GURUMA v. STATE (2022)

GURUMA v. STATE

(2022)LCN/16766(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/K/544B/C/2019

Before Our Lordships

Ita George Mbaba Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Abubakar Muazu Lamido Justice of the Court of Appeal

Between

SHADARI GURUMA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

INGREDIENTS TO ESTABLISH THE OFFENCE OF MURDER

“To successfully establish the offence of murder against an accused person, the prosecution must prove the following ingredients beyond reasonable doubt to wit:- (a) That the deceased is dead. (b) That the act of the accused person caused the death of the deceased and (c) That the act was done with the intention of causing death or grievous bodily harm. See Njoku v State (2013) 2 NWLR (pt 1339) 543, Uguru v State (2002) 9 NWLR (pt 771) 90 at 106, Gira v State (1996) 4 NWLR (pt443) 375, Ogba v State (1992) 2 NWLR (pt 222) 169, Okereke v State (No.2) (2016) 5 NWLR (pt 1504) 107 at 140, Akinlola v State (2016) 2 NWLR (pt 1497) 803 at 522 and Akpan v State (2016) 9 NWLR (pt 1516) 110 at 117. For the first ingredient, it is not in doubt that the deceased, Evans Chinwo is dead. Learned counsel to the Appellant dissipated so much energy in an attempt to convince this Court that the Court below and the trial Court both erred in their concurrent findings that the Respondent proved the second and third ingredients of the offence of murder against the Appellant beyond reasonable doubt as required by law. That is to say that the Respondent failed to prove that the appellant intentionally and unlawfully killed Mr. Evans Chinwo. It is trite law that in proof of the above ingredients, the prosecution could rely on either a direct evidence also known as evidence of an eye witness or witnesses, confessional statement of the accused or circumstantial evidence.” PER MBABA, J.C.A

WHETHER OR NOT A TRIAL WITHIN TRIAL WILL BE CONDUCTED WHERE AN ACCUSED PERSON MERELY DISPUTES THE CORRECTNESS OF A CONFESSIONAL STATEMENT

Also where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within trial. See Madejemesi v The State (2001) 5 SCNJ 59.” Per SANUSI, JSC
See also Ofordike Vs The State (2019) LPELR – 46411 (SC), where my Lord Okoro, JSC held:
“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.” PER MBABA, J.C.A

THE POSITION OF LAW ON WHERE A TRIAL WITHING TRIAL WILL BE CONDUCTED

The authorities are also replete, that even where a trial-within-trial is necessary, it takes the accused person or his Counsel to set same in motion, by stating that the statement was obtained involuntarily and calling for or suggesting such mini trial, to determine its admissibility and voluntariness, and such trial is done at the point of tendering the statement, as exhibit. See Mohammadu Vs The State (2021) LPELR – 55996 (CA), where my Lord Gbagi JCA said:
“Trial within trial can only be ordered where the issue of voluntariness is raised. The process of trial within trial is not whether or not the Appellant retraced his statement but it is to test the voluntariness of the statement. See Lasisi Vs State (2013) LPELR-20183 (SC) per Onnonghen, JSC “The procedure of trial within trial is not designed to determine whether an accused person made the statement but whether he made it voluntarily.” Trial within trial must be prompted by an allegation of an accused person that his statement was made under duress. This was not the case in this appeal. The Appellant did not plead duress at the point of tendering this statement by PW1. All he said was that he did not make the statement. Mere denial of confessional statement by an accused person does not preclude the Court from acting on it. See Ubierho Vs the State (2005) LPELR 3283 (SC); Akinmoju Vs the State (2000) LPELR 351 (SC).”

WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON A RETRACTED CONFESSIONAL STATEMENT

The law is trite that even where a Confessional Statement is retracted or denied at trial, the Court can still use it to found conviction, where the same is plausible, and there are other piece(s) of evidence to corroborate or give credence to the confessional statement. See the case of Okon Vs The State (2014). LPELR-24018 CA, where we held:
“Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the Court from using it to convict the accused person, if the Court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70: “A Court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial judge should evaluate the confession and the testimony of the accuse person and all the evidence available. These entail the trial judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?” In the case of Salahudeen vs The State (2013) LPELR – 21851 (CA), this Court reiterated:

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Kano State High Court in Charge No. K/135C/2010, delivered on 29th December, 2014, by Hon. Justice Amina Adamu Aliyu, wherein her Lordship convicted the Appellant for Culpable Homicide under Section 221 of the Penal Code of Kano State and sentenced him to death by hanging on the 2nd Count.

Appellant, as 2nd accused person, was tried, together with the 1st accused person – Tukur Yamusa, who was also sentenced to death by hanging.

At the trial Court, Appellant was charged, as follows:
“That you Tukur Yamusa, Shadari Guruma on or about the 13th October, 2008 at about 22.00hrs at Musa Village Sumaila LGA, Kano, within the Kano Judicial Division, agreed to do an illegal act, by an illegal means, to wit; you conspired together and caused the death of one Ibrahim and that same act was done in pursuance of the agreement and that you thereby committed an offence punishable under Section 97 of the Penal Code.
2nd Head of Charge:
That you Tukur Yamusa, Shadari Guruma on or about the 13th October, 2008 at about 22.00hrs at Musa Village Sumaila LGA, Kano, within the Kano Judicial Division, did commit culpable homicide punishable with death, in that you caused the death of Ibrahim Dangana by doing an act, you used a stick to beat him on the head and back with the intention of causing his death or with the knowledge that death would be the probable consequence of your action and thereby committed an offence punishable under Section 221(1) of the Penal Code. See Pages 1 and 206 of the Records of Appeal.
(The Count 2 was amended as per the 206 of the Records of Appeal).

Appellant (as 2nd accused person) had pleaded not guilty to the charge, and after the trial and taking the evidence from witnesses and the addresses of Counsel, the trial Court found the accused persons (including Appellant) guilty as charged and sentenced them to death, by hanging on the charge of culpable homicide. The Court said:
“…Both accused persons are friends from their confessional statements. The accused persons also stated that they were not informed of the offence(s) they were being accused of at both Police Stations, but from the exhibits, clearly, they are aware of the offence with which they were being arrested for. They claimed not to be from Matigwai but DW1, the father of the 1st accused person stated he is from Matigwai Village, and on Exhibits A and A1 and B and B1, they all stated that they are from Matigwai Village and PW2 stated in Court that they were arrested at Matigwai Village, with the help of the Village head… I do not believe them when they said they were not from Matigwai Village… Both accused persons in their various confessional statements have stated that it was because they saw Rakiya talking with the deceased, which made them furious, that they started hitting him with their sticks and that Rakiya is the wife of the 1st Accused person’s brother. In fact, the 1st accused denied even knowing Rakiya in his testimony in Court, which is also an afterthought.
On the whole, I find the accused persons, apart from general denial, have not been able to put up any defence in Court. I do not believe the evidence. I find their denial as an afterthought; they are not witnesses of truth… I find that the prosecution have proved the case of culpable homicide, punishable with death, against the two accused persons contrary to Section 221(a) and (b) of the Penal Code Law 1991 and accordingly convict them.” (Pages 201, 202 and 203 of the Records of Appeal)

That is the decision Appellant appealed against, as per the Amended Notice of Appeal, filed on 14/01/2020 and deemed duly filed on 4/6/2020. Which Counsel wrongly stated the name of Appellant as SHADAU GURMAN. Appellant filed Amended Brief argument on 22/6/2021 which was deemed duly filed on 20/1/2022, wherein Appellant distilled four (4) Issues for the determination of the Appeal, as follows:
(1) Whether from the available evidence on record, the trial Court could be said to be legally justified in convicting the Appellant as charged, without credible evidence linking him to the Crime? (Grounds 1 and 2)
(2) Whether the trial Court was not in legal error by relying on the Exhibits A3, A4, A7 & A8, A9-A10 and A11-A13, which are in admissible in evidence and these have hitherto influenced the mind of the trial Court to arrive at wrong conclusion. (Grounds 3 and 6).
(3) Whether the trial Court was right or not by not given (sic) probative value to the defence of the Appellant and whether the trial Court was right by asking the Appellant to prove his innocence to the charge, instead of prosecution to proof (sic) beyond reasonable doubt- (Grounds 4 and 5).
(4) Whether the trial Court was in legal error for shutting out the Appellant from being given fair hearing. (Ground 7)

The Respondent filed its Brief of Arguments on 2/9/2020, which was deemed duly filed on 23/3/2021. The Respondent distilled 5 issues for the determination of the appeal as follows and quarreled with the couching of the issues by Appellant:
1) Whether there is sufficient evidence linking the Appellant to the crime, to justify his conviction.
2) Whether the trial Court was right in admitting Exhibits A1, A2, A5, A6, A9, A10, A11, A12 and A13 and relying on same to reach its decision.
3) Whether the trial Court properly evaluated the evidence of the defence before it in arriving at its decision.
4) Whether the trial Court saddled the defence with evidential burden of proof beyond reasonable doubt.
5) Whether the Court afforded the defence its right to fair hearing after amending the charge by the prosecution.

Appellant filed Amended Reply Brief on 22/6/2021, which was deemed duly filed on 20/1/2022, to respond to the Respondent’s brief. The Appeal was heard on the said 20/1/2022, when the parties through Counsel, adopted their briefs, and urged us accordingly.

Arguing the appeal, M.A. Fadunmoye Esq., who settled Appellant’s brief on issue I said the trial Court was not justified to convict the Appellant; that there was no credible evidence, to do so. Counsel said that from the Records of Appeal, the Exhibits A3 & A4 (confessional statement) of Appellant, which PW1 (IPO) said had been taken before a superior Police Officer for authentication, was not so authenticated, as there was nothing in the Records to show such authentication. He noted that the statement of Appellant was taken in Hausa Language (Exhibit A3) and wondered whether the alleged Superior Police officer was learned in Hausa Language, too, before the PW1 interpreted same into English Language! Counsel also wondered whether the translation was properly done in the English language (Exhibit A4)!

He noted that the trial Court had accepted the said confessional statement, and the same had influenced its decision to convict the Appellant. Counsel further argued that one Inspector Musa Abdullahi was named by PW1 as their team leader in the conduct of the investigation. He argued that if the said Inspector Musa Abdullahi was the Superior Officer that verified the confession of Appellant, he therefore did not qualify to do so, as the law envisages such Superior Officer to be one not below the rank of Assistant Superintendent of Police (ASP). Thus, Counsel said the said Statements of Appellant should not have been admitted in evidence as confessional statement, for not meeting the requirement of authentication by a Superior Police Officer, and for not coming clear in the recording process, and its interpretation to English language.

Counsel said the law is trite, that a Confessional Statement, not endorsed by a Superior Officer, is a rush, and same should not be admissible. He said that the said Confessional Statement reflected how desperate the PW1 was, to nail the Appellant, at all cost. He relied on the case of Nwaebonyi Vs State (2004) NWLR (Pt.343) 130 and Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455. Counsel conceded that a conviction can lie on a Confessional Statement, but said that such statement must be direct, cogent and probable. He relied on Dibie Vs State (2008) 3 WRN 1 and Akpan Vs State (1992) SCNJ 22, to say that such confessional statement must be corroborated by other independent evidence in the case to sustain conviction. He also relied on Solola Vs State (2005) 30 WRN 89, Idowu vs State (2000) 4SC (Pt 1) 50 and Afolabi Vs State (2017) 1WRN 125, on the test the trial Court should conduct to decide whether a confessional statement could be accepted to base a conviction on.

Counsel also argued that the evidence led did not establish the ingredient of the offence; that there was no eyewitness account nor credible circumstantial evidence; he said that the confessional statement relied upon was faulted. Counsel said that the trial Court failed to evaluate the evidence, properly and urged us to resolve the issue for Appellant. He relied on Busari Vs State (2016) 14 WRN 54 and Nsofor Vs. State (2005) 4WRN 29, and said that failure of the Prosecution to tender the stick used in committing the offence was fatal to the case of the Prosecution, especially as the Pw2 said the stick was recovered. He urged us to presume Section 167 (d) of the Evidence Act, 2011 against the Prosecution, on the failure to produce stick.

On issue 2, whether, the Court was not in error to have relied on Exhibits A3, A4, A7 & A8, A9-A10 and A11-A13, to convict Appellant, Counsel answered in the affirmative, saying that the documents lacked evidential value and were not admissible; he said that the Exhibit A3 & A4 were Appellant’s statement of 20/10/2008 (both the Hausa and English Versions), and Exhibit A7 and A8 (also Hausa & English Versions were the statements of Appellant, taken at Sumaila Divisional Police State and State C.I.D., respectively, and Exhibits A11-A13 being photographs of the deceased (Ibrahim Dangana).

Counsel said the documents were wrongly admitted and should be expunged, together with the oral evidence adduced in support. He did not query the voluntariness of the Statements, but said that they were not free from manipulation by the recorders. He argued that the exhibits were not conclusive on the guilt of the Appellant. He urged us to resolve the issue for Appellant, and added that failure to call the medical doctor who produced the medical report was also fatal to the Case of the Prosecution.

On Issue 3, Appellant’s Counsel said the trial Court failed to consider the defence of the Appellant, and to give probative value to same; that the trial Court was wrong to say that Appellant ought to have given evidence of his whereabout on the date of the incident. He argued that the burden of proof resided on the prosecution, to prove the charge, beyond reasonable doubt. Counsel argued that Appellant had raised the defence of Alibi, which he said was never investigated. He relied on Nwabueze Vs State (1988) 4 NWLR (Pt.86) 16 at 34. He said that the defence of Appellant was not considered; that the Court had a duty to do so – Akpabio Vs State (1994) 7 NWLR (Pt.359) 635. Counsel said that the conviction was founded on suspicion and speculation, and relied on the case of Adie Vs state (1980) All NLR 39, State Vs Ogbunjo (2001) 2 ACLR 527 and Ikomi Vs State (1986) 3 NWLR (Pt 28) 340.

On issue 4, whether the trial Court was not in a legal error, shutting out Appellant by refusing him to call additional witness, Counsel answered in the affirmative. He said that Appellant’s right of fair hearing was breached. Counsel argued that the prosecution was unduly indulged by the trial Court with more time to present their case, and even allowed them to re-open their case, but did not extend the same treatment to Defence, which was refused application to recall of witness for cross-examination, after amendment of the charge. He relied on Section 237(c) of the Criminal Procedure Code, which even allows the Court to grant such application, even suo motu, if the evidence appears to the Court to be essential to the just determination of the case. Counsel also relied on the case of State Vs Haliu Nagandin Dushi (1967) NWLR 322, to say that Application by Attorney General under Section 237 Criminal Procedure Code, if made after the Court had adjourned for judgment is too late. He however admitted that the Court of Appeal had overruled that decision of State Vs Dushi (Supra) in the case of C.O.P. VS Sullivon Prediegha (1975) NNLR 120, to say that the amendment can be made at ‘all stages’ of the trial, before the judgment. He also relied on Garba Dandara Vs The State (1966) NNLR 129. Counsel argued that the test to be applied in deciding whether or not a witness was properly called, under Section 237(1)(a) and (b) of the Criminal Procedure Code, after close of defence, is that the calling should be limited to something which has arisen improviso, which no human ingenuity could forsee; he said that the exercise of the power under Section 237(1) should be done judicially and judiciously, and not in the way that would caused prejudice to the accused person. He argued that, having close the case of the prosecution, and defence, the orders of closure had remained, and were never set aside, and so when the application by prosecution, under Section 237(1) of Criminal Procedure Code, was brought, the trial Court was sitting on appeal over its earlier orders of closure of the cases of prosecution and defence! Counsel argued that the trial Court acted ultra vires, and so the order made, on 19/5/2014, was invalid and ought to be set aside, together with all evidence adduced alongside at the trial. He referred us to Page 31 of the Records.

Counsel relied on Oni Vs Cadbury Nig. Ltd (2010) 5 WRN 1, and asserted that, while the Prosecution enjoyed the provision Section 237(1) of the Criminal Procedure Code, the defence was denied such opportunity, of getting adjournment to recall witnesses for further cross-examination. He urged us to allow the appeal.

Responding, Counsel for Respondent, Aisha Mahmoud (Mrs.) (Deputy Director) Kano State, who settled the brief, on issue 1, noted that proof beyond reasonable doubt, does not mean proof beyond iota of doubt; she said that, once the proof drowns the presumption of innocence of the accused, the Court is entitled to convict, although there could be shadows of doubt. She said that the moment the proof by the prosecution renders the presumption of innocence of the accused person, useless and pins him down as the owner of the mens rea or the actus reus, or both, the prosecution has discharged the burden placed on it by Section 139 of the Evidence Act. She relied on the case of Woolmington Vs DPP (1935) AC 462, Miller Vs Minister of Pensions (1947) 3 ALL ER 373.

Counsel then stated the various ways the prosecution can prove commission of crime:
(a) By evidence of eyewitness;
(b) By confession or admission voluntarily made by the accused person;

(c) By circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.

Counsel relied on Ilodigwe Vs State (2012) 18 NWLR (Pt.1331) 1 and Igabele Vs State (2006) 6 NWLR (Pt.975) 100. She submitted that the prosecution is not bound to call all witnesses listed in the information/charge sheet, nor to tender every available document in order to prove the charge, though the onus of proof is on it. She referred us to Olaoye Vs The State (2018) 3 SCM 167 at 173, Kamila Vs The State (2018) 6 SCM 100 at 107 and Osareren Vs FRN 7 SCM 133 at 145.

In this case, at hand, Counsel said they listed 4 witnesses on the charge sheet but called only two (Investigation Police Officers (IPO) at the various Police Units (Division and State CID) that handed the case of Appellant); they were PW1 and PW2, respectively; she said that it was the duty of the prosecution to prove the case – to establish the guilt of the accused; she said that where the accused person admitted the offence, by making confessional statement, the prosecution was relieved of any further duty of proof. She referred us to FRN Vs Iweka (2013) 3 NWLR (Pt.1341), she said that confessional statements are the best form of evidence to lie conviction, and are alone sufficient to found conviction. She relied on Ogoala Vs State (1991) 2 NWLR (Pt.175) 509, Akpan Vs State (1986) 3 NWLR (Pt.27) 225, Solola Vs The State (2005) 2 NWLR (Pt.937) 460 at 498 and Nwachukwu Vs The State (2007) MJSC 39.

She said that, though there was no eye witness account in Court, the evidence of the Prosecution (IPO’s) were not hear-say, and relied on Udeh Vs State (1999) 7 NWLR (Pt.609) 1, she said that with the confessional statements, admitted without objection, Appellant had, as well admitted committing the offence. She relied on Osung Vs State (2012) 18 NWLR (Pt.1332) 256. She also relied on Chief Bruno Etim Vs Chief Okon Udo Ekpe (1983) SCNLR 120 and Alade Vs Olukade (1976) SC 183’, on the effect of failure of Appellant to object to the admissibility of the said confessional statements at the point of tendering, she said that the failure of Appellant to object to the admissibility of documents, at the trial, estopped them from challenging the documents, on appeal.

She said that by law, even if a confessional statement is denied or retracted, it can still be used to found conviction, once it is adjudged made, voluntarily, and the same being positive, unequivocal and amounting to admission of guilt. She relied on Osetola Vs State (2012) 17 NWLR (Pt.1329) 251 and Egboghonome Vs State (1993) 7 NWLR (Pt.306) 383.

Counsel also relied on the case of Nsofor Vs State (2004) 18 NWLR (Pt.905) 292 SC, on how to construe a confessional statement, to determine whether or not to rely on it; she added that all the guides, therein, favoured the decision of the trial Court, placing reliance on the confessional statement.

Counsel submitted that the Prosecution had also established the ingredients of the offence of culpable homicide, punishable with death. She relied on Uguru Vs State (2002) 4 SCNJ 292, State Vs Garba (supra). Counsel added that the trial Court had carefully appraised the evidence and found the entire ingredients of the offence proved. She referred us to the findings of the trial Court, on Pages 199 – 200 of the Records of Appeal.

Counsel also referred us to the evidence of PW2 and to the medical report about how the deceased died, and said that the death was of a violent nature, resulting from the attack on him (deceased), by the accused persons.

On issue 2, whether the Court was right to admit the exhibits (confessional statements and medical reports) and to rely on them, Counsel answered in the affirmative. Counsel said the voluntariness of the documents was not disputed, at the point of tendering as exhibit, but that what was challenged was the fact that Appellant did not make the confessional statements, at all, which the trial Court overruled and said:
“What the Counsel was trying to imply is that the Court should have conducted trial within trial. The trial within trial is only conducted where the accused persons admit making the statement, but under some influence or the other. See the case of Michael Okaroh Vs The State (1990) LPELR – 2423 (SC), where it was held that the objection has to be because the statement was not voluntarily made before mini trial becomes necessary and Counsel cannot properly raise the absence of a mini trial when he failed to raise it at the time the statements were being sought to be tendered.”

Counsel said that Appellant cannot now say that the statements (Exhibits) were hearsay and inadmissible. She said that where an accused person, outrightly, denied making a statement to the Police, the trial Court is still expected to admit the same, and decide in its judgment, whether or not such denial availed the accused. She referred us toDawa Vs State (1980) 8 – 10 SC 236, Idowu Vs State (2000) 12 NWLR (Pt.680) 48 and Busari Vs The State (2015) SC 364/2012, which held:
“Once confessional statement is proved to have been made voluntarily, as in this case and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground conviction, regardless of the fact that the maker resiled therefrom or retracted the same, completely, at the trial, as such retraction does not make it inadmissible or that the Court should not act on it.”

Counsel also relied on the case of Obot Vs The State (2019) LPELR – 48172 CA, to say that evidence by IPO (Investigating Police Officer) on what he discovered during investigation, is not hearsay evidence. She also relied on the case of Adesina Vs People of Lagos State (2019) 5 SCM 34, to say that the medical report issued by a doctor, who attended to the body of the deceased, can be tendered by IPO.

On the argument that a confessional statement has to be endorsed by a Superior Police Officer (of ASP rank and above), Counsel for Respondent submitted that that is only a convention, not law that a confessional statement that is not so endorsed will not, ipso facto, cease to be effective or rendered inadmissible – Dele Vs State (2011) 1 NWLR (Pt.1229) 508.

Counsel added that Appellant did not disown the English version of the Statement (Exhibit A4), that it was not the correct interpretation of the Hausa version (Exhibit A3) – Nwali Vs State (1991) 3 NWLR (Pt.182) 663. She also submitted that, there was no burden put on the Prosecution, to tender the weapon or instrument used in the murder, and relied on the case of Olayinka Vs State (2007) 4 SCNJ 72, among others.

On issue 3, whether the trial Court properly evaluated the evidence of the defence, including the allegation of alibi, Counsel answered in the affirmative. She referred us to Pages 201 to 203 of the Records of Appeal, where the trial Court made findings on the evidence adduced by Appellant and his witness; she said that the Court had said (among other things):
“The accused persons in their defence in Court stated that they were never at Musa Village, in fact they do not know Musa Village, where the incident occurred but they have failed to show the Court where they were on the day the incident happened. It is trite, that whoever claims to be somewhere other than the place the offence was committed, must prove to the Court, that assertion, it is not enough to deny being at the scene.” (See Page 202 of the Records)

On issue 4, whether the trial Court saddled the Appellant (accused persons) with the evidential burden of proof, Counsel answered in the negative. Counsel submitted that the Appellant (as accused persons) had made a no case submission, at the end of the case of the Prosecution, and were overruled after due consideration, and so accused were ordered to enter their defence.

Hence, Appellant testified in his defence, as also the 1st accused who called a witness, she said that Appellant also had opportunity to cross-examine all the prosecution witnesses. Thus, it is not true to say that the trial Court saddled the Appellant with the evidential burden of proof. She said that Appellant did not raise any defence of alibi, that such defence has to be raised at the earliest opportunity – at the investigation stage, to enable the Police investigate it. She said that Appellant appeared to have thought of the alibi, at the trial in Court, and such was an after-thought. She relied on Oguno Vs State (2011) 7 NWLR (Pt.1246) 314.

On issue 5, whether Appellant was accorded fair hearing at the trial, Counsel answered in the affirmative, and relied on the case of Ogunsanya Vs State (2011) 12 NWLR (Pt.1261), on what that entails. As argued under issue 4, Counsel said Appellant had led evidence, called a witness and also cross-examined the witnesses of the prosecution. She said that the prosecution had applied to amend a typographical error, which was not objected to by Appellant, at the end of the evidence by the defence, relying on Section 275 (sic) of the Criminal Procedure Code (CPC), and the trial Court allowed the application and the charge was amended, and the amended charge read to accused persons and their pleas taken as required by law, which allows such amendment any time before judgment.

Counsel said Appellant’s Counsel was misrepresenting the facts, as to what transpired, when he claimed that the Court was wrong to allow the prosecution to re-open its case and call witnesses and in the same vain shut out Appellant from recalling witnesses, Counsel said that what actually happened was that prosecution Counsel moved the motion to re-open the case, to amend the charge and recall witnesses, which was not opposed and it was granted, she said that the Counsel for Appellant was the one who even applied to withdraw Appellant’s motion to recall witnesses! (See Pages 31 – 32 of the Records)

Counsel said, it was therefore most undesirable, for Appellant’s Counsel to argue, on appeal, that the trial Court shut Appellant out! She urged us to discountenance such submission.

Counsel submitted, again, that the prosecution can amend charge at any time, prior to judgment and relied on Section 8 of the Criminal Procedure Code, she said that the amendment was only to correct typographical error, replacing Section 221(1) with Section 221 (a) of the Penal Code. Counsel added that the amendment did not affect the substance of the evidence led at the trial and so did not require any further cross-examination of the witnesses, just as the trial Court held on Pages 204 – 207 of the Records.

She urged us to resolve the issues against the Appellant and to dismiss the appeal.

RESOLUTION OF ISSUES
Appellant’s Counsel had filed a 15 paged amended reply brief, to contest the Respondent’s brief and had raised what he called, “Preliminary Objection to the issues independently raised in the Respondent’s brief of argument.”

Counsel said that, because Respondent did not cross-appeal and that the issues raised, were not in tandem with the grounds of appeal by the Appellant, they were not competent and should be discarded and disregarded. He added that a Respondent’s duty is to support the judgment of the lower Court, and not to dispute it except by way of cross-appeal.

Appellant did not specify which of the issues by Respondent was not in tandem with the Appellant’s grounds of appeal, or which sounded as pandering to a cross-appeal, or had opposed the judgment of the trial Court. I only noticed that Respondent’s Counsel had criticized the way Appellant’s Counsel couched the issues for determination, saying that the issues were “not objectively framed”, she then went on to rephrase the issues, in a more elegant way, in my opinion. That certainly did not amount to raising Issues outside the grounds of appeal, or portending to cross-appeal, in my view.

I should also add that the idea of raising a preliminary objection in reply brief is quite strange to me.

A reply brief is meant to give Appellant opportunity to respond to fresh or new legal issues, raised in the Respondent’s brief, which were not envisaged in the Appellant’s brief, and which if not responded to, can tilt the fulcrum of justice against Appellant, if the Court acts on same, without discrimination (or without the Appellant’s explanation). A reply brief is not to give Appellant another chance to reargue appeal. See Gwede Vs Delta State House of Assembly & Anor (2019) LPELR – 47441 (SC):
“Learned senior Counsel filed reply brief on 21st November, 2018.

A close perusal of the said reply brief shows that it is a re-address and emphasis on the issues already argued. This is not the purpose of a reply brief. It is to address new points of argument made by the Respondent which the Appellant did not address in his brief of argument. I shall therefore discountenance the said reply brief.” Per OKORO, JSC

The said Preliminary Objection in the reply brief is discountenanced.

I think the relevant issues for the determination of this appeal are two, namely:
(1) Whether, considering the confessional statements of the Appellant and other exhibits admitted in this case, without objection, the trial Court was right to convict Appellant for offence of unlawful homicide?
(2) Whether, considering the amendment of the charge under Section 237 of Criminal Procedure Code, the trial Court had accorded Appellant fair hearing, and had properly evaluation the case of the Appellant, in coming to its conclusion, that the prosecution proved the offence beyond reasonable doubt?

I shall consider the two issues together and I think the same (Issues) have summarized the 5 issues raised by the Respondent (which, to me, are only different from those of Appellant, in the phraseology, style and elegance).

A brief facts of the case at the lower Court show that Appellant and the 1st accused person, during the Sallah Festival, on 13/10/2008, saw the deceased (Ibrahim Dangana) chatting with one Rakiya, said to be wife of the 1st accused brother. Appellant and the 1st accused person then attacked the deceased, beating him (deceased) with stick(s) on the head and other parts of the body. The deceased fell down and became unconscious. The said Rakiya reported what happened to the father of the deceased, who took the deceased to the Police Station, and thereafter to the hospital where he (deceased) was admitted and treated, but he died, 10 days after the incident. Appellant and the other accused were arrested and tried for conspiracy to commit the offence and for culpable homicide, punishable with death.

At the trial, only the Investigation Police Officers (PW1 and PW2) testified and tendered the confessional statements of the Appellant and the medical reports. Appellant and the other accused also testified, and called a witness, denying committing the offence; Appellant, in Court, denied knowing anything about the said Ibrahim (deceased), he said that he did not know the 1st accused person and did not know why he was in Court, and nobody told him why he was in Court! that he did not make any of the statements (Exhibits A3 & A4); he said he did not make any statement to the Police; that he was alone, when the Police came to arrest him; he lived with his parents in Zambai; he did not know the Local Government. He did not know the Village called Musa. Under cross-examination, he denied knowledge of why he was arrested. (See the summary by the trial Judge on Pages 187 – 188 of the Records of Appeal).

The Counsel, on both sides, have stated the ingredients of offence of murder or culpable homicide punishable by death – that there must be the death of the deceased, that the death was caused by the act of the accused person, and that the accused did the act with the intention of causing the death, or with the knowledge that death would be the probable consequence of the act. They also agreed, that criminal offence can be proved by any of the three ways, namely:

(1) Eye witness of account who witness the commission of the offence;
(2) Confessional statement of the offender adjudged voluntarily made; and
(3) Circumstantial evidence, which is cogent, positive and pointing, conclusively, at the accused as the person to bear the guilt for the commission of the offence.
The authorities on this are replete. See the case of Polycap Vs The Sate (2020) LPELR – 49631 (CA) and Enweremadu Vs State (2017) LPELR – 42488 (CA), where it was held:
“Counsel, on both sides, had stated the legal ingredients of the offence of murder, that there must be evidence of death (of the deceased); that the death of the deceased resulted from the act/omission of the accused person(s), and that the said act/omission of the accused person, intended the death of the deceased, or to cause him grievous bodily harm, that is, the accused did the act/omission, intentionally, with the knowledge that death or grievous bodily harm would be its probable consequence. See Omotola Vs The State (2009) 7 NWLR (pt.1139) 148; (2009) LPELR – 26635 SC, Ndukwe Vs The State (2009) 37 NSCQR 425 at 459 – 460, Nwachukwu Vs The State (2002) 3 FWLR (pt.123) 321, Obasi Vs The State (2014) LPELR – 24013 (CA), Sule Vs State (2009) 19 NWLR (pt.1169) 33, Akpa Vs State (2008) 14 NWLR (pt.1106) 72, Musa Vs The State (2014) 1 LPELR – 22192 (CA). It is also the law, that offence of murder can be established by any one of the following 3 ways: (1) By positive, direct evidence of an eyewitness of the murder. See Chukwunyere Vs The State (2014) LPELR – 23779 (CA), Galadima Vs The State (2013) LPELR – 20402 (2) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person, as the one from whom the guilt for the murder can be inferred. See Nasiru Vs The State (1999) 2 NWLR (pt.589) 82, Chiokwe Vs The State (2005) NWLR (pt.918) 424, Obasi Vs The State (2014) LPELR – 24013 (CA), (3) By confessional statement of accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. of the Federation (2012) (2009) LRCN 70 at 96; (2012) 32 WRN 1; (2012) 9 NWLR (pt.1306) 419; Obasi Vs The State supra.”
See also Wowem Vs State (2021) LPELR – 53384 (SC), where my Lord, Okoro, JSC, held:

Of course, Appellant had said that he did not make the said statements, or any statement to the Police. Counsel had also argued that the said confessional statements were not endorsed by a Superior Police Officer, to authenticate the same.

Appellant’s Counsel also argued that the trial Judge ought to have conducted a trial-within-trial, to establish the status of the said confessional statements.
The above arguments were actually conflicting, in my opinion, (as Appellant) accused person, had denied making a confessional statement or any statement to the Police. It is however difficult to imagine how that allegation can possibly be true, as the main concern of the Police in arresting a suspect, is to get or extract statement from him about the complaint against him! One who asserts that he did not make any confessional statement to the Police, is therefore not contesting the voluntariness of the statement, produced by the prosecution as made by him, and so there cannot be any call for trial-within-trial on the status or voluntariness of the statement. See the case of Akwuobi Vs The State (2016) LPELR – 41389 (SC), where it was held:
“The second issue raised by the appellant relates to proof of the case against him by the prosecution now respondent. In this instance appeal, there is a confessional statement made by the appellant voluntarily which was tendered and admitted in evidence at the trial and marked Exhibit 4. Although the appellant denied making such statement or signing same, the trial Court rightfully, in my view, did not bother to conduct a trial within trial since the appellant did not say that he made it under duress, torture, promise or any influence. This is because mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See Okwesi vs. State (1995) NWLR 119 and Ezenge vs. The State (1999) 14 NWLR (pt.637)1. Also where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within trial. See Madejemesi v The State (2001) 5 SCNJ 59.” Per SANUSI, JSC
See also Ofordike Vs The State (2019) LPELR – 46411 (SC), where my Lord Okoro, JSC held:
“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 admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility in accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt. 1324) 586 at 619 paragraphs A – C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…”
The authorities are also replete, that even where a trial-within-trial is necessary, it takes the accused person or his Counsel to set same in motion, by stating that the statement was obtained involuntarily and calling for or suggesting such mini trial, to determine its admissibility and voluntariness, and such trial is done at the point of tendering the statement, as exhibit. See Mohammadu Vs The State (2021) LPELR – 55996 (CA), where my Lord Gbagi JCA said:
“Trial within trial can only be ordered where the issue of voluntariness is raised. The process of trial within trial is not whether or not the Appellant retraced his statement but it is to test the voluntariness of the statement. See Lasisi Vs State (2013) LPELR-20183 (SC) per Onnonghen, JSC “The procedure of trial within trial is not designed to determine whether an accused person made the statement but whether he made it voluntarily.” Trial within trial must be prompted by an allegation of an accused person that his statement was made under duress. This was not the case in this appeal. The Appellant did not plead duress at the point of tendering this statement by PW1. All he said was that he did not make the statement. Mere denial of confessional statement by an accused person does not preclude the Court from acting on it. See Ubierho Vs the State (2005) LPELR 3283 (SC); Akinmoju Vs the State (2000) LPELR 351 (SC).”

See also Nwachukwu Vs The State (2004) LPELR – 7327 (CA), C.O.P. Vs Alozie (2017) LPELR – 41983 (SC), Okafor Vs State (2020) LPELR – 51900 (CA) and Effiong Vs The State (2016) LPELR – 41377 (CA), where my lord Oyewole JCA held:
“The position of the law was well stated by Mr. Nwoko. A trial within trial will be ordered where an accused person admits making a statement but raises issues suggesting that he did so involuntarily. Where in this case, his objection does not go to the content of the statement but tries to cast doubt on the signature thereon, a trial within trial will not be ordered. Instead the said statement will be admitted as was done by the learned trial Judge and at the appropriate stage be subjected to evaluation applying the tests of truthfulness otherwise called the validity test. See RASHEED LASISI v. THE STATE (2013) 54 NSCQR 39. ONNOGHEN, JSC stated thus: Another little point to be noted is the fact that where an accused person denies making the statement sought to be tendered, the issue of trial within trial is not relevant as it is settled law that the said statement is admissible in evidence, subject however, to the weight to be attached thereto. In other words, the procedure of trial within trial is not designed to determine whether an accused person made the statement but whether he made it voluntarily. See RASHEED LASISI v. THE STATE (supra) at 67.”
I think, where an accused person denies making a confessional statement or any statement at all to the police, that amounts to a blind plunge into the dark, and is an ill-advised, self-delusion, as he cannot therefore contest the content of the statement produced and credited to him. And where the said statement contains the personal profile of the accused person, which could only have been gotten from him, and/or one in possession of such details, the denial of making the statement becomes, silly!

The law is trite that even where a Confessional Statement is retracted or denied at trial, the Court can still use it to found conviction, where the same is plausible, and there are other piece(s) of evidence to corroborate or give credence to the confessional statement. See the case of Okon Vs The State (2014). LPELR-24018 CA, where we held:
“Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the Court from using it to convict the accused person, if the Court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70: “A Court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial judge should evaluate the confession and the testimony of the accuse person and all the evidence available. These entail the trial judge examining the new version of events presented by the accused person which is different from his retracted confession and the judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?” In the case of Salahudeen vs The State (2013) LPELR – 21851 (CA), this Court reiterated:

“It has been stated several times that a confessional statement is the best and strongest evidence of guilt, as by it the accused person surrenders himself and closes every door of defence against himself.” See Yusuf vs The State (2012) LPELR – 7878 (CA) andAkpa vs State (2008) ALL FWLR (pt. 420) 644.”

The blanket denial by Appellant, that he did not know the deceased, did not attack the deceased, did not know the person called Rakiya did not know the village called Musa and did not know his Local Government, and did not make any statement to the Police, appear really strange and unbelievable to me, especially as DW1, the father of 1st Accused, had said 1st Accused was his 1st Son, and was arrested on 13/10/2008 by the Police, in his house, at Matigwai. The said 13/10/2008 was the very date the offence was said to have been committed.

Under cross-examination Appellant (testifying as DW2) said, on page 28 of the Records:
“I am Shadari Guruma. I was brought from Prison. My Village name is Zambai. I do not know which Local Government… I am 31 years old. I do not know him (Ibrahim) until now. I only came to hear his name. About 6 years ago I was at home when some people with black clothing came to our house and I should come with them and they took me away to a place in (sic) Division. I do not know which Division or where it is. After beating me they said they were taking me to Kano. There, I was beaten up severely and I was locked up and I cannot remember what was going on around me. I have never met him and never saw him. I did not make any statement (Exhibit B). I do not know the brother of Tukur. I have never seen Tukur… I do not know the Village called Musa. I do not know any thin about why I am in Prison…” See Pages 28 – 29 of the Records.

Such litany of denials is puzzling. He did not even know the I.P.O. or any of the Policemen and did not Know why he was in Prison or Court!

I had earlier stated that, at the trial, the Appellant did not object to the tendering of the Confessional statements as Exhibit- See Pages 14-15 of the Records of Appeal, and Page 196 of the Appeal, where the trial Court said:
“Exhibits A and A1, and Exhibits B and B1 from the Courts records, were admitted in evidence without any objection by the defence Counsel.”

The trial Court had further held:
“From Exhibits A & A1 B & B1 A5, A7, A9, A10 A11 and its clear that the accused persons confessed to have jointly beat the deceased… by hitting him…Exhibit AII shows that the deceased, Ibrahim Dangana, died from head injuries he received after being hit with a big stick several time (sic) on the head and he fell into unconsciousness and died 10 days later, due to brain damage. The combined effort of Exhibits A, A1, B and B1, A5, A7, A9, A10 and A11 is that the act of the accused persons caused the death of the deceased person, to with (sic) hitting him on the head, severally, with stick.” See page 200 of the Records of Appeal.

I did not see anywhere Appellant appeal against the above findings, apart from still maintaining that he did not make the Confessional Statement, or any statement to the Police, and that the exhibits were inadmissible. Of Course, the exhibits were duly admitted, without objection and they were admissible, and were properly relied upon, in my opinion, by the trial Court.

Findings of Court and decision not appealed against remains valid, binding and conclusive. See the case of Opara Vs Dowel-Schlumberger Nig Ltd & Anor (2006) LPELR-2746 SC, Dabo Vs Abdullahi (2005) LPELR-903 (SC), Anyanwu Vs Onyeagocha & Ors (2015) LPELR- 26018 (CA).

I should, however, observed that the Prosecution made a serious error in not producing the Person(s) (Rakiya), who saw when the accused persons hit the deceased (Ibrahim Dangana) with the stick, to establish the vital link between the Appellant (and the 1st accused) with the scene of crime, at Musa Village. Thus, if not that Appellant had made the confessional statement, it would have been difficult to link Appellant with the act of hitting the deceased on the 13/10/2008, in the face of the blanket denials by the Appellant! That observation, notwithstanding, I find no merit in this appeal.

I should also add that the amendment taken out by the Prosecution after the close of the case of the defence, meant to correct the error in the citing of the law on which the Appellant was charged, that is correct the Section 221(1) to 221(a) of Criminal Procedure Code (CPC), on the culpable homicide punishable with death, was properly done and that Appellant’s right of fair hearing was not infringed, at all, especially as Appellant did not opposed the Application to amend the charge and recall witness(es). Appellant’s Counsel had also withdrawn the Application to recall witness(es) for cross-examination (See Pages 204 – 207 of the Records of Appeal).

I do not think the correction of the error in the citing of the law changed the evidence taken, in any way.

The Section 237(1) of the Criminal Procedure Code (CPC) was made for the purpose and it allows for amendment of a charge/information, at any time, before judgment. See the case of FRN Vs Bafarawa & Ors (2016) LPELR – 40482 CA and Princent & Anor Vs State (2002) LPELR – 2425 (SC).

As earlier stated, I find no merit in this appeal and so dismiss it and affirm the decision of the trial Court.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother ITA MBABA, J. C. A and agree with his Lordship’s reasoning and conclusion. I only want to add a word regarding the arguments of Appellant’s counsel that the confessional statement of Appellant, according to counsel, did not completely comply with the Judge’s rules as regards its endorsement by a superior officer so it was inadmissible in evidence.

While not in any way seeking to downplay the wisdom in the Judge’s rules and its requirement of confirmation by a Superior Police Officer of a confessional statement, it must be realized that the Judge’s rules are not Rules of Law but merely Rules of administrative practice made by English Judges for English Officers for the effective administration of justice, and therefore should never be used to defeat justice. That much was made clear in NWIGBOKO & ORS vs THE QUEEN (1959) 4 F.S.C 101 at 102 by the Federal Supreme Court and reaffirmed by OPUTA JSC in lead judgment in OJEGELE vs THE STATE (1988) LPELR- 2370 (SC) P. 1; (1988) 1 NWLR (Pt 71) 414 at 424. In Nwigboko (supra) the Federal Supreme Court said that:-
“We do not however agree with the Judge that where the practice is not followed the statement should necessarily be viewed with suspicion… We are not prepared to go to the length of laying down as a general rule that where if (the practice) is not observed the statement should be viewed with suspicion.”
For this little bit and the fuller reasons ably marshalled by my learned brother in his lead judgments, I also dismiss this appeal and affirm the judgment of the lower Court.

ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, ITA G. MBABA, JCA, and I am in complete agreement with the reasoning and conclusion reached that this appeal is without any merit. I too dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.

Appearances:

ALHAJI M.A. FADUNMOYO For Appellant(s)

AISHA MAHMOUD (MRS.) DEPUTY DIRECTOR, KANO STATE For Respondent(s)