GIMBA v. FRN (2021)

GIMBA v. FRN

(2021)LCN/15011(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 05, 2021

CA/A/836C/2018

RATIO

APPEAL: ATTITUDE OF THE APPELLATE COURT TO SETTING ASIDE THE JUDGMENT OF A TRIAL COURT

An Appellate Court will not lightly interfere or set aside the judgment of a trial Court unless the Appellant is able to positively show or establish that the oral and documentary evidence proffered or tendered before the lower Court were not properly evaluated or considered. It must be proved that the judgment is not only perverse, but that it has led to a miscarriage of justice making it imperative for this Court to intervene and remedy the situation. See:
1. AMOS BAMGBOYE & ORS VS. OLANREWAJU (1991) 4 NWLR (PART 184) 132 at 145 B – C per BELGORE J.S.C. late CJN Rtd. who said:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of Appeal Court is at a disadvantage as to the demeanour of the witnesses, in the lower Court to substitute its own eyes and ear for those of the trial Court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.”

2.IRENE NGUMA (ALIAS IRENE OKOLI) VS. ATTORNEY GENERAL, OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H per M. D. MUHAMMAD, J.S.C. who held thus:
“It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the Court of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at.
It remains within the purview and competence of the trial Court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the appellate Court and where its evaluation is borne out from the evidence on record, an appellate Court cannot interfere in such a circumstance even if the appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently.
“Where, however, the trial Court failed to use the opportunity afforded it to property evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA vs. NIPOST (2003) NWLR (PT. 833) 308, 343 – 344, ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNIMA VS R.S.H.P.D.A.(2003) 12 NWLR (PT. 834) 427.” PER PETER OLABISI IGE, J.C.A.

CRIMINAL LAW: DUTY OF A COURT WHEN OBJECTION IS RAISED TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

The position of the law is that when objection is raised to the admissibility of a confessional statement or statement made by an Accused on the ground that it was not made by him or that the signature on the statement is not that of Accused, there is no need to conduct trial-within-trial. Trial within trial will be conducted only where the Accused complains that the statement was not voluntarily made either due to duress, torture or other form of threats exerted on the Accused to obtain the statement from the Accused. See INUSA SAIDU VS THE STATE (1982) NSCC 70 AT 80 – 81
“A signature to a confessional statement is an acknowledgement that the statement was made by the owner of the signature and where the signature is obtained by force or threat of force or by inducement or by a trick or fraud, it cannot be said that the statement was voluntary; and, in my view, an issue as to admissibility is raised which can only be resolved by a trial within a trial and a ruling before the confessional statement can be admitted as part of the evidence for the prosecution, or rejected as inadmissible. It is otherwise if the statement allegedly made by the accused person is not signed or the signature where there is one, is disowned. The duty of deciding authorship and admissibility arises when a confessional statement is disowned but the signature on it accepted with explanation of duress or inducement. In such circumstances, the issue of admissibility which is an issue for the judge overlaps the issue of authorship which is a matter for the jury or judge sitting alone as jury to resolve.
The decision on authorship for purposes of admissibility is different from the decision on authorship for purposes of assessment and finding of guilt.
Many a time when an accused person denies authorship, judges have tended to close the issue of admissibility and hold that the only issue was that of authorship. The difficulty in appreciating the existence of an issue of admissibility when a signature to a confessional statement has been disowned as voluntarily added or appended to the statement has not been common to Nigeria alone. It was also the experience of the West Indies and until the case of Ajodha v. The State, Chandree and Others v. The State (1981) 3 W.L.R. 1 (P.C.) that issue when raised attracted conflicting rulings from the judges of first instance and the Court of appeal. The Privy Council has in Ajodha’s case resolved the issue as one of admissibility calling for a trial within a trial and a ruling. The facts of that case are briefly as follows:
“The defendant Ajodha was tried in 1975 on charges of murder, robbery and rape. The only prosecution evidence against him was a confessional statement which he had signed. His defence was that he was not the author of the statement and that he had been forced to sign it. He was convicted. At neither trial was objection taken to the admissibility of the statements. The Court of appeal dismissed the defendant’s appeal against conviction. On defendant’s appeal to the judicial Committee of the P.C. Held, allowing the appeal that where in a criminal trial, the prosecution tendered in evidence a confessional statement signed by the defendant the prosecution was relying on the signature as the defendant’s acknowledgement of the statement as his own and since it was established that for such a confession to be admissible, the prosecution had to show that it had been made voluntarily a defendant’s allegation that his signature had been obtained by force or by a trick necessarily raised the issue which had to be determined by the trial Judge and that accordingly the Judge ought to have ruled on admissibility and since each defendant had been wrongly deprived of the safeguard of such a ruling, the trial had been materially defective and the convictions should be quashed.” (italics mine).
Lord Bridge of Harwick delivering the reasons for the decision of the Council (allowing the appeal against conviction) said:
“In all cases where the accused denies authorship of the contents of a written statement but complains that the signature or signatures on the document which he admits to be his own were improperly obtained from him by threats or inducement he is challenging the prosecutions evidence on both grounds and there is nothing in the least illogical or inconsistent in his doing so. It has to be remembered that the rule requiring the Judge to be satisfied that an incriminating statement by the accused was given voluntarily before deciding that it is admissible in evidence is anomalous in that it puts the Judge in a position where he must make his own findings of fact and this creates an inevitable overlap between the fact finding functions of the Judge and jury.”
“…In the case presently under consideration where the accused denies authorship of the statement but admits signing it under duress, the overlap of functions is more complex. Hearing evidence on the voir dire, the judge will of necessity examine all the circumstances and form his own view of how the statement came to be written and signed. In practice, the issue as to authorship and that as to whether the signature was voluntary are likely to be inseparably linked. One can hardly envisage a case where a Judge might decide that an accused was not responsible for the contents of the statement but signed it voluntarily. A jurist might say that in considering the issue of authorship the Judge was usurping the function of the jury, but if it is necessary to consider the issue of authorship before the Judge can be satisfied that the statement was signed voluntarily, there is in truth no usurpation but only a discharge by the Judge of his necessary function in deciding the question of admissibility. If the Judge rules the statement to have been signed voluntarily and therefore admissible, in this as in the simple case the issue, both as to authorship and as to the manner in which the statement was obtained will again have to be canvassed and left for consideration by the jury.
2. ALIYU YAHAYA V THE STATE (2018) (PART 1644) 96 AT 112 B per NWEZE, J.S.C. who said: –
“The other dissimilar situation relates to objections as to the involuntariness of a confessional statement. Thus, where, in a criminal trial, an accused person challenges the admissibility of his confessional statement on the ground of its involuntariness, the trial Court is required to conduct a trial-within-trial (mini trial or voire dire) to determine its admissibility before receiving it in evidence, Onabanjo v. R (1936) WACA 43; Kassi and Ors v. R (1939) 5 WACA 154; Obidiozor and Ors v. The State (1987) LPELR – 2170 (SC) 17, E- F, (1987) 4 NWLR (Pt. 67) 748” PER PETER OLABISI IGE, J.C.A.

CONFESSION: WHETHER A FREE AND VOLUNTARY CONFESSION IS SUFFICIENT TO GROUND A CONVICTION

It needs to be restated here, that the law is well settled that a free and voluntary confession of guilt by an accused be it judicial or extra judicial if direct, and positive and properly proved, is sufficient to ground a conviction once the trial Court is satisfied with its truth. See Odeh v. Federal Republic of Nigeria (2008) 3-4 SC 147; (2008) 13 NWLR (Pt. 1103) 1; Silas Ikpo v. The State (1995) 33 LRCN 587; (1995) 9 NWLR (Pt. 421) 540; Akinmoju v. The State (2000) NSCQR Vol. 2 (Pt. 1) 90 at 93; (2000) 6 NWLR (Pt. 662) 608. The burden is always on the prosecution to prove that a statement was made voluntarily. PER PETER OLABISI IGE, J.C.A.

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

HASSAN GIMBA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Federal Capital Territory delivered by HON. JUSTICE Y. HALILU on 23rd April, 2018, convicting the Appellant of criminal conspiracy and culpable homicide and sentencing him to death by hanging.

The two Count Charge against the Appellant reads: –
“COUNT ONE: STATEMENT OF OFFFENCE
Criminal Conspiracy, punishable under Section 97 of the Penal Code.
PARTICULARS OF OFFENCE
That you, Hassan Gimba on or about the 9th Day of September, 2015, in Abuja (FCT), within the jurisdiction of this Honourable Court conspired with (Idris Ibrahim and other persons who are still at large) to commit the offence of Culpable Homicide by killing one Nir Rosemarin (an Israeli National) and thereby committed an offence punishable under Section 97 of the Penal Code.
COUNT TWO: STATEMENT OF OFFFENCE
Culpable Homicide, punishable with death under Section 221 (a) of the Penal Code.
PARTICULARS OF OFFENCE
That you, Hassan Gimba, (Idris Ibrahim and other persons who are still at large) on or about the 9th Day of

September, 2015, in Abuja (FCT), within the jurisdiction of this Honourable Court, committed the offence of Culpable Homicide punishable with death, in that, you killed one Nir Rosemarin (an Israeli National) by shooting him with a gun which led to his death and thereby committed an offence punishable under Section 221 (a) of the Penal Code.
The plea of the Appellant was duly taken and the matter proceeded to trial and at the end of trial and addresses of learned Counsel to the parties, the learned trial Judge gave considered judgment wherein he held as follows: –
“There is no gain saying that the identity of the Defendant having been unmasked, the Court need not look far from its record to establish the guilt of the Defendant under 221 of the Penal Code.
It is in evidence that NIR ROSEMARIN of Gilmor Engineering Ltd was shot in the head and died as a result of injury to his head. This was stated by PW4 who performed post mortem examination on the remains of the deceased vide Exhibit “E”.
There is no gain saying that whoever uses a gun on a human, must have intended death, and death was the ultimate result.

Defendant in his confessional statement i.e., Exhibit “C” stated how they went to Gilmor Construction site with view to kidnapping the Whiteman.
It is in evidence that the deceased died from gunshot in the head. PW4, who gave evidence as consultant pathologist concluded that the deceased died from head injury as a result of the gunshot.
The duty of the Prosecution under such a circumstance, is to ensure all the elements and or ingredients of the offence are properly established beyond reasonable doubt but certainly not beyond shadow of doubts.
Permit me to say without any further procrastination that confessional statement of an accused person is more than enough reason to convict such an accused once it is consistent with other ascertained facts which have been proved.
The evidence of PW1 and PW3 coupled with Exhibit “C” i.e., confessional statement of the accused have given the accused away.
From the evidence before me, I am most satisfied that Prosecution has established a case of criminal conspiracy and culpable homicide against the Defendant. Defendant is indeed guilty as charged.
Qst. What is next?

The law does not give room for allocutus in a case of this nature. Once a Defendant is found guilty of the crime under Section 221, his punishment shall be death, and death only since there is no room for the Judge to grant lesser punishment, by way of discretion.
Accordingly, I hereby sentence you Hassan Gimba to death by hanging.
I pray Almighty God forgive your soul. Amen.”

The Appellant was dissatisfied with the judgment and has by his Notice and Grounds of Appeal dated and filed on 15th May, 2018 appealed to this Court on seven (7) grounds which without their particulars are as follows: –
“3. GROUNDS OF APPEAL
1. ERROR IN LAW
The learned trial Judge erred in law when he admitted and relied on Exhibit “C” tendered by the Prosecution through PW1 as a confessional statement in convicting and sentencing the Appellant for culpable homicide punishable with death under Section 221 (a) of the Penal Code when it is not a confession authored by the Appellant himself stating or suggesting the inference that he committed the crime as defined by Section 28 of the Evidence Act, 2011, when the trial Court abandoned resolving the arisen material issue as

to PW1 disputed signature on Exhibit “C” as the purported recording officer of the content of Exhibit “C”, for which the trial Court ordered and obtained the demonstrated specimen signatures of PW1 on Exhibit TWT “A” in the trial.
2. ERROR IN LAW
The learned trial Judge erred and misdirected himself in law when he failed to direct himself on relevant facts which were essential to correct adjudication on the issues before him, and thus came to a wrong conclusion that led to a miscarriage of justice against the Appellant when he held as follows: –
“I have read through Exhibit “C” i.e., the confessional statement of Defendant which was admitted in evidence after same was objected to and underwent the procedural hearing of Trial within Trial… from paragraph 1 of the said Exhibit “C”, Defendant stated: that he met one Idris Ibrahim in Kotonkarfi Prison in May 2014 where he was serving a four month sentence for using his car to convey Indian hemp, and that the said Idris Ibrahim was awaiting trial…”
3. ERROR IN LAW
The learned trial Judge erred in law when he convicted the Appellant for culpable homicide

punishable with death on the basis of Exhibit “C”, when Exhibit “C” does not satisfy the requirement of Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015 and occasioned miscarriage of justice.
4. ERROR IN LAW
The learned trial Judge erred in law convicting and sentencing the Appellant for culpable homicide punishable with death when all the documentary evidence relied upon are inadmissible in law.
5. ERROR IN LAW
The learned trial Judge erred and misdirected himself in law which led to a wrong conclusion in his judgment when he relied on circumstantial evidence that does not lead conclusively and indisputably to the guilt of the Appellant and caused a miscarriage of justice against the Appellant.
6. ERROR IN LAW
The learned trial Judge erred and misdirected himself in law when he held as follows: –
“I however must be swift to state that objection as to defective charge must be taken immediately the charge has been read out to the accused person and not any time after.”
7. ERROR IN LAW
The learned trial Judge erred in law in convicting and sentencing the Appellant for

culpable homicide punishable with death when the Prosecution failed to establish the case against the Appellant beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011 and this occasioned a miscarriage of justice.”

The Appellant’s Brief was dated 5th July, 2019 and filed on 12th July, 2019. The Respondent’s Brief of Argument dated 4th November, 2019 was filed on 28th November, 2019 and Appellant’s Reply Brief dated 11th day of March, 2020 was filed same date.

The appeal was heard on 9th November, 2020 when the Judgment was reserved and the learned Counsel to the parties adopted their Briefs of Argument.

The learned Counsel to the Appellant RICHARD UBA, ESQ formulated three (3) issues for determination viz: –
1. Whether or not Exhibits “A”, “C” and “E” were properly in evidence, and if they were not, whether the judgment of the trial Court convicting and sentencing the Appellant to death ought to be sustained in the face of their exclusions by the Court of Appeal.
2. Whether or not in this case of criminal conspiracy and culpable homicide brought against the Appellant, could it be said

that the prosecution proved its case against the Appellant beyond all reasonable doubt as enjoined by Section 135(1) of the Evident Act 2011, in view of the fact that the conviction of the Appellant was based on circumstantial evidence.
3. Whether or not the finding by the learned trial Judge was supported by any evidence when he held at page 402, line 1-4 of the record thus:
“From the evidence before me, I am most satisfied that the prosecution has established a case of criminal conspiracy and culpable homicide against the Defendant… Defendant is indeed guilty as charged.”

The learned Counsel to the Respondent YEBOAH S. AMA, ESQ. Senior State Counsel, Federal Ministry of Justice adopted the three issues distilled by the Appellant’s learned Counsel will be utilized to determine the appeal.
ISSUE 1
Whether or not Exhibits “A”, “C” and “E” were properly in evidence, and if they were not, whether the judgment of the trial Court convicting and sentencing the Appellant to death ought to be sustained in the face of their exclusions by the Court of Appeal. (Grounds 1, 2, 3 and 4).

Learned Counsel to the Appellant submits that the referred sworn affidavit of compliance of PW1 in “Exhibit A”, that consists of photographs is uncertified public document, not admissible in evidence by virtue of the provisions of Sections 102(a), 104(1) and 105 of the Evidence Act, 2011.

That the lumped photographs encompassed in “Exhibit A” were not serialized or tagged with any investigation identifications marks for their various identifications in a judicial trial carrying death sentence. That “Exhibit A” did not emanate from proper custody or from the Police Exhibit Keeper or registered thereat by PW1 in order to avoid being tampered with. He relied on the case of EGUOGIE EJOBA V THE STATE (1981) 1 CLRN 194.

That it is trite law that where classes of exactly or similar objects or images are to be utilized and identified before a Court in any proceedings, such identification will not be possible unless the objects are given distinctive and distinguishing marks. That on no account shall the Court rely on mere visual identification memory of any witness, as human visual identification memory cannot be trusted and is subject to all human failure indices, he

relied on the case of OFFOR V POLICE (1968) NMLR 73. Learned Counsel contends that the Appellant’s right to fair hearing under Section 36(1)(a) and (b) of the 1999 Constitution (as amended) has been breached.

He relied on the case of INTERNATIONAL BANK OF WEST AFRICA LTD (I.B.W.A.) V IMANO NIG. LTD & ANOR (2001) 3 SCNJ PAGE 160 to contend that if a document is unlawfully received in evidence in trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned Counsel at the trial Court did not object to its admission in evidence.

That a party relying on documents in proof of his case must specifically relate such documents to that party of his case in respect of which the document is being tendered. That a Court cannot assume the duty of trying each of a bundle of documentary Exhibits to specific aspect of the case for a party as in the instant case of the Prosecution, when that party did not do so. He relied on the cases of YAKUBU V FRN (2009) 14 NWLR (PT. 1160) 151 AT 172 – 173 G – E and TERAH VS LAWAN (1992) 3 NWLR (PT. 231) 569.

That every reasonable doubt must be resolved in favour of the accused. He cited the case of NWANGWA VS THE STATE (1997) 8 NWLR (PT. 517) 457 AT 463 F – G.

He submits that “Exhibit A” was wrongly admittedly by the trial Court, and that the trial Court reliance on “Exhibit A” as establishing the identity of the deceased could not be supported by evidence on record Exhibit C being hearsay and inadmissible. He cited the following cases: –
1. FRN VS USMAN (2012) 8 NWLR (PT. 1301) P. 141.
2. SHIVERO VS STATE (1978) 10 NSCC 177.
3. OGBUEWU VS QUEEN (1949) 12 WACA 483.

He relied on the case of ILIYASU SUBERU VS THE STATE (2010) 3 SCNJ 491 RATIO 9 to submit that relevancy is not the only yardstick or test for admissibility.

Learned Counsel submitted that there is no evidence on record or in the judgment of the lower Court to show that the learned trial Judge ever effected any signature comparison of PW1’s disputed signature in “Exhibit C” with PW1 demonstrated signature in open Court in Exhibit TWTA or with any other one before relying and placing probable value on “Exhibit C” in convicting the Appellant. He relied on the case of QUEEN V GABRIEL ADAOJU WILCOX (1961) ALL NLR 658 AT 659.

That the content of “Exhibit C” was never corroborated by any other independent fact or evidence placed before the trial Court. He relied on the case of QUEEN VS CHUKWUJI OBIASA (1962) PT. 2 ANLR P. 645.

He submitted that “Exhibit C” was admitted in evidence at the trial Court in breach of the mandatory provisions of Section 8(1)(a), (b) and 17(1), (2), (3) and (4) of ACJA, 2015.
That the case relied upon by the trial Judge in his interpretation of the affected section of ACJA, 2015 were cases decided about 20 years ago when the extant Act had not been enacted into law.

He relied on the case of GARBA ADAMU V AG. BENDEL STATE (1986) 1 C.A. (PT. 11) P. 288 to submit that a superior Police officer must endorse confirmation of confessional statement.

Learned Counsel submits that it is trite law in all cases of culpable homicide, that the person named and/or whose signature or imprimatur is proved to be on the medical report as having identified the body to the doctor who performed the post-mortem examination, is the person that must be called to give evidence, so as to connect the medical report with the person named as the deceased.

That the fact that 1st, 3rd and 4th Prosecution Witnesses mentioned the name of the person killed as Nir Rosemarie in their testimony does not necessarily mean or follow that the medical officer (PW4) who claimed to have made the postmortem report “Exhibit E”, actually performed or carried out the postmortem examination of Nir Rosemarie, as PW4 does not know the person upon whom he had performed the postmortem examination, even if PW4 inserted the name of the deceased on “Exhibit G”.

That “Exhibit E” is a piece of hearsay evidence, and that hearsay evidence cannot be admissible or relied upon by the trial Court in convicting the Appellant to death. He referred to Section 38 of the Evidence Act.
That “Exhibit E” is an uncertified public document that is inadmissible under Section 102 of the Evidence Act, 2011. That identification of corpse of victim is paramount and should be strictly proved. He relied on the case of THE STATE V EHIGIE ERHAGHEWU & ANOR (1989) 1 CLRN 209, RATIO 6 and 7.

That there was no evidence to establish a clean-cut nexus between the person said to have been killed by the robbers or

kidnappers as the case may be, and the person upon whom PW4 performed the postmortem examination. That there is a doubt as to the identity of the deceased in Exhibit E, which ought to have been resolved in favour of the Appellant.
He urged this Court to expunge Exhibits ‘A’, ‘C’ and ‘E’ and resolve this issue in favour of the Appellant.

In response to this issue, learned Counsel to the Respondent submitted that Section 84 of the Evidence Act, 2011 (as amended) has made provisions for the admissibility of statement in document produced by computers. That PW1 testified that a Certificate of Compliance was deposed to by him in Court in accordance with the provisions of Section 84 of the Evidence Act, 2011 (as amended). He referred to pages 49 – 50 of the Record of Appeal.

That PW1 identified Exhibit “A” as the pictures he and his team took at the crime scene. That the fact that the photographs were not serialized documents does not render them inadmissible. He relied on Sections 4, 7, 9, 89 and 90 of the Evidence Act, 2011 (as amended).

That for a document to be admissible, it ought to be pleaded, relevant and admissible in law. He relied on the case of DAGASH V BULANA (B) (2014) C.A. That Section 84 of the Evidence Act, 2011 (as amended) clearly made provisions for computer generated evidence and outlined the conditions that must be met before electronically generated evidence can be admitted in evidence and PW1 did not satisfy those conditions as stated in Section 84 of the Evidence Act, 2011 (as amended).

That PW1 laid out specific, stating the picture he and his team of detectives took, eleven of the photographs were of the deceased and two photographs of the white Toyota car that was recovered (pgs. 330 – 342) of the record of appeal. That prosecution supplied all the evidence which was pleaded. That PW1 gave oral evidence to show how the photographs were obtained.

Learned Counsel submitted in response to the admissibility of Exhibit “C” that each person’s signature is unique and authentic. It is a symbol of one’s identity and is the mark that you use to represent yourself to the world. That Exhibit ‘C’ is a confessional statement made by the Appellant (pgs. 41 – 44) of the record of appeal and a trial within trial was conducted to ascertain

the voluntariness of his statement after objection by the Appellant’s Counsel. That PW1 never disputed signature on Exhibit ‘C’. That PW1 never testified the O/C homicide section identified the corpse to PW4.

That the Appellant’s Brief is quite misleading as Prosecution did not withhold evidence. That PW1 who recorded Exhibit “C” gave evidence and was cross examined in accordance with Section 84(1) and (2) of the Evidence Act, 2011 (as amended). That Exhibit ‘C’ is not hearsay evidence but a confessional statement within Section 28 of the Evidence Act, 2011. That the evidence given by the Prosecution Witnesses collaborates the contents of Exhibit ‘C’, which were further confirmed by the Appellant under cross examination.

He relied on the case ofUGOCHUKWU V NWOKE (2011) 5 WRN 93 pg. 106 lines 25 – 30 in urging this Court to have cursory look at pages 77 – 80 of the Supplementary Record of Appeal, even though the warrant of commitment to prison of the Appellant and the warrant of commitment to prison of Idris Ibrahim were not admitted in as exhibit at the trial. He urged this Court to do justice and avoid technicalities. He relied on the case of IJAODOLA V REG. TRUSTEES OF CCC MOVEMENT (2008) 33 WRN 65 PAGE 88 LINE 5.

That there are many independent facts and evidences collaborating information in Exhibit “C” (Pg. 41 – 44 of the Record of Appeal) facts personally known to the Appellant. That it is trite law that the oral and written confessions are the most potent evidence in criminal trial. He relied on the case of YUSUF V STATE (2012) 27 WRN 145 PGS. 185 – 186. He relied on the case of YUSUF V STATE (SUPRA) to submit that the law gives the Courts the latitude to convict solely an accused on his confession to commission of a crime.

That the lower Court in admitting Exhibit “C”, was not in breach of any provisions of the Administration of Criminal Justice Act, 2015. That the Appellant was charged under the ACJA 2015 and not ACJL, Lagos State.

That the wedding invitation card was not presented in the open Court but PW 3 testified that the wedding in question was his own wedding and it was his wedding invitation card that was shown by PW1 (pgs. 310 lines 2 – 3 and pg. 313 lines 5 – 6 of the record of appeal) his wedding invitation card that he personally wrote the Appellant’s name on it and gave to the Appellant.

That the Appellant in his examination in chief testified that he attended PW3 wedding and that this car was among the convoy that took Corporal Lian’s bridal maids to the Church (Pg. 321 lines 19 – 21 of the record). That there is nowhere either the Appellant or the Prosecution that evidence of any acrimony between the Appellant and PW3 was given. That the evidence of PW3 corroborate the holding of the trial Judge. That Exhibit “C” was enough to convict and erase any doubt raised to the existence of a wedding invitation card.

That PW1 testified that the white Toyota car recovered from Wani forest by PW1 and his team was parked in their office and in no condition to move, but was tendered by computer evidence (photographs) in accordance with Section 84 of the Evidence Act, 2011 (as amended).

In response to the admissibility of Exhibit ‘E’, learned Counsel submits that Exhibit ‘E’ comprises of the post-mortem examination report and the Medical Practitioner report detailed the description of the corpse (male Caucasian), the state of the corpse and the cause of death etc. That PW4 testified that Exhibit ‘E’ has his writing and signature on it which the defence never objected to.

Learned Counsel submits that the Appellant had an opportunity to commit the offence, the confession is possible and consistent with other facts which has been ascertained and proved by the testimony of the witnesses and the Exhibits before the lower Court. He relied on the case of IKPO & ANOR V STATE (1995) S.C., J.S.C. (P. 20 PARAS C – G).

That taking of confessional statement before a superior Police Officer is an administrative practice and not a law. That PW1 testified that he did not have to take the defendant to a Senior Police Officer because his is a Superior Police Officer and he is vested with such powers. He relied on the cases of IKPO & ANOR V STATE (SUPRA) and AKPAN V THE STATE (1992) 6 NWLR (PT. 248) 439 AT PAGE 472.

That Prosecution never at anytime withheld evidence from the defence or the Honourable Court. That PW1 never testified that the O/C homicide identified the corpse of the deceased to PW4 but Exhibit “E” fully states in pages 356 no. 6 and page 357 no. 6 of the record of appeal the persons who brought in and identified the deceased.

That the law is settled in the tendering of public document in Court, that it is only when a document to be tendered is a photocopy of the original document that it requested to be Certified True Copy but the documents in its original state need no certification. He relied on the case ofIJAODOLA V REG. TRUSTEES OF CCC INVESTMENT (2008) 33 WRN 65 (PT. 87) lines 35 – 40. That it is the law that all documents intended to be used as evidence in proof of any matter before the Court must be primary evidence wherever for any reason however, this is not possible, secondly evidence of such may be permitted and such may be in the form of Certified True Copies of Document. He referred to Sections 95(9), 96, 97(1)(e) (f) and 2(c) of the Evidence Act.

That Exhibits “A”, “C” and “E” were properly admitted in evidence and used by the lower Court to support the evidence of PW1, PW2, PW3 and PW4 in convicting the Appellant and he urged this Court to resolve this issue in favour of the Respondent.

ISSUE TWO
Whether or not in this case of criminal conspiracy and culpable homicide brought against the Appellant,

could it be said that the prosecution proved its case against the Appellant beyond all reasonable doubt as enjoined by Section 135(1) of the Evident Act 2011, in view of the fact that the conviction of the Appellant was based on circumstantial evidence.

Learned Counsel referred to his argument under ISSUE ONE and adopted them as part of his arguments under this issue. He submits that none of the four prosecution witnesses testified as an eye witness. That none of them testified to have ever seen the Appellant on the day of the incidence or seen him rear alleged scene of crime.

He relied on the case of ONAH VS THE STATE (1985) 2 NWLR (PT. 12) P. 236 AT 246 to state that it is the law that it is the law that Prosecution must “establish that an accused killed the deceased.” That the Prosecution must adduce cogent evidence linking the accused with the death of the deceased by showing either a positive act or negative omission of the accused causing injury to the deceased, which in turn resulted directly on the deceased death.”

That the facts and evidence of the Appellant were never challenged by the Prosecution. That it is trite law that any fact

that is not challenged or controverted by the adverse party is deemed admitted. That for conspiracy to be established against the Appellant, ought to be placed squarely and demonstrated with irresistible fact and conclusion pointing to that effect. That the standard required for conspiracy and culpability thereof has been laid down in EMEKA VS THE STATE (1998) 7 NWLR (PT. 559) 585 H, 586 B – C and 578 D – F.

That it is settled law that the circumstantial evidence capable of grounding a conviction must be so cogent, so compelling, so conclusive, so unequivocal to lead to the irresistible conclusion that it is the Appellant that committed the offence. He relied on the case of OGWA NWEKE ONAH VS THE STATE (1985) 3 NWLR (PT. 12) 236 AT 237.
He urged this Court to resolve this issue in favour of the payment.

In response, learned Counsel to Respondent submitted that he only has to prove agreement between the two parties to commit an illegal act. That he relied on the confessional statement of the Appellant Exhibit “C” and evidence of Prosecution Witnesses especially PW2 who was an eye witness and saw persons disembarked from the white Toyota Car

and started to shoot randomly. That these facts prove the fact that the Appellant conspired with other persons to commit culpable homicide.

That the confessional statement of the Appellant and the evidence of the Prosecution witnesses show there was agreement to meet and to carry out the operation that led to the death of the deceased by the Appellant and his cohorts.
He listed the ingredients of culpable homicide punishable with death while relying on the following cases: –
1. ADAVA V STATE (2006) 9 NWLR (PT. 984) 152 AT 167 SC;
2. AKPA V STATE (2007) 2 NWLR (PT. 1019) 500 C.A.;
3. UWAGBOE V STATE (2007) 6 NWLR (PT. 1031) 606 CA.

That there is no doubt that the death of a human being had occurred and his death was caused by the actions of the Appellant; Idris Ibrahim and the three Fulanis they met with in Wani forest. That the Appellant was aware of the action to be carried out at Gilmor Construction Site on that very day; it was premeditated. That the Appellant also stated in Exhibit ‘B’ that he was only doing the car and was directed to the site by Idris Ibrahim, that he was on top of the steering and went on to

describe how the deceased was dragged, stabbed then eventually shot and how they drove away from the scene. That it is trite in law that the state of mind can be inferred from conducts, for a man is presumed to intend the natural consequence of his act. He relied on the following cases;
1. NUNGU v R (1953) 14 WACA 379;
2. OKUYEMI V C.O.P. (1946) 12 WACA 3;
3. R V ONORO (1961) 1 ALL NLR 33;
4. SETRENA V R. (1951) 13 WACA 132.

That the evidence of PW4 at pages 313 – 314 of the record of appeal as well as pages 356 and 357 (Exhibit ‘E’) was never objected to and they are direct evidence of the cause of death and confirmation by an expert, that this piece of evidence is not circumstantial and supports the contents of Exhibit “C’.

That the law is trite that the guilt of an accused person can be proved either by confessional statement, circumstantial evidence, eye witness account or combination of both. That the Prosecution does not always need an eye witness account to secure conviction even upon a murder charge in the case can otherwise be proved. He relied on the case ofIGABELE V STATE (2006) 6 NWLR (PT. 9750) 100 SC.

That in the case of OGWA NWEKE ONAH V STATE (SUPRA) stated in paragraph 5.2 in the Appellant’s Brief, the Court is enjoined to draw inference of guilt when circumstances are overwhelming and only prove to the guilt of defendant as in this case.

That once admitted, the Court can rely on a confessional statement (judicial and extra-judicial) to convict an accused even without corroborative evidence provided such confession is direct, positive and unequivocal as to the guilt of the accused. He relied on the following cases: –
1. AFOLABI V POLICE (1961) ALL NLR 654;
2. OLABODE V STATE (2007) ALL FWLR (PT. 389) 1301;
3. NWACHUKWU V STATE (2002) FWLR (PT. 123) 312;
4. AROGUNDADE V STATE (2009) ALL FWLR (PT. 469) 409.

Learned Counsel submits that the trial could rely on both oral and written confessional statements of the Appellant to convict in the circumstances of this case, more so as the evidence of such confessions were never challenged or contradicted. That it is settled law that facts or evidence which are not contradicted are deemed admitted.

That the evidence of the Prosecution witnesses has sufficiently linked the Appellant to intentionally causing the death of a human being.
That the alleged contradiction of the Prosecution witnesses in paragraphs 5.11(i) of the Appellant’s Brief is misconceived. PW3 cleared up the air when he testified, he was told by PW1 that he was at his house to arrest him. PW3 also testified when they got back to his house, they met the Appellant, who had been captured and was being mobbed, beaten up to the point PW1 had to resist the mob from lynching the Appellant. PW3 further testified that they picked the Appellant and was transported back to SARS, Abuja, where he testified, he made a statement.
He urged this Court to resolve this issue in favour of the Respondent.

ISSUE THREE
Whether or not the finding by the learned trial Judge was supported by any evidence when he held at page 402, line 1-4 of the record thus:
“From the evidence before me, I am most satisfied that the prosecution has established a case of criminal conspiracy and culpable homicide against the Defendant…
Defendant is indeed guilty as charged.”

Learned Counsel to the Appellant relied on his submissions under ISSUES ONE and TWO in arguing this issue.
He submitted that the non-consideration of the defence of the Appellant by the trial Court further denied the Appellant of the benefit of fair hearing. That a violation of a substantive fundamental right in a proceeding renders the proceeding void. He relied on the case of OKAFOR VS A-G. OF ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659 AT 678 – 679 F- D and 678 F- G.

That the doubts surrounding the Prosecution’s case ought to have been resolved in favour of the Appellant. He relied on the case of OPAYEMI VS THE STATE (1985) 2 NWLR (PT. 5) 101 AT 106 – 109 E – G.

That the Prosecution did not prove the charge of murder against the Appellant beyond reasonable doubt and he urged this Court to resolve this issue in favour of the Appellant.
In response to this issue, learned Counsel to Respondent submitted that it has been held that proof beyond reasonable doubt does not mean proof beyond shadow of doubt, hence if the evidence adduced against the accused is so strong as to leave only a remote possibility 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. He cited the cases of AGBO V STATE (2006) 6 NWLR (PT. 977) 545 SC and UWAGBOE V STATE (2007) 6 NWLR (PT. 1031) 606 C.A.

That there is no doubt in the case of the Prosecution to warrant the setting aside of the Appellant’s conviction. He urged this Court to dismiss this appeal and uphold the Judgment of the lower Court.

In his reply brief, learned Counsel to the Appellant submits that the Respondent’s Counsel unilateral allusion to Exhibit “A1” and “A2” in his Brief of Argument are not borne out of the record of appeal. That it does not lie within the discretion of the Respondent’s Counsel to start marking and/or referring to non-existing EXHIBITS “A1” and “A2” that are bereft of the record of appeal. That the act of the Respondent’s Counsel constitute a breach of the Appellant’s right to fair hearing, he relied on the following cases: –
1. ISHAKU MANGAI V THE STATE (1993) 3 NWLR (PT. 279) 108 AT 123;
2. ELIZABETH ORIDO V COMMISSIONER OF POLICE (1970) NMLR PAGE 55.
The rest of the arguments in the Appellant’s reply brief is a reharsh of the arguments in the Appellant’s Brief and should be discountenanced.

RESOLUTION OF ISSUES
An Appellate Court will not lightly interfere or set aside the judgment of a trial Court unless the Appellant is able to positively show or establish that the oral and documentary evidence proffered or tendered before the lower Court were not properly evaluated or considered. It must be proved that the judgment is not only perverse, but that it has led to a miscarriage of justice making it imperative for this Court to intervene and remedy the situation. See:
1. AMOS BAMGBOYE & ORS VS. OLANREWAJU (1991) 4 NWLR (PART 184) 132 at 145 B – C per BELGORE J.S.C. late CJN Rtd. who said:
“Once a Court of trial has made a finding of fact, it is no more within the competence of the appellate Court to interfere with those findings except in certain circumstances. The real reason behind this attitude of Appeal Court is at a disadvantage as to the demeanour of the witnesses, in the lower Court to substitute its own eyes and ear for those of the trial Court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.”

opportunity afforded it to property evaluate the evidence adduced at a trial, the appellate Court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA vs. NIPOST (2003) NWLR (PT. 833) 308, 343 – 344, ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNIMA VS R.S.H.P.D.A.(2003) 12 NWLR (PT. 834) 427.”

Under issue 1, the learned Counsel to the Appellant strongly contended that Exhibits A, C and E were not properly admitted in evidence and as such the conviction based on it and sentence imposed upon the Appellant cannot be sustained.

It must be recalled that Appellant had on 29th June, 2016 pleaded not guilty to the two Count Charge against him and trial commenced.
The documents tendered as Exhibit “A” are 13 pictures of the deceased and certificate of compliance filed pursuance to Section 84 of the Evidence Act. They were admitted after the objection of Appellant’s Counsel was overruled in a considered Ruling by lower Court on 26/10/2016. One of the Accused statements was also on that date admitted as Exhibit “B”.

Trial within trial was conducted in respect of the second statement of the Accused person Exhibit ‘C’ and by a Ruling delivered on 16/1/2016 pages 271 – 278 the lower Court found that the Appellant’s statement of 2/11/2015 was voluntarily made and was marked Exhibit “C”.

Exhibit “E” is the medical report tendered through PW4 on page 314 of the Record of Appeal without objection from the Appellant’s learned Counsel MR. ONYALI. The said PW4 who is a Doctor, Chief Consultant Pathologist of National Hospital Abuja concluded his evidence by stating that the cause of death “was that of sense head injury due to gunshot”.

I have read through the record of proceedings and I have no doubt in my mind that Exhibit “A” which are photographs were duly admitted in evidence and the certificate of compliance is in tandem with the requirements of Section 84 of the Evidence Act.

A cursory look at page 286 of the record shows that the Appellant’s Counsel did not object to the statement Exhibit “C” at the point of tendering for being involuntarily made but that the Accused never made it. This is what the learned Counsel said: –

“Chike: We object to the admissibility of the statement because they were never made by the accused person. We therefore apply for trial-within-trial to be conducted to reveal how the document was procured.”
Court: Case adjourned till 1st November, 2016 for trial-within-trial to be conducted. PW1 is hereby temporarily discharged. Accused shall be returned to prison.”

fraud, it cannot be said that the statement was voluntary; and, in my view, an issue as to admissibility is raised which can only be resolved by a trial within a trial and a ruling before the confessional statement can be admitted as part of the evidence for the prosecution, or rejected as inadmissible. It is otherwise if the statement allegedly made by the accused person is not signed or the signature where there is one, is disowned. The duty of deciding authorship and admissibility arises when a confessional statement is disowned but the signature on it accepted with explanation of duress or inducement. In such circumstances, the issue of admissibility which is an issue for the judge overlaps the issue of authorship which is a matter for the jury or judge sitting alone as jury to resolve.
The decision on authorship for purposes of admissibility is different from the decision on authorship for purposes of assessment and finding of guilt.
Many a time when an accused person denies authorship, judges have tended to close the issue of admissibility and hold that the only issue was that of authorship. The difficulty in appreciating the existence of an

issue of admissibility when a signature to a confessional statement has been disowned as voluntarily added or appended to the statement has not been common to Nigeria alone. It was also the experience of the West Indies and until the case of Ajodha v. The State, Chandree and Others v. The State (1981) 3 W.L.R. 1 (P.C.) that issue when raised attracted conflicting rulings from the judges of first instance and the Court of appeal. The Privy Council has in Ajodha’s case resolved the issue as one of admissibility calling for a trial within a trial and a ruling. The facts of that case are briefly as follows:
“The defendant Ajodha was tried in 1975 on charges of murder, robbery and rape. The only prosecution evidence against him was a confessional statement which he had signed. His defence was that he was not the author of the statement and that he had been forced to sign it. He was convicted. At neither trial was objection taken to the admissibility of the statements. The Court of appeal dismissed the defendant’s appeal against conviction. On defendant’s appeal to the judicial Committee of the P.C. Held, allowing the appeal that where in a criminal

trial, the prosecution tendered in evidence a confessional statement signed by the defendant the prosecution was relying on the signature as the defendant’s acknowledgement of the statement as his own and since it was established that for such a confession to be admissible, the prosecution had to show that it had been made voluntarily a defendant’s allegation that his signature had been obtained by force or by a trick necessarily raised the issue which had to be determined by the trial Judge and that accordingly the Judge ought to have ruled on admissibility and since each defendant had been wrongly deprived of the safeguard of such a ruling, the trial had been materially defective and the convictions should be quashed.” (italics mine).
Lord Bridge of Harwick delivering the reasons for the decision of the Council (allowing the appeal against conviction) said:
“In all cases where the accused denies authorship of the contents of a written statement but complains that the signature or signatures on the document which he admits to be his own were improperly obtained from him by threats or inducement he is challenging the prosecutions evidence on

both grounds and there is nothing in the least illogical or inconsistent in his doing so. It has to be remembered that the rule requiring the Judge to be satisfied that an incriminating statement by the accused was given voluntarily before deciding that it is admissible in evidence is anomalous in that it puts the Judge in a position where he must make his own findings of fact and this creates an inevitable overlap between the fact finding functions of the Judge and jury.”
“…In the case presently under consideration where the accused denies authorship of the statement but admits signing it under duress, the overlap of functions is more complex. Hearing evidence on the voir dire, the judge will of necessity examine all the circumstances and form his own view of how the statement came to be written and signed. In practice, the issue as to authorship and that as to whether the signature was voluntary are likely to be inseparably linked. One can hardly envisage a case where a Judge might decide that an accused was not responsible for the contents of the statement but signed it voluntarily. A jurist might say that in considering the issue of

authorship the Judge was usurping the function of the jury, but if it is necessary to consider the issue of authorship before the Judge can be satisfied that the statement was signed voluntarily, there is in truth no usurpation but only a discharge by the Judge of his necessary function in deciding the question of admissibility. If the Judge rules the statement to have been signed voluntarily and therefore admissible, in this as in the simple case the issue, both as to authorship and as to the manner in which the statement was obtained will again have to be canvassed and left for consideration by the jury.
2. ALIYU YAHAYA V THE STATE (2018) (PART 1644) 96 AT 112 B per NWEZE, J.S.C. who said: –
“The other dissimilar situation relates to objections as to the involuntariness of a confessional statement. Thus, where, in a criminal trial, an accused person challenges the admissibility of his confessional statement on the ground of its involuntariness, the trial Court is required to conduct a trial-within-trial (mini trial or voire dire) to determine its admissibility before receiving it in evidence, Onabanjo v. R (1936) WACA 43; Kassi and Ors v. R (1939) 5 WACA 154; Obidiozor and Ors v. The State (1987) LPELR – 2170 (SC) 17, E- F, (1987) 4 NWLR (Pt. 67) 748”

The trial within trial was a stupendous waste of time.

After a thorough conduct of the trial within trial, the learned trial Judge rightly found that the statement was voluntarily made. All the faults raked up against the trial Judge on admissibility of Exhibits “A”, “C” and “E” and the probative value of the said Exhibit “A”, “C” and “E” are grossly unfounded and misplaced. The said Exhibits especially Exhibit “C” were properly admitted in evidence and justifiably relied upon to convict and sentenced the Appellant on the case of criminal conspiracy and culpable homicide against the Appellant. All the pieces of evidence given against the Appellant by the prosecution witnesses and documentary evidence tendered were amply corroborated by the Appellant’s confessional statements Exhibits “B” and “C” aforesaid. See; ADEYINKA AJIBOYE VS. FRN (2018) 13 NWLR (PART 1637) 40 at 452 C – H per SANUSI J.S.C., who said: –

“The trial Court thereupon, ordered that a trial-within-trial be conducted. At the mini-trial, the IPO who recorded the statements testified for the prosecution denying that any torture was meted on the accused and stressed that the latter made it voluntarily. On his part, the appellant testified in the mini-trial even though in his testimony he delved into mere irrelevancies without clearly addressing the issue of the type of torture he alleged was meted on him. In its considered ruling, the trial Court found that the accused made the statement voluntarily and admitted them in evidence. Basically, the grouse of the learned appellant’s counsel are three folds, namely:
(a) That the statement exhibits P5 and P27 were not made voluntarily;
(b) That he made the statements in the absence of his counsel;
(c) That the statements were written on demand.
Another complaint of the appellant is that one Ronke Oyeneyin who was the SPO who endorsed the statement in question was not called to testify at the trial-within-trial.
It needs to be restated here, that the law is well settled that a free and voluntary confession of guilt by an accused be it judicial or extra judicial if direct, and positive and

properly proved, is sufficient to ground a conviction once the trial Court is satisfied with its truth. See Odeh v. Federal Republic of Nigeria (2008) 3-4 SC 147; (2008) 13 NWLR (Pt. 1103) 1; Silas Ikpo v. The State (1995) 33 LRCN 587; (1995) 9 NWLR (Pt. 421) 540; Akinmoju v. The State (2000) NSCQR Vol. 2 (Pt. 1) 90 at 93; (2000) 6 NWLR (Pt. 662) 608. The burden is always on the prosecution to prove that a statement was made voluntarily. In this instant case, the trial Court after the trial-within-trial found that the statement was voluntarily made by the accused/appellant.
On the issue of endorsement of the said statement by an SPO, it needs to be emphasised here, that the practice of having an SPO to verify and confirm that a confessional statement of an accused was voluntarily given, does not have the force of law. It is merely a desirable practice, therefore any confessional statement which was not so verified should not of necessity without more, be viewed with any air of suspicion. In other words, the fact that an SPO was not called to testify as in this instant case (which even the reason for her absence was given) will not affect the

admissibility or credibility of the endorsement of exhibits P5 and P21. See the case of Dibie v. State (2007) 2 NSCQR 1431; (2007) 9 NWLR (Pt. 1038) 30. In any case, it is even not the law that the prosecution must call host of witnesses to establish its case. All it is required do is to call witnesses who are material and would assist it in proving its case.”
At pages 461 F – H to 462 A – C PETER ODILI J.S.C. said:
“Taking a cue from the case of: Kim v. The State (1992) 4 NWLR (Pt. 233) 17 at 25 para.14, the Supreme Court enumerated the formal requirements of extra-judicial statement which are that:
(a) It must carry the usual forms of caution.
(b) Each of the words of caution must be in the language understood by the maker.
(c) It must be followed by the maker’s thumbprint or signature as the case may be.
(d) It must be recorded in the language understood by the maker.
(e) It must be read over and interpreted to the maker in language in which it is made.
I shall also refer to the case of Dibie v. State (2007) 9 NWR2 (Pt. 1038) 30 at 64 paras. B-D, per Ogbuagu, J.S.C. along similar lines, thus:

“It need be stressed by me and this is also settled, that there is no requirement of law in Nigeria, but that the practice of taking an accused person along with his confessional statement, to a superior officer who reads over and interprets the statement to him and he confirms it as his voluntary statement, has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the voluntariness of his confession.”
See the cases of the Queen v. Omerewure Sapele & A nor – in Re: German Awip (1957) 2 FSC 24; Nwiboko Obodo & 5 Ors v. The Queen (1958) 4 FSC 1; (1958) SCNLR 464; R. v. Igwe (1961) ANLR 330 at 333 and Kim v. The State (1992) 4 SCNL 81; (1992) 4 NWLR (Pt. 233) 17. Also, confessional statements not so treated, should not necessarily be viewed with suspicion. See the case of Nwigboke & 6 Ors v. The Queen (1959) 4 FSC 101 at 102; (1959) SCNLR 248 – Per Mbanefo, F. I., see also Akpan v State (1992) 6 NWLR (Pt. 248) 439 at 472 paragraphs B-C.”
From what I can see, the points of anchor against the confessional statements of the appellant cannot sustain a rejection of the statements as

involuntarily obtained. Firstly, it is not the law or practice that an accused person’s legal representation must be present before a statement from him can be accepted as voluntarily obtained nor is it also mandatory that the superior officer who before the attestation was made must be called in evidence. In effect from the proceedings of the trial-within-trial, not only was the procedure followed, the learned trial Judge was right in his conclusion that the statement was voluntarily made and had to be admitted. See Edoho v. State 2004 5 NWLR (Pt. 865) 17 at 51.” (underlined mine)
All the necessary procedures have been taken by the lower Court and the oral and documentary evidence before the lower Court were properly evaluated. The lower Court’s decision cannot be faulted. It is hereby sustained.
Issue 1 is resolved against the Appellant.

On issue 2 the Appellant’s complaint is that the case of the prosecution was not proved in accordance with Section 135(1) of the Evidence Act and that the conviction was based on circumstantial evidence. He relied on the submissions made under issue 1 and further extensive submissions on the issue.

In criminal proceedings the Prosecution is not under an obligation to call horde of witnesses. All that it is required to do is to dislodge the presumption of innocence accorded the Accused under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended and proving all the ingredients or elements of the offence or offences for which, a Defendant is charged beyond reasonable doubt as provided in Section 135(1) of the Evidence Act beyond reasonable doubt. Evidence of a sole witness where it is positive, direct and fixed the Defendant with the commission of offence(s) charged will suffice. See: –
1. FRANCIS OMOSAYE VS THE STATE (2014) 10 NWLR (PART 1404) 484 AT 506H – 507 A where I. T. MUHAMMED, J.S.C. now 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 S. YONGO & ANOR VS. COP (1992) 8 NWLR (PT. 257) AT 50 G, KUTUGI

J.S.C. (LATER CHIEF JUSTICE OF NIGERIA (Rtd) said:
“In criminal proceedings the onus is always on the prosecution to establish the quilt 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 GWANGWAN (2015) 9 SCM 253 AT 267H TO 268 A – B per OKORO, J.S.C. 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, Akigbe v. IOG (1959) 4 FSC 203, Onubogu v. The State (1974) 9 SC 1 at 20, Babuga v. State (1996) LPELR – 701 (SC), (1996) 7 NWLR (Pt 460) 297.”
4. DANIEL JIYA V THE STATE (2020) 13 NWLR (PART 1740) 159 AT 198 H TO 199A – B per PETER-ODILI, J.S.C.
The onus has been discharged in this Case.
I have carefully read the record of appeal, the Notice of Appeal filed, the Appellant’s Brief of Argument and the Respondent’s Brief of Argument vis-a-vis the judgment of the lower Court and the oral and documentary evidence from the two sides at the lower Court and I am certain in my mind that the oral and documentary evidence proffered and tendered before the Court below against the Appellant clearly established the Charge of Criminal Conspiracy and Culpable Homicide punishable with death against the Accused person.
Issue 2 is resolved against the Appellant.

Issue 3 is not different from issue 2 in the manner it was couched which is whether the lower Court said: –

“From the evidence before me, I am most satisfied that Prosecution has established a case of criminal conspiracy and culpable homicide against the Defendant…Defendant is indeed guilty as charged.”

To learned Counsel to the Appellant the evidence of PW1 – PW4 did not link the Appellant with the commissions of offences against him.

I am of the firm view that the submissions of the learned Counsel to the Appellant are unfounded. The oral and documentary evidence of the Prosecution Witnesses strongly established and proved all the ingredients of the offences for which the Appellant was charged. Issue 3 is also resolved against the Appellant.

In the result, the three issues formulated by the Appellant’s learned Counsel are hereby resolved against the Appellant. The Appellant’s appeal has no merit and it IS HEREBY DISMISSED.

The Judgment of the High Court of Justice, Federal Capital Territory delivered by HON. JUSTICE Y. HALILU in Charge No. CR/180/16 on 23rd April, 2018 convicting and sentencing the Appellant to death by hanging IS HEREBY AFFIRMED.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, PETER OLABISI IGE, J.C.A. and I am in agreement with his reasoning and conclusion arrived at therein.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE J.C.A. I agree with the reasoning, conclusion and orders therein.

Appearances:

CHIKE ONYALI, ESQ. with him, RICHARD UBA, ESQ. For Appellant(s)

AMA YEBOAH-OHIRE, ESQ. – PSC For Respondent(s)