HARUNA v. STATE (2022)

HARUNA v. STATE

(2022)LCN/16783(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Wednesday, March 09, 2022

CA/S/63C/2021

Before Our Lordships:

Frederick Oziakpono Oho Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Mohammed Danjuma Justice of the Court of Appeal

Between

AMINU HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

INGREDIENTS TO ESTABLISH THE OFFENCE OF CULPABLE HOMICIDE

To begin with, for the Prosecution to succeed in establishing the offence of culpable homicide not punishable with death, all the ingredients of the offence as contained in Sections 224 and 216 of the Penal Code must be proved or established to the satisfaction of the Court thus;
1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence.

The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. See the cases of MUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015)11 NCC at page 40-41. PER OHO, J.C.A.

WAYS OF ESTABLISHING THE OFFENCE OF AN ACCUSED PERSON

Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of culpable homicide not punishable with death rests squarely on the shoulders of the Prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject.

WHETHER OR NOT THE RETRACTION OF A CONFESSIONAL STATEMENT MAKES IT INADMISSIBLE

The settled position of the law, however is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.” PER OHO, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the Prosecution, which this Prosecution succeeded in doing as expected in this case. See the cases of JOSHUA ADEKANBI vs. AG WESTERN NIGERIA (1966) All NLR 47; R vs. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR 60 at 65 SC on the issue. PER OHO, J.C.A.

THE POSITION OF LAW ON THE WEIGHT TO BE ATTACHED TO A RETRACTED CONFESSIONAL STATEMENT

On the question of weight to be attached to a confessional statement whether retracted or not retracted, the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved? PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Sokoto State, sitting in Sokoto (hereinafter referred to as: “the Court below”) delivered on the 22nd day of June, 2021 Coram: I. M. BARGAJA, J wherein the Appellant as an Accused person was found guilty of the offence of culpable homicide not punishable with death and an offence relating to witchcraft and juju contrary to Section 224 and 216 of the Penal Code respectively. The Judgment of the Court below is at pages 68 – 83 of the record.

The fact of this case is that the Appellant, an itinerant local barber on the 7th day of December, 2016 at 4.00pm, while plying his trade at Gande Market gave one Hassana Sahabi water to drink upon the latter’s request but that after drinking the water Hassana took ill and eventually died in the Hospital on the 15th December, 2016. Following a complaint lodged by one Sahabi Umaru, the deceased father the Appellant was arrested and subsequently arraigned before the trial Court. The Appellant pleaded not guilty to the two-count charge and the case proceeded to trial. There was no record of evidence of any interpreter translating the charge to him in the language he understands, the Hausa Language. See Pages 43 – 46 of the Record.

In an attempt to prove the two (2) count charge against the Appellant, the Prosecution called three (3) witnesses and tendered three exhibits through PW1 – Inspector Isah Kabiru, an investigating Police Officer. Through him also an uncertified medical report issued by the General Hospital Binji dated 18th January, 2017 was tendered and admitted in evidence as Exhibit A. It is important to note that under cross-examination, PW1 admitted that though Exhibit A advised that an autopsy be done to ascertain the actual cause of death, no such autopsy was ever done. See pages 49 – 50 of the Record.

PW2, Sahabi Umaru, the deceased person’s father testified that his daughter died after drinking the water the Appellant gave to her at the market. Under cross-examination, he admitted he never witnessed the scene but that there were people who did. Lastly, the Prosecution called PW3; Inspector Danjimma Giwa of the Sokoto State CID Office who tendered the Appellant’s confessional statement in evidence. In the statement, the Appellant confessed to have held the deceased with witchcraft after giving her the water, which led to her death. The Court below subsequently admitted the Hausa and English versions of the confessional statement in evidence as exhibits B and B1. It is important to note that the Appellant denied making, authoring and thumb-printing the exhibits.

PW3 under cross-examination admitted he never visited the Appellant’s place of work or conducted any scientific analysis of the water the Appellant allegedly gave to the deceased. He also admitted he could not ascertain the cause of death of the deceased. He further admitted no autopsy was conducted and that there was no autopsy report which could have ascertained the cause of Hassana’s death.

On 19th day of January, 2021 the Appellant opened his defence. He called DW1 – Abdullahi Haruna, his brother. DW1 stated emphatically that neither their father nor the Appellant is a wizard or ever claimed to be one. The Appellant testified as DW2, for himself denying knowing of, let alone killing Hassana. He also denied possession of any wizardry or spiritual powers. He also vehemently denied authoring or thumb-printing Exhibits B and B1.

The trial Court found the Respondent’s case credible and relying on the confessional statement and its corroboration, convicted the Appellant and sentenced him to a jail term without option of fine. Dissatisfied with the decision of the trial Court, the Appellant has come before this Court on Appeal vide a Notice of Appeal dated 23rd June, 2021. Subsequently, the Appellant while still within time to appeal filed another Notice of Appeal and reference hereinafter to Notice of Appeal refers to that second one. The appellant respectfully abandoned the first Notice of Appeal.

ISSUES FOR DETERMINATION:
The Appellant nominated a total of two issues for the determination of this Appeal, thus:
1. Whether the trial Court was not wrong in relying on Exhibits B and B1 to convict the Appellant? (Grounds 2 and 3).
2. Whether the Prosecution did not fail to prove the ingredients of the offences with which the Appellant was charged in this case? (Grounds 1 and 4).

On the part of the Respondent, a sole issue for the determination of this Appeal was nominated, thus:
“Whether the learned trial Court was right in law, when he held that the Prosecution has proved his case beyond reasonable doubt and convicting the Appellant on the basis of his confessional Statement voluntarily made but subsequently retracted?”

A careful perusal of the issues nominated by the parties would show that the issues are clearly identical except for minor issues of semantics. Be that as it may, the two issues nominated by the Appellant can easily be subsumed in the sole issue nominated by the Respondent. Therefore, this Appeal shall be determined based on the issues nominated by the Appellant due to reasons of comprehensiveness.

Learned Counsel addressed this Court extensively, citing plethora of decided cases in support of their arguments. The brief of argument of the Appellant filed on the 12th day of August, 2021 and deemed filed on the 20th day of January, 2022 was settled by PAUL KASIM ESQ. The brief of argument of the Respondent filed on the 15th day of November, 2021 and was deemed filed on the 20th day of January, 2022 was settled by STEVE EMELIEZE ESQ., On the 26th day of January, 2022 at the hearing of this Appeal, learned Counsel adopted their respective briefs of arguments, with each urging upon this Court to resolve this Appeal in favour of their sides.

SUBMISSIONS OF COUNSEL:
APPELLANT:
ISSUE ONE:
Whether the trial Court was not wrong in relying on Exhibits B and B1 to convict the Appellant?
The argument of Counsel in contending this issue are two folds. One is that the Appellant denied making exhibits B and B1, when learned Appellant’s Counsel objected to the admissibility of the confessional statements in the following words: “We are objecting to the admissibility of the statement sought to be tendered in evidence. It was not voluntarily obtained.” Consequent upon this, Counsel stated that the trial Court adjourned the case to the 14th day of October, 2020 for a trial within trial. But that the matter did not come up until the 1st day of December, 2020 whereat Counsel notified the Court of their intention to change the reason for the objection to the admissibility of the extra-judicial statement to one of a total retraction of same.

Counsel further stated that the following this development, the learned trial Court based on the change of reason for objecting to the purported confessional statement, therefore admitted in evidence the Hausa version as Exhibit B and the English version as Exhibit B1. Learned Counsel disclosed that when the matter came up on 17th day of December, 2020 for continuation of hearing, he once again, announced the retraction of the Appellant and at that stage expected the Court below to have determined whether or not the Appellant made the said statement or not. Learned Counsel also held the views that the Court below erred in law by not determining whether the Appellant was or was not the author or maker of exhibits B and B1.

The position of learned Counsel on the issue is that where an accused person denies making and/or signing a confessional statement, the confession may be admitted in evidence, but the trial Court must at the conclusion of the trial determine if truly the accused person made the statement or not. According to Counsel, this principle of law has been firmly restated by the Supreme Court and this Court in a surfeit of judicial decisions. Counsel cited the cases of QUEEN vs. IGWE (1960) 5 FSC 55; IKPASA vs. THE STATE (1981) NSCC 300 AT 309. Based on the foregoing, Counsel submitted that the failure of the Court below to have determined at the end of the trial whether the Appellant authored or made Exhibits B and B1 before going ahead to convict the Appellant is fatal to the Prosecution’s case and ought to result in the discharge and acquittal of the Appellant.

Counsel argued that the failure amounted to misdirection on the part of the trial Court and ought to lead to a reversal of the judgment as was held by the Supreme Court in the case of OGUNYE vs. THE STATE (Supra) AT 572. Counsel urged upon this Court to so hold.

On account of the second aspect of issue one, learned Counsel submitted that Exhibits B and B1 did not meet the test and standard required by law. Counsel contended that the fact that an accused person has confessed does not make the Prosecution’s burden to prove its case any lighter. He stated that the onus in a criminal case lies throughout upon the Prosecution to establish the guilt of the accused beyond reasonable doubt, even where an accused in his confessional statement to the police admitted committing the offence as the Prosecution is not relieved of that burden as was held by the Supreme Court in AIGBADION vs. STATE (2000) 7 NWLR (PT. 666) 686 AT 704, PARA B.

Learned Counsel drew the attention of this Court to Exhibit B1 disclosing that it is neither signed/thumb-printed, nor was the name and particulars of the accused or the translator/interpreter endorsed therein as statutorily required. More importantly, Counsel submitted that Exhibit B1 is an unsigned document and that being unsigned, the law is stated that it is a worthless paper devoid of any probative value and ought not to be given any weight or reliance whatsoever. See OJO vs. ADEJOBI (1978) 11 NSCC 161 AT 165; OGUDO vs. THE STATE (2011) 18 NWLR (PT. 1278) 1; STATE vs. SA’ IDU [2019] LER-47397 (SC) AT PP. 9 – 11, PARA C, where the Supreme Court held that only the signature of the translator is relevant. Counsel further contended that failure of the PW3 or whoever wrote Exhibit B1 to sign it and to also ensure the name and particulars of the accused person are endorsed on the statement flagrantly violated the mandatory provision of Section 17 (3) – (5) of the Sokoto State Administration of Criminal Justice Law.

It is the submission of Counsel that the word “shall” in the foregoing statutory provisions connote imperativeness or mandatoriness in implementation and does not give room for discretion neither did it provide for any other option. See OLADEJO BABATUNDE MUNIR vs. OLOWO ROTIMI EMMANUEL (2015) LCN/8024 (CA).

In assuming, but without conceding that Exhibit B1 is not worthless, Counsel further submitted that the Appellant at the trial did not only dissociate himself from the statement but also denied ever making it. Learned Counsel submitted that having regard to the cases of GINA vs. STATE (1996) 37 LRCN 688; NWACHUKWU vs. STATE (2002) 102 LRCN 2110, there is no doubt that even where an accused person recants or retracts a confessional statement, the Court can convict on it provided it is direct, positive, duly made, and satisfactorily and properly proved and admitted in evidence however, it is desirable to have outside the confession, some corroborative evidence. See AZABADA vs. THE STATE [2014] LPELR-2301 (SC); SILAS IKPO vs. THE STATE (Supra) AT 554 PARAS. E – F.
Flowing from the foregoing, Counsel argued that there was nothing outside Exhibit B1, which corroborated its content or made it conceivable or believable that the Appellant committed or could have committed the offence with which he was charged.

According to Counsel, in determining the truth or otherwise of a confessional statement, a six-parameter test has been laid down by case law beginning from the time the English case of R. vs. SYKES (1913) 8 C.A.R. 233. He said that these tests have since been approved and applied by Nigerian Courts in a legion of decision. Counsel cited the cases of STEPHEN vs. THE STATE (1986) 5 NWLR (PT. 46) 978; OBISI vs. CHIEF OF NAVAL STAFF (2002) 2 NWLR (PT. 751) 400 AT PP. 418 – 419; UMAR vs. THE STATE (2018) 7 NWLR (PT. 1617). Counsel argued further by reproducing the six parameters test as held in OBISI vs. CHIEF OF NAVAL STAFF (Supra) as follows;
Counsel contended that looking through the entire gamut of the Judgment of the trial Court in this extant case, this Court would surely find that at no time in the entire judgment of the trial Court did it subject any of Exhibits B1 to any of the aforementioned six-parameter tests. Counsel further argued that the failure of the trial Court to ascertain the truth of Exhibits B and B1 before relying on them to convict the Appellant, is fatal and ought to lead inexorably to the setting aside of the Judgment and conviction/sentence passed on the Appellant.

Learned Counsel submitted that it has become the trend that the police and trial Courts would without any evidence arising from proper investigation of a matter just get and rely on supposed confessional statement most often unsupported by the outside corroborative evidence. Counsel further submitted that the evidence led by the prosecution in this case is shoddy and wishy-washy and is the type this Court spoke about in BABATUNDE AFOLABI vs. THE STATE (2021) LPELR-53501(CA).

Counsel further disclosed to this Court that whereas Exhibits B and B1 claimed the maker gave water to the deceased from a pot, the introductory narration in Exhibit A as what the police and the deceased’s family told the writer of the medical record therein, he said the water was from a sachet of water possibly with corrosive substance. By this, Counsel submitted that Exhibit A did not provide outside support or corroboration for Exhibits B and B1, nothing outside Exhibits B and B1 to corroborate or offer anything or platform on which the veracity of the confession could be ascertained. It was rather non-efficacious, useless and ought not to be given any credence or relied upon by the trial Court. Learned Counsel urged this Court to so hold.

Counsel further submitted that on the offence of witchcraft, in respect of Exhibit B1 where the Appellant was recorded as killing the deceased with witchcraft, none of the witnesses called by the prosecution said he heard the Appellant representing himself to be a wizard or to have power of wizardry. On the whole, Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE TWO:
Whether the Prosecution did not fail to prove the ingredients of the offences with which the Appellant was charged in this case?
In his arguments on this issue, Counsel submitted that it is a settled principle of law that the burden of proof in criminal trials, this case inclusive, rests on the Prosecution from start to finish and the standard of proof is beyond reasonable doubt. See ANKPEGHER vs. THE STATE [2018] LPELR – 43906 (SC). To Counsel, this position of the law is further underscored by Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Sections 131, 133 and 135 (1), (2) and (3) of the Evidence Act, 2011. See OKUNULE vs. OYAGBOLA (1990) 4 NWLR (PT. 147) 723 AT 736, PARAS. C – D. The contention of learned Counsel is that by the same principles as discussed above, where reasonable doubt exists in the case of the Prosecution; such doubt is resolved in favour of the accused. See BELLO vs. COP (2018) 2 NWLR (PT. 1603) 267.

Counsel further contended that it is settled law that the necessary ingredients or elements of the offences of culpable homicide not punishable with death contrary under Section 224 of the Penal Code and the offence of witchcraft contrary to Section 216 of the Code with which the Appellant was charged, could be proven by the Prosecution via any of or combination of the following:
a) Evidence of an eye witness;
b) Confessional statement of the accused person duly proven and admitted; or
c) Circumstantial evidence

Furthermore, Counsel submitted that the death of the deceased is not in dispute, which proved the first ingredient of culpable homicide not punishable with death, but however, Counsel argued that there was nothing to prove that the death was caused by the accused through witchcraft nor anything whatsoever linking the accused to the death as required by Section 224 and 216 above.

On the other hand, Counsel contended that the Prosecution adduced evidence of a purported confessional statement, but however, that no circumstantial or eye witness evidence was led by the Prosecution and there was no such circumstances in existence from which the Appellant’s involvement in any of the alleged offences could be inferred, let alone deduced.

Learned Counsel contended that the Prosecution called three (3) witnesses as aforesaid. It is the argument of Counsel that the medical report tendered in evidence by PW1 and admitted as Exhibit A is an uncertified medical report. Under cross-examination, PW1 admitted that though Exhibit A advised that an autopsy be done to ascertain the actual cause of death, that no such autopsy was ever conducted; that he has never been to the accused person’s shop at the Gande market as he only recorded the statement of the accused and attached same for transfer to the State C.I.D. in Sokoto for further investigation. Counsel argued that the evidence of PW1 is hearsay and inadmissible. See SARAKI vs. FRN (2018) 16 NWLR (PT. 1649) 405 AT 449, PARAS. F – G.

It was further contended that the PW1’s evidence on witchcraft was not only hollow but clear hearsay when he stated in the following words; “The father of Hassana Sahabi Noma came to the station and lodged complaint of witchcraft against the accused person”. Counsel urged this Court to hold that that piece of evidence is indeed hollow.

Counsel further disclosed to this Court that PW1 admitted in evidence that he recorded the statement of the accused at the Binji Police outpost and placed same in the file for transfer to State C.I.D, but did not say that the statement was a confessional statement and however, that statement was never produced in Court and not the statement admitted in evidence as Exhibits B and B1. Counsel urged this Court to invoke the presumption in Section 167 (d) of the Evidence Act, 2011 and hold that the statement taken by PW1 was withheld because it was favourable to the Appellant. See GIDADO ADAMU vs. THE STATE (2019) LPELR-46902 (SC).

According to Counsel on the evidence of PW2, the deceased’s father, he admitted under cross-examination that he was not there when the Appellant gave Hassana water to drink or when she gave him mat for safe keeping but that there were people who were at the place. Counsel stated that PW2’s evidence is entirely hearsay and is inadmissible and incapable of being ascribed any weight. He added that this evidence should not be given credibility neither can it give any corroboration to Exhibits B and B1. Counsel urged this Court to so hold.

Learned Counsel further contended that PW3, the Inspector of Police, at the State C.I.D on cross-examination admitted in evidence the following words: “…Yes, I cannot ascertain the cause of death because I am not a medical personnel. I agree only autopsy of medical personal that can ascertain cause of death”.

Against the backdrop of this position, Counsel argued that there is nothing to urge in favour of this witness’ evidence other than to say it is hollow, empty and showed evidently the shoddy investigation purportedly done by the Police. According to Counsel, given the evidence of the prosecution witnesses, it is clear none could say for certain what led to the death of the deceased. He stated that PW1 and PW3 admitted that an autopsy could unravel the cause of death. Counsel submitted that the law is settled that where there is doubt as to cause of death, an autopsy becomes inevitable. See NWAOGU vs. THE STATE [2012] LEPLR-15420 (CA). It was therefore argued by Counsel that in the absence of an autopsy report in this case, the cause of death of Hassana remains a mystery and uncertain, but what is certain, is that it is not the Appellant that caused the death of Hassana. Counsel urged this Court to so hold.

In further dealing with issue two, Counsel argued that Exhibit A is not an autopsy report and incapable of linking the Appellant to the offence in Count 1. Counsel further argued that PW1 tendered the medical report and that same was admitted in evidence as Exhibit A and that not minding the recommendation in the medical report that an autopsy be conducted to ascertained the cause of death, which could have provided some corroborative or clear evidence to show what killed the deceased Hassana, that no autopsy was done. This fact, according to Counsel was admitted by PW1 and PW3 under cross-examination.

Based on this position, Counsel argued that the narration in Exhibit A (see pages 14 of Records) does not support the content of Exhibit B1. Rather it contradicts it. He said that whereas Exhibit A narrated that the water the deceased was said to have drunk was from sachet water containing possible corrosive substances, Exhibit B1 stated that the water given to the deceased was from a pot. However, in debunking these Exhibits, Counsel argued that Exhibits A and B1 are materially in conflict.

Counsel submitted that this material contradiction is substantial and fundamental to the main issue in question and ought to have created doubt in the minds of the Court below. See EFFIA vs. THE STATE (1999) 8 NWLR (PT. 613) 1, 6; JOHN AGBO vs. THE STATE (2006) NWLR (PT. 977) 546. It is the contention of Counsel that where evidence adduced by a party is contradictory in material aspect, the Court cannot perform any surgical operation to start picking or choosing which part of it to believe and which not to believe. In such circumstances, the law is trite that the Court would reject the entirety of the evidence. See R. vs. ABENGOWE 3 WACA 85; OMOGODO vs. THE STATE (1981) 5 SC 5; JOHN AGBO vs. THE STATE (Supra) and EKANEM vs. THE STATE [2009] LPELR-4105 AT P. 26. Counsel humbly urged this Court to so hold.

On the other side of the imaginary scale, Counsel submitted that the Appellant on 19th day of January, 2021 opened his defence; that the Appellant called his brother as DW1 and testified himself as DW2; that they stated emphatically in evidence that neither their father nor the Appellant had any power of wizardry. Counsel further submitted that DW2 denied knowing or killing Hassana; that he vehemently denied authoring or thumb-printing Exhibits B and B1 and that being an itinerant barber who had no specific business location, but only work when invited, Counsel submitted that the Appellant could not have kept a pot or have a pot from which he could have taken the water to give the deceased. Counsel picked holes on the failure of the Prosecution who had all the opportunities to debunk this evidence of the Appellant but failed to do so.

Based on the foregoing, Counsel submitted that all the lapses in the case of the Prosecution created severe yawning gaps in the case of the Respondent and a huge doubt as to the involvement or culpability of the Appellant. This doubt, Counsel submitted ought to be resolved in the favour of the Appellant. See UDOSEN vs. THE STATE (2007) 4 NWLR (PT. 1023) 125 AT P.161.

Learned Counsel humbly urged that the unchallenged evidence of DW1 and DW2 be deemed as established and that the yawning gaps in the said evidence as created in the case of the Prosecution be resolved in favour of the Appellant. On the whole, Learned Counsel submitted that having regard to the state of evidence at the trial, the Prosecution failed to prove beyond reasonable doubt or at all that the Appellant committed the offences with which he was charged and tried, in the circumstance, the case must fail. See CHUKWUMA vs. FRN (Supra).

Counsel finally submitted and urged this Court to hold that the prosecution failed to prove its case against the Appellant. Counsel urged that this issue be resolved in the favour of the Appellant and against the Respondent.

RESPONDENT:
SOLE ISSUE:
Whether the learned trial Court was right in law, when he held that the prosecution has proved his case beyond reasonable doubt and convicted the Appellant on the basis of his confessional Statement voluntarily made but subsequently retracted?

Learned Respondent’s Counsel in arguing the sole issue for determination began by replicating Section 28 of the Evidence Act 2011, thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” See NKIE vs. FRN (2014) LPELR-22877 (SC).

Counsel further argued that in law, a confessional Statement made voluntarily, stating or suggesting the inference that the accused committed the offence for which he is charged or standing trial is the best form of evidence. Such confession, Counsel said is relevant and admissible against the accused, provided the confession was made voluntarily. See ALO vs. STATE (2015) LPELR-24404 (SC). Counsel further submitted that this Court and the Apex Court have enjoined lower Courts to hold that a voluntarily confession of guilt, if fully consistent, probable and coupled with clear proof that a crime has been committed by the accused, be accepted as satisfactory evidence on which the Court can convict. See OGOALA vs. STATE (1991) 2 NWLR (PT. 17) 509.

According to Learned Counsel, the Defendant/Appellant in this appeal in his extra-judicial Statement made on 16th day of December, 2016, which was tendered and admitted as Exhibits B and B1 by the trial Court, confessed to the offences contained in the charges preferred against him as follows:
“…One Hassana Sahabi Noma met me she gave me a mat to keep for her. She entered the market and later came back to collect her mat, Hassana noma requested for drinking water. I gave her water I kept inside pot that I do use for barbing and gave her. It was then I held her with Witchcraft as a result of the water she drank. I did not have any relationship with her. Hassana went home and fell sick because of the water she drank. Her neck started paining her…I caused the death of Hassana Sahabi through witchcraft. I inherited Witchcraft from my late father. I am appealing to the parent of Hassana Sahabi Noma to forgive me”. See pages 12 -13 of the Record.

Counsel submitted that the law enjoins the Prosecution to prove all the offences alleged in the charge sheet beyond reasonable doubt. Accordingly, Counsel stated that the law itself has laid down the manner and how the guilt of the accused person can be established or proved as follows:
1) By Confessional Statement;
2) By Circumstantial evidence;
3) Evidence of an eye witness or direct evidence. See ABIRIFON vs. STATE (2013) LPELR-20807 (SC),

Counsel further contended that as shown in the above authority, the prosecution can use any of the three methods mentioned above to establish the guilt of the accused person. He said that the confessional Statement and medical report was tendered and admitted in evidence without any objection. Counsel submitted that the trial Court made far reaching comments on the Medical Report admitted in evidence as Exhibit A as corroborative evidence. According to Counsel, the testimony of PW2 Hassana’s Father has the coloration and weight of a dying declaration of the deceased daughter when he admitted under cross-examination thus: “All the information I narrated was stated by the deceased in the presence of the accused and he admitted”.

It was further contended that when compared also with the Appellant’s extra-judicial Statement with that of PW2, it is clearly corroborative. Counsel disclosed to this Court that the Appellant’s Counsel apart from the purported retraction, did not oppose the admissibility of the confessional statement and the medical report during trial. Counsel further argued that the objections raised in respect of the Medical report in the Appellant’s brief relating to the date and manner the same was tendered is a lame one, and the learned trial Court was right to have overruled same in his judgment. Exhibit A (Medical Report) is documentary evidence and no oral evidence of witnesses can add or vary it. Counsel further submitted that, having admitted the said Exhibit A in evidence, the learned trial Court relied on it and the oral testimony of PW2 (father of the deceased) as corroborative evidence of the confessional statement of the Accused in Exhibits B and B1.

In the instant case and from the evidence tendered before the trial Court, Counsel contended that the argument of the Appellant’s Counsel that the learned trial Court did not follow the rule applicable in confessional statements is not convincing. Counsel submitted that the trial Court in further reliance on the decision in R vs. SYKES (Supra) said in his judgment:
“The defence Counsel also contends that the defendant retracted the statement in exhibit B and B1 on the ground that he did not make it and the thumb print is not his. But the said exhibits B and B1 were shown to be duly endorsed by Superior Police officer and thumb printed by the defendant who stated at lines (23-38) of exhibit B1 how he gave water to the deceased and which led to her death and the statement being consistent as to the offence charged from the prosecution’s case which the Court accepts Defendant had every opportunity to commit the offence as there are factor external to exhibits B and B1 which are the unchallenged evidence of PW2 i.e. father of the deceased and exhibit ‘A’ in addition to the fact that the confessional statement was duly endorsed by a Superior Police Officer attesting to their voluntariness”.

Learned Counsel also argued that the content of Exhibit A corroborates the cause of death as contained in Exhibits B and B1 which is the confessional statement of the Appellant. Though the Appellant in his oral testimony denied making any statement to the Police, Counsel argued that it does not in law invalidate the admissibility of that confession. It is at best a retraction and a retraction will not also deny the statement of admissibility. See SHADE vs. THE STATE (2005) NSCQR 1 AT P. 9.

Counsel also argued that the contention of Appellant’s Counsel that the evidence of PW1 and PW3 who are the Investigation Police Officers is hearsay is also untenable in law. See ANYASODOR vs. STATE (2018) LPELR-43720 (SC). It is the further contention of Counsel that, with or without autopsy or Exhibit A, the cause of death has been duly established by Exhibits B and B1, which is the confessional statement of the Appellant, admitting to all the offences as contained in the charge.

In conclusion, Counsel said that the germane question is; whether a Court of law has the power to convict solely on a voluntary confessional statement as done in this case. Counsel replied this in the affirmative submitting that this has been the position of the law till date. Finally, Counsel urged this Court to dismiss this Appeal and affirm the Judgment of the trial Court below.

RESOLUTION OF APPEAL
The question of the voluntariness and the veracity of the confessional statements of the Appellant admitted as Exhibits B and B1 at the Court below was one of the issues vigorously canvassed in this Appeal, alongside the question of an alleged shoddy investigation by the Prosecution as it has to do with the question of cause of death of the deceased. These issues were no doubt subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law. Learned Appellant’s Counsel who had rooted for a verdict of an acquittal had contended that the trial Court’s decision had occasioned a miscarriage of justice.

To begin with, for the Prosecution to succeed in establishing the offence of culpable homicide not punishable with death, all the ingredients of the offence as contained in Sections 224 and 216 of the Penal Code must be proved or established to the satisfaction of the Court thus;
1. That the deceased had died.
2. That the death of the deceased had resulted from the act of the accused person.
3. That the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence.

The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. See the cases of MUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015)11 NCC at page 40-41.

Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of culpable homicide not punishable with death rests squarely on the shoulders of the Prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject.

What should perhaps be stated here as a corollary to the above, is the fact and from which the Prosecution gets a modicum of succour that in all criminal trials the Prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;
a. Confessional statement.
b. Circumstantial evidence
c. Evidence of an eye witness account.
See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.

At pages 12 to 13 of the printed records of Appeal, a reproduction of Exhibit B1, the English translation of the Appellant’s extra Judicial statement to the Police reads as follows;
“…One Hassana Sahabi Noma met me, she gave me a mat to keep for her. She entered the market and later came back to collect her mat, Hassana noma requested for drinking water. I gave her water I kept inside pot that I do use for barbing and gave her. It was then I held her with witchcraft as a result of the water she drank. I did not have any relationship with her. Hassana went home and fell sick because of the water she drank. Her neck started paining her…I caused the death of Hassana Sahabi through witchcraft. I inherited witchcraft from my late father. I am appealing to the parent of Hassana Sahabi Noma to forgive me”. See pages 12 -13 of the Record.

Learned Appellant’s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would be recalled however, that Exhibits B and B1 were in the course of trial admitted as confessional statements of the Appellant without any objection. Section 27 (1) of the Evidence Act (As amended) defines a confession thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

It is further provided in sub-section 2 that:
“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

Against the backdrop of the foregoing, it is important to note that the Appellant, in the course of his evidence-in-chief before the lower Court, retracted from the said Exhibits B and B1. The settled position of the law, however is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”
It would be further recalled that the Appellant took the earliest opportunity when the statement was offered in evidence, first to raise an objection to the admissibility of same on the grounds that it was not voluntarily obtained and upon a second note after the Appellant apparently had thought about it, then denied making the said statement to deny having made it. But the position remains in law, that a mere denial without more, even at the earliest opportunity, cannot, on the bare facts of the case, lend any iota of weight to the denial. Apart from the fact that the denial is a bare statement bereft of any supporting facts, it is by and large, standing only on the ipsi dexit of the Appellant.

To make matters rather worse and as revealed by the printed records in this case, the said statements were not even challenged on grounds of involuntariness or any other at all.
Arising from this position, in which the voluntariness or otherwise of the statements were neither raised nor challenged at the trial, this Court therefore finds and holds that the Prosecution proved affirmatively that Exhibits B and B1 were voluntary confessional statements of the Appellant.

Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the Prosecution, which this Prosecution succeeded in doing as expected in this case. See the cases of JOSHUA ADEKANBI vs. AG WESTERN NIGERIA (1966) All NLR 47; R vs. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR 60 at 65 SC on the issue.

On the question of weight to be attached to a confessional statement whether retracted or not retracted, the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?

In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case where there has been a retraction by the accused, it is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case?

The trial Court, to begin with, referred to the unchallenged oral evidence of PW2, the deceased’s Father, which the Court said confirmed the story in the confessional statement. The Court also said that the PW2’s oral testimony was not contradicted. It is instructive to note that at page 13 of the printed records, the learned trial Court had this to say;
“The defence Counsel also contends that the defendant retracted the statement in exhibit B and B1 on the ground that he did not make it and the thumb print is not his. But the said exhibit B and B1 were shown to be duly endorsed by Superior Police officer and thumb printed by the defendant who stated at lines (23-38) of exhibit B1 how he gave water to the deceased and which led to her death and the statement being consistent as to the offence charge from the prosecution’s case which the Court accepts Defendant had every opportunity to commit the offence as there are factor external to exhibits B and B1 which are the unchallenged evidence of PW2 i.e. father of the deceased and exhibit ‘A’ in addition to the fact that the confessional statement was duly endorsed by a Superior Police Officer attesting to their voluntariness”.

That the learned Appellant’s Counsel had produced a very incisive and formidable brief of argument in challenging the lower Court’s decision is not in doubt. But the failure to have challenged and confronted material points in an opponent’s case at the time it mattered most is a major setback to the Appellant’s Appeal even at this stage of this case. See the case of OKOSI vs. THE STATE (Supra) where the Supreme Court per BELGORE, JSC delivering the lead judgment in the case, had this to say;
“In all criminal trials the defense must challenge all the evidence it wishes to dispute by cross examination. This is the only way to attack any evidence lawfully admitted at the trial. For when evidence is primary, opinion and not that of an expert and an accused person wants to dispute it, the venue for doing so is when that witness is giving evidence in the witness box. The witness should be cross examined to elucidate facts disputed, for it is late at the close of the case to attempt to negotiate what was left unchallenged”.

In respect of the retracted statements of the Appellant, the mere fact that he did subsequently retract the Exhibits B and B1 as the facts and circumstances of this case as shown, does not necessarily mean that the learned trial Court could not have acted on the statements more so when the Court successfully tested the truth in the confessions against the guidelines issued by the Court in the case of R. vs. SYKES (Supra).

In addressing the issue of whether the learned trial Court rightly found that the ingredients of culpable homicide not punishable with death had been established in this case, it is rather clear that from the testimonies of the PW1 to PW3 and from the contents of Exhibits B and B1 which are the statements of the Appellant tendered at the lower Court without objection, and Exhibit A, the medical report tendered in the course of trial, I am unable to disagree with learned Respondent’s Counsel that the Prosecution did not prove its case to the hilt.

The position of the law is that a person is clearly guilty under Section 224 of the Penal Code if the act by which death is caused is sufficiently linked to the act of the Accused person based on the evidence at the disposal of the Court below. On the count of witchcraft, at lines 7 to 10 of page 2 of Exhibit B1, the Appellant was quoted as having said: “I caused the death of Hassana Sahabi through witchcraft I inherited from my late Father”. The Court below found that even though the Appellant retracted the statement in the said Exhibits B and B1, but that Exhibit A which is the medical report in respect of the deceased corroborated the contents of Exhibits B and B1 where it says that: “the deceased was brought with history of inability to swallow both solid and liquid following in question of sachet water offered to her by a man”. In all, the Appellant cannot in the circumstances of this case feign ignorance of the likely consequences of his action. The Appellant offered the deceased with water which she drank and later fell sick and which led to her demise. The Appellant having represented himself as a witch or witch doctor, who is possessed of the power of wizardry, this Court cannot in the circumstances fault the findings of the Court below on its findings.

To this end, this Appeal is moribund as it lacks merit and it is accordingly dismissed. The judgment of the High Court of justice sitting at Sokoto and delivered on the 22nd day of June, 2021 Coram: I. M. BARGAJA, J is hereby affirmed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I read before now the judgment of my learned brother, FREDERICK O. OHO, JCA just delivered. I agree with the reasoning and conclusion that this appeal be dismissed for lacking in merit. I dismiss the appeal and abide by all the consequential orders made therein.

MOHAMMED DANJUMA, J.C.A.: I have had the privilege to read in draft, the lead judgment just delivered by my learned brother DR. FREDERICK O. OHO JCA. I agree with the reasoning and conclusion that the appeal lacks merit and it is accordingly dismissed.
I hereby dismiss the appeal and adopt the consequential orders made in the lead judgment.