HABIBU USMAN v. THE STATE (2010)

HABIBU USMAN v. THE STATE

(2010)LCN/3686(CA)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of April, 2010

CA/S/93/C/09

RATIO

CRIMINAL LAW: HOW IS THE CONVICTION OF ACCUSED PERSONS BEST SECURED

It must be stressed that conviction of accused persons are best secured on the basis of their adverse confessional statements. What is paramount is that the adverse statement must be lawfully received before being acted upon by the trial court. Once it has been shown to have been voluntarily given by the accused the court is entitled to act on such admissible statement and convict on the basis of its adverse effect on the plea of the accused! PER MUSA DATTIJO MUHAMMAD, J.C.A.

EVIDENCE: PRACTICE IN RELATION TO THE ADMISSIBILITY OF CONFESSIONAL STATEMENTS OF ACCUSED PERSONS

In Effiong v The State (1998) 5 SCNJ 158 at 166, the Supreme Court in stating the practice in relation to the admissibility of confessional statements of accused persons at trial opined thus:-

“The practice in trial courts has been for an accused person who denies the voluntariness of his extra judicial statement made to the police to object to the statement when the prosecution seeks to tender it in evidence.

When this is done at that stage, the court proceeds to test the voluntariness of such a statement by conducting a trial within trial on the admissibility of the statement and the onus is on the prosecution to prove that it was free and voluntary and it is the prosecution who should begin.”

See also Auta v The State 8 SC 123 and Gbadamosi and ors v The State (1992) 9 NWLR (Pt 266) 465 at 480. PER MUSA DATTIJO MUHAMMAD, J.C.A.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

Between

HABIBU USMAN – Appellant(s)

AND

THE STATE – Respondent(s)

MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sokoto State High Court, Per Sambo J, convicting and sentencing the Appellant, Habibu Usman, for culpable Homicide punishable with death under section 221 of the pend(sic) code. The judgment is dated 25th April, 2006. The undisputed facts of the case leading to the judgment of the court and this appeal are hereunder supplied immediately.

The Appellant got married to Salamatu, now deceased, in 1992. The two were cousins. Marriages between cousins are allowed in Hausa land where both came from. Like others that had also failed, the one between the Appellant and his deceased wife has had fatal consequences. Beyond the murder of his cousin and wife that he was convicted and sentenced for, and against which conviction and sentence this appeal is all about, serious steps must be taken to heal such deadly injury inflicted on the greater unity the marriage between the Appellant and the deceased was intended to generate!

Before her death, Salamatu had moved to her parents house. This happened on 19th February, 1985. Salamatu was no longer at peace with the Appellant, who, even without the marriage between them, given the sameness of the blood contained in their veins, should have ensured she was at peace. The Appellant would not let go Salamatu, his cousin and wife whom he falsely claimed to adore. Having failed to cultivate and sustain the affection or revive it, the Appellant lost his humanity also. The efforts put by relations to ensure the success of the marriage failed also to register on Habibu’s mind. He was far too gone to understand that affection is never forced. He settled for the beastly paradigm that that which could not be had must be destroyed! On or about 11th March, 1995 and at about 0100 hours , Habibu Usman struck. He left his house, went to his uncle’s house where his estranged wife was staying with her parents. With a knife and a hoe, appellant inflicted the fatal injuries on Salamatu his wife and Aishatu his mother in law. Salamatu died instantly from the injuries she sustained from the Appellant. Aishatu was luckier. She was hospitalized and discharged after three week’s admission.

Appellant was arraigned before, tried, convicted and sentenced by the Sokoto State High Court, for culpable Homicide punishable with death under section 221 of the pend(sic) code. Aggrieved by the decision, the Appellant has, by a notice filed on 16th May, 2006 containing a single ground, appealed to this court.

Parties have filed and exchanged their briefs of argument and same were adopted and relied upon at the hearing of the appeal.

The lone issue distilled in the Appellant’s brief as calling for determination in the appeal reads:-

“Whether the guilt of the Appellant was proved and established beyond reasonable doubt having regard to the evidence adduced before the trial court including the confessional statements, Exhibits P3 and PA3 made by the Appellant.”

The Respondent has distilled two issues at paragraphs 2.1 and 2.2 their of brief. Appellant’s single issue subsumes the respondent’s two issues and provides the basis of our determining this appeal. It is needless, therefore, to reproduce Respondent’s two issues here.

In arguing the appeal, learned Appellant counsel contends that the law places a very heavy burden on the Respondent if conviction of the Appellant under section 221 of the penal code is to be secured. The law requires that the Respondent proves all the ingredients of the offence beyond reasonable doubt which, learned counsel contends, has not been done in the instant case. Relying on Aroyewun v C.O.P (204) 16 NWLR (Pt 899) 414 at 428, Shande v State (2005) 1 NWLR (Pt.907) 218 at 238, Amala v State (2004) NWLR (Pt 888) 520 at 547 and Apugo v State (2006) 16 NWLR (Pt 1002) 227 at 254-255 learned counsel submits that a conviction without the discharge by the Respondent of the burden the law places on them cannot endure.

Learned counsel further argues that PW3 is the Respondent’s star witness. Not even this witness could identify the weapons the Appellant employed in injuring the deceased and Appellant’s mother-in-law. The other witnesses, Learned Counsel also contends, gave hearsay evidence which in law is inadmissible. Most importantly exhibit 3A, the English version of the Appellant’s purported confessional statement as recorded by PW6 from the Appellant, was never read over to the appellant. This rendered it inadmissible, a lapse which can be raised even on appeal. If this is done, it leaves the trial court with no evidence to rely upon in convicting the Appellant. The court’s language, it is argued, remains English making Ex 3 the Hausa version of Appellant’s statement unhelpful. Learned counsel supports his submissions with the decisions in Olalekat v State (2001) 18 NWLR (Pt 746) 793 at 810. and Ojengbede v Esan (2001) 18 NWLR (Pt 771) 290.

Concluding, learned counsel submits that assuming without conceding that Exhibit 3A is admissible, the trial court should not have attached any weight on it as to ground the conviction of the Appellant.

Had the purported confessional statement of the Appellant been discarded, Appellant would not have been convicted. Learned counsel cites and relies on the case of Kwara Investment Co. Ltd. v Garuba (2000) 10 NWLR (Pt 674) 25 at 39. He urges us to resolve the lone issue as well as the appeal in Appellant’s favour and consequentially, set-aside judgment of the lower court.

Learned Respondent counsel concedes that it is the prosecution’s burden in a criminal case to prove the guilt of the accused beyond reasonable doubt. He argues though that the burden has been discharged in the instant case where all the ingredients of the offence of culpable Homicide under section 221 of the penal code for which Appellant is charged has been proved by the prosecution. The evidence of PW2, PW3, PW4, PW5 as well as Exhibit 4, the medical certificate all point to the fact of the death of a human being, Salamatu. The failure of PW3 to identify exhibits 1 & 2, the knife and the hoe used by the Appellant in causing the death of Salamatu, learned counsel contends, is not fatal to the court’s conclusion. Once there is an eye witness or such unequivocal circumstantial evidence of the guilt of the accused, the court can safely convict on it. Counsel relies on Dibie v State (2007) 29 NSCQR (Pt.11) 1431 at 1438. and Alor v State (1996) NWLR (Pt 445) 726 at 729.

In concluding, learned Respondent Counsel argues that exhibits 3 and 3A, the Appellant’s Hausa confessional statement and its English voluntary. It is contended that exhibits 3 and 3A have satisfied the legal court below in convicting the Appellant. The Appellant did not object to their being admitted and since by virtue of S.6 of the Evidence Act the statements are relevant to the facts in issue, the exhibits have been properly admitted and used. Learned Appellant counsel, it is again contended, has wrongly cited and relied on the case of Ojengbede v. Essan (2001) 18 NWLR (Pt.746) 290 to insist that Exhibit 3 and 3A were wrongly used by the court below to convict the Appellant. Learned Respondent counsel relied on Damina v State (1995) 8 NWLR (Pt.415) 513 and Yahaya v. State (2005) INEC 120 at 123 and submits that the court below is right to have used the voluntary confessional statement of the Appellant to convict him. It is urged that the decision be affirmed.

The main complaint in this appeal alleges an error on the part of the court below that had proceeded to convict the Appellant for the death of Salamatu without credible and admissible evidence of the Appellant being the cause of the death. Exhibit 3A, the purported English translation of the appellant’s confessional statement, had neither been read over to nor had the Appellant signed the said translation as being correct. Such translated statement being inadmissible could not have been relied upon by a reasonable tribunal in convicting an accused person. Since Appellant’s conviction had been based solely on the inadmissible confessional statement the conviction, learned Appellant counsel submits, can not endure.

Counsel on both sides agree, and rightly so, that Appellant’s conviction under section 221 of the penal code endures if the prosecution proves beyond reasonable doubt each of the following essential ingredients of the offence:-

(a) That the deceased a human being has died.

(b) That the death of the deceased was caused by the Appellant.

(c) That Appellant had caused the death of the deceased intentionally or with the knowledge that the death was a probable consequence of his act.

Judicial authorities in support of the principle are legion and include: Abirifor v State (2009) ALL FWLR (Pt 471) 873 at 912-913; Ogba v State (1992) 2 NWLR (Pt 222) 164: State v Abangbee (1988) 3 NWLR (Pt 84) 548 and Oladipupo v State (1993) 6 NWLR (Pt 298) 131.

The fact of the death of Salamatu cannot be disputed by the Appellant. Apart from exhibit 4 the medical report, PW2, PW3, PW4 and PW5 have all testified on this very fact. Indeed even the Appellant has admitted this same fact in Ex 3 and Ex 3A such that it ceases to be in any doubt. To sustain Appellant’s conviction all the respondent herein need to further prove are those other ingredients earlier alluded to in this judgment. Appellant’s contention is that the respondent has not established that it was the Appellant who caused the death of Salamatu.

Ex 3 and Ex 3A, Appellant’s Hausa confessional statement and its English translation, being inadmissible were wrongly relied upon by the court in convicting the Appellant. I am unable to agree with learned Appellant counsel here.

Exhibits 3 and 3A, the Appellant’s Hausa confessional statement and the English translation, were tendered and admitted in evidence through PW6 who recorded the statement from the Appellant and translated it from Hausa into English. At pages 58-59 of the record, the witness had told the court that Ex 3, which he translated into Ex PA3, was voluntarily made.

The appellant did not challenge PW6’s testimony on the voluntariness of his statements when they were tendered for same to be admitted in evidence. What transpired and culminated in the admission of the statements is better appreciated from the relevant portion of the record of appeal hereunder reproduced for ease of reference:-

“Rabah:- From the evidence of the witness there is nothing to show that the statement was not made voluntarily. The words of caution were recorded and read to the accused he understood and signed. His voluntary statement was read to him he agreed and signed it and same was endorsed by the superior officer. From the above we urge court to overrule the objection, and admit the document.

Court:- The Hausa statement of the accused person is being sought by the state to tender same in evidence. The learned defence counsel’s ground of objection is that the statement is adverse to the plea of the accused. Whatever that means, all I have to say is that admissibility of any document is based on relevancy.

The PW6 had told the court how he recorded the voluntary statement in Hausa language after words of caution. It has not been shown the statement was not made voluntarily. In the absence of any other reason, I find that the statement was voluntarily made without any threat duress or coercion. Therefore, the objection of the learned defence counsel is overruled and the voluntary statement of the accused in Hausa language is here admitted in evidence and marked Exhibit 3 while the English version admitted and marked Exhibit 3A respectively. They to be read in court accordingly.”

From the foregoing passage, learned Appellant counsel cannot be taken seriously in his submission that Appellant’s confessional statement is inadmissible and that it is unavailing to the court below. Counsel had objected to the admissibility of the statement not because same was not voluntarily made by the Appellant or that Appellant had not signed Ex PA3 the English translation of the Hausa version of Appellant’s confessional statement. Counsel objected because the statement was “adverse to the plea of the accused person.” The court below having rightly found that “since it has not been shown that the statement was not made voluntarily” and in the absence of any other reason,” the statement was voluntarily made without any threat, duress or coercion. The court overruled counsel’s objection and admitted the statements in evidence. It must be stressed that conviction of accused persons are best secured on the basis of their adverse confessional statements. What is paramount is that the adverse statement must be lawfully received before being acted upon by the trial court. Once it has been shown to have been voluntarily given by the accused the court is entitled to act on such admissible statement and convict on the basis of its adverse effect on the plea of the accused!

The finding of the court below on the voluntariness and by extension the admissibility of Exhibits 3 and 3A is on the basis of correct principles of the law. The court’s reliance on these exhibits, the confessional statement of the Appellant that leaves no one in doubt as to Appellant’s implication in the commission of the offence for which he stood charged cannot be faulted.

In Effiong v The State (1998) 5 SCNJ 158 at 166, the Supreme Court in stating the practice in relation to the admissibility of confessional statements of accused persons at trial opined thus:-

See also Auta v The State 8 SC 123 and Gbadamosi and ors v The State (1992) 9 NWLR (Pt 266) 465 at 480. In the instant case where objection to the admissibility of Appellant’s confessional statement has not been appropriately raised at the court below, Appellant’s conviction cannot be revisited on the basis of his correctly admitted confessional statement.

Learned Appellant counsel appears insistent that Appellant is entitled to raise the issue of the inadmissibility of the confessional statements now.

Having not made it an issue at the court below, appellant requires the leave of this court to raise such a fresh issue. The Appellant that had not sought and obtained the necessary leave of court cannot now raise and argue the fresh issue. Submissions proceeded upon without the necessary leave must be discountenanced. See C.R.S.N. Corp v Oni (1995) 1 NWLR (Pt 371) 270 SC and Keepler v Ofosia (1995) 3 NWLR (Pt.384) 415 CA.

Again learned Appellant counsel cannot be right in his contention that because Exhibit 3A, the English translation of Appellant’s Hausa confessional statement Exhibit 3, is inadmissible and similarly unavailing to the court below as same had neither been read over to nor signed by the Appellant. These are breaches of the judge’s rules the effect of which does not render the document inadmissible. At best, such breaches might only affect the weight a court attaches to the statement and certainly not its admissibility see: Ogugu v State (1994) 9 NWLR (Pt 366) 1. Ejimma v State (1991) 6 NWLR (Pt 200) 627 and Abirifon v State (supra).

In the instant case where PW6 has been shown to be the person who carried out the translation and the slightest suggestion has not been made that the translation is incorrect, Ex 3A which content leaves no one in doubt as to the implication of the Appellant in the offence for which he is charged remains available to the court. All the court needs to do is to satisfy itself, and that has been done, that Exhibit 3 from which Exhibit 3A drew is a free and voluntary confession of guilt by the Appellant.

Beyond Appellant’s extra judicial confession which the court below rightly found to be positive, unambiguous and voluntarily made, Appellant’s real and further pitfall lies in the evidence of PW2 and PW3. At pages 42-43 of the record of appeal, PW3 testified as follows:

“On the fateful day in 1995, I was in my house and Salamatu was with her mother Aishatu sleeping. I heard a sound outside, I came out and I met accused after he had wounded Salamatu and my wife Aishatu. I chased him but he ran away. I came back and invited my brother who came and met Salamatu was already dead but her mother was wounded.

Salamatu was wounded at the neck. The accused used a hoe on the head of Aishatu who was bleeding. Salamatu died while Aishatu was seriously wounded. We later went to hospital. The hospital released the body of Salamatu while the mother was in hospital for 3 weeks. Before this time, the accused had reported to the village head and was detained.

Salamatu and Aishatu were taken to Hospital at Illela. The accused used a knife on the neck of Salamatu. The hoe was used on Aishatu. After all these the accused ran away leaving the knife and hoe. My wife Aishatu is alive but is in good health. That is all.”

At page 41 of the record PW2 had also testified as follows:-

“In 1995 I can recall the accused Habibu met me in the night Knocking at my door. I woke up and met with him the accused. I asked him who he was and he said he was Habibu of Haragawa village. I asked him what had happened he said he had come for an assistance because he had wounded his wife and mother in law. He said he came for protection because he sensed people, would look for him for retaliation. I took him to a house tied him and left him there for protection.

After a while, people came to report the accused and I told them that the accused had already reported himself to me and under detention. The people went back. I therefore left my place to the scene at Tungan Zango and there I met police men with their Motor Vehicles. I informed the police where about of the accused. I eventually handed the accused to the police that is all.”

In the foregoing, the court below has, beyond Appellant’s confessional statement and as desired by practice, resorted to evidence in the testimonies of PW2 and PW3 reproduced above to convict the Appellant. The court’s judgment arrived at on the basis of such cogent and overwhelming evidence is unassailable. It must endure. See Edet Obasi v the State (1965) NMLR 119, Yesufu v the State (1976) 6 SC 167 at 173 and Onafowokan v the State (1987) 3 NWLR (Pt 61) 538. It is for these reasons that I resolve the lone issue in the appeal against the Appellant.

Resultantly, this appeal has failed. It is dismissed the judgment of the court below is accordingly affirmed.

AHMAD OLAREWAJU BELGORE, J.C.A. I had a preview of the judgment just delivered by my learned brother, Musa Dattijo Muhammad, JCA, and I am completely in agreement wit His Lordship’s reasoning and conclusions.

I will dismiss the appeal is bereft of merit.

I abide by the consequential order contained in the lead judgment.

Appearances

Nnamonso Ekanem Esq.For Appellant

AND

A.A. Kaoje holding brief of Zulai Bello (Mrs)For Respondent