HARUNA v. STATE (2021)

HARUNA v. STATE

(2021)LCN/15006(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Wednesday, February 10, 2021

CA/K/60/C/2019

RATIO

EVIDENCE: STANDARD OF PROOF IN CRIMINAL MATTERS

I have considered the submission made by the respective counsel in their briefs of argument. No doubt, in a case such as this it is the Prosecution who has the duty to prove the guilt of the accused person. The standard required of him is proof beyond reasonable doubt. Section 135(1) (2) of the Evidence Act, 2011 refers. This standard cannot be compromised. It is not one of proof on a balance of probabilities or preponderance of evidence. It is not enough for the Prosecution to suspect a person of having committed a crime, there must be evidence which linked the person accused with the offence charged and further that it was his act which caused the offence. See: Ajayi v. The State (2013) LPELR – 19941 (SC); Adabesin v. The State (2014) LPELR – 22694 (SC). PER SAIDU TANKO HUSSAINI, J.C.A.
CRIMINAL LAW: ELEMENTS OF ESTABLISHING THE OFFENCE OF CULPABLE HOMICIDE

What therefore the Prosecution is required to establish is to lead evidence on the necessary elements for that charge, and these are that there is:-
(i) The death of a human being or person;
(ii) The accused caused the death of that human being or (person) either by his acts or omissions
(iii) That the act or omission of which caused the death of the deceased was intentional or was with the knowledge that death or grievous bodily harm was its probable consequence.
See: Tunde Adava & Anor. v. The State (2006) LPELR – 74 (SC); Maiyaki v. State (2008) LPELR – 1823) (SC).
All the above stated ingredients of the offence must be proved together or conjunctively hence failure to prove any one of them means failure to prove the charge. See: Adava & Anor. v. The State (supra); Maigari v. State (2013) 7 SCNJ (Pt. 1) 137, 151. As stated before, the burden of proof rest squarely on the shoulders of the Prosecuting authorities and this burden does not shift. PER SAIDU TANKO HUSSAINI, J.C.A.

CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED

One thing which is not in doubt as it is trite, is that the Prosecution, in the bid to prove her case can do so by the resort to any of the three (3) accepted modes or a combination of them, to prove his case or offence, namely; proof:
(1) By evidence of eye witnesses who heard or saw the incident or,
(2) By the admission or confession of the accused,
(3) By circumstantial evidence which is positive or compelling pointing to the conclusion that the accused and no other person committed the offence. See: Sunday v. The State (2014) LPELR- 24415 (CA); Giki v. State (2008) 1 SCNJ 150, 184. PER SAIDU TANKO HUSSAINI, J.C.A.

EVIDENCE: MEANING AND NATURE OF A CONFESSION

Section 28 of the Evidence Act, 2011 defines confession as:
“an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”
Thus, once it is established that the confession of an accused person was voluntary and made without any of the elements inhibiting its acceptability or voluntaries in terms of threat, coercion, aggression e.t.c, such a statement is admissible evidence regardless whether or not the statement was written or oral, so far as the statement is/was found to be positive, direct and unequivocal, the Court can act and even convict on it. See the decision in Hamza v. The State (2019) 16 NWLR (Pt. 1699) 418, 433; Mathew v. The State (2018) LPELR – 43716 (SC). It is settled law that an accused person can validly be convicted on his confessional statement alone. See:Saliu v. State(2014) LPELR – 22998 (SC); Ajibade v. The State (2014) LPELR – 24206 (CA). PER SAIDU TANKO HUSSAINI, J.C.A.

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

YUSUF HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The Appellant was convicted and sentenced to a term of Seven (7) years imprisonment at the High Court of Kaduna State for Culpable Homicide not punishable with death under Section 224 of the Penal Code of Kaduna State. He had been arraigned and tried on a four (4) count-charge for:
(1) Conspiracy, contrary to Section 6(6) of the Robbery and Firearms (Special Provisions) Act, LFN, 2004.
(2) Armed Robbery under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, LFN, 2004.
(3) Culpable Homicide, punishable under Section 221 of the Penal Code;
(4) Theft, punishable under Section 287 of the Penal Code.

By the first three counts, the Appellant was alleged to have committed those offences on 18/3/2016 along with two (2) other persons, by the names (1) Audu Lulu and (2) Tabo Abulu. The name of the victim of those offences was given as Francis Bello Obemeasor, now deceased. The brief facts as can be gathered from the record of appeal indicate that the deceased, Francis Bello Obemeasor lived with his elder brother, Sunday Obemeasor.

He was out to work on the 18/3/16 but was not home as at 8p.m when his brother got home. He pulled a call through to him (Francis) who indicated he would be done shortly. Sunday Obemeasor slept off and did not wait the arrival of his younger brother but at mid-night when he woke up his brother (Francis) was still not home. All efforts were made to get the whereabout of his brother but all calls did not sail through, hence search parties were organised to trace the where-about of Francis but information filtered in that a dead body was found at a place not too far away from their home. The search party took the matter to the Police Station who confirmed to them that indeed the Police recovered the body of a young man found along France road. Upon being taken to the mortuary, Sunday Obemeasor (PW1) identified the body of his brother, Francis Bello Obemeasor.

About three (3) months later, Sunday Obemeasor was invited by the Civilian JTF to hear from the Appellant, Yusuf Haruna, who allegedly confessed to the killing of the deceased. He did. The Appellant was alleged to have repeated the same confession when Sunday Obemeasor saw him (Appellant). Three (3)

persons testified for the prosecution when the case came up. The Appellant had entered a plea of not guilty to each of the four (4) Grounds. From the evidence of the Prosecution witnesses, particularly those of PW1 and PW2, it was gathered that an outfit known as Civilian JTF, picked up the Appellant and interrogated him before handing him over to the Police. The evidence of PW1, the elder brother to the deceased, reveal that the Appellant confessed even though orally, to the killing of Francis Bello Obemeasor on the 18/3/2016.

The trial Court at the conclusion of evidence and counsel’s address in the judgment delivered on the 29/10/2018, found the offence of Culpable Homicide punishable with death not proven so far as the necessary mens rea with which the offence was committed had not been established hence the Appellant was discharged and acquitted of that offence. In the same vein, the Court discharged and acquitted the Appellant on the charge of Criminal Conspiracy. He was however convicted and sentenced to a term of Seven (7) years for culpable homicide not punishable with death. Against this judgment and order, the Appellant filed an appeal

vide the Notice of appeal containing three (3) Grounds. Briefs of argument were filed and exchanged between counsel. In the brief of argument filed for the Appellant and deemed on the 29/1/2020, the following three (3) issues were raised for the determination of Court, namely:
(1) Whether the lower Court was right when it held that the Appellant in his defense did not show that the said Francis Bello Obemeasor is still alive or disputed that he died as part of the Court’s ground for holding that the Prosecution had proved their case and finding him guilty of the offence of culpable homicide not punishable with death. (Distilled from ground one of the Notice of Appeal)
(2) Whether the lower Court was right when it held, relying on the case of Moses Jua v. State that the oral confessional statement of the Appellant corroborated the evidence of PW1 and by that the Prosecution had proved the second ingredient of the offence charged beyond reasonable doubt. (Distilled from ground two of the Notice of Appeal)
(3) Whether the lower Court was right when it held, that the Prosecution failed to proved the third ingredient of the Offence charged and

still went ahead to convict the Appellant of a lesser offence under Section 224 of the Penal Code, Laws of Kaduna State, 2017. (Distilled from ground three of the Notice of Appeal)

The Respondent on their part distilled just one (1) issue in their brief of argument as at page 6 of the brief thus:
“Whether having regard to the evidence led at the trial Court and the prevailing law, the Prosecution did not prove its case beyond reasonable doubt to warrant the conviction of the Appellant”.

Both briefs were adopted by the respective learned counsel when the appeal came up on 12/11/2020 for hearing.

I have considered the two (2) sets of issues as formulated by the parties/counsel respectively and submissions made thereto.

Quite frankly the lone issue formulated in the Respondent’s brief of argument so far as it accommodates the three (3) issues formulated in the Appellant’s brief for determination is good enough for the purpose of this appeal hence I adopt same in addressing this appeal.

I have considered the submission made by the respective counsel in their briefs of argument. No doubt, in a case such as this

it is the Prosecution who has the duty to prove the guilt of the accused person. The standard required of him is proof beyond reasonable doubt. Section 135(1) (2) of the Evidence Act, 2011 refers. This standard cannot be compromised. It is not one of proof on a balance of probabilities or preponderance of evidence. It is not enough for the Prosecution to suspect a person of having committed a crime, there must be evidence which linked the person accused with the offence charged and further that it was his act which caused the offence. See: Ajayi v. The State (2013) LPELR – 19941 (SC); Adabesin v. The State (2014) LPELR – 22694 (SC).
The Appellant, in the instance was, under count three, among other counts, charged with the offence of Culpable Homicide under Section 221 of the Penal Code. The said count three (3) reads thus:
“That you, Yusuf Haruna, together with Audu Lulu and Thabo Abdul of Kakuri Kaduna, between Ebeneyor and Zango Street, at about 8.00p.m, on the 18th of March 2016 did attack one Francis Bello Obemeasor (deceased) severally with knivies and he died on the spot. You thereby committed the offence of Culpable

Homicide punishable under Section 221 of the Penal code laws Nigeria, 1991.”
What therefore the Prosecution is required to establish is to lead evidence on the necessary elements for that charge, and these are that there is:-
(i) The death of a human being or person;
(ii) The accused caused the death of that human being or (person) either by his acts or omissions
(iii) That the act or omission of which caused the death of the deceased was intentional or was with the knowledge that death or grievous bodily harm was its probable consequence.
See: Tunde Adava & Anor. v. The State (2006) LPELR – 74 (SC); Maiyaki v. State (2008) LPELR – 1823) (SC).
All the above stated ingredients of the offence must be proved together or conjunctively hence failure to prove any one of them means failure to prove the charge. See: Adava & Anor. v. The State (supra); Maigari v. State (2013) 7 SCNJ (Pt. 1) 137, 151. As stated before, the burden of proof rest squarely on the shoulders of the Prosecuting authorities and this burden does not shift. In this appeal, the complaints among others and the submissions have been in this

regard by counsel for the Appellant are that, necessary elements required to establish the offence charged were not established and yet the trial Court in its judgment shifted the burden of proof on the Defendant to establish his innocence. Premised on those submissions made, there is the need in this appeal, to examine those claims or complaints.

In the bid to prove his case, the prosecution, called evidence of three (3) witnesses. The trial Court relied principally on the evidence of PW1 and PW2. See: pages 18 – 23 of the record. By the evidence of PW1 and PW2 put together it is obvious that the Prosecution led evidence to establish the death of Francis Bello Obemeasor, the younger brother to PW1, who identified the body of the deceased to the Police hence the Police released the Corpse of the deceased to PW1 for burial. Therefore, notwithstanding, the remarks by the trial Court at page 46 of the record that:
“The Defendant has not shown that Francis Bello Obemeasor is still alive or even disputed that the deceased died”,
the fact remains that the evidence of PW1 and PW2 put together the evidence established the fact that

Francis Bello Obemeasor, had died and was buried. Thus, the Prosecution has met the first requirement they needed to establish in the charge, this is particularly so, when those facts/evidence of PW1 and PW2 were not controverted by the Appellant during cross-examination, hence it is not correct that the Court below shifted the burden of proof of the death of the Francis Obemeasor to the accused as the Appellant has alleged or argued by their counsel. In any case, the trial Court, before reaching the conclusion that the death of Francis Bello Obemeasor had occurred, the Court at pages 45 – 46 of the record found or held that:
“In the light of the evidence of the PW1 and PW2, therefore, I do not accept the submission of Iroagolachi A. A. Esq. that there is no sufficient evidence for the Court to hold that death occurred.”

The Appellant as Defendant at the trial Court had a duty under S. 135(3) Evidence Act to controvert the evidence of the Respondent and if he failed to do that, nothing stops the Court below for making the pronouncement as it did at page 46 of the record of Appeal and the same cannot translate to shifting the burden

of proof on the accused person.

Having held as above, I am of the firm view that the Prosecution at the trial Court has been able to establish the death of Francis Bello Obemeasor, hence the Prosecution successfully scaled the first hurdle. It is also imperative for the Prosecution to prove the second ingredient of the offence i. e, that the act or omission of the accused caused the death of the deceased. This is where the issue of the confession ascribed to the Appellant comes in handy. The evidence of confession said to have been made by the Appellants came from PW1 in his evidence in chief when he stated at page 19 of the record thus:
“On the 11/6/16 when we came back from the burial. I was called by the Civilian JTF in Kakuri that they apprehended one Mr. Yusuf who confessed that three of them killed my brother and that they met him walking on the road at about 10.00p.m on France road on 18/3/16 and they asked him to give them his phone and for that reason they stabbed on the chest and at the back and they took his phone and his wallet and fled…….”

It is very obvious that the trial Court acted on this piece of

evidence of PW1 when the Court, at page 47 of the record held that:
“The confession is direct and positive and links the Defendant to the commission of the offence contrary to the submission of the learned counsel for the Defendant that it does not…”

Learned counsel for the Appellant took a verbal jab on this finding when they argued that the trial Court could not so act in absence of any corroborative evidence to the oral confession, the trial Court cannot rely on it. The decision in Jua v. State (2010) 2 SCNJ 224, 242 – 243 was relied on as authority that oral confession also needed to be corroborated by evidence outside that oral confession so as to ascertain the truth of that confession.

compelling pointing to the conclusion that the accused and no other person committed the offence. See: Sunday v. The State (2014) LPELR- 24415 (CA); Giki v. State (2008) 1 SCNJ 150, 184. The Appellant himself through his counsel, in their brief of argument, attested to this statement of law but this worry or concern was the inability of the Court below to scout for outside evidence as supportive of the confession to suggest that, the confession was true.

433; Mathew v. The State (2018) LPELR – 43716 (SC). It is settled law that an accused person can validly be convicted on his confessional statement alone. See:Saliu v. State(2014) LPELR – 22998 (SC); Ajibade v. The State (2014) LPELR – 24206 (CA).
Therefore, and so far as the oral confession of the Appellant as made to PW1 was not challenged or controverted or disparaged, the trial Court was right, based on that confessional statement, to conclude that the Appellant killed or participated in the killing of the deceased, hence the second ingredient of the offence relating to who or what killed the deceased has also been proved.

The question that the statement was not corroborated should not arise in those circumstances as this case on appeal where there is no report or evidence that the accused/Appellant resiled from that statement ascribed to him as his confessional statement; it is then and only then will the Court, look elsewhere, outside the statement for corroborative evidence to ascertain the truth or veracity of the statement in issue. See: Olanipekun v. The State (2016) LPELR – 40440 (SC).

The case of Moses Jua v. the State (2010) 2 SCNJ 224 was cited and relied upon by the trial Court and also by both counsel in their briefs of argument before us. Appellant’s counsel is however, of the view that the principle in Jua’s case (supra) was not properly applied and followed by the trial Court below in that the trial Court failed to look outside the oral confessional statement for other corroborative evidence but simply relied on the oral confession and acted on same to hold that the Appellant killed the deceased.
The facts in Jua’s case, relevant to the case on hand are that, one Police constable by the name Cpl. Rotimi was assigned with the task to investigate a case of theft of motor cycle. Himself and the accused in that case, Moses Jua, left for Ede to garner information on the particulars of the stolen motor cycle hence the duo, that is, Cpl. Rotimi and Moses Jua set out and were seen together but that was the last time Cpl. Rotimi was seen with the Appellant. However, when investigation was conducted to unearth the sudden disappearance of Cpl. Rotimi at Ede, result of that investigation revealed that certain items including clothes worn by Cpl.

Rotimi were found at the scene of crime including four (4) human teeth, and strands of hair at the residence of the accused (Moses Jua). Moses Jua made oral and written statements to the Police and in both cases he confirmed that himself and one other person killed Cpl, Rotimi. The apex Court in Jua’s case held that a conviction based on oral confession is proper in law. I see no where the Court has held that a corroborative evidence should be sought for even in the face of a valid, voluntary but oral confessional statement of the accused person. The authority in Jua’s case (supra) support the position of the Respondent in this appeal on the admissibility of oral confession which can be acted upon by the Courts without any other corroborative outside evidence. It follows therefore, that the Court below was right when it held that the Appellant herein caused the death of the deceased (Francis Bello Obemeasor) by reason of the said oral confession he made. I too, am of the same opinion. In so far as the evidence of PW1 was not controverted, of the admission or confession made by the Appellant that he killed the deceased with the connivance of his

cohorts, the trial Court rightly held that the Appellant caused the death of the deceased, being the second element, the prosecution was bound to prove in order to succeed in a case of culpable homicide punishable with death.

The trial Court was however not favourably disposed into agreeing with the Prosecution that the latter had succeeded in proving the necessary mens rea of the Appellant’s intention to kill or that he killed the deceased knowing that his acts will result in the death of the deceased or that the acts will result into grievous bodily harm to the deceased. This latter position informed the trial Court below to hold that the accused can be convicted of an offence lesser than that he was previously charged with. Before I address that question I need to reiterate that evidence of confession by the accused if properly made and is valid, is the best form of evidence, being statement or evidence which flow from the inner heart of the person making it who believed in the truth of the statement made by him. Thus there can be no report, not in the least, a medical report or any other evidence greater than that report which the accused

person has made of himself vide the oral confession or confessional statement ascribed to him. An accused person can be convicted on his own confessional statement alone which carry all the attributes of the offence alleged or charged or of an offence of a lesser degree than the original offence the accused was charged with.

This brings me to the question why the Court below chose to convict the Appellant of the offence of culpable homicide not punishable with death under Section 224 of the Penal Code and not of the offence, the punishment of which was/is prescribed under S. 221 of the same Penal Code. At pages 51 – 52 of the record of appeal, the trial Court observed that there is evidence from which he can infer the intention or mens rea with which the offence was committed based on which the Appellant cannot be convicted of the offence as charged but because the oral confession established a rash and negligent act on the part of the Appellant, he can be convicted under S. 224 of the Penal Code, i.e he could be convicted of a lesser offence.

Learned counsel for the Appellant has argued before us that since there is no evidence on record

particularly of medical evidence showing the cause of death it meant that convicting the Appellant on a lesser offence was not borne out of evidence rather the Appellant ought to have been discharged and acquitted since according to him the ingredients necessary to establish the greater and lesser offences are not the same and the fact that evidence adduced that the evidence which was not sufficient to prove the main offence was also not sufficient to prove the lesser offence.

Section 224 of the Penal Code under which the Appellant was finally convicted and sentenced for a lesser offence is a penal provision. The offence for culpable homicide not punishable with death is provided for under Section 222 of the same Penal Code. In order to succeed, the Prosecution must thus prove facts as to establish that:
1. There was death of human being.
2. The accused caused the death of the deceased
3. The death resulted from the rash or negligent acts of the accused person.
Section 218(1)(2) of the Administration of Criminal Justice Law, 2017 of Kaduna State provide that:
“218(1) Where a Defendant is charged with an offence consisting

of several particulars, a combination of some of which constitute a lesser offence in itself and the combination is proved but the remaining particulars are not proved, he may be convicted of, or plead guilty in the lesser offence although he was not charged with it.
218(2) Where a Defendant is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.”
The Prosecution before the Court below led evidence of three (3) witnesses from among which the evidence of PW1 and PW2 established the death of Francis Bello Obemeasor. Evidence was equally led to show that the Appellant made an oral confession of the killing by him and others, of the deceased in the manner he did it. In reference to the provisions of S. 218(1)(2) read together, the trial Court rightly and justifiably convicted and sentenced the Appellant under Section 224 of the Penal Code for rash and negligent act over the deceased whom he had killed, even if he did not intend to kill him. I find this decision of the trial High Court unassailable hence the said decision on judgment

delivered on the 28th October, 2018 is affirmed. The appeal is dismissed for lacking in merit. The conviction and sentencing of the Appellant is affirmed.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSAINI, JCA. I agree.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft of my learned brother, Saidu Tanko Husaini, JCA where the facts leading to this appeal have been succinctly set out.
I am in agreement with my learned brother’s reasoning and in conclusions.
I also dismiss this appeal as lacking in merit and affirm the conviction and sentence of the Appellant by the lower Court.

Appearances:

A. Iroagalachi, Esq., with him B.C. Iroagalachi, Esq. For Appellant(s)

F. Mohammed, Esq., with him S. Stephen For Respondent(s)