpa Village via Chanchaga within Minna Judicial Division committed the offence of Culpable Homicide with death to wit: while Charity Emmanuel and Miracle Emmanuel were sleeping in the room at Korokpa Village via Chanchaga LGA of Niger State. You Friday Christopher carried Miracle Emmanuel out of the bed room to parlour and strangled her with your hand which you knew death would be the probable and not only likely consequence of the act and you thereby committed an offence punishable under Section 221 of the Penal Code.”
The Appellant as the Accused at the Court below pleaded not guilty to the one Count Charge and the Prosecution called two witnesses and tendered statements made by the Appellant in the course of
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investigation. The no case submission of the Appellant was overruled by the trial Court. The Appellant thereafter called three witnesses.
After the adoption of written addresses of learned Counsel to the Prosecution and the Accused now Appellant, the learned trial Judge gave considered judgment on 5th September, 2016 wherein he found against the Appellant as follows:-
“From the evidence of pw2, Miracle Emmanuel (deceased) was eighteen months old at the time of the unfortunate incident. The accused person in Exhibit A and B stated that because the deceased child cried so much at night, he decided to end her life. Whilst the helpless child was in her peaceful sleep, the accused person gruesomely held her neck and strangled her until she died before he released his grip. This evidence goes to show that the act of the accused was premeditated. A man is presumed to intend the natural consequences of his act. This is encapsulated in the latin maxim, intention mea impoint namie operi mea which means ‘My intention gives the name to my action’.
The accused person knew that death of the deceased would be the natural consequences of his act. The accused
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is presumed to have intended to send Miracle Emmanuel to an untimely death, and has indeed achieved that.
I am satisfied that the prosecution has equally proved the third ingredient of the offence with the certainty required by law wherein it held;
In conclusion I have adverted my mind to the decision of the Supreme Court in OGUDO V STATE (2011) 18 NWLR Pt.1278 p.1 @ 30 paras. C-E wherein it held;
“When a trial Court decides to sentence an accused person to death solely on a retracted confessional statement, the statement must satisfy the basic fundamentals of a valid statement to wit;
(a) The cautionary words must be well written and signed;
(b) the body of the statement must be written by the accused or by someone, usually a police officer, on accused person’s directive giving detailed confession which will show clearly that he committed the offence for which he is charged,
(c) the statement must be endorsed by a superior police officer and signed by the accused person.
Having perused Exhibits A and B, and having considered the circumstances under which they were recorded and admitted in evidence, I am satisfied that
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the two confessional statements have satisfied the conditions recited in the above case and can in law ground a conviction. On the whole therefore, I hold as a fact that the prosecution has proved its case beyond reasonable doubt against the accused person.
I find the accused person, Friday Christopher guilty of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code law and he is accordingly convicted.
ALLOCUTUS:
Court to Accused: You have been found guilty of the offence of culpable homicide punishable with death. Before I pass sentence on you, the Court will like to know if you or your lawyer has anything to say.
Abigail: I don’t have anything to say.
Aisha: No record of previous conviction against the accused person.
SENTENCE
Court: Since the nature of the offence and circumstances of the case does not leave this Court with any discretion, the Court can only pass a sentence of death on the convict. Accordingly, the convict Friday Christopher is hereby sentenced to death and may God have mercy on your soul. In compliance with Section 272 of the Criminal Procedure Code Cap 35 Laws of Niger State,
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I direct that you be hanged by neck till you die.
The convict is reminded of his right to appeal Aisha A. Hussani – for the State.
Abigail Labesa (Mrs) with Nana Hauwa Isah for the Accused person.
SGD
JUSTICE ABDULLAHI MIKAILU
JUDGE
5/9/2016.”
The Appellant was dissatisfied with the said judgment and has by his Notice of Appeal dated and filed on 7th November, 2016 appealed to this Court on five (5) Grounds as follows:-
“GROUND ONE
The learned trial judge erred in law when he heavily relied upon the confessional statements and convicted the appellant.
PARTICULARS OF ERRORS
1. The appellant stated on oath that he never made any confessional statement thereby retracting the extra-judicial statements tendered in Exhibits “A” and “B” respectively;
2. It is in evidence that this evidence on oath was never discredited, impeached or controverted by the respondent.
3. There is nowhere in the record to show that the exhibits were actually made by the appellant.
4. The trial Court ought to assess the probative value of the evidence given under oath in the course of
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judicial proceedings vis-a-vis an extra-judicial statement whose veracity is challenged in Court.
5. The appellant stated on oath that he was only shown a statement to sign soon after regaining consciousness from police beating with a baton that sent him to state of comma (unconsciousness).
GROUND TWO
The learned trial judge erred in law when he held that “I have also considered the alibi raised by the accused during trial which in my view was an afterthough.”
PARTICULARS OF ERRORS
1. It is on record that the appellant raised the defence of alibi during trial and furnished the Court with full particulars of his alibi.
2. It is a settled law that full consideration should be accorded to whatever plausible defence is relied upon by the defence as if it had been expressly pleaded or raised by the accused person.
3. It is only preferable that defence of alibi be raised at the police for proper investigation but yet a defence of alibi raised during trial is still a defence that should be carefully examined or considered as such and where it is demonstrable that the failure would lead to a miscarriage of justice, an appellate
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Court would be called to interfere and quash or substitute the order with that of discharge and acquittal. Per Achike (as he then was) in UDOEBERE & 2 ORS V. THE STATE (2001) 6 5.C.N…T 54 AT 66 -67.
Which is the situation in the instant case.
GROUND THREE
The learned trial judge erred in law and came to a wrong conclusion when he held that “in the circumstances of this case, it can be inferred that the deceased died from the strangulation meted on her by the accused person.”
PARTICULARS OF ERRORS
1. The records shows that there is no direct evidence on the cause of death of the victim.
2. The PW2 Kabiru Saidu informed the Court on oath that there are no eye witnesses to the incident and all they said is hearsay.
3. Same PW2 – Kabiru Saidu told the Court that they (police) did not conduct proper investigation in the case.
4. The PW2 Kabiru Saidu similarly told the Court that the last two persons to be with the victim were one Charity Emmanuel and the appellant.
5. The main extra-judicial statement relied upon by the trial judge is Exhibit “B” which the appellant retracted during
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trial and same was tendered through this same witness who honestly informed the Court that there was no proper investigation in the case.
6. There was no Medical Report tendered in evidence to buttress or explain the cause of death which might have been caused by electrocution, a poisonous snake bite or simply an act of God. This is bearing in mind the age of the deceased.
GROUND FOUR
The learned trial judge erred in law when he relied on the evidence/testimony of the PW1 (Inspector Elisha Dandare) in reaching his decision which occasioned a miscarriage of justice to the appellant.
PARTICULARS OF ERRORS
1. The testimony of the PW1 (Inspector Elisha Dandare) did not accompanied (sic) the proof of evidence at the time of seeking for leave to prefer the charge against the appellant and so he is legally disqualified from given evidence in respect of the case and where in-advertently given, it’s liable to be expunged from the records.
2. Same PW1 (Inspector Elisha Dandare) tendered Exhibit “A” which if removed from the equation if his evidenced stands expunged, there will be nothing left of the alleged confessional statements to sustain
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the conviction of the appellant.
GROUND FIVE
The decision of the trial Court is unwarranted, unreasonable and cannot be supported in law having regard to the evidence adduced at the trial.
PARTICULARS OF ERRORS
1. That apart from the alleged confessional statements of the appellant, there was no independent, cogent and compelling corroborative evidence to establish that death resulted from strangulation.
2. In AKINFE V. THE STATE (1988) 3 NWLR 729 AT 746. The Supreme Court held, where an accused person retract his confessional statement in Court, independent corroboration however slight must be sought. In the instant case, this was ignored. See also OKOH V. THE STATE (2014) 3 – 4. M.J.S.C. 229 AT 104.
3. The entire evidence particularly on the prosecution created so much doubt as to lead to the discharge and acquittal of the appellant. In other words, there are reasonable doubts raised all through the trial at the lower Court especially on the exact cause of death of the deceased.
3. RELIEFS SOUGHT FROM THE COURT OF APPEAL
To, allow the appeal and set aside the judgment of the lower Court dated the 5th September, 2016.”
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The Appellant’s Brief of Argument was dated and filed on 20th December, 2016 while Respondent’s Brief of Argument dated 8th September, 2017 was filed on 15th September, 2017 and deemed filed on 6th March, 2019. Appellant’s Reply Brief of Argument was filed on 29th day of September, 2017 and was deemed properly filed on 6th March, 2019.
The Appellant’s learned Counsel E. K. PHILIP distilled five issues for the determination of the appeal viz:-
1. Whether the learned trial judge was not in error in relying on the Appellant’s confessional statements in Exhibits A and B to ground the conviction.
2. Whether the trial Court truly considered the defence of alibi raised by the accused during trial as to warrant the conclusion that it is an afterthought.
3. Whether the learned trial judge was right in drawing the inference on the cause of death in the absence of available evidence to that effect.
4. Whether the trial Court fully considered the true legal effect of the testimony of PW1 (Inspector Elisha Bandare) before relying on same to ground the conviction.
5. Whether from the totality of the prosecution’s evidence, it can be
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said that the charge against the accused was proved beyond reasonable doubts.
The learned Counsel to the Respondent DANLAMI ALH. WUSHISHI, Chief State Counsel, Ministry of Justice, Minna Niger State adopted the issues formulated by the Appellant’s learned Counsel.
The appeal will be determined on the said issues formulated by the Appellant’s learned Counsel. The five issues will however be taken together.
ISSUES 1,2, 3, 4 AND 5
1. Whether the learned trial judge was not in error in relying on the Appellant’s confessional statements in Exhibits A and B to ground the conviction.
2. Whether the trial Court truly considered the defence of alibi raised by the accused during trial as to warrant the conclusion that it is an afterthought.
3. Whether the learned trial judge was right in drawing the inference on the cause of death in the absence of available evidence to that effect.
4. Whether the trial Court fully considered the true legal effect of the testimony of PW1 (Inspector Elisha Dandare) before relying on same to ground the conviction.
5. Whether from the totality of the prosecution’s evidence, it can be said that the
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charge against the accused was proved beyond reasonable doubts.
The learned Counsel to the Appellant E. K. PHILIP, ESQ took issues 1 and 5 together.
He submitted that it is the law that a confessional statement can ground a conviction but that before such a decision is taken the trial Judge is under a duty to subject such confessional statement to some laid down tests particularly where the extra-judicial statement is not consistent with the Accused’s testimony in Court as in this case according to the learned Counsel to the Appellant. He relied on the case of SHOFOLAHAN VS THE STATE (2013) 17 NWLR (PART 383)281. That the learned trial Judge did not take cognizance of the tests laid down in the case cited. He also relied on the case of KAREEM V FRN No. 2. (2002) 8 NWLR (PT. 770) 669. That a critical application of the said tests would have led to the discharge of the Appellant and his acquittal. The learned Counsel took each of the tests one after the other.
That the confessional statements Exhibits A and B were never part of the list of Exhibits annexed to the proof of evidence dated 20/11/2015. That the leave to prefer the charge was
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granted on 26/1/2016. That the statements were alleged to have been made two years before Appellant’s arraignment and yet it did not accompany the application to prefer the charge against the Appellant. That this is a breach of Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). He also relied on pages 1 – 16 of the record.
That apart from the alleged purported confessional statement standing on their own, there is nothing in the entire gamut of evidence to show that the accused actually freely volunteered those statements. That the evidence of the defence contradicted them and the prosecution did not cross examine the defence witnesses on it.
That despite the fact that the prosecution listed five witnesses, it called only two witnesses. That the two witnesses called did not conduct proper investigation in this case. That the cause of death was not established as no medical report was tendered to explain the cause of death. He relied on pages 72 – 74 of the record.
On whether the confessional statements Exhibits A and B were corroborated, learned Counsel stated that there was no evidence corroborating
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Exhibits A and B. That evidence of PW1 and PW2 do not constitute corroborative evidence linking the accused to the alleged crime. That the best that the can be inferred from their evidence is that the victim died but cannot be evidence of cause of death or evidence of the killer of the deceased. That PW2 agreed there was no proper investigation. He relied on pages 72 and 74 of the record of appeal.
That it was absurd the trial Court relied on such questionable investigation relying on ONOCHIE V REPUBLIC (1996) NMLR 307.
That where an accused retracts his confessional statement there must be independent corroboration of evidence against him and not on damaging hearsay evidence of PW1 and PW2. He relied on AKINFE V THE STATE (1988) 3 NWLR 729 AT 746 and OKOH V THE STATE (2014) 3 – 4 MJSC 229.
That the Appellant gave evidence and raised the issue of voluntariness and there was no cross examination of Accused by Prosecution. That the failure is a tacit acceptance of Appellant’s evidence. He relied on the case of OYEWOLE V KAGBAJI (2014) ALL FWLR (PT. 731) 1536 AT 1581B.
On whether accused had opportunity of committing the crime, the learned
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Counsel to the Appellant stated that Exhibits “A” and “B” tendered, there is no evidence fixing the accused at the scene of crime alleged against him. He stated that a verdict of not guilty ought to have been returned. He relied on the case of NSOFOR V THE STATE (2004) 18 NWLR (PT. 905) 292.
On whether the confession is possible that those confessional statements were made, he submitted that the said Exhibits A and B are not possible as according to the learned Counsel to the Appellant could not have made the statements. That only an insane person will make a statement that he killed the victim simply because the child cried in the night.
That content of a confessional statement is not sacrosanct. He relied on the case of YAKUBU ITU V STATE (2014) ALL FWLR (PT. 750) 1245 AT 1307.
Taking issues 2, 3 and 4 together the learned Counsel to the Appellant submitted on the defence of alibi which was raised by the accused during trial that the prosecution did not challenge, controvert or impeach the defence of alibi. He relied on the case of FATAI SAKA V THE STATE (2008) 3 NCC 145 AT 160 – 161.
On the 3rd issue the learned Counsel to the Appellant
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submitted that there is no shred of evidence whether direct or circumstantial to suggest that the deceased death was caused by strangulation. He referred to pages 142 – 143 of the record on the findings of learned trial Judge relying on Exhibits A and B to the effect that could be inferred that the deceased died from strangulation. That on 7/3/2016 when the statement was sought to be tendered, defence objected to tendering of Exhibit “A” and that Ruling had to be delivered on 11/3/2016 on pages 46 – 49 of the record.
That the inference of the trial Judge was perverse and has occasioned miscarriage of justice to the Appellant. He relied on the case of NKEBISI V STATE (2010) 5 NCC 84 AT 104 D – E.
That no evidence of eye witness to the event no medical report tendered as to cause of death no coroner’s report and that PW2 informed the Court on oath that there was no ‘proper investigation” on page 72 of record. That PW2 Kabir Saidu informed the Court that the last two persons to be with the deceased was the Accused and Charity Emmanuel. That vital witness’s name top the list of prosecution witness but was not called by prosecution to testify relying on
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page 9 of the record. That the only option opened to the trial Court was to discharge and acquit the accused person. He relied on the case of KADA VS THE STATE (1991) 8 NWLR (PT. 208) 134.
That the Prosecution had earlier on 25/4/2016 brought application for coroner’s inquest and that it was while moving the application on 27/4/16 that the prayer was abandoned. That this means the prosecution withheld such vital information and that if medical report or coroner’s inquest had been tendered the judgment would have been different. He relied on Section 167(d) of the Evidence Act Cap E14 2004 and the case of OSUMARE V PEOPLE OF LAGOS STATE (2014) ALL FWLR (PT. 757) 605 AT 625 G – H.
He urged the Court to allow the appeal and set aside the judgment of the lower Court.
In response to the submissions of the Appellant’s learned Counsel to the Court the Respondent’s learned Counsel DANLAMI ALH. WUSHISHI, Chief State Counsel Ministry of Justice Minna submitted that the duty imposed on the prosecution vide Section 135 of the Evidence Act 2011 is to prove its case beyond reasonable doubt. He relied on the cases of AJAYI V STATE (2013) 9 NWLR (PT. 1369) 589
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AT 593; OKOH V STATE (2014) 8 NWLR (PT. 1410) 502 AT 511 and BASSEY v state (2012) 12 NWLR (PT. 314) 299 AT 218. That the prosecution can prove its case in any of the following ways viz:-
a. Evidence of an eye witness;
b. Confession or admission voluntarily made by the accused person;
c. Circumstantial evidence which is positive compelling and points to the conclusion that the accused committed the offence.
That in this case the prosecution proved its case against Appellant by the confessional statements tendered and admitted relying on AKWUOBI V STATE (2017) 2 NWLR (PT. 1550) 421 AT 429.
That the Appellant was charged, tried and convicted of the offence of culpable homicide contrary to Section 220 and punishable under Section 221 of the Penal Code. He stated the ingredients of the offence and relied on LODIWE V STATE supra.
That the prosecution called two witnesses and tendered two exhibits in proof of prosecution’s case. That the case against Appellant was proved beyond reasonable doubt and that the trial Court was right in convicting and sentencing the Appellant.
On whether the learned trial Judge was not in error in
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relying on the confessional statements Exhibits A and B to ground conviction, the learned trial Judge paid due regard to Section 27(1) of the Evidence Act 2011 and that Exhibits A and B point to the fact that the Appellant committed the crime. He quoted portions of the said confessional statement and submitted that the two Exhibits meet the standard of proof as they relate to their admissibility in evidence. That their voluntariness have been tested by the learned trial Judge and the trial Judge found them worthy to be admissible in evidence having been satisfied with the truth and voluntariness of both Exhibits “A” and “B” and that the learned trial Judge made unequivocal statement that the said exhibits were not objected to, when they were tendered. He relied on the case of AMALA V STATE 12 NWLR (PT. 888) 520 AT 526 to the effect that a confessional statement by an accused before the Court would not render the statement inadmissible in evidence. He relied on the case of NWACHUKWU V STATE 17 NWLR (PART 902) 262 AT 265. That the Court can rely on confessional statement to convict without corroboration even if the Accused
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retracted it. He relied on the cases of:-
1. EGHAREVBA VS STATE (2016) NWLR (PT. 1515) 433 AT 455D – F and
2. ALI V STATE (2015) 2 NWLR (PART 1442) 51 AT 95 D – H.
That the Exhibits A and B were made at 2 different locations that is at Divisional Police Station and at State CID level and were voluntarily made. That it is also not in doubt that the Accused slept at home on 6/9/13 and 7/9/13 the period when the crime was committed. That the DW3 under cross examination confirmed that “Miracle was dead”. That the evidence corroborate the confessional statement. That that is enough corroboration.
On whether the trial Court truly considered the defence of Alibi raised by the accused during trial as to warrant the conclusion that it was an afterthought the learned Counsel to the Respondent stated that Appellant raised the issue for the first time at the trial in the course of his defence. That he ought to have raised it earlier to enable the Police investigate it as it is not the duty of the Court to investigate it. He relied on the case of ADEBIYI V STATE (2016) 8 NWLR (PT. 1515) 459 AT 475 E – F.
That the Appellant
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misunderstand the decision in FATAI SAKA V THE STATE (2008) 3 NCC 145 AT 160 – 161 on defence of alibi. That the defence must be raised at the earliest opportunity relying on OCHEMAJE VS STATE (2008) 15 NWLR (PT. 1109) 57.
On issue 3 as to whether the learned trial Judge was right in drawing inference on the cause of death in the absence of medical evidence to that effect.
The learned Counsel to the Respondent submitted that he Appellant has made voluntary, direct and positive statement that he used bare hand to strangle the deceased to death. That the Appellant stated that his mother and sister who would have been eye witnesses were deep asleep. That so long as the Court is satisfied with the confessional statement no corroborative evidence is necessary. He relied on MILLA VS STATE (1985) 3 NWLR (PT. 11) 190.
On the objection concerning the admissibility of the statements of the Appellant, the learned Counsel to the Respondent stated that the objection of the Appellant was not about voluntariness of the confessional statements. That objection raised was about Exhibit A on page 37 of the record where PW1 ELISHA DANDARE said he assigned one Sgt.
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Lammo Alta now deceased to record the statement of Friday Christopher Exhibit “A”. That PW1 on page 42 of the record stated what happened. That PW1 could tender the statement recorded by the deceased officer.
He submitted that where there is no evidence of eye witness the prosecution will not manufacture any. That in as much as evidence of medical report is desirable to prove cause of death, it is not a sine qua non once there is other evidence showing beyond doubt that death resulted. He relied on AZU V STATE (1993) 6 NWLR (PT. 68) 415. He also relied on Exhibits A and B. That the prosecution is not under obligation to call a particular witness.
In Appellant’s Reply Brief E. K. PHILLIP, ESQ for Appellant stated that Exhibit A cannot be admitted in the absence of person who recorded it and that Section 49 of the Evidence Act cannot be used to admit Exhibit A. He relied on the case of OSUOHA V STATE (2010) 16 NWLR (PART 1219) 364 AT 401 F – G and EKPO V THE STATE (2001) 7 NWLR (PART 712) 292 AT 304.
The remaining part of the Reply Brief are a repetition of argument in the main Brief.
The position of the law remains certain that in order to
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ground a conviction of an Accused or Defendant of any criminal offence for which he is charged, the prosecution must in line with Section 135 of the Evidence Act 2011 prove the offence alleged against the Defendant/Accused beyond reasonable doubt, It means all the ingredients or elements of the offence charged must be cumulatively proved or established. The onus is squarely on the prosecution. See:-
1. FRANCIS OMOSAYE VS THE STATE (2014) 10 NWLR (PART 1404) 484 AT 506H – 507A where I. T. MUHAMMED, JSC now Ag. CJN said:-
“It is equally in tandem with our Constitution (Section 36(5) of the Constitution 1999 as amended) which covers an accused with garment of presumption of innocence. The trial Court must at all time, presume a person innocent until proved guilty, the onus which rests on the shoulders of the prosecution.”
2. SEBASTIAN 5. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTUGI JSC (LATER CHIEF JUSTICE OF NIGERIA (Rtd) said:
“In criminal proceedings the onus is always on the prosecution to establish the guilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all
23
the necessary and vital ingredients of the charge or charges are proved by evidence.”
3. THE STATE VS JAMES GWANG WAN (2015) 9 SCM 253 AT 267H TO 268 A – B per OKORO JSC who said:
“It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See Yongo v. Commissioner of Police (1992) LPELR – 3528 (SC), (1992) 4 SCNJ 113, Ogundiyan v. State (1991) LPELR – 2333 (SC), (1991) 3 NWLR (PT 181) 519, Akibge v. TOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9SC 1 at 20, Babuga v. State (1996) LPELR 701 (SC), (1996) 7 NWLR (pt 460) 297.”
24
The Appellant was charged with the offence of culpable homicide defined in Section 220 of the Penal Code Cap 94 Laws of Niger State 1989 and punishable under Section 221 of the same Penal Code.
By virtue of Section 220 of the said Penal Code Law, an offence of Culpable Homicide punishable with death is committed when a person does an act with the intention of causing death or bodily injury which is likely to cause the death of another human being which to his knowledge may result in grievous bodily harm or death and yet embark on the dastardly act. I can do no better than to draw strength from decisions of the apex Court in the land. Suffice to refer to the cases of:-
1. IREGU EJIMA HASSAN VS THE STATE (2017) 5 NWLR (PART 1557) 1 AT 33 G – H TO 34A – D per RHODES-VIVOUR, JSC who said:-
Culpable homicide is defined in Section 220 of the Penal Code.
It reads:
“220. Whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death, or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such a rash or negligent
25
act, commits the offence of culpable homicide.
In Smart v. State (2016) 1-2 SC (Pt. II) p. 41, (2016) 9 NWL.R (Pt.1518) 447 at page 479-480, paras. H-A, I explained proof beyond reasonable doubt thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. A degree of compulsion which is consistent with a high degree of probability.”
To succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt.
(a) that the person the accused person is charged of killing actually died;
(b) that the deceased died as a result of the act of the accused person;
(c) that the act of the accused person was intentional and he knew that death or bodily harm was its likely consequence.
See State v. John (2013) 1 NWLR (Pt.1368) p. 337.”
2. SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 AT 186 D – E per SANUSI, JSC who said:-
“The charge the accused/appellant stood trial on is culpable homicide punishable with death,
26
contrary to Section 221 (b) of the Penal Code. The ingredients of the offence that of necessity, must be proved by the prosecution in order to obtain conviction are:-
(a) That death of a human being was caused;
(b) That such death was caused by the accused person;
(c) That the act that led to the death of the victim was intended to cause death or grievous hurt or that the accused knew or had reason to believe that by his action, death will be the probable and not only likely consequence of his act.”
3.ABUBAKAR P. DAJO V THE STATE (2019) 2 NWLR (PART 1656) 281 AT 295 H TO 296 A-B per GALINJE, JSC who said:-
“Now, in order to prove the offence of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following ingredients: –
“1. That the death of a human being has taken place.
2. That such death was caused by the accused.
3. That the act that led to the death of the deceased was done with the intention of causing death or that the accused knew or had reason to believe that death would be the probable consequence of his act.
All the three ingredients must be proved conjunctively before a
27
conviction can be secured. See Oguno v The State (2011) 7 NWLR (Pt. 1246) 314; Gira v The State(1996) 4 NWLR (Pt. 443) 375; Adava v. The State (2006) 9 NWLR (Pt: 984) 152; Akpa v. State (2007) 2 NWLR (Pt. 1019) 500; Uwagboe v. State(2007) 6 NWLR (Pt. 1031) 606.”
The contention of the learned Counsel to the Appellant though conceded that confessional statement can found conviction in criminal case but that it must be subjected to series of laid down test and must be corroborated. To the learned Counsel to the Appellant Exhibits A and B which the prosecution tendered as implicating the Appellant fall far short of the requirements of the law.
Now all elements of an offence including that of culpable homicide punishable with death can be proved or established by direct or circumstantial evidence. It can also be proved by the confessional statement of the Accused or the Defendant. See:-
1. OKON ETIM AKPAN V THE STATE (2016) 8 SCM 1 AT 7 F-G per PETER-ODILI, JSC who said:-
“In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, anyone of the following means is acceptable, that is:
Direct
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evidence also known as evidence of eye-witness or witnesses;
Confessional statement of the accused person; Circumstantial evidence. See Emeka v State (2002) WRN 37 or (2006) 6 SCNJ 259.”
2.SHUAIBU ABDU VS THE STATE (2017) 7 NWLR (PART 1564) 171 – 186 F – H per SANUSI, JSC who said:-
“In all criminal cases the burden of proof squarely lies on the prosecution which always has a duty to prove all the above mentioned ingredients of the offence charged and by the provisions of Section 138 of the Evidence Act, the standard of such proof is nothing less than proof beyond reasonable doubt. In fact, it is settled law that if there is any doubt in the evidence produced by the prosecution such doubt shall be resolved in favour of the accused person. See Famakinwa v. The State (2013) 7 NWLR (Pt. 1354) 597; Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1; David Abaje v. The State (1976) All NLR 139.
It is apposite to say that in order to prove an offence the prosecution can use any of the following modes of proof namely:
(1) Evidence of eye witness or witnesses; or
(2) Confessional statement of the accused; or
(3)
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Through circumstantial evidence.”
In this case Exhibits A and B were tendered against the Appellant as his confessional statements which admitted the offence for which the Appellant was arraigned.
PW1 ELISHA DANDARE who state he was an Inspector of Police and leader of the team that investigated the case of the Appellant at the Nigeria Police Force CID Office in Minna stated he nominated one Sgt. Lammo Attan to record the statement of the Accused. He testified on pages 10 -43 that he witnesses the said Sgt. Administering cautionary words to the Appellant who signed after stating that he understood the cautionary words PW1 informed the Court that the said Sergeant LAMMO ATTAN was dead but that he knew his handwriting and saw him obtained the Accused signing the statement while the late Sergeant who obtained the statement countersigned.
The learned Counsel to the Appellant did not object to the statement Exhibit “A” being tendered on the ground that it was involuntary or that Exhibit “A” was obtained under duress BUT solely on the ground that the recorder of the statement was not called.
The Appellant’s Counsel at the lower Court ABIGAIL
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LABESA, ESQ for the Appellant was recorded as follows:-
“Labesa: We are objecting to the prosecution tendering the statement through this witness, on the ground that he is not the recorder of the statement, this makes the statement a hearsay. I refer the Court to Section 37 and 38 of Evidence Act.”
The learned trial Judge overruled the objection.
The trial Judge said on page 48 of the record that:-
“PW1 is a colleague of late Sgt. Larnrno Attan. He also has personal knowledge of the facts contained in the documents because he was the team leader of the investigation team and everything about the recording of the statement was done to his hearing and in his presence. I believe that PW1 is qualified to tender the statement in evidence.
As such, I will admit the statement evidence, the weight to be attached will be determined at the end of the trial.”
The Appellant did not appeal against the above Ruling and admission of Appellant’s statement made on 11-09-2015 at the Police State C.I.D. Minna by Appellant as Exhibit “A”.
The said Exhibit “A” was justly and legally admitted as Exhibit notwithstanding that Appellant later in the
31
course of his defence in the witness box retracted Exhibit “A”. That has nothing to do with the admissibility of the said statement Exhibit “A” which is no doubt a confessional statement made by the Appellant. The procedure adopted by the trial Judge in admitting Exhibit “A” and subsequently reliance placed on Exhibit “A” is acceptable in law. See:-
1. STEPHEN JOHN & ANOR V THE STATE (2011) PT. 2) 12 SCM 238 AT 247 G – I per MUKHTAR, JSC later CJN (Rtd.) who said:-
“Before the confessional statement of the 1st appellant was admitted in evidence. PW3 gave the following evidence inter alia:-
“The statement of the first accused was recorded by Sergeant Attah Idu. He is now on transfer to Lagos. The Statements were all recorded on the same day; at the same place that is the anti- robbery section of the state C.I.D. I have been with Sergeant; Atta Idu since 1999 in the Police Force. I can identify his hand writing and signature. If I see the statement I can identify his handwriting and signature. I see this statement. It is recorded by Sergeant Idu,”
The supra reproduced evidence of PW3 explained the reason why the maker was not in Court
32
to tender the confessional statement, and the fact that he identified the handwriting of the maker of the said exhibit 3 lends credence to its admissibility. The contention that exhibit 3 was inadmissible because it was not tendered by the maker, is in the circumstance of no moment.”
On page 257E-I to 258A-C of the report GALADIMA, JSC had this to say:-
“My discourse on this issue must be brief as this subsection has a limited application in a criminal case. See Abadom v. The State (1997) 1 NWLR (Pt 479) 1 at 24. In the instant case, although the maker of Exhibit 3 was not called by the prosecution to give evidence, that cannot vitiate its admissibility.
This is moreso when it is realized that by Section 91(2) of the Evidence Act the calling of the maker as a witness is at the discretion of the Court. Even then Exhibit 3 is saved and made relevant considering the vital part of PW3’s statement at page 67 of the Record reproduced hereunder:
“I recorded statements from the second and third accused person Henry Lawrence and Maxwell Idi. The statement of the first accused was recorded by Sergeant Attah Idu. He is now on
33
transfer to Lagos. The statements were all recorded on the same day; at the same place that is the Anti-robbery Section of the State C.I.D. I have been with Sergeant Attah Idu since 1999 in the police force.
I can identify his handwriting and signature. If I see the statement I can recognized (sic) his handwriting and signature. I see this statement. It is recorded by Sergeant Idu,”
The above excerpt of PW3’s evidence explains the reason why the maker of Exhibit 3 was not in Court to tender the confessional statement. This lends credence to its admissibility. The contention of appellants that Exhibit 3 was inadmissible because it was not tendered by the maker is not tenable.
The Appellants quoted the authority of this Court in Omega Bank (Nig) Plc v. O.B.C. (supra) out of context. TOBI, JSC in that case admonished as follows:
“I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. See Igbodim v. Obianke (1976) 910 SC 1 79. After all, relevance is key of admissibility”
I agree with the learned counsel for the Respondent that the argument on this issue is an afterthought
34
and should be discountenanced.”
FRN VS FAITH IWEKA (2013) 3 NWLR (PART 1341) 285 AT 312 D – G per TABAI, JSC who said:-
“On the 14/10/08, when the accused/respondent testified she raised” the issue of duress. According to her, she was handcuffed and that cuffs were also put on her legs; she was also beaten and forced to thumb print exhibit “2A” the alleged confessional statement. Thus the accused/respondent raised the issue of duress and involuntariness six months after the statement had been admitted in evidence without objection. The question is whether admissibility could still be made an issue on the 14/10/08 when the accused/respondent testified. I shall answer this question in the negative. The appropriate time to raise the issue was on the 10/4/08, when after laying the necessary foundation, the prosecution applied to tender the statement in evidence. On that 10/4/08, the accused/respondent had all the opportunities to raise, through her counsel, the issue of involuntariness of the statement. The trial Court would then have had a duty to conduct a trial-within-trial to determine that issue of whether the statement was made under duress.”
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On page 315 A-H to 316 A-G my Lord TABAI, JSC continues:-
“The above finding demonstrates the Court’s misconception of when a trial-within-trial becomes necessary. The implication of not objective to the admissibility of a statement held out by the prosecution as confessional is that it is the statement volunteered by the accused person. Where therefore an accused person denies the voluntariness of a statement, he or she should so indicate by objecting to its admissibility at the time it is being tendered in evidence. It is then and only then that the issue of voluntariness would be tested at a trial-within-trial. In this case, the PW2 who recorded the statement had testified in April, 2008. He said the accused/respondent volunteered the statement which he recorded.
It was not suggested to him by way of cross-examination that the accused/respondent was handcuffed, locked up, beaten up and was forced to sign a prepared statement. At the end of his testimony, he was discharged by the Court. The PW3 also said he read the statement to the accused and she accepted that it was her voluntary statement. It was also not suggested to him that the statement
36
was not voluntary. He too was discharged at the end of his evidence.
It was only in October 2008, six months after, in the course of her testimony that she raised the issue of involuntariness of the statement. It is not surprising therefore when the trial Court held that her plea of the statement not being a voluntary one was an afterthought. The Court below therefore erred when it predicated its decision mainly on the need for a trial-within-trial, an issue which never arose.
On the first issue therefore I hold that the statement of the accused/respondent was admissible, its admissibility not having been challenged. I hold that it was admissible and rightly so admitted.
Still on the first issue the next question is whether the statement was sufficient to ground a conviction. It has been settled in a long line of authorities that in appropriate cases an accused person can be properly convicted on his or her confessional statement alone. See Ojegele v. The State (1988) 1 N.S.C.C. 276; (1988) 1 NWLR (Pt. 71) 414.
Although, it is always desirable to have some evidence outside the confession in further proof of the offence,
37
the absence of such additional evidence would not necessarily prevent a Court from convicting on the confessional statement alone provided the statement satisfies the tests of being positive, direct and unequivocal. See Queen v. Obiasa (1962) 1 All NLR 651, reported as Obiasa v. Queen (1962) 2 SCNLR 402.
In the statement exhibit PW2A, the accused/appellant gave some details about her possession of the drug cannabis sativa. According to her, it was one boy called Felix from Agbese, Akure area of Ondo State that introduced her into selling the Indian hemp in bags on the commission of N500.00 on every bag she was able to sell. That on the 12/9/2007 the said Felix brought her 36 bags of the weeds. She was to keep them until the prices were higher before selling them. She became apprehensive of being detected by NDLEA officials and decided therefore to transfer them to the house of one Monday Iweka her step son and kept them in a room under the pretext that they were bags of garri. Following some information, the 36 bags were recovered from the house of Monday Iweka and the accused/respondent admitted their ownership.
It is clear from the statement that
38
the accused/respondent positively and unequivocally admitted that she committed the offence. A confessional statement made by an accused person in the commission of the offence. And such a confessional statement can be accepted as satisfactory evidence upon which alone the accused can be convicted. See Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 at 534. In my view, the confessional statement of the accused/respondent exhibit PW2A alone was sufficient to sustain her conviction.”
On pages 318 G-H MUKHTAR, JSC later CJN (Rtd.) said:-
“I will touch briefly on the issues starting with issue (1), which is on the admissibility of the confessional statement of the accused/ respondent. It is on record that the learned respondent’s counsel did not raise any objection at the point of tendering the statement.
It was after the confessional statement had been admitted that the respondent retracted the statement in the course of giving evidence in his defence. This, I think was an afterthought, for if she was uncomfortable with the statement, the point of tendering and admissibility should have been when to object. It was late in time to have retracted at
39
the stage she did. The confessional statement not having been objected to was admissible as evidence, and the learned trial Court was not in error in ascribing probative value to it. Authorities abound on this principle. Once there is evidence of the administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the statement, a judge is at liberty to act on it and predicate a conviction thereon. See lkemson v. State (1989) 3 NWLR (Pt. 110) page 455; Salawu v. State (1971) 1 NMLR 249; Edamine v. State (1996) 3 NWLR (Pt. 438) page 530 and Ubierho v. State (2005) 5 NWLR (Pt. 919) page 644.”
Thus a confessional statement not objected to on ground of involuntariness is to all intent and purposes potent and positive evidence in favour of the prosecution to prove its case without any labourious effort. Where the confessional statement encapsulates the elements or ingredients of offence charged it would be taken to be a direct acknowledgment of commission of the offence of crime for which the Defendant is/was charged. See CHIBUIKE OFORDIKE V THE STATE (2019) 5 NWLR (PART
40
1666) 395 AT 415G – H TO 417A where OKORO, JSC said:-
“This issue relates to whether exhibit A, the confessional statement of the appellant was rightly admitted and relied upon. Therefore, all the arguments by the learned counsel for the respondent in respect of failure to call the IPO to testify and failure to produce the short gun and broken bottles go to no issue and is accordingly discountenanced as they were not part of this issue.
The law is well settled on issues relating to admissibility or otherwise of confessional statements by accused persons. A confessional statement is a statement by an accused person which unequivocally confesses to the commission of an offence charged. Such a statement to be of any probative value, must be clear, precise and unequivocal. It must also be direct, positive and should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan v. The State (1992) 7 SCUT 22; (1992) 6 NWLR (Pt. 248) 439, Yesufu v. State (1976) 6 SC 167, Magaji v. The Nigerian Army (2008) 8 NWLR (Pt. 1089) 338.
Where a confessional statement is
41
voluntarily made, it is the best evidence which the trial Court can rely to convict an accused person. But in most cases, at the trial, accused persons raise objection ranging from that they did not make the said statement or that they were coerced to make it or that they did not sign it. These are issues that are usually raised in Court on a daily basis.
The law is trite that in circumstance where the prosecution seeks to tender the confessional statement of an accused person and it is objected to and challenged on the ground that it was not made voluntarily, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntarily or whether the confessional statement was extracted from the accused by force or threat of punishment or by any form of inducement. If at the end of the trial within trial the trial Judge is satisfied that the confessional statement was not voluntary, such a statement is not admissible in evidence. If on the other hand the statement is adjudged voluntarily made, it is admitted in evidence. In both cases the trial Judge should rule on it accordingly and that brings the trial within trial to an
42
end and the main trial continues. See Iheme v. The State (2013) 10 NWLR (Pt. 1362) 333, Solola & anor v. State (2005) 11 NWLR (Pt. 937) 460, Federal Republic of Nigeria v Iweka (2013) 3 NWLR (Pt. 1341) 285.
In the instant case, when the prosecution was to tender the confessional statement of the appellant, his counsel made the following statement at page 30 of the record of appeal:-
“I object firstly, he said he did not sign the document and secondly he made a statement which was not read to him. It will be necessary to make further enquiry before it can be admitted.”
To the above request, the learned trial Judge did not oblige but went ahead to admit the statement which was marked as exhibit A. As was rightly held by the Court below, that objection raised by the learned counsel for the appellant was not suggestive of any fact that the statement was involuntarily made by the appellant or that he was coerced into making same. What the learned counsel clearly projected was a total denial of the statement. There was no allegation of any brutality, coercion, threats orpromise/inducement of any sort against the
43
investigating police officer at the time he made the statement.
The learned counsel for the respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows: –
“In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage In view of the foregoing a trial within trial is unnecessary and the trial Court was right in its judgment.”
I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person
44
admits making the statement but contends or avers that he did not make it voluntarily, but under duress or some other alleged influence, then a trial within trial will be conducted.”
The learned trial Judge acted within the ambit of the law in admitting and relying on Exhibit “A” as Appellant’s confession to the crime he was charged.
On whether Exhibit “B” was also properly admitted and relied upon the Appellant’s learned Counsel also vehemently argued Exhibit “B” was improperly admitted and acted upon by the learned trial Judge.
Exhibit “B” was tendered by PW2 who was the first Investigating Police Officer while serving at the Divisional Crime Office CHANCHAGA NIGER STATE where the crime was committed. He rearrested the Appellant at the said Police Station in Chanchaga and he PW2 administered cautionary statement on the accused and took his statement (Appellant) on 7/9/2013. PW2 countersigned Exhibit “B” after the Appellant had signed. PW2 recorded that he read over the statement to the Accused in English Language and he clearly understood and signed. See pages 64 – 67 of the record.
When the Prosecutor sought to tender the statement on
45
page 71 of the record the learned Counsel to the Appellant at the Court below had no objection. The statement was then admitted by the Court as Exhibit “B”.
As a matter of fact the cross examination of PW2 by the Appellant’s learned Counsel established that Appellant’s statement Exhibit “B” was properly obtained and that the Appellant actually confessed to the killing of the 18 months old deceased.
The complaints of Appellant now at this appellate level is an afterthought. He must surely lie on his bed as he made it.
See the case of UMARU SUNDAY V FRN (2019) 4 NWLR (PART 1662) 211 AT 240 E – H per EKO, JSC who said:-
“The law is settled, and it is so restated in several decisions of this Court that where an accused is represented by a counsel, it is the duty of such counsel to object to the tendering of any statement made by the accused that is incriminating.
Where such counsel failed to play his part as to objecting to admissibility of such statement or where the counsel, within his authority as counsel expressly consents to the tendering of the statement, and the statement is admitted in evidence: he cannot be heard to complain
46
subsequently that the statement was not properly admitted in evidence: R v Igwe (1960) SCNLR 158; Dawa v. State (1980) 8-11 SC: 236; Obidiozo v State (1987) 4 NWLR (Pt. 67) 748; Okaroh v State (1990) 1 NWLR (Pt. 1 25) 1 28, at 136 – 137. In this case, exhibit A, the extra judicial statement of the appellant, and other documents were tendered from the Bar without objection. The appellant is estopped from complaining, as he does in this appeal, that exhibit A was wrongly admitted in evidence: Alade v. Olukude (1976) 2 SC 183; Raimi v Akintoye (1986) 3 NWLR (Pt. 26) 97; Nkie v F.R.N. (2014) All FWLR (Pt. 754) 178, (2014) 13 NWLR (Pt. 1424) 305.
Apart from the issue of the appellant being deemed to have abandoned any objection to the admissibility of exhibit A or his being estopped by conduct from raising it subsequently; the procedure adopted by the appellant raising it for the first time at the lower Court by way of notice of appeal is wrong and improper. A judicial matter conclusively decided between the parties is expected, on the established public policy that should be an end to dispute, to operate as estoppel per rem judicatam. And this, also, is what
47
makes the appeal at the lower Court a gross abuse of judicial process.
The issue of literacy or illiteracy being one of fact, the only way the appellant could have raised it at the lower Court was upon leave sought and granted to raise fresh issue of facts or for leave to adduce fresh evidence, The record does no show that the appellant took any such step to satisfy these procedural niceties.”
The findings of the lower Court on pages 139 – 140 of the record that are as follows:-
`There is no doubt that the two prosecution witnesses in this case are both police officers involved in the investigation of the case. They were not eye witnesses to the commission of the alleged offence. In fact the testimony of both prosecution witnesses proceeded directly from confessional statements (Exhibits A and B) made by the accused person in the course of investigation.
The prosecution relies heavily on the confessional statements to attribute cause of death of the deceased to the act of the accused person. In both statements the accused did not only admitted killing the deceased but also explained how he sniffed life out of the child. In exhibit ‘B’ the
48
accused stated thus;
‘They were sleeping in the inner room with my mother, charity and the little girl. My mother was on the bed while they were on the floor, I used my left hand to press her on the neck while she was lying down sleeping until she died before I removed my hand on her neck. I took her from the inner room to the parlour that was where I killed her…’
The accused person corroborated the above statement in exhibit A wherein he stated thus;
“I went to my mother room and met Charity and the baby by the name Miracles sleeping on the mat, while my mother is on the bed sleeping. I also carry the baby by name Miracle out of the room without the knowledge of Charity and my mother. I went with her inside parlour. I also used my hand and hold her neck to death…”
Exhibit B was admitted in evidence without any objection from the defence. Exhibit A was also admitted in evidence without its voluntariness been called into question.”
The findings are justified.
The Appellant also complained that there was no corroboration.
The law is settled that where as in this case Exhibits “A” and “B” were not objected to and the learned
49
trial Judge was satisfied on them being voluntarily made and there is nothing to show that the lower Court is wrong in treating the statement as admission no corroborative evidence is required to support confessional statements that were found to be free and voluntarily made. The confession alone is sufficient proof of the Prosecution’s case against the Appellant.
The learned Counsel to the Appellant also accused the Court of failing to consider the defence of alibi put forward by the Appellant. I am conscious of the fact that the prosecution has a duty to show that a Defendant charged for an offence was actually at the scene and had opportunity of committing the crime. This becomes establishment by the prosecution that an accused is one of the persons that committed the offence charged is one of the vital elements or ingredients of any offence. Therefore where an Accused sets up a defence of Alibi the prosecution must investigate it unless there are other pieces of evidence from the prosecution’s witnesses fixing the Accused at the scene of crime or any evidence positively linking such accused with the commission of the crime.
ALIBI which is a Latin
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phrase has been judicially defined and explained, see:
1. TIRIMISIYU ADEBAY0 VS. THE STATE (2014) 8 SCM 34 at 54 B-C per ARIWOOLA, JSC who said:
“Alibi means when a person charged with an offence says that he was not at the scene of crime at the time the alleged offence was committed. That he was indeed somewhere else and therefore he was not the person who committed the offence OKOSI V5 THE STATE (1989) 1 CL.RN 29 AKUM AGBOOLA VS THE STATE (2013) 8 5CM 157, (2013) 11 NWLR (Pt 1366) Col. 9; (2013) 54 N5QR (Pt 11) 1162.
2. KAREEM OLATINWO VS. THE STATE (2013) 4 SCM 178 at 196 per ARIWOOLA, JSC who again said:
“What does ‘alibi’ mean? Alibi simply means elsewhere. That is a defence based on physical impossibility of a Defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time. The fact or state of having been elsewhere when an offence was committed.”
The onus or burden of proving or establishing an alibi is firstly on the Defendant/Accused who must at the earliest opportunity inform the police in his statement where exactly he was and the people he was with at the time the offence was
51
actually committed. It is when he has discharged the evidential burden on him that the police/prosecution is duty bound to investigate the alibi and dislodge same. See:-
1. OLANREWAJU AYAN VS. THE STATE (2013) 15 NWLR (PT. 1376) 34 AT 50 F-H TO 51 B-M.
“Now, alibi is a question of fact that must be established by credible evidence. Once the prosecution has discharged the onus placed on it by adducing evidence against the defence put forward by the accused, then the onus shifts on the accused to call evidence to weaken or discredit the evidence of the prosecution. In any event, it is the law that while the onus rests on the prosecution to disprove an alibi, the accused has first to discharge the evidential burden of setting up enough facts on which an alibi can rest. See AGU VS STATE (1985) 2 NSCC 11 97; (1985) 9 SC 221. It is the laws as well, that where a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. Although there may be occasions on which failure to check an alibi may
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cast doubt on the reliability of the case for the prosecution, it is not in all cases, that appellant to call witnesses in support thereof, See NTAM & ANOR V. THE STATE (Supra). In Ozaki’s case (Supra) at 116, paras G-H, this Court observed; However, it does not always follow that once the prosecution failed to investigate an alibi such a failure is fatal to the case of the prosecution. The trial Court has a duty, even in the absence of investigation to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi.”
2. YISA ABDULRAHMAN V THE STATE (2019) 5 NWLR (PART 1664) 162 AT 172 G H TO 173 A – B per M. D. MUHAMMAD, JSC who said:-
In decisions too many to count, this Court has held that in criminal proceedings the plea of alibi as a defence succeeds where it is raised unequivocally and timeously during investigation. The time, place and the people with whom the accused person was at the time material to the commission of the offence must be proffered. The plea will invariably be discountenanced if the particulars of the place, time as well as the name(s) of the person(s) who can testify that the accused was
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not at the scene of crime at the material time were not given. Though it is incumbent for the prosecution to investigate an accused person’s plea of alibi, this becomes impossible in the absence of the particulars of the plea being timeously supplied by the accused. Indeed, this Court has severally held that the prosecution is not expected, in the absence of the particulars necessary for such investigation, to go on a wild goose chase to investigate such an out rightly defective and unavailing plea See Ikemson v. State (1989) 3 NWLR (Pt. 110) at 455; Mohammed v. State (2014) LPELR – 22916 (SC) 22 – 23. (2014) 12 NWLR (Pt. 1421) 387 and Afor Lucky v. The State (2016) 5-6 SC 144,(2016) 13 NWLR (Pt. 1528) 128.
Again, it is equally trite that were the evidence on record pins down the accused to the scene and at the time of the crime the prosecution’s failure to investigate the defence may not be fatal. See Ndukwe v. The State (2009) 7 NWLR (Pt.1139) 43 and Kareem Olatinwo v. The State (2013) 8 NWLR (Pt.1355) 126 at 151-152.”
The Appellant did not at all set up defence
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of alibi in any of his two statements exhibits “A” and “B” respectively. He only came up with it when he gave evidence in his defence by which time it was too late in the day to saddle the Police of duty to investigate the alibi.
The Appellant has himself to blame. The alibi is clearly an afterthought.
In any event there is enough evidence on record to confirm that Appellant was/is the culprit who actually engaged in the dastardly act that ended the life of the deceased in early age. The evidence of PW1 and PW2 coupled with Exhibits “A” and “B” confirmed irresistibly that Appellant killed the deceased. See KAREEM OLATINWO V THE STATE (2013) 8 NWLR (PART 1355) 126 AT 146 C – F per AKA’AHS who said:-
“The evidence given by the prosecution witnesses coupled with the admission by the appellant that the cutlass recovered at the scene of the crime was his effectively dislodged the plea of alibi, it is settled law that it is not every failure by the police to investigate an alibi by an accused person that is fatal to the case of the prosecution. In Patrick Njovens & Ors vs. The State (1973) 5 SC 12 at 47 where the defence of the Appellant was
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based on alibi this Court held:
There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is a flexible and verifiable way of doing this. If the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished.”
The learned trial Judge was right in his conclusion on defence of alibi.
On whether the trial Judge was right in drawing cause of death in the absence of medical report, the law is settled that medical report is not a sine qua non in proof of death or cause of it in criminal trial where there is overwhelming evidence pointing to the guilt of the Accused/Defendant.
There is no need to tender medical report or report of coroner inquest since by his own unequivocal admission he committed the crime and he was rightly found guilty of culpable homicide by
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the lower Court.
On whether the learned trial Judge fully considered the true legal effect of testimony of the PW1 and whether the evidence of the witnesses was properly evaluated, I am of the firm view that the lower Court made the best use of seeing and hearing the witnesses for the prosecution and the defence. There is no doubt that it was the lower Court who was in a vintage position to analyse and evaluate the evidence proffered before the trial Court. This Court seldom interfere in findings of the lower Court on testimonies of the witnesses unless the Appellant is able to show that there was misapplication of oral and documentary evidence leading to perverse conclusion and miscarriage of justice. No such fault on the part of the lower Court has been proved or established by the Appellant in this appeal.
Issues 1, 2, 3, 4 and 5 nominated for determination in this appeal are hereby resolved against the Appellant.
The Appellant’s appeal is lacking in merit and the Appellant’s appeal is hereby dismissed.
The judgment of the lower Court contained in the decision of HON. JUSTICE ABDULLAHI MIKAILU delivered on 5th September, 2016 convicting
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the Appellant of the charge of Culpable Homicide punishable with death and sentencing the Appellant to be hanged by the neck until he be dead is hereby affirmed.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE PETER OLABISI IGE, JCA. I agree with the reasoning, conclusions and orders therein.
MOHAMMED BABA IDRIS, J.C.A.: My learned brother PETER OLABISI IGE, JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.
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Appearances:
Philip K. Emmanuel with him, E.O. Egbonodje, O.S. Emejulu, A.O. Abah and H.U. Eze For Appellant(s)
D.A. Wushishi (Chief State Counsel, Ministry Of Justice, Minna, Niger State) For Respondent(s)
Appearances
Philip K. Emmanuel with him, E.O. Egbonodje, O.S. Emejulu, A.O. Abah and H.U. Eze For Appellant
AND
D.A. Wushishi (Chief State Counsel, Ministry Of Justice, Minna, Niger State) For Respondent