HASSAN v. STATE
(2022)LCN/16793(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/ABJ/CR/1054/2021
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
BASHIR HASSAN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT
However, in law, proof beyond reasonable doubt does not mean proof beyond all shadow of doubts. See Section 135 of the Evidence Act 2011. See also Miller V. Minister of Pensions (1974) 2 All ER 372, Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Nkebisi V. State (2010) 5 NWLR 421, Ndidi V. The State (2007) All FWLR (Pt. 338) 1617 AT p. 163, Omotola V. The State (2008) 2 FWLR (Pt. 418) P. 2190, Udosen V. The State (2007) 4 FWLR (Pt. 388) 5721. PER GEORGEWILL, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN SUBSTITUTE ITS FINDINGS OF FACT FOR THAT OF THE TRIAL COURT
I thought I should proceed with the known position of the law that we sitting here as appellate justices, who have not seen the witnesses testify and observed their demeanor in the witness stand, should respect the views of the lower Court on matters of facts and we are not readily to substitute our own views for that of the lower Court, which saw and heard the witnesses testify and also, but very crucially, observed their demeanor unless and except where it is shown that the conclusion and or finding reached by the Court below was perverse. See Saeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 AT P. 1681. See also Clement Ofoni V. State (2021) LPELR – 55642 (CA) per Sir Biobele Abraham Georgewill JCA; Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 AT P. 19, Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 AT P. 1302. PER GEORGEWILL, J.C.A.
THE OFFENCE OF CRIMINAL CONSPIRACY
Now, in a Count alleging Criminal Conspiracy, the law is that the Respondent, being the Prosecution before the lower Court, was under the duty to prove beyond reasonable doubt, though not beyond any fanciful doubt, by credible and cogent evidence all the following essential elements of the offence of Criminal Conspiracy, namely: that there was an agreement between two or more persons; the agreement was to do or cause to be done some illegal act or legal act by illegal means; and that the individuals participated in the agreement with each other, accused persons. See Garba V. COP (2007) 16 NWLR (Pt. 1060) 378 AT P. 405. See also See Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA; Clement Ofoni V. State (2019) LPELR – 48803 (CA) per Sir Biobele Abraham Georgewill JCA.
Thus, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. In law, a conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means and thus so long as a design rests in intention only it is not indictable. But, when two or more agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. See Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA. See also Odunayo V. State (2014) 12 NWLR (Pt. 1420) 1. See also Oduneye V. State (2001) 2 NWLR (Pt. 697) 311, Mulcahy V. R (1868) 3 H.L. @ P. 317, Patrick Njovens & Ors. V. The State (1973) 5 S.C. 17, Daboh & Anor V. The State (1977) 5 SC.197.
The offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. Thus, in most cases, the proof of conspiracy is generally a matter of inference deduced from certain criminal acts of Accused persons done in pursuance of an apparent criminal purpose in common between them. In law, since direct evidence of conspiracy is rare to find in most cases, though possible to find in some few cases, the following guide may be used in arriving at whether or not the evidence led by the Prosecution established the offence of conspiracy, namely: The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design; There may be one person who is the hub around whom the others resolve; A person may communicate with ‘A’ and ‘A’ with ‘B’, who in turn communicates with another and so on. This is called the chain conspiracy. See Black’s Law Dictionary, Ninth Edition AT p. 351. See also Taofeek Adeleke V. State (2013) 16 NWLR (Pt. 1381) 556 AT p. 584, Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Kaza V. State (2008) 7 NWLR (Pt. 1085) 125.
Thus, in order to establish the offence of conspiracy, it is not necessary that the conspirators should or must know each other so long as they know of the existence and the intention or purpose of the conspiracy. However, it must be pointed out at once that the facts to be relied upon by the Court for conviction for conspiracy must be consistent, cogent and must irresistibly lead to the guilt of the accused persons. See Emeka Obodochina V. The State (2021) LPELR – 55562(CA) per Sir Biobele Abraham Georgewill JCA. See also Erim V. The State(1994) 5 NWLR (Pt. 346). See also Oladejo V. The State (1994) 6 NWLR (Pt. 348) 101, Alegba & Ors V. The King (1950) 19 NLR 129, Francis Tole Lawson & Ors V. The State (1975) 1 All NLR 175 AT Pp. 181 – 182, Silas Sule V. The State (2009) 17 NWLR (Pt. 1169) 33, Benson Obiakor & Anor V. The State (2002)10 NWLR (Pt. 776) 612. PER GEORGEWILL, J.C.A.
THE BURDEN OF PROOF IN AN OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
Now, in a Count alleging Culpable Homicide punishable with death, the law is that the Respondent was under the duty to prove beyond reasonable doubt, though not beyond every shadow of doubt or to the hilt, by credible and cogent evidence all the following essential elements of the offence of Culpable Homicide punishable with death, namely: that the death of the deceased, that the death of the deceased was caused by the Appellant, and that the act or omission of the Appellant that caused the death of the deceased was intentional, with the knowledge that death was the probable or likely consequences of the act. See Section 221 of the Penal Code. See also Timothy Abu V. The State (2022) LPELR-56902(CA) per Sir Biobele Abraham Georgewill JCA, Deriba V. The State (2016) LPELR- 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Michael V. The State (2008) LPELR-1874 (SC) AT P. 20, Isma’il V. The State (2011) LPELR-9352, Dare Kada V. State (1991) 8 NWLR (Pt. 208) 134 AT p. 154. PER GEORGEWILL, J.C.A.
THE POSITION OF LAW ON THE PRIMARY DUTY OF THE TRIAL COURT
I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the lower Court and once that Court discharges that duty satisfactorily on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an Appellate Court will not interfere once the conclusions reached is correct. See Edman V. The State (2021) LPELR – 55754 (CA) per Sir Biobele Abraham Georegwill JCA. See also Ogunniyi V. The State (2012) LPELR – 8567(CA), Amadi V. FRN (2011) Vol. 9 LRCNCC 177 AT pp. 179 -180, Afolalu V. The State (2012) Vol. 10 LRCNCC 30 AT p. 40, Aiguokhian V. The State (2004) 7 NWLR (Pt. 873) 565, Ubierho V. State (2005) 2 SC (Pt.1) 18 AT pp. 21 – 22, Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors(2004) 13 NWLR (Pt. 889) 187 AT P. 198. PER GEORGEWILL, J.C.A.
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State, Coram: Mohammed S. A. Mohammed J, in Charge No. NSHC/MN/2C/2020: The State V. Goni Tijani & 5 Ors delivered on 20/10/2021. The Appellant was found guilty of Criminal Conspiracy, Culpable Homicide punishable with death and Theft contrary to Sections 97, 221 and 288 of the Penal Code and was sentenced to death by hanging and five – years imprisonment.
The Notice of Appeal was filed on 15/11/2021 on six grounds of appeal. See pages 160 – 166 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 30/12/2021. The parties filed and exchange their briefs, which were adopted as their arguments at the hearing of this appeal on 7/6/2022. The Notice of Preliminary objection was filed on 11/2/2022 The Appellant was represented by Clement Ezika Esq. appearing with Nicholas Asuza Esq. The Respondent was represented by Ojonimi .S. Apeh Esq. appearing with Faith Y. Nwini Esq.
Before the lower Court, the Appellant and five others were charged with the following offences, namely:
1. That you Goni Tijani Abdulkadir Muktari, Bashir Alhassan, Ismaiye Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja L.G.A. within the jurisdiction of this Honourable Court jointly killed one Mustapha Goni Umar Banaga and thereby committed the offence of culpable homicide punishable under Section 221 of the Penal Code to be read with Section 79 of the Penal Code Law.
2. That you, Goni Tijani, Abdulakdir Muktari, Bashir Alhassan, Ismaiye Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this Honourable Court conspired to kill one Mustapha Goni Umar Bamanga and thereby committed the offence of conspiracy punishable under Section 97 of the Penal Code Law 89 Laws of Northern Nigeria.
3. That you Goni Tijani, Abdukadir Muktari, Bashir Alhassan, Ismaiye Umar, Isah Sani and Yusuf Muktari on or about the 26th July, 2019 at Tungan Maje via Suleja LGA within the jurisdiction of this Honourable Court stole a truck filled with fuel thereby committed the offence of theft punishable under Section 288 of the Penal Code Law Cap 89 Laws of Northern Nigeria.
See page 6 of the Record of Appeal.
BRIEF STATEMENT OF FACT
The Appellant and five other persons were charged with the offences of Conspiracy, Theft and Culpable Homicide punishable with death contrary to Sections 79, 288 and 221 of the Penal Code. They were alleged to have committed the offences on 26/7/2019 at Tunga Maje Via Suleja Local Government Area within the jurisdiction of the lower Court. They were arrested by the Police at Gada Biu Village along the Gwagwalada – Lokoja Road while they were about to sell Petroleum products inside a Truck which was allegedly stolen at the NNPC Depot, Tungan Maje Suleja. The Truck was in custody of one Mustapha Goni Bamanga, the deceased, a night before their arrest and the body of the Mustapha Goni Bamanga was found in the morning where the Truck was parked by him and the Truck had been taken away, but which Truck was later found in the possession of the Appellant and the other Five Accused persons. The Police commenced investigation into the matter and subsequently, they were all arraigned before the lower Court for the allegedly killing the deceased, Mustapha Goni Bamanga, criminal conspiracy and theft of the truck, offences contrary to Sections 221, 97 and 288 of the penal code. The Respondent alleged that it was the Appellant, who was the 3rd Accused person before the lower Court, together with the other five Co – Accused persons, that killed the Deceased and stole the petroleum products in the truck in his custody.
On 14/7/2020, the Appellant and his five other Co – Accused person each pleaded not guilty to each of the counts in the charges preferred against them by the State. The matter proceeded to trial. At the hearing, the Respondent called four witnesses, who testified as PW1 – PW4, and tendered some documents which were admitted in evidence as Exhibits A – L. The Appellant testified for himself and closed his defense. Each of the other five Co – Accused persons also testified for themselves and closed their defenses. At the close of the trial, the parties filed and exchanged their final written addresses, which were duly adopted by their respective counsel on 19/7/2021. On 20/10/2021, the lower Court delivered its judgment in which it found the Appellant guilty as charged and sentenced him to death by hanging for Culpable Homicide and five – years imprisonment for Theft, hence this appeal. See pages 160 – 166 and 244 – 285 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the six Grounds of Appeal to wit:
1. Whether the Respondent proved its case beyond reasonable doubt against the Appellant?
2. Whether the statement made by the Appellant as recorded by the Police met the legal requirement?
3. Whether the lower Court was right when he convicted the Appellant solely on the alleged direct and positive confessional statement together with circumstantial evidence.
In the Respondent’s brief, a sole issue was distilled as arising for determination in this appeal, to wit:
“Whether having regards to the evidence adduced by the Respondent, the lower Court was right to hold that the Respondent proved beyond reasonable doubt the case against the Appellant as required by law to warrant the conviction and sentence passed on the Appellant?
I have taken time to consider the charges laid against the Appellant and the evidence led by the Respondent in proof thereof as well as the evidence led by the Appellant in his defense. I have also considered the submissions of learned counsel to the parties in their respective briefs in the light of the findings and decisions reached in the judgment of the lower Court as in the Record of Appeal. I am of the firm view that the proper issue for determination in this appeal is the sole issue as distilled in the Respondent’s brief, a consideration of which, in my view, would invariably involve a consideration of the three issues as distilled in the Appellant’s brief. However, I shall consider the Respondent’s sole issue together with all the Appellant’s three issues and resolve them in one fell swoop. But first, there is a Notice of Preliminary Objection challenging the competence of the appeal, which being in the nature of jurisdictional issue shall be considered first and resolved one way or the other before proceeding, if need be, to consider the merit of the appeal.
NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 11/2/2022, the Respondent is challenging the competence of this appeal and praying that it be dismissed on the grounds that the five grounds of appeal are too general in terms and or not based on the reasons for the decision appealed against; that there are alleged errors in law and misdirection in the same grounds without specifying the nature of error and the misdirection as required by law; that the appeal is academic as well as an abuse of Court’s process, and this Court cannot assume jurisdiction to hear and determine this appeal that did not challenge the decision of the lower Court on live issues in controversy between the parties.
RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on the preliminary objection, which I have taken time to review in its entirety, learned counsel for the Respondent had submitted inter alia that the grounds of appeals are just mere quotations from the judgment of the lower Court without showing in specific terms the errors and or misdirection complained of and contended that they are vague, verbose, argumentative and disclosed no reasonable grounds as required by law and urged the Court to so hold and to strike out the Notice of Appeal for being incompetent. Counsel referred to Order 7 Rule 2 (2) and 3 of the Court of Appeal Rules 2021, and relied on Elendu V. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 AT p. 719, Akuchie V. Nwamadi (1992) 8 NWLR (Pt. 258) 214 AT p. 223, Mark Onochie Oduah V. Federal Republic of Nigeria (2012) LPELR-9220(CA) AT Pp. 22 – 23, Uwazuruike V. Nwachukwu & Ors (2012) LPELR – 15353 (CA), Olufeagba V. Abdur Raheem (2009) 18 NWLR (Pt. 1173) 384, NNPC V. Aminu (2013) LPELR – 21396 (CA), Faluyi & Ors V. Ogunseye & Ors (2019) LPELR – 48015 (CA), Action Peoples Party V. Yahaya Bello & Ors (2020) LPELR – 50167 (CA) AT pp. 17-18.
It was also submitted that the particulars in support of the grounds of appeal are either narrative, argumentative or independent of those grounds ad contended that even if the grounds of appeal as vague are taken to be competent, the appeal is merely academic and an abuse of Court’s process in that the grounds of appeal did not challenge the reasons for the decision having not challenged the circumstantial evidence relied upon by the lower Court as compelling and mathematically pointing to the Appellant and the five Co – Accused persons as having committed the offences for which they were charged and urged the Court to hold that the Appellant having not appealed against the findings of the lower Court of having committed the offences with which he was charged, no utilitarian value can be conferred on the Appellant by the success of this appeal since he would still be bound by the findings not appealed against and thereby amounted to an abuse of Court’s process and ousting the jurisdiction of this Court and to strike out the Notice of Appeal for being incompetent. Counsel relied on UTC Nigeria Limited V. Pamotei (1989) 2 NWLR (Pt. 103) 244, Saude V. Abdullahi (1989) 4 NWLR (Pt. 116) 387, Ede V. Omeke (1992) 5 NWLR (Pt. 242) 428, Dakar V. Dapal (1998) 10 NWLR (Pt. 577) 573, Sama’ila V. The State, (2021) LPELR – 53084 (SC), Abacha V. Fawehinmi (2000) 6 NWLR (Pt. 571) 573, Nze V. Aribe (2016) LPELR – 40617 ((CA), Ossai V. FRN (2013) 13 WRN 87; Shettima V. Goni (2012) 18 NWLR (Pt. 1279) 413, Ajibulu V. Ajayi (2013) LPELR – 21860 SC, CPC V. INEC (2011) 18 NWLR (Pt. 1279) 493, COP Imo State V. Michael Ekweribe & Anor (2018) LPELR – 43949 (CA), Ugba V. Suswam (2014) 14 NWLR (Pt. 1427) 264 AT Pp. 313 – 314, Plateau State of Nigeria V. Attorney General of the Federation (2006) 3 NWLR (Pt. 967) 346, Abubakar V. Yar’ Adua (2008) All FWLR (Pt. 404) 1409 AT p. 1437, SPDC (Nig.) Ltd. V. Edamkue (2009) All FWLR (Pt. 489) 407 AT p. 430, Oke V. Mimiko (No. 1) (2014) 3 NWLR (Pt. 1388) 225 AT P. 265, Endurance Ebee V. The State, (2022) LPELR – 56586 (CA), Oteki V. AG. Bendel State (1986) LPELR – 2823 (SC), Chief Frank Ebba V. Washi Ogodo and Anor (1984) 4 SCNLR 372, Chibuzor V. FRN (2017) LPELR – 41852 (CA).
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on the preliminary objection, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the grounds of appeal are neither vague nor merely generic but rather are concise, distinct and does not contain any argument and contended that the grounds of appeal not only attacked the decision of the lower Court convicting the Appellant but also raised reasonable grounds of complaints against the judgment of the lower Court and urged the Court to hold that the real essence of grounds of appeal, which is to give to the other party and the Court, the grouse of the Appellant against the judgment appealed against, was complied with as the grouse of the Appellant were well understood by the Court and the Respondent and to dismiss the preliminary objection, which was a mere university thesis with no shred of reality in it and to proceed to consider and determine the appeal against a conviction and sentence to death, a capital punishment, on the merit.
RESOLUTION OF PRELIMINARY OBJECTION
My Lords, in considering the grounds of the preliminary objection challenging the competence of all the six grounds of appeal in the Notice of Appeal, I think the first port of call is the complaints in these grounds of appeal whose competence are being challenged by the Respondent. I shall therefore take the liberty to reproduce the grounds I, 2, 3, 4, 5 and 6 but without their particulars as follows:
GROUND 1:
The learned trial judge was not right with due respect when he held as follows:
“From the evidence before me, the reasonable inference and irresistible conclusion is that the accused persons and nobody else killed the deceased, stole the vehicle and the petrol therein”.
GROUND 2: ERROR IN LAW
The learned trial judge with due respect erred in law when he held that the prosecution proved its case beyond reasonable doubt.
GROUND 3: ERROR IN LAW
The learned trial judge erred in law with respect when the Court held as follows:
“I hold that the statement of the accused persons are positive direct and consistent and lead to one inference and conclusion that they both conspired and killed Mustapha Goni Bamanga, stole both the truck and the petrol therein.”
GROUND 4: ERROR IN LAW
The learned trial judge erred in law when he held as follows:
“The defense that the accused persons made their statement in Hausa and the Hausa Version was not tendered lacks legal consequences in that the recorders of the statement, who understand Hausa language were in Court and told the Court how the statement were recorded.”
GROUND 5: ERROR IN LAW
The learned trial judge erred in law when he held that as follows:
“It is also my humble view that the whole idea of these crimes was conceived, natured and executed by the 1st Accused person. The sole motive was to steal the patrol and sell same.”
GROUND 6: ERROR IN LAW
The learned trial judge erred in law when he held that the Appellant can be convicted solely on his positive and direct confessional statement together with the circumstantial evidence and the testimony of other witnesses.
Now, in ground one, the Appellant challenges the conclusion reached by the lower Court that it is the Appellant and his Co – Accused persons and no one else that killed the deceased, stole the truck and petrol therein. In grounds two, three and five, the Appellant challenges the conclusion reached by the lower Court that the Respondent proved its case of conspiracy, theft and culpable homicide beyond reasonable doubt solely on the confessional statement of the Appellant. In ground 4, the Appellant challenges the decision of the lower Court to convict the Appellant on extra-judicial statement which did not comply with the requirement of the law as to its being taken and translated into the language the Appellant understands. In ground 6, which was not even challenged by the Respondent, the Appellant challenged his conviction on the basis of circumstantial evidence in the absence of any eyewitness account of the incident.
The contention of the learned counsel for the Respondent is that these grounds are nebulous, vague, argumentative and did not disclose the nature of the complaints of the Appellant against any of the decisions, particularly the finding of guilt and sentence, in the judgment appealed against so as to give sufficient notice of and the precise nature of the complaints to the Respondent. The Appellant would hear none of this and had vehemently contended that the grounds of appeal were not only concise and precise and against the findings of guilt of the Appellant and therefore, disclosed reasonable complaints against the conviction and sentence of the Appellant but that the grounds of appeal clearly contend that both the conviction and sentence of the Appellant by the lower Court in the judgment appealed against were wrong in law.
My Lords, I have taken time to look critically at each of the six grounds of appeal, along with their particulars as set out thereunder, and without considering at this stage their merits or demerits, I find that in each of these six grounds of appeal together with the particulars thereof, the Appellant did gave sufficient notice and information of the precise nature of his grouse and or complaints against the finding of guilt, conviction and sentence of the Appellant by the lower Court to both this Court and the Respondent. See Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783 (CA) per Sir Biobele Abraham Georgewill JCA.
In law, the real essence of a ground of appeal, is to give sufficient notice and information of the precise nature of his grouse and or complaints against the judgment appealed against. It is not how detailed a ground of appeal is but rather how concise and precise it states clearly the grouse against the findings and decisions in the judgment appealed against. There is nothing patently wrong in setting out in quote or otherwise some of the passages in the judgment appealed against that is alleged to be either an error, whether of law and or fact, or a misdirection and setting out in the particulars thereof the alleged error or misdirection. In some cases, and it is permissible in law, a ground of appeal could as well contain the particulars without setting them out separately, and that alone will not render such a ground of appeal incompetent. See Order 2(2) and (3) of the Rules of the Court of Appeal 2021.
My Lords, indeed, there is no way a dispassionate look at grounds 1, 2, 3, 4, 5 and 6 together with the particulars, and in an appeal against conviction and sentence to death, can be described as vague or general in terms and thus incompetent. In law, all that is required of an Appellant by the rules of this Court, in articulating his grounds of appeal, is to give sufficient notice and information as to the precise nature of his complaint to the Respondent. Thus, once a ground of appeal satisfies that purpose, as I find present in grounds 1, 2, 3, 4, 5 and 6 of the grounds of appeal, it is competent, valid and cannot be described as vague or general in terms. See Dyeris V. Mobil Oil (Nig.) Plc (2010) 1 NWLR (Pt. 1175) 309 AT p. 329. See also Chief Austine Oguejifor &Anor V. Ubakason Nigeria Limited (2022) LPELR-56783 (CA) per Sir Biobele Abraham Georgewill JCA.
Now, the rules relating to formulations of grounds of appeal are primarily designed to ensure fairness to the other side, and the primary purpose of which is to give sufficient notice and information to the other side of the precise nature of the complaint of the Appellant. Thus, any ground of appeal that satisfies that purpose, such as grounds, 1, 2, 3, 4, 5, and 6 in the Appellant Notice of Appeal, should not and cannot be struck out as vehemently bit clearly erroneously contended by the learned counsel for the Respondent. See Aderounmu V. Olowu (2000) 4 NWLR (Pt. 652) 253. See also Chief Austine Oguejifor & Anor V. Ubakason Nigeria Limited (2022) LPELR-56783 (CA) per Sir Biobele Abraham Georgewill JCA.
In the circumstances therefore, I find no iota of merit in the preliminary objection challenging the competence of grounds 1, 2, 3, 4 and 5 on the misconceived and erroneous ground that they are nebulous, vague and imprecise and thereby rendered merely academic as well as constituting an abuse of Court’s process, none of which they are. On the contrary, they are precise, concise and disclosed very reasonable basis in law for them to be considered and determined on the merit. It is rather, and I must confess, the Respondent’s grounds of preliminary objections, which I had to struggle to make some sense out of them, that are in themselves so disjointed, vague and rambling. In the circumstances therefore, I hold that the preliminary objection fails and it is hereby overruled and dismissed. I shall proceed to consider the merit of the appeal anon!
SOLE ISSUE
Whether having regards to the evidence adduced by the Respondent, the lower Court was right to hold that the Respondent proved beyond reasonable doubt the case against the Appellant as required by law to warrant the conviction and sentence passed on the Appellant?
APPELLANT’S COUNSEL SUBMISSIONS
In his submissions on his issue one for determination, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that in law it is the duty of the Respondent to prove all the ingredients of the offences charged beyond reasonable doubt and contended that the Respondent failed to prove that the Appellant caused the death of the deceased or conspired to cause the death of the deceased as there was no eye witness who gave any evidence linking the Appellant with the commission of the alleged offences and urged the Court to hold neither the death nor the cause of death of the deceased was proved by the Respondent as required by law since there was no evidence of any autopsy or any medical report was tendered, coupled with the lower Court not observing the body of the Deceased and to allow the appeal and set aside the judgment of the lower Court founded on mere speculation and contradictory stories as to both the death and cause of death of the Deceased and to discharge and acquit the Appellant. Counsel referred to Section 135 – 138 of the Evidence Act 2011, and relied on Osumare V. People Of Lagos State (2014) All FWLR (Pt. 757) 605; Edoho V. State (2004) 5 NWLR (Pt. 865) 17 AT pp. 45 – 46, Edun V. FRN (2019) 13 NWLR (Pt. 1689) 326 AT P. 339.
In his submissions on his issues two and three for determination, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it convicted the Appellant solely on the alleged confessional statement together with the circumstantial evidence and the testimony of other witnesses since the alleged confessional statement did not pass the test of the standard required by law and contended that the extra-judicial statement of the Appellant recorded in English language, and which version was tendered in evidence, rather than in the Hausa language which the Appellant understands, was both wrongfully admitted in evidence as Exhibits G, G1 and Z and relied upon by the lower Court and used solely to convict the Appellant in the absence of any corroborative evidence contrary to the requirement of the law and urged the Court to hold that this failure leading to the wrongful conviction of the Appellant had occasioned a grave miscarriage of justice against the Appellant and to allow the appeal, set aside the judgment of the lower Court and discharge and acquit the Appellant. Counsel relied on Adeyemi V. State (2013) 3 NWLR (Pt. 1340) 79 AT Pp. 88 – 89, Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 AT p. 819, State V. Azeez & Ors (2008) 4 SC 188, Saidu V. State (1982) 4 SC 41, Agbi V. Ogbeh (2006) 11 NWLR (PT 990) 65 AT p. 119, Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156.
RESPONDENT’S COUNSEL SUBMISSIONS
In his submissions on the sole issue for determination, which I have taken time to review in its entirety, learned counsel for the Respondent had submitted inter alia that the lower Court was right when it held that the Respondent proved beyond reasonable doubt the charges laid against the Appellant as required by law to warrant his conviction and sentence on the irresistible and compelling circumstantial evidence supported by the statement of the Appellant pointing to and proving beyond reasonable doubt the guilt of the Appellant as rightly found by the lower Court and contended that on the evidence it was clearly proved that the Appellant and his Co – Accused persons were arrested at Gada Biu while they were attempting to sell the fuel in the truck where the Deceased, late Mustapha, who was last seen inside the said truck at Tunga Maje a night before the incident was killed and his body was found lying at where the truck vehicle was stolen with its contents and urged the Court to hold that in law the only reasonable, irresistible and compelling inference is that it is the Appellant and his Co – Accused persons, having failed to explain how they had lawfully come about the truck of the deceased and the contents therein, and no one else, that killed the Deceased and stole the truck with the petroleum contents therein and to dismiss the appeal for lacking merit and affirm the conviction and sentence passed on the Appellant by the lower Court. Counsel relied on Okpako V. State (2018) LPELR – 43875 (SC), Sani V. State (2017) LPELR – 43475 (SC), Uzor V. State (2014) 12 NWLR (Pt. 1422) 548, Esseyin V. State (2018) LPELR – 44476 (SC), Sylvester Umukoro V. The State (2020) LPELR – 52649 (CA) AT Pp. 12 -13, Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V. State (2015) LPELR – 25574(CA) AT Pp. 30-31, Michael Peter V State (1997) LPELR – 2912 (SC) AT pp. 24 – 25, Uyo V. AG of Bendel State (1986) LPELR – 3452(SC) 20.
It was also submitted that it was not a mere coincidence that the Appellant and the Co-Accused persons were found with the truck of the Deceased who had been killed and not only were the Appellant and the Co-Accused persons found with the truck of the Deceased but they were in the process of selling the petroleum contents therein when they were arrested by the Police with both the truck and the petroleum contents therein and contended that in the circumstances it was left for the Appellant and his Co – Accused persons caught with both the truck and the contents therein hitherto under the custody of the Deceased, found dead, to explain how they lawfully come by both the truck and the petroleum contents they were attempting to sell but they failed to do so and urged the Court to hold that the lower Court was right to have found them guilty on such irresistible and compelling circumstantial evidence and the absence of any eye witness account was therefore, in law of no moment and to dismiss the appeal for lacking in merit and affirm the judgment of the lower Court.
It was further submitted that it was too late in the day for the Appellant to attempt to appeal against the interlocutory ruling on admissibility of Exhibit A delivered on 8/2/2021 by the lower Court without the prior leave of this Court to do so out of time, and contended that on the entirety of the evidence led the Respondent proved all the ingredients of the offences with which the Appellant was charged and urged the Court to hold that with the undisputed evidence of the Appellant and his Co – Accused found in possession of the Truck of the Deceased and were about selling the petroleum contents before they were arrested by the Police, coupled with their failure to explain how they lawfully came into possession of these properties, in law they were rightly presumed by the lower Court to be those whole stole the truck and the petroleum contents and killed the Deceased under whose custody these properties were before his death and to dismiss the appeal for lacking merit and affirm the sound judgment of the lower Court. Counsel referred to Section 167(a) of the Evidence Act 2011, and relied on The State V. Usen Okon Ekanem, (2016) LPELR – 41304(SC) AT p. 21; Semiu Afolabi V. The State (2013) 13 NWLR (Pt. 1371) 292 AT P. 319, Aliyu V. The State (2013) LPELR – 20748 (SC), Elina Shide V. The State, (2018) LPELR -45038 (CA), Malami Mohammed V. The State (2018) LPELR – 46561(CA), Oduneye V. State (2001) 2 NWLR (Pt. 697) 311 AT P. 325, Sanni – Omotosho V. Obidairo (2014) LPELR – 23006 (CA).
APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, which I have taken time to review in its entirety, learned counsel for the Appellant had submitted inter alia that the Respondent failed to call material witnesses, like the Medical Doctor that was alleged to have carried out the Autopsy Report and contended that the Respondent also failed to call any of the eyewitnesses that witnessed the commission of the offence and urged the Court the hold that Exhibit B, the extra-judicial statement of the Appellant was wrongly admitted in evidence and should be expunged for being inadmissible and to allow the appeal, set aside the perverse judgment of the lower Court and discharged and acquit the Appellant.
RESOLUTION OF THE SOLE ISSUE
My Lords, the sole issue for determination, which is the sole issue as distilled in the Respondent’s brief, deals directly with the question whether or not the Court below was right when it held that, on the evidence both oral and documentary placed before it by the parties, the Respondent proved its case of Criminal Conspiracy and Culpable Homicide punishable with death and theft as alleged against the Appellant and his Co – Accused persons beyond reasonable doubt as required by law and for which it convicted and sentenced the Appellant to death by hanging and 5 years imprisonment? However, in law, proof beyond reasonable doubt does not mean proof beyond all shadow of doubts. See Section 135 of the Evidence Act 2011. See also Miller V. Minister of Pensions (1974) 2 All ER 372, Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Nkebisi V. State (2010) 5 NWLR 421, Ndidi V. The State (2007) All FWLR (Pt. 338) 1617 AT p. 163, Omotola V. The State (2008) 2 FWLR (Pt. 418) P. 2190, Udosen V. The State (2007) 4 FWLR (Pt. 388) 5721.
I thought I should proceed with the known position of the law that we sitting here as appellate justices, who have not seen the witnesses testify and observed their demeanor in the witness stand, should respect the views of the lower Court on matters of facts and we are not readily to substitute our own views for that of the lower Court, which saw and heard the witnesses testify and also, but very crucially, observed their demeanor unless and except where it is shown that the conclusion and or finding reached by the Court below was perverse. See Saeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 AT P. 1681. See also Clement Ofoni V. State (2021) LPELR – 55642 (CA) per Sir Biobele Abraham Georgewill JCA; Obajimi V. Adediji (2008) 3 NWLR (Pt. 1075) 1 AT P. 19, Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 AT P. 1302.
Let me commence the consideration of the sole issue for determination by reproducing the relevant provisions of the Penal Code under which the Appellant was charged along with his Co – Accused persons by the Respondent and found guilty and sentenced by the lower Court. By Section 221 of the Penal Code, it is provided as follows:
“Except in the circumstances mentioned in Section 222, Culpable Homicide shall be punished with death.
a) If the act by which the death is caused is done with the intention of causing death, or
b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
By Section 97 of the Penal Code, it is provided as follows:
“Whosoever is a party to a Criminal Conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such a conspiracy shall be punished in the same manner as if he had abetted such offence.”
By Section 83 of the Penal Code, it is provided as follows:
“Whoever abets any Criminal Offence shall, if the act abetted is committed in consequence of the abetment and no express provision is made by this Penal Code or by any other law form the time being in force for the punishment of such abetment, be punished with the punishment provided for the offence.”
And, by Section 288 of the Penal Code, it is provided as follows:
“Whoever commit Theft from or in or from any building, tent or vessel, which building is used as a human dwelling or used for custody of property or in or from any railway carriage lorry omnibus or aircraft used for the conveyance of passengers or goods shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”
Now, in a Count alleging Criminal Conspiracy, the law is that the Respondent, being the Prosecution before the lower Court, was under the duty to prove beyond reasonable doubt, though not beyond any fanciful doubt, by credible and cogent evidence all the following essential elements of the offence of Criminal Conspiracy, namely: that there was an agreement between two or more persons; the agreement was to do or cause to be done some illegal act or legal act by illegal means; and that the individuals participated in the agreement with each other, accused persons. See Garba V. COP (2007) 16 NWLR (Pt. 1060) 378 AT P. 405. See also See Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA; Clement Ofoni V. State (2019) LPELR – 48803 (CA) per Sir Biobele Abraham Georgewill JCA.
Thus, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. In law, a conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means and thus so long as a design rests in intention only it is not indictable. But, when two or more agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. See Godday Jonah V. The State (2021) LPELR – 55643(CA) per Sir Biobele Abraham Georgewill JCA. See also Odunayo V. State (2014) 12 NWLR (Pt. 1420) 1. See also Oduneye V. State (2001) 2 NWLR (Pt. 697) 311, Mulcahy V. R (1868) 3 H.L. AT P. 317, Patrick Njovens & Ors. V. The State (1973) 5 S.C. 17, Daboh & Anor V. The State (1977) 5 SC.197.
The offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. Thus, in most cases, the proof of conspiracy is generally a matter of inference deduced from certain criminal acts of Accused persons done in pursuance of an apparent criminal purpose in common between them. In law, since direct evidence of conspiracy is rare to find in most cases, though possible to find in some few cases, the following guide may be used in arriving at whether or not the evidence led by the Prosecution established the offence of conspiracy, namely: The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design; There may be one person who is the hub around whom the others resolve; A person may communicate with ‘A’ and ‘A’ with ‘B’, who in turn communicates with another and so on. This is called the chain conspiracy. See Black’s Law Dictionary, Ninth Edition AT p. 351. See also Taofeek Adeleke V. State (2013) 16 NWLR (Pt. 1381) 556 AT p. 584, Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA, Kaza V. State (2008) 7 NWLR (Pt. 1085) 125.
Thus, in order to establish the offence of conspiracy, it is not necessary that the conspirators should or must know each other so long as they know of the existence and the intention or purpose of the conspiracy. However, it must be pointed out at once that the facts to be relied upon by the Court for conviction for conspiracy must be consistent, cogent and must irresistibly lead to the guilt of the accused persons. See Emeka Obodochina V. The State (2021) LPELR – 55562(CA) per Sir Biobele Abraham Georgewill JCA. See also Erim V. The State(1994) 5 NWLR (Pt. 346). See also Oladejo V. The State (1994) 6 NWLR (Pt. 348) 101, Alegba & Ors V. The King (1950) 19 NLR 129, Francis Tole Lawson & Ors V. The State (1975) 1 All NLR 175 AT Pp. 181 – 182, Silas Sule V. The State (2009) 17 NWLR (Pt. 1169) 33, Benson Obiakor & Anor V. The State (2002)10 NWLR (Pt. 776) 612.
Now, in a Count alleging Culpable Homicide punishable with death, the law is that the Respondent was under the duty to prove beyond reasonable doubt, though not beyond every shadow of doubt or to the hilt, by credible and cogent evidence all the following essential elements of the offence of Culpable Homicide punishable with death, namely: that the death of the deceased, that the death of the deceased was caused by the Appellant, and that the act or omission of the Appellant that caused the death of the deceased was intentional, with the knowledge that death was the probable or likely consequences of the act. See Section 221 of the Penal Code. See also Timothy Abu V. The State (2022) LPELR-56902(CA) per Sir Biobele Abraham Georgewill JCA, Deriba V. The State (2016) LPELR- 40345 (CA) per Sir Biobele Abraham Georgewill JCA, Michael V. The State (2008) LPELR-1874 (SC) @ P. 20, Isma’il V. The State (2011) LPELR-9352, Dare Kada V. State (1991) 8 NWLR (Pt. 208) 134 @ p. 154.
In a count alleging theft under Section 287 and 288 of the Penal Code, the Respondent was under a duty to prove, by credible evidence beyond reasonable doubt, all the essential ingredients of the offence of theft, namely: that the property in question is a movable property, that the property was in possession of a person; that the accused person moved the property whilst in possession of the person; that the accused person did so without the consent of that person; that he did so in other to take the property out of the possession of that person, and that he did so with intent to cause wrongful gain to himself or wrongful loss to that person. See Babagana Grema V. The State (2020) LPELR – 51432 (CA).
So, what then are the pieces of evidence led by the parties, the Respondent as Prosecution and on whom the burden of proof beyond reasonable doubt strictly lies and never shifts, and the Appellant, whose innocence is presumed until proved guilty, on counts 1, 2 and 3 with which the Appellant was charged before the lower Court below and on which it reached its conclusions that the Appellant was guilty on all the Counts and convicted and sentenced him accordingly?
Now, by an amended charges brought pursuant to an application dated 13/7/2020, the Appellant and his Co – Accused persons were alleged to have committed the offences of Conspiracy, Culpable Homicide, and Theft, contrary to Sections 97, 221 and 288 of the Penal Code respectively. On 14/7/2020, the Appellant pleaded not guilty to each of the three Counts as alleged against him. The Respondent proceeded, in proof of its case against the Appellant, to call four witnesses. PW1, was one Inspector Ahmad Hamza. His evidence is at pages 185 – 187 and 205 – 206 of the Record of Appeal. PW2 was one Sgt. Angulu Pada. His evidence is at pages 192 – 194, 208 – 209 and 220 of the Record of Appeal. PW3 was one Sgt. Irimiya Pakachi. His evidence is at pages 210 – 213 of the Record of Appeal. PW4 was one Aliyu Usman. His evidence is at pages 2213 – 216 and 220 of the Record of Appeal. The Respondent tendered some documents, mainly the extra-judicial statements of the Appellant and his Co – Accused persons, which were admitted in evidence as Exhibits A – L. The Appellant testified in his defense. His evidence is at pages 227 – 229 of the Record of Appeal. All the Co – Accused persons also testified in their own defense.
My Lords, I have taken time to review, re-evaluate and consider the entirety of the evidence by the parties as in the Record of Appeal in the light of the essential ingredients of all the offences with which the Appellant was charged and the findings and conclusions reached thereon by the lower Court.
It was on the strength of the above pieces of evidence, both oral and documentary as led by the parties and as in the Record of Appeal that the Court below delivered its judgment on 20/10/2021, and convicted the Appellant on all the three counts and sentenced him to death and five – years imprisonment. See pages 243 – 284 of the Record of Appeal.
In law, it is the Respondent that has the unshifting burden of proving the essential elements of the offences of Criminal Conspiracy, Culpable Homicide and Theft as to both the physical elements and the mental elements, as earlier set out, of each and all of the offences with which the Appellant was charged. It follows therefore, a failure on the part of the Respondent to prove any or all of the essential elements that constitute these offences with which the Appellant was charged would be fatal to the charges, which would then not have been proved as required by law. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81, Emeka V. The State (2001) 14 NWLR (Pt. 734) 666, Peter Igho V. The State (1978) 3 SC 87, Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
However, in law in proving its case against an accused person, the Prosecution has open to it three basic types of evidence, each of which is sufficient by itself, with which to prove its case beyond reasonable doubt and to secure the conviction of the accused person, and they include Direct Eye Witness Account, Confessional Statement and Circumstantial Evidence. See Mohammed & Anor V. The State (2007) LPELR – 1894 (SC); See also Deriba V. State (2016) LPELR – 40345(CA), per Sir Biobele Abraham Georgewill JCA, Okoh V. The State (2021) LPELR – 56328 (CA) per Sir Biobele Abraham Georgewill JCA. See also Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81, Buba V. The state (2016) LPELR – 40201 (CA).
I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the lower Court and once that Court discharges that duty satisfactorily on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an Appellate Court will not interfere once the conclusions reached is correct. See Edman V. The State (2021) LPELR – 55754 (CA) per Sir Biobele Abraham Georegwill JCA. See also Ogunniyi V. The State (2012) LPELR – 8567(CA), Amadi V. FRN (2011) Vol. 9 LRCNCC 177 AT pp. 179 -180, Afolalu V. The State (2012) Vol. 10 LRCNCC 30 AT p. 40, Aiguokhian V. The State (2004) 7 NWLR (Pt. 873) 565, Ubierho V. State (2005) 2 SC (Pt.1) 18 AT pp. 21 – 22, Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors(2004) 13 NWLR (Pt. 889) 187 AT P. 198.
The Respondent, it would appear going by the evidence as in the Record of Appeal, relied principally on both circumstantial evidence and the extra-judicial statement of the Appellant in proof of its case against the Appellant. The lower Court found the circumstantial evidence to be compelling and irresistible coupled with the statement of the Appellant and convicted him as charged.
The learned counsel for the Appellant had vehemently contended that there were neither any compelling and irresistible circumstantial evidence nor admissible extra judicial statement of the Appellant to warrant the inference drawn by the lower Court and the perverse conviction and sentence of the Appellant. It was argued forcefully for the Appellant that at best what the lower Court relied upon were mere speculation, which cannot form the basis of conviction in law.
The learned counsel for the Respondent would hear none of these and had equally contended vehemently that the circumstantial evidence were so compelling and irresistibly pointed at none other than the Appellant and his Co – Accused person, as rightly found by the lower Court, as the persons who conspired, killed the deceased and stole the petroleum products in the truck hitherto in the custody of the deceased, who was found death, coupled with the properly admitted extra-judicial statement of the Appellant admitted in evidence after a trial within trial.
So, what in law is circumstantial evidence and were the circumstantial evidence, if any led against the Appellant, so compelling and irresistible and pointed to none other than the Appellant as one of the persons who committed the offences of Criminal Conspiracy, Culpable Homicide and Theft as alleged by the Respondent? In other words, did the Respondent prove its case against the Appellant as required by law and was the lower Court right or wrong when it convicted and sentenced the Appellant as charged?
In law, circumstantial evidence is the proof of circumstances from which, according to the ordinary course of human affairs, the existence of some fact may reasonably be presumed. It is that evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is as good as, sometimes even better than, any other form of evidence in the sense that it amounts to circumstances which are accepted as to make a complete and unbroken chain of evidence. Interestingly, circumstantial evidence is regarded, very often, as the best evidence. It is therefore not a derogation of evidence, as many defense lawyers are wont to think, to say that a piece or pieces of evidence is circumstantial. See Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V. State (2015) LPELR – 25574(CA) AT Pp. 30-31, Michael Peter V State (1997) LPELR – 2912 (SC) AT pp. 24 – 25, Uyo V. AG of Bendel State (1986) LPELR – 3452(SC) 20.
There is no doubt, in my mind, that before the lower Court, save the extra-judicial statement of the Appellant, there was no direct eyewitness account of how the Deceased met his death and who killed the Deceased. However, in law where there is no direct evidence linking the cause of death to the death to the act of an Appellant, the fact of death can be established by evidence of surrounding circumstances. See Joseph Lori V. The State (1980) LPELR – 1794 (SC). See also Stephen Ukorah V. The State(1977) LPELR – 3345 (SC); Amaechi V. The State (2014) LPELR 22499 (CA).
Now, from the extra-judicial statement of the Appellant, whose admissibility or otherwise in law I shall return to consider, which is consistent with the facts as led in evidence by the Respondent of the action and activities of the Appellant and his Co-Accused persons, including being found in possession, as it is said at common parlance, ‘red hand’ of the truck which was hitherto just the previous night in the custody and possession of the Deceased as well as attempting to sell the petroleum contents therein before their arrest by the Police, it seems clear to me, and as was rightly held by the lower Court, that the Appellant was amongst the persons who conspired and killed the Deceased and stole the truck under his custody and possession and attempted to sell the petroleum products therein before they were caught ‘red handed, by the Police. This inference is both compelling and irresistible leaving nothing to chance that it was indeed the Appellant and some other persons, as alleged by the Respondent, and none other than that indeed agreed to and did cause the death of the Deceased, stole the truck and petroleum contents therein and attempted to sell off the petroleum contents therein before they were arrested.
These pieces of evidence of the entire surrounding circumstances had by undersigned coincidence, which the learned counsel for the Appellant referred to as mere coincidence, was capable of and indeed proved the proposition that it was the Appellant and the other persons as alleged by the Respondent, that conspired and killed the Deceased in order to steal the truck and petroleum products therein in his custody for the purpose of selling the same for their wrongful gain with the accuracy of mathematics. These pieces of evidence, though circumstantial because no one saw or testified to seeing the Appellant and his confederates do so, is as good as, if not better, than, any other form of evidence in the sense that it amounts to circumstances which are accepted as to make a complete and unbroken chain of evidence. See Mohammed V. State (2007) 11 NWLR (Pt. 1045) 303. See also Vivian Odogwu V. State (2013) LPELR – 42802 (SC) 23, Adesina V. State (2012) LPELR-9722(SC) 12, Udoh V. State (2019) LPELR – 47096(CA), Peter V. State (2015) LPELR – 25574(CA) AT Pp. 30-31, Michael Peter V State (1997) LPELR – 2912 (SC) AT Pp. 24 – 25, Uyo V. AG of Bendel State (1986) LPELR – 3452(SC) 20.
In relation to the offence of Theft as alleged against the Appellant and his Co – Accused persons, the admitted evidence before the lower Court was that they were caught ‘red handed’ by the Police at Gada Biu along the Gwagwalada – Lokojo Road while attempting to sell the petroleum contents of the truck, both of which clearly does not belong to the Appellant and or any of his Co – Accused persons. So, what else was needed to be led in evidence to prove the commission of the offence of theft against the Appellant? None I can fathom! I think and I so firmly hold that the lower Court was perfectly right when it held that at the time the Appellant and his Co-Accused persons were arrested attempting to sell off the petroleum products inside the truck they had earlier disposed the Deceased of, the offence of theft has been consummated and was clearly proved by direct and positive evidence, coupled with the strong legal, though rebuttable but which was not rebutted in any way, presumption against the Appellant that once a stolen property is found in somebody’s possession immediately after the theft, that person is either the thief or a receiver of the stolen property. See Section 167(a) of the Evidence Act 2011, which provides as follows:
“The Court may presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”
See also Evarist Eze V. The State (1985) LPELR – 1189 (SC), The State V. Usen Okon Ekanem, (2016) LPELR – 41304 (SC) AT p. 21, Semiu Afolabi V. The State (2013) 13 NWLR (Pt. 1371) 292 AT p. 319, Aliyu V. The State (2013) LPELR – 20748 (SC) Oduneye V. State (2001) 2 NWLR (Pt. 697) 311 AT p. 325.
I had earlier observed that there was no direct eye witness account of how the Deceased met his death but that the evidence of the cause of death need not in all circumstances be direct. In other words, the cause of death of the Deceased can be proved by evidence of surrounding circumstances, which simply is called circumstantial evidence in law. Thus, where the Deceased is shown by the evidence to have to have died on the spot after the attack, as in the instant case, even medical evidence could be dispensed with since the lower Court can, both legitimately and justifiably, infer the cause of death from the facts and surrounding circumstances as led in evidence before it. There was therefore, in my view and I so hold, going by the evidence of the cruel fate that befell the Deceased and leading to his death as demonstrated in the evidence as in the Record of Appeal, would hardly be any issue as to the cause of death to becloud the determination of the real question of who, and no longer what, caused the death of the Deceased.
It follows therefore, in law that there exist instances where medical evidence may be dispensed with in the proof of the cause of death of the deceased, but such evidence must be capable of showing that the death of the deceased occurred instantly or contemporaneously with the act of the accused person. In the instant appeal, I am satisfied that the death of the Deceased occurred contemporaneously when on the night of 26/7/2019 at Tungan Maje Via Suleja, the Appellant and his Co – Accused persons tied the Deceased on both of his legs and hands and eventually tied a rope or belt round his neck until he was dead, and therefore, whether there was direct evidence or medical report or not, there was really no necessity for any medical direct or medical evidence of his cause of death. See Timothy Abu V. The State (2022) LPELR – 56902 (CA) per Sir Biobele Abraham Georgewill JCA. See also Frank Onyenankeya V. State (1964) LPELR – 25198 (SC).
My Lords, it is true that the Appellant testified that he is a commercial motorcycle Ridder. He was travelling to Zamfara from Lagos but was informed at Ogere that there was no direct vehicle to Zamfara except through Niger state. On the following he met the 1st Accused person and requested him to take him to Dikko junction, but was told he was to Gada biu. At Gwagwalada they saw the 2nd, 4th, 5th, and 6th Accused persons who requested to be assisted to go to Lagos but he told them that he was going to Gada Biu. The vehicle got spoiled again and the 1st Accused was drawing fuel from the truck when they were arrested by the Police. However, though this evidence at the trial was clearly an afterthought, yet he was not able to explain his role in the possession of the truck with the other Accused persons and attempting along with them to sell the fuel contents therein at Gada Biu along the Gwagwalada – Lokojo High Way where he was arrested by the Police. There was no iota of doubt that at the time the Appellant was arrested the Deceased had died and his body was later discovered whilst both the truck and its contents hitherto under his custody had been stolen, or at least taken away from him whilst he lay dead.
On the proved circumstances therefore, I cannot but agree with the submissions of the learned counsel for the Respondent that the lower Court was right, and I too find that it was indeed right, when it held that from the evidence before it the only reasonable inference and irresistible conclusion is that the Appellant and his Co – Accused persons and nobody else killed the Deceased, stole the truck and the petroleum contents therein, which they had attempted to sell off before they were arrested by the Police. Indeed, the circumstantial evidence was very overwhelming, compelling and irresistible. In law, for circumstantial evidence to ground conviction, it must be positive, compelling, direct and link the Accused person with the offence charged. These findings by the lower Court, on the face of the very clear and compelling and irresistible circumstantial evidence, cannot be faulted at all. I affirm it to be correct. See Okpako V. State (2018) LPELR – 43875 (SC). See also Sani V. State (2017) LPELR – 43475 (SC), Uzor V. State (2014) 12 NWLR (Pt. 1422) 548, Esseyin V. State (2018) LPELR – 44476 (SC), Sylvester Umukoro V. The State (2020) LPELR – 52649 (CA) @ pp. 12 -13.
In its judgment delivered on 20/10/2021, the lower Court had, in convicting the Appellant, as well as his Co – Accused persons on the three Counts as charged by the Respondent, stated inter alia thus:
“From the statements of the Accused persons which is consistent with the facts of this case and the evidence produced by the Prosecution, it is clear that the Accused persons conspired and killed the deceased, stole the truck and attempted to sell the fuel which was inside the truck when they were arrested by the Police at Gada Biu. It is also my humble view that the whole idea of these crimes was conceived, natured and executed by the 1st Accused person. The sole motive was to steal the petrol and sell same. That can only be done by killing the driver of the vehicle who was in custody of the truck that has the fuel. The statement of all the accused persons gave a graphic detail of how the dastardly act was conceived, natured. That was the instruction of the 1st Accused person who was afraid of being exposed by the deceased if he survived the attack.”
I think, and I so firmly hold, that the lower Court was right in its findings as above!
Now, having held as above that the circumstantial evidence was compelling, overwhelming and irresistibly pointed to none other than the Appellant and his Co-Accused persons as the clear perpetrators of the dastard acts of conspiring to and indeed killing the Deceased and stealing the petroleum contents of the truck in his custody and possession, which they attempted to sell off before they were arrested, let me now consider the legal position of the extra-judicial statement of the Appellant, as to whether or not it was properly admitted in evidence and also relied upon by the lower Court.
The extra-judicial statements of the Appellant and his Co-Accused persons were each admitted in evidence as Exhibits A – L.
The extra-judicial statement of the Appellant was not part of the trial within trial as it was not objected to when it was tendered as having not been made voluntarily. It was admitted as Exhibit B. In the above circumstances therefore, I would take it that Exhibit B, having been admitted in evidence was clearly legal evidence that can be acted upon by the lower Court to either make finding of facts or to corroborate any other legal evidence led by the Respondent. There was therefore, nothing in law militating against or inhibiting its use by the lower Court to make proper finding of facts as it did in its judgment. See P. C. Adeusi Adesina V. The People of Lagos State WRN 622 per Eko JSC.
However, assuming but not so deciding that the issue of the admissibility or otherwise of Exhibit B, the extra-judicial statement of the Appellant, in evidence by the lower Court was still an outstanding live issue or could even be raised for the first time in this appeal, I have considered the submissions of learned counsel for the parties and reviewed the circumstances surrounding both the recording of the extra-judicial statement as well its tendering by the Respondent and admission in evidence by the lower Court.
Now, the Appellant and his Co – Accused persons, each made his Statement to the Police in Hausa language but the Hausa version was not tendered. However, there is evidence in the Record of Appeal that the Recorders of the Statements, who understand Hausa language testified to how the Statements were recorded. Specifically, PW2, one Sgt. Angulu Pada testified inter alia that the case was assigned to the team led by one inspector Hamza and he was directed to record the statement of the Appellant and the 1st and 5th Co – Accused persons and he took their statement one after the other. He cautioned each of them in Hausa and each of them volunteered his statement in Hausa but he recorded it in English and read same over to them in Hausa language and they each understood before they affixed their thump print thereon. He counter-signed as the Recorder in English language.
With the above evidence and coupled with the trial within trial, I hold that when the Recorder of an extra-judicial statement from a suspect was also the interpreter of the statement, then in law there would be no any need for the Recorder to record two different version of the said statements and the Recorder, acting also as the interpreter can directly record the statement in the language of the Court but must read it over and interpret same in the language that the suspect understand and in which it was made.
Thus, it is the law that when a Police Officer records the statement of a suspect who does not understand English but the Recorder understands both languages, he should record such statement in English so long as he testifies to this procedure at the trial. This is so because such a Police Officer is both the interpreter and recorder. He therefore, plays the dual role of an interpreter and recorder, and in such a circumstance, the statement so made and recorded is admissible, once it has been duly proved. This was the procedure adopted and what transpired as was testified to by the PW1, who was not shaken in his cross-examination and was therefore, rightly believed by the lower Court. See Asuquo Vs. The State (2016) LPELR- 40597 (SC). See also R. V. Oguewu (1949) 12 WACA 483, Okon V. State (2019) LPELR – 47476 (CA), Sunday V. State (2014) LPELR – 24415(CA), Queen V. Zakwakwa of Yaro (1960) 1 NCC 8; Nwali V. State (1991) 3 NWLR (Pt.182) 663, Olalekan V. State (2001) 18 NWLR (Pt. 746) 793 @ Pp. 819 – 820, Adeyemi V. State (2012) LPELR-7956(CA).
In the light of all I have found and stated above, the sole issue is hereby resolved against the Appellant in favor of the Respondent.
On the whole therefore, having resolved the sole issue against the Appellant in favor of the Respondent, I hold that the appeal lacks merit and is thus, liable to be dismissed. Accordingly, this appeal is hereby dismissed.
In the result, the judgment of the High Court of Niger State, Coram: Mohammed S. A. Mohammed J, in Charge No. NSHC/MN/2C/2020: The State V. Goni Tijani & 5 Ors delivered on 20/10/2021. The Appellant was found guilty of Criminal Conspiracy, Culpable Homicide punishable with death and theft contrary to Sections 97, 221 and 288 of the Penal Code and was sentenced to death by hanging and five – years imprisonment, is hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I read with deep clarity in draft, the judgment just delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA.
I am in full agreement with the reasoning and conclusion that the appeal lacks merit. I too, for the same reasoning, do dismiss this appeal. I abide by all the consequential orders laid out in the lead judgment.
MOHAMMED MUSTAPHA, J.C.A.: I have had the opportunity of reading in draft the leading judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered and I agree with the findings and conclusion reached therein that this appeal lacks merit and it is accordingly dismissed.
The judgment of the High Court of Niger State delivered by Hon. Justice Mohammed S. A. Mohammed, in Charge No. NSHC/MN/2C/2020 on 20/10/2021 is hereby affirmed.
I abide by the consequential orders.
Appearances:
Clement Ezika, Esq, with him, Nicholas Asuza, Esq. For Appellant(s)
Ojonimi S. Apeh, Esq, with him, Faith Y. Nwini, Esq. For Respondent(s)