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HARUNA v. STATE (2022)

HARUNA v. STATE

(2022)LCN/16784(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, April 29, 2022

CA/ABJ/CR/296/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Between

ALIYU HARUNA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

By Section 135 of the Evidence Act, 2011, the standard of proof in a criminal case is proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean that the Prosecution must prove the case with mathematical exactitude. See ADEOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12-13:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course, it is possible but not in the least probable” the case is proved beyond reasonable doubt.’”
Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal trials, the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence. See NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651.
PER OGAKWU, J.C.A.

METHOD OF PROVING THE GUILT OF AN ACCUSED PERSON

There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and EZE vs. FRN (2017) 15 NWLR (PT 1589) 433 at 490.
PER OGAKWU, J.C.A.

THE POSITION OF LAW ON CONFESSIONAL STATEMENTS

Let me iterate that there was no eyewitness testimony. It was on the basis of the confessional statements that the Appellant was convicted of the offences charged. It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. 

The free and voluntary confessional statement of an accused person alone is enough to sustain a conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See YESUFU vs. THE STATE (1976) 6 SC 167 at 173, IDOWU vs. THE STATE (2000) 7 SC (PT II) 50 at 62-63, DIBIE vs. THE STATE (2007) 9 NWLR (PT 1038) 30 at 51 and 636, KAZA vs. THE STATE (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, OSENI vs. THE STATE (supra) at 374 and EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385. PER OGAKWU, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON A RETRACTED CONFESSIONAL STATEMENT

The Appellant retracted his confessional statements, Exhibits A1 and A2, at the trial; however, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (supra) at 431 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement. See HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93.
But a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, of circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT. 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2004) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188-189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.
PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Niger State in CHARGE NO. NSHC/KG/7C/2013: THE STATE vs. ALIYU HARUNA, which was delivered on 30th September, 2014. The Appellant was arraigned before the lower Court on a two-count charge of rape and culpable homicide. The facts of the matter disclose that the deceased had gone with other children to the bush to pick shea nut; a misunderstanding arose among them and the Appellant who was also present in the bush intervened and advised the deceased to go back home. While the deceased was on her way back home, the Appellant followed her and raped her. The deceased started crying and threatened to report the incident to her parents; whereupon the Appellant used the hoe he was holding and hit the deceased on the head and she died on the spot. The body of the deceased was later found in the bush after a search. The Appellant was later arrested and charged on the said two count charge.

​At the trial, the Prosecution called a sole witness, the Investigating Police Officer, while the Appellant testified in his defence and called no other witness. The lower Court convicted the Appellant based on his confessional statements which it held were corroborated by the medical report and the photograph of the deceased. It consequently sentenced the Appellant to ten years imprisonment on the count of rape, and to death by hanging on the count of culpable homicide. The judgment of the lower Court is at pages 38-42 and also at pages 51-56 of the Records.

The Appellant was dissatisfied with the decision of the lower Court and by the order of this Court made on 9th April, 2020, the Appellant was granted extension of time to appeal against the said decision of the lower Court. The Appellant thereafter filed his Notice of Appeal on 16th April, 2020. The said original Notice of Appeal is at pages 69 -76 of the Records. However, the extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal filed on 29th January, 2021, but deemed as properly filed on 17th February, 2021.

The Records of Appeal was compiled and transmitted and briefs of argument were filed and exchanged by the parties. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal. In the Appellant’s brief which was filed on 19th May, 2020 but deemed as properly filed on 17th February, 2021, the Appellant formulated five issues for determination as follows:
“1. Whether the trial Court could legally convict the Appellant of the offence of rape and culpable homicide punishable with death on the strength of a retracted confessional statement (Exhibit A1 and A2) and the testimony of PW1. (Ground 1)
2. Whether the lower Court was right in holding and admitting Exhibit A, (photograph of a deceased person) being computer or electronically generated evidence regardless of the prosecution’s failure to comply with the provisions of Section 84(4) of Evidence Act 2011. (Ground 2 & 6)
3. Whether the trial Court could on the strength of evidence adduced before it rightly convict the Appellant of the offence of culpable homicide punishable with death. (Ground 3)
4. Whether the trial Court could on the strength of evidence adduced before it rightly convict the Appellant of the offence of rape. (Ground 4).
5. Whether the trial Court erred when it failed to consider the defence of Alibi raised by the Appellant and the failure of the police to investigate same. (Ground 5).”

The Respondent’s brief was filed on 1st March, 2022, but deemed as properly filed on 3rd March, 2022. Even though the Respondent stated in paragraph 2.00 of its brief that it would adopt the issues for determination formulated by the Appellant, however in argument, it slightly modified issue number one in paragraph 3.00 as follows:
“Whether the trial Court could legally convict and sentence the Appellant relying on the purported confessional statement (Exhibit A1 and A2) when the voluntariness of the statement remained unresolved.”

Nevertheless, the modification does not make for a radical departure from the issue number one formulated by the Appellant. From the issues for determination as crafted by the Appellant, the thrust of issue numbers one, three, four and five are on the evaluation of evidence and whether the evidence adduced by the Prosecution established the offences charged beyond reasonable doubt, such that a Court could convict on the same. The Appellant’s issue number two, when properly contextualised, deals with admissibility of evidence and whether the photograph of the deceased was admissible in evidence. Accordingly, I will begin the consideration and resolution of this appeal with the said issue number two in order to ascertain whether the said photograph is legally admissible evidence which was available for the lower Court to use in determining whether the offences charged were proved beyond reasonable doubt.

ISSUE NUMBER TWO
Whether the lower Court was right in holding and admitting Exhibit A, (photograph of a deceased person) being computer or electronically generated evidence regardless of the prosecution’s failure to comply with the provisions of Section 84 (4) of Evidence Act 2011.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the photograph of the deceased, Exhibit A, is a computer or electronically generated evidence, and that the lower Court was wrong to admit the same in evidence when the Prosecution did not comply with Section 84 (4) of the Evidence Act vide DICKSON vs. SYLVA (2017) 8 NWLR (PT. 1567) 167 at 200, 213, 218, 227 and 228 and KUBOR vs. DICKSON (2013) 4 NWLR (PT 1345) 534.

It was stated that even though the said Exhibit A was admitted without objection, it cannot be accorded any weight since the Prosecution did not comply with Section 84 (2) & (4) of the Evidence Act. It was further contended that the said Exhibit A did not satisfy the provisions of Section 34 (1) (b) of the Evidence Act. It was asserted that Exhibit A should be expunged and that the decision of the lower Court would have been different if it had not admitted the said Exhibit A in evidence.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It is the Respondent’s contention that there is nothing on the Records on the basis of which it can be said that the photograph, Exhibit A, is a computer or electronically generated evidence and therefore Sections 84 (4) and 34 (1) (b) of the Evidence Act do not apply. The definition of computer in Section 258 (1) (d) of the Evidence Act and the case of KUBOR vs. DICKSON (supra) were referred to. It was opined that pictures taken mechanically from an ordinary camera, as in this case, is not computer generated evidence and is therefore governed by Section 86 (4) of the Evidence Act which deals with admissibility of primary evidence.

It was asserted that the photograph was primary evidence, but that even if it was secondary evidence, there was no objection to its admissibility on the grounds that it was not primary evidence. The time to raise the objection was said to be when the photograph was sought to be tendered in evidence. It was maintained that even if the said photograph, Exhibit A, is expunged, there was still sufficient evidence to convict. The case of ARCHIBONG vs. THE STATE (2006) 14 NWLR (PT 1000) 349 at 377-378 was relied upon.

RESOLUTION OF ISSUE NUMBER TWO
The crux of the contention under this issue is whether the photograph of the deceased which was admitted in evidence as Exhibit A is computer or electronically generated evidence. For the Appellant, the said photograph is a computer or electronically generated evidence and that since the provisions of Section 84 (4) of the Evidence Act was not complied with, that the said photograph was not admissible. Not surprisingly, the Respondent has argued the contrary, asserting that the photograph is admissible as primary evidence under Section 86 (4) of the Evidence Act. It was further stated that even if it is held to be secondary evidence, that the fact that no objection was taken to its admissibility at the trial Court forbids the Appellant from raising it on appeal.

Now, Section 84 (1), (2), (4) and (5) (c) of the Evidence Act stipulate as follows:
“84. (1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this Section are –
(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;
(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and
(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate –
(a) identifying the document containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) above related, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be,
shall be evidence of the matter stated in the certificate and for the purpose of this subsection, it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the persons stating it.
(5) For the purposes of this section –
(c) a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”
In turn, Section 86 of the Evidence Act provides:
“86. (1) Primary evidence means the document itself produced for the inspection of the Court.
(2) Where a document has been executed in several parts, each part shall be primary evidence of the document.
(3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest, but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.”
​It seems to me that while Section 84 of the Evidence Act deals with admissibility of statements in documents produced by computers, Section 86 deals with proof of contents of documents by primary evidence. So it would appear that since the issue interrogated under this issue is one of admissibility of computer or electronically generated evidence, it is the stipulations of Section 84 of the Evidence Act that will be of paramount consideration. It is only where it is found to be admissible that the issue of proof comes into play, irrespective of whether it is primary evidence or secondary evidence, since by Section 85 of the Evidence Act, the contents of documents may be proved either by primary or by secondary evidence. It is agreed on all sides that the said photograph was admitted without objection, so it becomes immaterial contextually when it comes to proof whether it is primary evidence or secondary evidence. But the quaere remains whether it is computer or electronically generated evidence.
I iterate that Section 84 of the Evidence Act deals with admissibility of documents produced by computers. Section 84 (4) then specifically deals with the authentication of computers and electronic devices used in producing documents. It provides the protocol for the admissibility of computer-generated evidence. What it prescribes is that the computer or device used in producing the document must be certified as trustworthy and that it did not malfunction at the time of producing the document. As held by the apex Court in DICKSON vs. SYLVA (supra) at 219, Section 84 of the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. Accordingly, the stipulations of Section 84 of the Evidence Act only go to perception of evidence, id est, reception of all available admissible evidence. Without a doubt, the stipulations of Section 84 (4) of the Evidence Act were not complied with at the lower Court as there was no certificate of compliance filed as required by Section 84 (4) of the Evidence Act. So, if the photograph, Exhibit A, is a computer or electronically generated evidence, then the non-compliance with Section 84 (4) will render the same inadmissible. See NOMANY vs. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR (44546) 1 at 22, RAFIQUL vs. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR (44520) 1 at 22 and ISLAM vs. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR (44529) 1 at 22-23.
But, is the photograph a computer or electronically generated evidence? In AKORTSAHA vs. IGP (2022) LPELR (56985) 1 at 24-25, this Court held that where photographs are taken with a digital camera or produced from a digital camera, it becomes a computer-generated document by virtue of Section 84 (5) (c) of the Evidence Act. In arriving at this decision, reliance was placed on the previous decision of this Court in DAVOU vs. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND (2019) LPELR (47034) 1 at 15. A similar decision as in DAVOU vs. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND (supra) was reached in DALYOP vs. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND (2019) LPELR (47031) 1 at 15 and BADUNG vs. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND ​(2019) LPELR (47033) 1 at 15. The common thread which informed the reasoning of this Court in the said cases is the assumption that the photographs in the said cases were taken with a digital camera or produced from a digital camera. This assumption was made, notwithstanding the fact that as found by the Court, the camera used in taking the photographs was not tendered in evidence.
On the flip side, this Court in SHAYE vs. COP (2021) LPELR (52695) 1 at 41-42 and BALA vs. C.O.P. (2021) LPELR (52715) 1 at 48-49 in dealing with the objection that photographs which were admitted in evidence were admitted in error being computer-generated evidence, relied on the definition of document in Section 258 of the Evidence Act to hold that the primary consideration in admitting a document is relevance and that the photographs in the said case taken for the purposes of identification of corroboration of the fact that the deceased died as alleged were relevant and of high probative value and were correctly admitted in evidence.
​It seems to me that where a photograph is taken by a digital camera and produced from a memory card, that it is undoubtedly computer generated since the photograph would have been produced within the context of Section 84 (5) (c) of the Evidence Act. However, in the diacritical circumstances of this matter, there is nothing to show that the photograph, Exhibit A, was taken with a digital camera. The Respondent’s counsel has rightly submitted that there is nothing on the records on the basis of which it can be said that the photograph is computer or electronically generated evidence. It is hornbook law that a Court of law is not given to assumption, speculation or conjecture. See OBIAKOR vs. THE STATE (2002) 6 SCNJ 193 at 206, THE STATE vs. AIBANGBEE (1988) LPELR (3208) 1 at 52 and MARTINS vs. THE STATE (2019) LPELR (48889) 1 at 33. Accordingly, in the absence of anything on the record on the basis of which it can be held that the photograph, Exhibit A, was produced by a digital camera, I would not make any assumptions or speculate that the said photograph is a computer or electronically generated evidence. This is so because where the photograph was not taken with a digital camera and produced from a memory card, then it would not be classified as computer or electronically generated evidence within the meaning of Section 84 (1) of the Evidence Act. In the light of the foregoing, I am unable to agree with the Appellant that the lower Court was not right in admitting the photograph, Exhibit A, in evidence.

Notwithstanding the manner in which I have resolved this issue number two, I will, while considering the remaining issues, which I have stated interrogate the evaluation of evidence and whether the evidence established the offences charged beyond reasonable doubt, consider whether the decision of the lower Court would have been different if the said photograph, Exhibit A, was not part of the evidence. This is in the unlikely possibility that I arrived at a wrong decision on the said issue number two, and given the stipulations of Section 251 (1) of the Evidence Act that the wrongful admission of evidence shall not of itself be a ground for the reversal of the decision where it appears to the appellate Court that the evidence so admitted cannot reasonably be held to have affected the decision and that the decision would have been the same if the evidence had not been admitted. For now, it suffices to state that this issue number two is resolved against the Appellant.

ISSUE NUMBERS ONE, THREE, FOUR AND FIVE
– Whether the trial Court could legally convict the Appellant of the offence of rape and culpable homicide punishable with death on the strength of a retracted confessional statement (Exhibit A1 and A2) and the testimony of PW1.
– Whether the trial Court could on the strength of evidence adduced before it rightly convict the Appellant of the offence of culpable homicide punishable with death.
– Whether the trial Court could on the strength of evidence adduced before it rightly convict the Appellant of the offence of rape.
– Whether the trial Court erred when it failed to consider the defence of Alibi raised by the Appellant and the failure of the police to investigate same.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant’s contention on his issue number one is that the lower Court failed to correctly ascertain the voluntariness of the confessional statements, even after conducting a trial within trial, before proceeding to rely on the said confessional statements vide IBEME vs. THE STATE (2013) LPELR-20138 (SC). It was stated that there was nothing outside the confessional statements to use to determine the veracity of the statements. The case of OGUNO vs. THE STATE (2013) LPELR-20623 (SC) was referred to. It was opined that the testimony of the sole prosecution witness was not such that would have led to the admissibility of the statement at the trial within trial, when the testimony is juxtaposed with the tests to ascertain the veracity of a retracted confessional statement. It was asserted that the lower Court failed to consider, evaluate and ascribe probative value to the evidence adduced in the trial within trial and that the Prosecution did not prove the voluntariness of the confessional statements beyond reasonable doubt. The case of JIMOH vs. THE STATE (2014) LPELR-22464 (SC) was relied upon.

The Appellant further contended that the lower Court was wrong to convict on the confessional statements without corroborative evidence on the veracity of the confession since the statements were not voluntary, direct and positive. The cases of UGBOJI vs. THE STATE (2018) ALL FWLR (PT. 926) 68 at 104, ESSIEN vs. THE STATE (2018) ALL FWLR (PT. 939) 1993 at 2004 and OSHIM vs. THE STATE (2014) LPELR-23142 (CA) were referred to. It was asserted that the Appellant made three contradictory statements and that the lower Court failed to properly probe their contradictory nature before convicting the Appellant, and that in the circumstances the purported confession was not direct and positive.

It was further submitted that the confession created manifest doubt as to how the deceased was murdered, whether from the injuries sustained from being hit by an object or if she was strangled. It was posited that there was no evidence outside the confessional statements to support the retracted confession and that it was a miscarriage of justice for the lower Court to convict solely on the said confessional statements.

Arguing his issue number three, the Appellant states that the Prosecution has the burden of proving the elements of the offences charged beyond reasonable doubt. Section 135 (1) of the Evidence Act and the cases of ORISA vs. THE STATE (2018) LPELR-43896 (SC), AKPAN vs. THE STATE (1990) 7 NWLR (PT 160) 101 and ADAMU vs. A-G BENDEL STATE (1986) 2 NWLR (PT 22) 284 were relied upon. The ingredients of the offence of culpable homicide as laid down in the cases of ALI vs. THE STATE (2015) LPELR-24711 (SC) and OKWUAKA vs. THE STATE (2018) LPELR-45155 (CA) were referred to and it was submitted that Prosecution did not establish the same. It was asserted that the Prosecution did not prove how the deceased was killed and that it was the Appellant that caused the death. It was further stated that the lower Court failed to determine the cause of death and properly link the Appellant as the person who intentionally caused the death vide MUHAMMED vs. THE STATE (2000) 12 NWLR (PT 682) [no page stated] and ISAH vs. THE STATE (2018) LPELR-46636 (CA).

Still in argument, the Appellant contended that the Prosecution did not call vital witnesses who last saw the victim alive with the Appellant. The cases of THE STATE vs. AZEEZ (2008) 14 (PT. 1108) 45 (Pp. 7-8 Paras B-D) [sic] and SALE vs. THE STATE (2016) ALL FWLR (PT 822) 1619 (SC) were called in aid. It was opined that the sole prosecution witness was not a vital witness and so the offence of culpable homicide was not proved beyond reasonable doubt. The case of ALMU vs. THE STATE (2009) 10 NWLR (PT 1148) 31 at 46 was cited in support. It was therefore maintained that the judgment sentencing the Appellant to death was not based on critical analysis and logical reasoning. The cases of SALAWU vs. THE STATE (2011) ALL FWLR (PT 594) 35 and NWOSU vs. THE STATE (2004) ALL FWLR (PT 218) 916 or (1986) 4 NWLR [no part stated] 342 at 358 were relied upon.

The Appellant submits that the ingredients of rape as set out in POSU vs. THE STATE (2011) LPELR-1969 (SC) were not proved beyond reasonable doubt. It was stated that the Prosecution did not prove that the Appellant had sexual intercourse with the deceased and that there is no independent evidence showing that the account of rape is true vide NATSAHA vs. THE STATE (2017) LPELR-42359 (SC). It was contended that the lower Court did not evaluate the medical report and ascribe probative value to it, vis-a-vis the ingredients of the offence of rape. The case of THE STATE vs. MASIGA (TSOLO) 2017) LPELR-43474 (SC) was referred to. It was posited that even though corroboration is not necessary in establishing proof beyond reasonable doubt, but that out of prudence, the Courts seek corroboration in cases of rape but the lower Court failed to seek corroboration. The case of MUSA vs. THE STATE (2013) LPELR-19932 (SC) was called in aid.

The Appellant’s contention on his issue number five is that the lower Court failed to consider his alibi, since he could not have committed the offence when he was somewhere else at the time the offence was committed. The case of THE STATE vs. ODOMO (2018) LPELR-46339 (SC) was cited in support. It was asserted that when alibi is raised timeously, the Prosecution has the responsibility to disprove the alibi vide ABDULRAHMAN vs. THE STATE (2018) LPELR-46331 (SC). The Appellant’s testimony where he said that he informed the Police that he went to the market and did not go to the farm was referred to and it was maintained that in the absence of evidence placing the Appellant at the scene of crime, that the failure to investigate the alibi cast doubt on the Prosecution case.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
It was submitted that only two confessional statements made by the Appellant were tendered and admitted in evidence as Exhibits A1 and A2. The voluntariness or otherwise of the statements, it was stated, ought to be determined based on the contents of the statements, the procedure adopted by the trial Court before admitting the statements in evidence, an overview of the entire case which led the Court to convict of the offence charged. It was opined that the confessional statements were admitted in evidence after a trial within trial and that the lower Court rightly overruled the objection to the admissibility of the statements.

It was posited that a confessional statement which is true, voluntary, direct, positive and properly proved is enough to sustain a conviction vide ILODIBE vs. THE STATE (2014) 10 ACLR 178 at 205. It was asserted that the lower count rightly conducted a trial within trial and that once a confessional statement is admitted in evidence after a trial within trial, an appellate Court cannot interfere in its admissibility since evaluation of evidence in a trial within trial is based on credibility of witnesses. The case of LASISI vs. THE STATE (2014) 10 ACLR 333 at 360 was referred to. It was further submitted that a confessional statement is the eyewitness account of the accused person of what he did and there can be no better evidence of the commission of the crime. The cases of ENAJIKE vs. THE STATE (948/2017) unreported delivered on 7/5/2021 and UTTEH vs. THE STATE (1992) 2 NWLR (PT 223) at 257 were relied upon. It was maintained that the photograph of the deceased, Exhibit A, and the medical report, Exhibit B, corroborated the confessional statements and so there was sufficient proof beyond reasonable doubt of the offences charged.

The Respondent argued issue numbers three, four and five together. It was posited that the Appellant resiling from his confessional statement does not render the same unreliable or incapable or sustaining the conviction and that provided the confession is direct, positive and unequivocal, and there are other ascertained facts, then the Court can still convict on the statement. The cases of LASISI vs. THE STATE (supra) at 356 and EJINIMA vs. THE STATE (1991) 6 NWLR (PT. 200) 627 were cited in support.

It was further contended that the defence of alibi must be properly raised and promptly by the accused person at the earliest opportunity giving particulars of the alibi. The cases of R vs. MORAN (1909) 3 CAR 25, IBE vs. THE STATE (1992) 5 NWLR (PT. 244) 649 and EBENEHI vs. THE STATE (2009) ALL FWR [sic] (PT. 486) 182 were called in aid. It was stated that the Appellant raised the defence of alibi for the first time at the trial and never informed the Police about the alibi in order for it to be investigated. It was opined that the Appellant in his confessional statement fixed himself at the scene of the crime and as such alibi cannot avail him vide LASISI vs. THE STATE (supra) at 359.

The Respondent asserted that only two confessional statements made by the Appellant were tendered in evidence and that a statement in the proof of evidence, which is not tendered in evidence is not legal evidence before the Court. The case of ESANGBEDO vs. THE STATE (1998) 1 ACLR at 120 and 121 was referred to. The contradiction which the Appellant raised based on a statement that was not tendered in evidence was said to be immaterial, more so when it was not used to discredit any witness which is the purpose the untendered statement in the proof of evidence can be used for. It was maintained that it is only contradiction in respect of a material fact that would make the Court doubt the evidence led by a witness. The case of IKEMSON vs. THE STATE (1998) 1 ACLR 80 at 100 was relied upon. It was conclusively submitted that the evidence adduced was sufficient to ground the conviction of the Appellant for the offences charged.

RESOLUTION OF ISSUE NUMBERS ONE, THREE, FOUR AND FIVE
I have insightfully considered the submissions of learned counsel and adequately comprehended the Records of Appeal. Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the offence charged. By Section 135 of the Evidence Act, 2011, the standard of proof in a criminal case is proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean that the Prosecution must prove the case with mathematical exactitude. See ADEOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12-13:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course, it is possible but not in the least probable” the case is proved beyond reasonable doubt.’”
Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal trials, the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence. See NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651.

There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and EZE vs. FRN (2017) 15 NWLR (PT 1589) 433 at 490.

It is lucent from the Records of Appeal that the lower Court convicted entirely on the basis of the confessional statements, Exhibits A1 and A2, which the Appellant retracted and resiled from at the trial. Apropos the foregoing, it is pertinent to interrogate and examine the Appellant’s submission that the confessional statements were wrongly admitted in evidence and that they were contradictory and should not have been acted upon by the lower Court in arriving at its decision.

Firstly, the Appellant predicates his contention that the confessional statements are contradictory on a statement contained at page 18 of the Records and said to have been volunteered by the Appellant on 3rd June, 2008 at Mashegu Police Post. The said statement was never tendered in evidence. The statements which were tendered in evidence and which were the legal evidence that a Court can act on, are the statements volunteered at the State CID Minna, upon the transfer of the case to the State CID. (See pages 27-30) of the Records. The sole prosecution witness was a member of the investigating team at State CID Minna. It is rudimentary law that proofs of evidence are mere summaries of statements of witnesses to be called by the Prosecution and it is settled law that they are not pieces of legal evidence on which the Court acts. They are not pieces of judicial evidence in proof of a crime in Court. See FRN vs. WABARA (2013) LPELR (20083) 1 at 20-21, DADA vs. FRN (2014) LPELR (24255) 1 at 15, IDAGU vs. THE STATE (2018) LPELR (44343) 1 at 38 and ERHADAVWE vs. THE STATE (2020) LPELR (52418) 1 at 64. 

Accordingly, the summaries of statements by a witness in the proof of evidence not being a piece of legal or judicial evidence which a Court can act upon, cannot be equated to the evidence tendered and admitted in Court on which contradiction in testimony can be founded. The Appellant will therefore derive no joy from his valiant attempt to establish contradiction based on a statement that does not form part of the legal evidence before the Court. See ISHOLA vs. THE STATE (2021) LPELR (54416) 1 at 35-36 and BASHIRU vs. THE STATE (2021) LPELR (56074) 1 at 27-28.

Secondly, the Appellant in proffering his submission on whether the lower Court was correct in admitting the confessional statements in evidence, an objection having been raised as to its voluntariness, conflates the legal principles applicable when the weight to be attached to a retracted confessional statement is in issue, with the considerations for the admissibility of a statement when its voluntariness is put in issue. It bears restating that when an objection is taken on the grounds that a statement was not voluntarily made, the trial Court conducts a trial within trial to ascertain the voluntariness of the statement and whether it is admissible in evidence. The Court is not at that stage concerned with the veracity of the contents of the statement and whether it is true and if there exists other evidence which shows that the statement is true.

Now, upon the Appellant objecting to the admissibility of his confessional statement upon the ground that it was not made voluntarily, the lower Court in keeping with the legal prescriptions conducted a trial within trial and upon being satisfied that the statements were made voluntarily, it admitted the statements in evidence as Exhibits A1 and A2. The Appellant has strongly argued that the lower Court erred in law by admitting the statements in evidence. In LASISI vs. THE STATE (2013) 9 NWLR (PT 1358) 74 at 96-97, Onnoghen, JSC (later CJN) quipped:
“Once a confessional statement is admitted following a trial within trial proceeding, it becomes very difficult for an appeal Court to intervene on an appeal against its admissibility as the evaluation of the evidence adduced at the said trial is based on the credibility of witnesses, which duty is solely that of the trial Court as the appellate Court is not privileged to have seen the witnesses testify nor watch their demeanour, etc.”

Accordingly, the confessional statements having been admitted in evidence after the trial within trial, this Court cannot intervene to hold that the said Exhibits A1 and A2 were not made voluntarily as urged by the Appellant.

Let me iterate that there was no eyewitness testimony. It was on the basis of the confessional statements that the Appellant was convicted of the offences charged. It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. 

The free and voluntary confessional statement of an accused person alone is enough to sustain a conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See YESUFU vs. THE STATE (1976) 6 SC 167 at 173, IDOWU vs. THE STATE (2000) 7 SC (PT II) 50 at 62-63, DIBIE vs. THE STATE (2007) 9 NWLR (PT 1038) 30 at 51 and 636, KAZA vs. THE STATE (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, OSENI vs. THE STATE (supra) at 374 and EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385.

The Appellant retracted his confessional statements, Exhibits A1 and A2, at the trial; however, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (supra) at 431 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement. See HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93.
But a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, of circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT. 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2004) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188-189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.

Even though the lower Court did not specifically refer to the tests in its judgment, it took cognisance of the legal requirement as it relates to a retracted confessional statement and the need to seek other evidence be it slight of circumstances which make it probable that the confession is true. It then held that the medical report and photograph of the deceased afforded other evidence which corroborated the confessional statements. (See pages 40-41 and 54-55 of the Records). So the lower Court followed the prescriptions of the law in this regard. We shall shortly examine whether the said confessional statements were such that established the ingredients of the offences charged. But first, let me consider the Appellant’s contention that the defence of alibi was available to him.

Now, the term alibi, is not defined in the Evidence Act. It is however a derivative of two Latin words ‘alius’ meaning ‘other’ and ‘ibi’ or ‘ubi’ meaning ‘there’ or ‘where’. Its usage in criminal jurisprudence is a dexterous fusion of the first three letters of the word ‘alius’ and the last two letters of the word ‘ibi’ or ‘ubi’, hence the word ‘alibi’. See ALANI vs. THE STATE (1993) 7 NWLR (PT 303) 112 at 114, THE STATE vs. AZEEZ (2008) 4 SC 188, ADEWUMI vs. THE STATE (2012) LPELR (9753) 1 at 32 and OMORUYI vs. THE STATE (2016) LPELR (40133) 1 at 55.
Paucis verbis, alibi means elsewhere other than the scene of crime at the relevant time: ATTAH vs. THE STATE (2010) 10 NWLR (PT 1201) 190. 

In criminal trials, where the defence of alibi is raised at the earliest opportunity, the Prosecution has the burden to investigate it and disprove the same. It is not for the accused person to establish his alibi to the satisfaction of the Court; it is for the Prosecution to disprove the alibi vide OSUAGWU vs. THE STATE (2013) LPELR (19823) 1 at 20-21. 

However, the defence of alibi is destroyed by contrary evidence fixing the accused person at the scene of crime. See KOLADE vs. THE STATE (2017) LPELR (42362) 1 at 35-36, OSUAGWU vs. THE STATE (supra) at 21, ONUCHUKWU vs. THE STATE (1998) LPELR (2701) 1 at 21 and PETER vs. THE STATE (1997) LPELR (2913) 1 at 29-30.

The Appellant did not raise any alibi in the statements he made to the Police. So the defence of alibi was not raised at the earliest opportunity. The defence of alibi was raised at the trial, such that the Police could not have investigated it. In EBENEHI vs. THE STATE (2009) LPELR (986) 1 at 13, Ogebe, JSC asseverated:
“…It is trite law that for the defence of alibi to be properly raised, it must be raised at the earliest opportunity when an accused person is confronted by the police with the commission of an offence so that the police will be in a position to check the alibi.”
The defence of alibi is therefore unavailing in the circumstances of this matter. See ADEYEMI vs. THE STATE (2017) LPELR (42584) 1 at 16, EHIMIYEIN vs. THE STATE (2016) LPELR (40841) 1 at 17-18 and MOHAMMED vs. THE STATE (2015) LPELR (25694) 1 at 46. 

Furthermore, the Appellant confessed to the commission of the offences charged in Exhibits A1 and A2. The confessional statements therefore put him at the scene of the crime and automatically rebuts the defence of alibi. See OPEYEMI vs. THE STATE (2019) LPELR (48764) 1 at 33-34, ARCHIBONG vs. THE STATE (2004) 1 NWLR (PT 855) 488 at 509 and IKEMSON vs. THE STATE (1989) 3 NWLR (PT 110) 455 at 479. Put bluntly, the confessional statements debunked and destroyed the plea of alibi which was raised at the trial.

The law is well settled on the ingredients which the Prosecution has to establish beyond reasonable doubt in order to secure a conviction for rape, which is the offence for which the Appellant was tried and convicted in count one of the Charge. In stating the essential ingredients to be proved in a charge of rape under the Penal Code, Galumje, JSC stated as follows in IDAM vs. THE STATE (2020) LPELR (49564) 1 at 5-6:
“Section 282 provides as follows:-
‘282 (1) A man is said to commit rape who, save in the case referred to in Subsection (2), has sexual intercourse with a woman in any of the following circumstances: –
(a) against her will;
(b) without her consent;
(c) with her consent, when her consent has been obtained by putting her in fear of death or of hurt;
(d) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(e) with or without her consent, when she is under fourteen years of age or of unsound mind.
(2) Sexual intercourse by a man with his own wife is not rape, if she has attained to puberty.’ …
For the prosecution to prove the offence of rape, it must establish the following ingredients: –
1. That the accused had sexual intercourse with the woman in question.
2. That the act was done in circumstances following under any one of the five paragraphs in Section 282 (1) of the Penal Code.
3. That the woman was not the wife of the accused; or if she was his wife that she had not attained puberty.
4. That there was penetration of the vagina of the victim no matter how slight by the accused’s penis.”
Put simply, the essential ingredients of the offence of rape are:
1. That there was unlawful carnal knowledge (involving actual penetration of the vagina) of a woman or girl.
2. That the unlawful carnal knowledge was without the consent of the woman or girl.
3. That the consent was obtained by force or threat.
See LUCKY vs. THE STATE (2016) 13 NWLR (PT 1528) 128 at 169, THE STATE vs. MASIGA (2018) 8 NWLR (PT 1622) 383 at 410 and OGUNBAYO vs. THE STATE (2007) 8 NWLR (PT 1035) 157 at 178.

The sole prosecution witness introduced the confessional statements which the Appellant volunteered in the course of investigation. The said statements were correctly admitted in evidence after a trial within trial. In Exhibit A1, the Appellant after narrating how he saw four female children quarrelling in the bush and how the other three left the deceased who was to go back home; he continued and stated:
“… then I follow her. On reaching a certain area I called her and told her that I want to make love with you and she said she did not agree. Then I forced her, and used her, as she did not agree I used my hand and grasp her by her neck, after finishing what I want, I discovered that she was already dead … I was the person who raped that girl and in the process she died.”
In Exhibit A2, the Appellant further stated as follows:
“.. then I said I want to have sexual intercourse with her but she refused, when she refused I decided to use force on her, when I succeeded in having sexual intercourse with her she started crying shouting that she will go and report the incident to her father…”

The above periscope from the confessional statements of the Appellant clearly speak to and establish the ingredients of the offence of rape. It establishes that the Appellant had unlawful carnal knowledge of the deceased that it was without the consent of the deceased and that the Appellant used force on her to have his way. See EZIGBO vs. THE STATE (2012) LPELR (7855) 1 at 8-9, ADONIKE vs. THE STATE (2015) 7 NWLR (PT 1458) 237 and IDAM vs. THE STATE (supra) at 5-6. The finding of the lower Court at page 40 and 54 of the records that the confessional statements of the Appellant admitted the commission of the offence and was sufficient to ground a conviction for the offence of rape cannot be faulted.

The Appellant tried to fault the decision of the lower Court on the ground that the lower Court ought to have sought corroborative evidence of the rape. It seems that the law of corroboration in the offence of rape is in some flux or state of confusion. The authorities are divided on whether there is need to have corroboration. This confusion was clearly highlighted by Tobi, JSC in OGUNBAYO vs. STATE (supra) at 187-189 when he stated:
“There are two dimensions to the issue of corroboration as decided by the Courts. First, the Courts hold that rape is not an offence in which corroboration is required by law and procedure. But the Court should warn itself of the danger of convicting an accused of rape in uncorroborated evidence. Second, an accused person cannot be convicted unless the evidence of the prosecutrix is corroborated.
I take the case law in that order. In the State v. Ogwudiegwu (1968) NMLR 117, it was held that the offence of rape, in order to secure a conviction, corroboration of the evidence of the complainant implicating the accused is not essential, but a Judge must warn himself of the risk of convicting on the uncorroborated evidence of the complainant.
In Okpanefe v. The State (1969) 1 ALL NLR 420, it was held that by Section 178 (5) of the Evidence Act, the Court cannot convict an accused on a charge of rape without corroboration, and in this regard an early report of the commission of the offence is not tantamount to corroboration. Similarly, in Sambo v. The State (1993) 6 NWLR (Pt.300) 399, this Court held in 1993 that it is the law that before the prosecution can secure conviction for the offence of rape, the evidence of the prosecutrix (the victim of the rape) must be corroborated in some material particular that sexual intercourse did take place and that it was without her consent. It was also held that a piece of evidence offered as corroboration for the offence of rape must be (a) cogent, compelling, and unequivocal as to show without more that the accused committed the offence charged; (b) an independent evidence which connects the accused with the offence charged; (c) evidence that implicates the accused in the commission of the offence charged. See also Upahar v. State (2003) 6 NWLR (Pt. 816) 230.
In Iko v. The State (2001) 14 NWLR (Pt. 723) 221 in 2001, eight years after the decision in Sambo, it was held that it is not the rule of law that an accused person in charge of rape cannot be convicted on the uncorroborated evidence of the prosecutrix. The proper direction is that it is not safe to convict on the uncorroborated evidence of the prosecutrix. The Court may, after paying due attention to the warning, nevertheless convict the accused person if it is satisfied with the truth of her evidence. This Court also held that the fact that the prosecutrix says that an accused inserted his penis into her vagina is not ipso facto sufficient proof of penetration in the absence of corroboration.
Let me take here the ‘warning business’ that the appellate Courts have given to the trial Judge. In England where the principle emerged and is applicable, the trial by jury is in force. In view of the fact that the jury convicts, the procedure is that the Judge should warn the Jury of the danger of convicting on the uncorroborated evidence of the complainant. Is that really necessary in Nigeria where the Jury System is no more? What is the practical effect of the law expecting the trial Judge to warn himself of the danger of convicting without corroboration? If he does not warn himself in reality and writes down in his judgment that he did, how useful is that in the entire truth searching process? Is our adjectival law not pretentious here? And can law afford to be pretentious?
I am not comfortable with the case law that corroboration is necessary to secure conviction of the offence of rape. This is because I see no statute foisting on the prosecution evidence of corroboration before convicting an accused…. I therefore ask, where did we get that law?
In all practicality, what evidence of corroboration is really needed in the offence of rape? In most cases, the offence is committed in private. Although in some cases, the shout and call for assistance of the prosecutrix attract the public, that is not a regular phenomenon. After all, the prosecutrix herself may not like to be seen by the public when the act of rape is committed. She would rather prefer reporting the rape after the act. And so, it is difficult to secure corroboration from evidence of an eye witness. That is the more reason why it is difficult to secure evidence of corroboration that the accused inserted his penis into the vagina of the prosecutrix.
If our adjectival law requires corroboration (a point I am not prepared to concede), then corroboration could be deduced from inter alia, the denials of the accused, the last opportunity the accused had to commit the offence, medical evidence of the examination of the prosecutrix confirming the allegation of recent forcible coitus and the existence of recent semen in the vagina of the prosecutrix directly traced or traceable to the accused.
I realise that the law of corroboration in the offence of rape is in some flux or state of confusion. It is hoped that this Court will have an opportunity in the future to look at the decisions on the issue. As this is not such an opportunity, I will leave the issue hanging.”
So, the learned Justice of the Supreme Court left the issue hanging. This was in 2007. Happily, the apex Court has in several ex cathedra pronouncements settled the issue to the effect that corroboration is not necessary in order to secure conviction for the offence of rape. See for instance the cases ISA vs. THE STATE (2016) LPELR (40011) 1 at 30-31, MOHAMMED vs. KANO STATE (2018) LPELR (43913) 1 at 13-22 and 25 and ALI vs. THE STATE (2020) LPELR (53409) 1 at 40. In the circumstances, the foofaraw made by the Appellant that the lower Court did not seek corroborative evidence of the rape is of no moment. More so, when it is stated in the Medical Report, Exhibit B, that the deceased had “a wounded vagina with bruises all over”. The Report further stated: “Corpse seems to have been sexually (probably) assaulted before been [sic] killed…”

The Appellant was convicted in count two of the charge with the offence of culpable homicide. The essential ingredients to establish in a charge of culpable homicide are:
1. That the death of a human being took place.
2. That such death was caused by the accused person.
3. That the act of the accused person that caused the death was done with the intention of causing death or that the accused person knew that death would be the probable consequence of his act.
See HARUNA vs. A-G FEDERATION (2012) LPELR (7821) 1 at 26-27, GALADIMA vs. THE STATE (2017) LPELR (43469) 1 at 19-20, ILODIGWE vs. THE STATE (2012) LPELR (9342) 1 and THE STATE vs. JOHN (2013) LPELR (20590) 1 at 22. 

In order to secure a conviction, the Prosecution must prove all these ingredients of the offence of culpable homicide against the Appellant beyond reasonable doubt. See UBANI vs. THE STATE (2003) 18 NWLR (PT 851) 24, IGABELE vs. THE STATE (2006) NWLR (PT 975) 100 and ADAVA vs. THE STATE (2006) NWLR (PT 984) 155. 

In his confessional statement, Exhibit A2, the Appellant after narrating how he raped the Appellant and how she started crying and shouting that she would report the incident to her father, continued:
“… as at that time that she was shouting I was still holding her then I decided to use the hoe in my possession and hit her on the left side of her eye, when I discovered she is dead I was upseted [sic] then I drag her body to a place that she cannot easily be seen…”

From the facts before the Court, it is not confuted that the death of a human being took place; so it is the second and third ingredients of the offence of culpable homicide that are at play here. Undoubtedly, the Appellant’s confessional statement, Exhibit A2, established the said ingredients and the lower Court rightly so held. The Appellant confessed to his act which caused the death of the deceased, hitting her with a hoe on the left side of her eye (left temple) with a view to silencing her and stopping her for all times from making good her threat of reporting the rape incident to her father.

The object with which the Appellant hit the deceased is an object which, in the diacritical circumstances, coupled with where the Appellant struck the deceased; is a lethal object. Such was the force with which the Appellant struck the deceased that she died on the spot. It is settled law that where a person is attacked with a lethal weapon and he dies on the spot or shortly afterwards, it is reasonable to infer that the injury inflicted on him caused the death. See EDOHO vs. THE STATE (2010) LPELR (1015) 1 at 18-19, ALI vs. THE STATE (2015) LPELR (24711) 1 (SC), BEN vs. THE STATE (2006) 16 NWLR (PT 1006) 582, SHAIBU vs. THE STATE (2017) LPELR (42100) 1 at 21, MUHAMMAD vs. THE STATE (2017) LPELR (42098) 1 at 23-26 and OMILADE vs. THE STATE OF LAGOS (2020) LPELR (51807) 1 at 22-23.

By Section 83 (1) (b) of the Evidence Act, documentary evidence as to facts in issue are admissible in evidence even where the maker is not called as a witness, provided that reasonable efforts were made to get the maker of the document without success. The sole prosecution witness testified that the doctor who prepared the medical report was a Corper and that he could not get in touch with him, since he had completed his service as a youth corper. The lower Court was therefore justified in law to admit the medical report in evidence. Howbeit, the kerfuffle made by the Appellant of the fact that the medical doctor, who issued the medical report, Exhibit B, was not called as a witness, does not detract from the fact that the cause of death was proved since it can be properly inferred that the cause of death is the Appellant having hit the deceased on her left temple with the hoe which resulted in her death on the spot.

It is trite law that a person intends the natural consequences of his action and where there is an intention to cause grievous bodily harm and death results, then the accused person must be held culpable for the offence of culpable homicide. See NWOKEARU vs. THE STATE (2013) LPELR (20642) 1 at 36. 

In order to determine whether an accused person really had an intention to commit homicide, the criteria which have been laid down by law include:
1. The nature of the weapon used, which has to be a lethal weapon in the sense that it is a weapon which can be deadly or cause death.
2. The part of the body which was brutalised by the lethal weapon, and;
3. The extent of proximity of the victim with the lethal weapon used by the accused person.
See IDEN vs. THE STATE (1994) 8 NWLR (PT 365) 719.
In this matter, the evidence discloses that the Appellant used a hoe to hit the deceased because she was crying, shouting and threatening to report the rape incident to her father. The Appellant’s intention to commit homicide or grievous bodily is made manifest by the fact that the Appellant brutalised the deceased by hitting her on the left side of her eye, the left temple. In defining the intention that would establish guilt in criminal law, Ariwoola, JSC stated as follows in NWOKEARU vs. THE STATE (supra) at 41-42:
“The one point in the instant case is the intention, which it is necessary to impute to the appellant in order to find him guilty of the crime of murder.
The following had been proposed in answer to the above question of general public importance.
‘(1) Before an act can be murder, it must be ‘aimed at someone’ and must in addition be an act committed with one of the following intentions, the test of which is always subjective to the actual accused person.
(i) The intention to cause death;
(ii) the intention to cause grievous bodily harm, that is, really serious injury;
(iii) where the accused person knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits those acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstances whether the accused desires those consequences to ensue or not and in none of these cases, does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed.
See Director of Public Prosecution vs. Smith (1960) 2 ALL ER 161.
2. Without an intention of one of these three types, the mere fact that the accused conduct is done in the knowledge that grievous bodily harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder.’
See Hyam Vs Director of Public Prosecution (1974) 2 ALL ER 41 at 43, 56 per Lord Hailsham of St Marylebone.
In the instant case from the type of instrument used (a dagger) and the particular part of the body of the deceased stabbed by the appellant, that is on the left side of the chest where the heart of the body is said to lay, there is no doubt that the appellant, at the very least, intended to cause grievous bodily harm resulting into serious injury that was most likely to cause death of his victim.”

I kowtow. It cannot be confuted that the third ingredient to be proved in a charge of culpable homicide was made out. The act of the Appellant which caused the death of the deceased was done with the intention of causing death and the Appellant knew that death would be the probable consequence of his lethal act.

The Appellant had argued that the Prosecution did not call vital witnesses who would have testified that the deceased was last seen alive with the Appellant. I iterate that the Prosecution in proof of its case relied on the confessional statements of the Appellant, reliance on confessional statement is one of the three ways or methods of proving an offence beyond reasonable doubt. Put in perspective the material or vital witness in that context would be the investigating police officer who obtained the statement from the Appellant. The investigating police officer was the sole witness called by the Prosecution and the Appellant’s confessional statements were tendered and admitted in evidence through him after a trial within trial.

It seems to me that the law is now firmly settled beyond peradventure that there is no obligation on the Prosecution to call a host of witnesses, provided that the material or vital witnesses are called. What really matters is not the number of witnesses called, but the quality of evidence adduced. See OKONOFUA vs. THE STATE (1979) 6-9 SC 18, ALABI vs. THE STATE (1993) 7 NWLR (PT. 307) 511, OLAYINKA vs. THE STATE (2007) 9 NWLR (PT. 1040) 561 at 576 and 584 and ADEDARA vs. THE STATE (2009) LPELR (8194) 1 at 76. As stated by Tobi, JCA (as he then was) in his usual fecund style of fervid prose in AKINYEMI vs. THE STATE (1996) 6 NWLR (PT 607) 449 at 466:
“The prosecution has no duty to call a village or community of witnesses to prove the charge of murder or any other charge.
It is not the number of witnesses that interests a Court of law, but whether the ingredients of the offence are proved.”

As a matter of fact, I do not think that the Appellant can be heard to argue that a material or vital witness was not called by the Prosecution as there was nothing stopping the Appellant from calling the witnesses in his defence. See OCHIBA vs. THE STATE (2011) 17 NWLR (PT 1277) 663 at 695 and OKOROJI vs. THE STATE (2002) 5 NWLR (PT 759) 21.

The lower Court properly evaluated the Appellant’s confessional statements against the background of the essential ingredients of the offences charged. The findings of facts and conclusions reached on the evidence by the lower Court are definitely not perverse. The Appellant’s failure to show that the findings are perverse signifies the lack of merit in this appeal. See SANDE vs. THE STATE (1982) 4 SC 41, THE STATE vs. AIBANGBEE (1998) 3 NWLR (PT. 84) 548 and DIBIE vs. THE STATE (2007) All FWLR (PT. 353) 83 at 102 and 110. Concomitantly, even if the photograph of the deceased, which was interrogated under issue number two, was wrongly admitted in evidence, it does not appear to me that the photograph can be reasonably held to have affected the decision of the lower Court. The decision would have been the same even if the said photograph had not been admitted in evidence. See Section 251 (1) of the Evidence Act and the cases of THE STATE vs. OGBUBUNJO (2001) 2 NWLR (PT 698) 576, OBIDIOZO vs. THE STATE (1987) 12 SC 74 at 93, OLAOYE vs. THE STATE (2018) LPELR (43601) 1 at 40-41 and ELIYA vs. THE STATE (2020) LPELR (50318) 1 at 22-23.

In conclusion, the lower Court rightly held that the offences charged were proved beyond reasonable doubt. Therefore, the issues for determination are resolved against the Appellant. This appeal is lacking in merit, it fails and it is hereby dismissed. The decision of the lower Court embodying the conviction and sentence imposed on the Appellant is hereby affirmed.
Appeal dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, Ugochukwu Anthony Ogakwu, JCA, gave me the advantage of reading in advance, the draft of the judgment just delivered.

Having read the judgment of the trial Court and the totality of the evidence adduced at the trial, I agree with my learned brother that the learned trial Judge apparently relied substantially on the confessional statement of the Appellant (Exhibits A1 and A2) to convict. I also agree that there is no other legally admissible and admitted evidence on the record which contradicted or tended to contradict those extra-judicial statements of the Appellant. Furthermore, the said extra-judicial statements, which were found to be confessional, were tendered and admitted after undergoing the rigour of a trial-within-trial.

It should be noted that, a statement of an accused person made to the police, if duly and validly proved to have been voluntarily made, is sufficient to base a conviction on it without the need for any corroborative evidence. It is only when the accused person retracts or resiles from the confession, that corroboration will be required from the totality of admitted evidence on record. Where such corroborative evidence is found on the totality of the evidence adduced at the trial, conviction of the accused person will be upheld on appeal. In the instant case, the learned trial Judge understood what the law required of him and clearly demonstrated so in the Judgment. See Sadiq Husseini v. The State (2020) LPELR – 50435 (CA), Kanula v. The State & ors. (2020) LPELR – 50435 (CA) and Dogo v. The State (2013) 2 – 3 S.C. (Pt. 11) 75. See also Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. Thus, in Ifeanyichukwu Akwuobi v. The State (2016) LPELR – 41389 (SC), the Supreme Court held that:
“It is trite law and already settled that, a free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court is alone sufficient to warrant a conviction even if there is no corroborative evidence. Therefore, a conviction based on such a confessional statement will not be quashed on appeal, merely because it is based entirely on the evidence of confession by the Appellant. What is important is that the Court must be satisfied with the facts and circumstances in which the confession was made…”

It is for the above reason and the other reasons meticulously heralded in the lead judgment that I agreed that this appeal has no merit. It is hereby dismissed. I abide by the consequential orders made in the lead judgment.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.

I equally agree with the reasoning and the conclusion that the appeal lacks merit and it is accordingly dismissed.
I abide by all the consequential orders.

Appearances:

Mrs. B. O. Akinseye George with him, J. T. Amende, Esq. For Appellant(s)

F. A. R. Obi-Okafor, Esq. For Respondent(s)