IBRAHIM HABIBU v. THE STATE (2015)

IBRAHIM HABIBU v. THE STATE

(2015)LCN/7842(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of April, 2015

CA/K/204/C/2014

RATIO

EVIDENCE: CONFESSIONAL STATEMENT; WHAT IS CONFESSION

A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Once made, it may be given in evidence against the matter if it is relevant to any matter in issue in the proceedings provided that the prosecution proves beyond reasonable doubt to the Court that notwithstanding that it may be true, it was not made or obtained by oppression of the maker or in consequence of anything said or done in the circumstances existing at the time to render same unreliable. See Section 28 and 29 of the Evidence Act, 2011. In other words, whereas a confessional statement which is direct and positive and relevant to the fact in issue is relevant against its maker, SAIDU VS. THE STATE (1982) 3 SC 41, NWACHUKWU VS. THE STATE (2007) 11 MJSC 39, and is sufficient to ground conviction of the maker, OLALEKAN VS. THE STATE (2001) 18 NWLR (Pt.746) 793, STATE VS. SALAWU (2011) 18 NSLR (Pt. 1271) 883 at 906, the confession must have been voluntarily and freely made by the maker to be so admissible see MANSHEP NAMSOH vs. THE STATE (1993) 5 NWLR (Pt. 292) 129, RABIU Vs. THE STATE (2010) LPELR – 4888 (CA). per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF WHERE THE VOLUNTARINESS OF A STATEMENT IS CHALLENGED AND THE PROCEDURE FOR DETERMINING WHETHER A STATEMENT OF AN ACCUSED PERSON WAS VOLUNTARILY MADE

It is axiomatic as judicially established that where the voluntariness of a statement is challenged, the burden of proving beyond reasonable doubt that the confession was voluntary, is that of the prosecution without which proof, the confession would be rendered in admissible. AUTA VS. THE STATE (1975) NNLR 60, at 65, KAZEEM VS.THE STATE (2009) ALL FWLR (Pt. 465) 1749, KEKE VS. THE STATE (2003) FWLR (Pt.159) 1381 at 1451. It is also quite settled that the recognized and acceptable procedure for determining whether a statement of an accused person was voluntarily made or otherwise, is by conducting a mini trial known as a trial within trial whereby the Court hears the parties, takes evidence from the prosecution and the defence (accused and or witnesses) only on the purported confessional statement and at the conclusion of hearing, delivers its ruling either rejecting or admitting the statement. per. AMINA AUDI WAMBAI, J.C.A.

PRACTICE AND PROCEDURE: TRIAL WITHIN TRIAL; WHEN WILL TRIAL WITHIN TRIAL BE NECESSARY

It is however an established law that a “trial within trial” is necessary only where the objection to the admissibility of a statement on ground that same was made under duress, threat, etc was promptly taken at the time or stage that the statement is offered or tendered for admission by the prosecution, and not at any time later. F. R. N. Vs. FAITH IWEKA (2011) LPELR 9350 (SC), OGUDO VS. STATE (2011) 18 NWLR (Pt 1278) 1 at 45. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHAT DETERMINES WHETHER A DOCUMENT IS A PUBLIC OR PRIVATE DOCUMENT

What then, by the Evidence Act determines whether a document is a public or private document?
The following documents are, by Section 102 referred to as public documents:-
“(a) documents forming the official acts or records of the official acts of –
(i) The sovereign authority;
(ii) Official bodies and tribunals; or
(iii) Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
and
(b) Public records kept in Nigeria of private documents”.
Any other document that does not fall within this categorization, is simply called a private document by Section 103. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: STANDARD OF PROOF; THE DUTY ON THE PROSECUTION TO PROOF HIS CASE BEYOND REASONABLE DOUBT, THE EFFECT OF THE FAILURE TO DO THE SAME AND WHETHER PROOF BEYOND REASONABLE DOUBT MEANS PROOF BEYOND ALL SHADOW OF DOUBT

The duty on the prosecution to prove an offence beyond reasonable doubt against an accused person entails proving each and every material ingredient of the offence beyond reasonable doubt. Okeke vs. State (1995) 4 NWLR (Pt. 392) 676, 707 Alabi vs. State (1993) 7 NWLR (Pt. 307) 511 at 523 The failure of proof beyond reasonable doubt, which is a sine qua non to the conviction and sentence of the accused person, entitles the accused to a discharge and acquittal. Adekoya vs. The State (2010) LPELR 3605 (CA).
The prosecution will be said to have proved its case beyond reasonable doubt when it adduces evidence against the accused as to leave only a remote possibility in his favour which can be dismissed by the sentence “of course it is possible but not in the least probable” ? see Michael vs. State (2008) 13 NWLR (Pt.1104) 361 SC and when it has proved all the ingredients of the offence with which the accused is charged Isiaka vs. The State Namsoh vs. State (1993) 6 SCNJ (Pt.1) 55 at 59, Jamani vs. State (2005) 21 WRN 191, which must show with the certainty of the Law, that an offence has been committed and that no other person than the accused committed the offence Oseni vs. State (2010) LPELR 4033 (CA), Mufutau Bakare vs. State (1987) 3 SC 1 at 5. The said evidence must, with a degree of compulsion, be consistent w1h a high degree of probability Miller vs. Ministry of Pensions (1947) 2 ER 372, Shurumo vs. State (2010) 19 NWLR (Pt 1226) 73. However, proof beyond reasonable doubt does not mean proof beyond all shadows of doubt, nor proof beyond all possible or imaginary doubt or such proof that precludes every hypothesis except that which it tends to support. It is only such proof as satisfies the judgment and conscience of the Judge as a reasonable man applying his reason to the evidence before him that the crime charged has been committed by the accused as to leave no other reasonable conclusion possible. Afolalu vs. State (2010) LPELR – 197 (SC).
The prosecution is therefore required only to prove with credible evidence the material ingredients of the offences to support the charge against the Appellant with a high degree of probability that the Appellant committed the offences. Michael vs. State (Supra). per. AMINA AUDI WAMBAI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH; THE INGREDIENT OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

For the offence of culpable homicide punishable with death, the prosecution must prove, as reiterated in the case of Maiyaki vs. State (Supra), Akpan vs. State (2007) 2 NWLR (Pt 1019) 500 the following ingredients.
“(1) That the death of a human being (the deceased) has taken Place.
(2) That such death has resulted from the act of accused and
(3) That the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily injury/harm was its probable consequence. All these three ingredients, must co-exist to secure a conviction, and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved. per. AMINA AUDI WAMBAI, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO CONSIDER EVERY DEFENCE RAISED BY AN ACCUSED PERSON

It is indeed settled law that the Court is duty bound to consider every defence raised by an accused person howsoever improbable, weak or stupid. This is so because if the defence is not considered and disproved the Court would not only have failed in its duty but also, the prosecution cannot be said to have proved its case beyond reasonable doubt against the accused. Olayinka vs. State (Supra). per. AMINA AUDI WAMBAI, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; THE DUTY OF AN ACCUSED PERSON WHO DESIRES TO RAISE THE DEFENCE OF ALIBI TO PROVIDE THE PARTICULAR DETAILS OF HIS WHERE ABOUT AS TO THE SPECIFIC TIME AND PLACE HE WAS AS AT THE TIME OF THE COMMISSION OF THE OFFENCE STATING THE PERSON OR PERSONS HE WAS TOGETHER WITH, INCLUDING THE EVENT IF ANY THAT TRANSPIRED AT THE PLACE AND TIME AND HIS DUTY TO RAISE THE DEFENCE AT THE EARLIEST OPPORTUNITY

It is now settled law that an accused person who desires to raise and take advantage of the defence of alibi, should not only provide the full particulars of his whereabout as to the specific time and place he was as at the time of the commission of the offence stating the person or persons he was together with, including the event if any that transpired at the place and time so as to enable the Police investigate his claim, Udeodebere & 2 Ors. Vs. The State (2001) 6 SCNJ, 54 at 66- 67, also reported in (2001) 5 MJSC 146, Ebre & Ors. vs. The State (2011) LPELR 995 (SC). He must also raise the defence at the earliest opportunity during investigation to enable the prosecution investigate the claim to either disprove or affirm same. Ike vs. State (2010) 5 NWLR (Pt. 1186) 41, Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92, Adio vs. State (1986) 3 NWLR 714.
Therefore, for the Appellant to raise the defence of alibi when testifying in his defence at the trial, in my view, is to deliberately deny the prosecution its right and duty to investigate the defence, Gachi vs. The State (1965) NWLR 333, Ndidi vs. State (2005) QCCR Vol. 4 Page 10 and to ambush the prosecution, which entitles the prosecution to validly ignore the alibi. See Samson Ebenehi & Anor Vs. State (2009) 6 NWLR (Pt 1136) 431, at 444 Per Ogebe JSC. In Ibrahim vs. State (1991) 4 NWLR (Pt 186) 399, at 416 Belgore JSC (as he then was) held inter alia:-
“But at the trial, an accused person who never raised an alibi when making his statement to the Police, on oath in his defence raised the issue of his not being at “Locus criminis” at the time the offence he is alleged to have committed took place raises a new issue entirely from alibi. For alibi is adefence raised before trial for Police to investigate so as to decide its veracity, but once before the Court, an accused person who raises a defence of his being elsewhere at the time the offence was committed, has made an assertion he must prove” per. AMINA AUDI WAMBAI, J.C.A.

CRIMINAL LAW: THE DEFENCE OF ALIBI; THE EFFECT OF THE FAILURE OF THE PROSECUTION TO INVESTIGATE A MAKE UP ALIBI

It is also the law that the failure of the prosecution to investigate such a make up alibi where the prosecution adduces evidence which unequivocally points to the guilt of the accused person, and fixes his presence at the scene and his commission of or participating in the offence, such evidence automatically dislodges and demolishes the alibi, which must fail. Ndukwe vs. State (2009) 2-3 SC (Pt.11) 35 at 72, Ntan vs. State (1968) NWLR 86. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: PROOF OF CRIME; WAYS IN WHICH A CRIME MAY BE PROVED

It has now undoubtedly become settled Law that a crime may be proved by either one or a combination of the following ways:
(a) evidence eye witness
(b) confessional evidence and
(c) circumstantial evidence.
Nweze vs. State (1996) 2 SCNJ 42. per. AMINA AUDI WAMBAI, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

IBRAHIM HABIBU Appellant(s)

AND

THE STATE Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Kano State High Court in suit No. K/181/C/2010 delivered by Hon. Justice Wada Abubakar Omar on the 31st July, 2012 wherein the Appellant was convicted of the offences of criminal conspiracy and culpable homicide punishable with death and sentenced to death by hanging.

The Appellant as the 2nd accused was charged along with his uncle, Ado Haladu, and his father, Habibu Haladu, in 3 heads of charge for the offences of criminal conspiracy, culpable homicide punishable with death and abetment of culpable homicide punishable with death contrary to Sections 97, 221 (b) and 85 of the Penal Code of Kano State (cap 105) 1991 Laws of Kano State of Nigeria.

The charge against the Appellant was for criminal conspiracy and culpable homicide punishable with death. He was accused of conspiring with his uncle, Ado Haladu who was the 1st accused and the Appellant in Appeal No. CA/K/202/C/2014 to kill and for causing the death of one Haladu Adamu aged 85 years, who was the biological father of Ado Haladu and the paternal grandfather of the

Appellant.

The 3rd accused in the charge was Habibu Haladu (brother to Ado Haladu), and the Appellant’s father, who is also the Appellant in Appeal No. CA/K/203/C/2014. The said 3rd accused (Habibu Haladu) was charged under Sections 85 and 221 (b) of the Penal Code for abetment of the commission of culpable homicide punishable with death by praying for the Ado Haladu and the Appellant to succeed in killing his father.

The Appellant pleaded not guilty, and the prosecution called 6 (six) witnesses and tendered some exhibits. The Appellant testified in his defence but called no other witness.

The prosecution’s case against the Appellant was that the deceased, (Haladu Adamu), bought two bulls which he put under the care of Ado Haladu to be using for farming during the farming season. After sometimes, Ado Haladu sold the bulls and gave N3,000 and N1,000 from the proceeds of the sale to the Appellant and Habibu respectively, and then told his father that they were stolen. The deceased initially left the matter to God. However, upon information that the bulls were not stolen but were sold by Ado, the deceased threatened to use charm to kill the thief

of the bulls. Ado was frightened and confessed to PW2, Sani Musa, that he was responsible for the missing of the bulls and pleaded with PW2 to accompany him to his father (the deceased) to plead with him. PW2 accompanied Ado to the deceased, pleaded with him not to use the charm (Juju) to kill him. The deceased agreed but asked for the refund of the transport fare of the medicine man which he obliged to waive on the request of PW2. Ado was to sell his house to refund the money to his father in two weeks.

However, before the two weeks, Ado Haladu decided to eliminate his father and expressed his desire to his brother, Habibu Haladu, who supported the idea if it would be secretly done and not exposed. He directed his son, the Appellant (Ibrahim Haladu) to go with Ado Haladu to execute the Plan.

?Both Ado Haladu and the Appellant, (Ibrahim Habibu) went to the house of the deceased. While the Appellant covered the mouth of the deceased, Ado Haladu held and pressed his throat and strangled the deceased who was only able to shout once to the hearing of PW3 before he became unconscious. Before the arrival of the PW3 to the scene, the Appellant and Ado had

fled the scene. PW1 took his father (the deceased) to Bichi police Station and then to the General Hospital where he died about 6 days after.

PW1 later told the Police that he was suspecting the 1st accused, Ado Haladu, his brother, and upon the arrest of Ado Haladu, the Appellant was also arrested as well as the Appellant’s father who all made confessional statements of the Police. The confessional statements which were taken before superior officers for endorsement were admitted as Exhibits 2 and 7 A.

The Appellant testified as DW2 and denied any involvement in the death of his grandfather stating that he was in Makarfi in Kaduna State. He also testified that he did not make any statement. That he was tortured and did not know when he was made to sign the statement credited to him.

?At the conclusion of hearing, the learned trial Judge reviewed all the evidence and found all the 3 accused persons guilty as charged. The Appellant was found guilty of criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 and 221 (b) of the Penal Code, and was accordingly convicted and sentenced to death by hanging.<br< p=””

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Aggrieved by the decision, the Appellant filed a notice of appeal dated 27th March, 2014, on the 17th April, 2014 on 3 grounds.

In the prosecution and defence of the appeal, learned Counsel exchanged briefs of argument. In the Appellant’s brief of argument dated and filed on the 12/06/2014 and settled by Wilson O. Diriwani Esq., two issues were distilled for determination:-
“(1) Whether the learned trial Judge was right to rely on the involuntary confessional statement of the Appellant to convict him. (Distilled from ground one)
(2) Whether the Respondent proved its case beyond reasonable doubt as required by the Law. (Distilled from ground two)

These two issues were, with a re-cast of the 1st issue, adapted by the Respondent in his brief of argument settled by Dalhatu Yusuf Dada Director, Legal Drafting, Ministry of Justice, Kano State.

The first issue as recast by the learned Respondent’s Counsel is
“Whether the learned trial Judge was right to convict the Appellant based on his confessional statement”

These two issues distilled by the Appellant’s Counsel and reframed by the Respondent’s Counsel capture the issues in

contention in this appeal.
The appeal shall therefore be determined on these issues.
ISSUE NO. I
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO CONVICT THE APPELLANT BASED ON HIS CONFESSIONAL STATEMENT.
In support of this first issue, learned Counsel for the Appellant contended that it is trite Law that a trial Judge must satisfy himself of the voluntariness of a confessional statement of an accused person before relying on same especially where as in this case, the Appellant testified that the purported confessional statements were made under threat, torture or duress, the Court ought to have conducted a trial within trial before admitting Exhibits 2, and 7 (A). Reference was made to the evidence of the Appellant as DW2 at page 29 of the record.

Learned Counsel argued that the failure to conduct a trial within trial is not only fatal to the admissibility of the alleged confessional statements, Exhibits 2 and 7 (A) tendered by PW 4 and PW6 respectively, but worse still on predicating the Appellant’s conviction thereon, citing the cases of STATE VS. SALAWU (2011) 18 NWLR (Pt 1279) 883 906 A-G. Per Tabai, JSC, and OGUDO VS. STATE (2011)

18 NWLR (Pt.1278) 1, 45 Para D Per Muntaka Coomasie JSC.

Counsel further contended relying on Tabik Investment Ltd. Vs. GTB Plc (2011) 17 NWLR (Pt 1276) 240, at 261-262 Para G Per Rhodes-Vivor JSC, that assuming that exhibits 2, 6, and 7 A were properly admitted same being documents emanating from officers of the Nigeria Police and the Government Hospital, are public documents within Section 102 (a)(iii) of the Evidence Act, 2011 of which only their certified true copies (C.T.CS) and not their original copies are admissible in evidence by virtue of Sections 102 (a)(iii), 104 (1)-(3) and 105 of the Evidence Act.
He submitted that the said exhibits having not been shown to have been certified, were wrongly admitted, insisting that only their certified true copies (C.T.CS) are admissible in evidence, relying on ARAKA vs. EGBUE (2003) 17 NWLR (Pt. 848) 1, 18 Counsel urged upon us to use our inherent powers to reject or expunge the inadmissible evidence citing PHILIPS VS. E. O. C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt 1336) 618, 644-645 G, ABOLADE ALADE VS. SALAWU JAGUN OLUKADE (1976) 2 SC, 183, and to discharge and acquit the Appellant as there is no

credible and compelling evidence linking the Appellant to the murder of the deceased, citing OCHIBA VS. STATE (2011) 17 NWLR (Pt.1277) 663 at 693 G-H.

In response, learned Counsel to the Respondent argued that the right time to raise the objection and test the voluntariness of the confessional statements (Exhibits 2 and 7 A), as restated by the Supreme Court in OSENI VS. STATE (2012) 2 NJSC 11 at 98 as the time the statements were sought to be tendered and not at the belated stage of defence as the Appellant attempted to do which is an afterthought. As the Appellant neither raised any objection when the statements were tendered and admitted nor did the Appellant cross-examine the prosecution witnesses on the alleged involuntariness of the statements, Counsel thus contended that there would be no need to conduct a trial within trial where as in this case’ no objection was raised to the admissibility of the statements, citing AFOLABI VS. STATE (2009) 3 NWLR (Pt. 1127) 160 at 193, PATRICK v. IKEMSON (1989) 1 CLRN 13, MONDAY EDHIGERE VS. STATE (1996) 8 NWLR (Pt. 464) 1, ASIMIYU ALARAPE & ORS. VS. THE STATE (2001) 5 NWLR (Pt.705) 79.

?It was submitted

that a confessional statement where direct, positive and unequivocal as to the guilt of the accused person, as in the instant case, is enough to ground conviction of the accused. OLALEKAN VS. STATE (2001) 18 NWLR (PT.746) 793, SALAWU VS. STATE (1971) NWLR 735 (incomplete citation) was referred to.

On the submission that Exhibits 2, 6 and 7 A being documents emanating from the Nigeria Police and the General Hospital are public documents and only their certified true copies (C.T.CS) are admissible in evidence, Respondent’s Counsel submitted relying on ADEKOLA VS. AKARA (2012) 8 NWLR (Pt 572) 1696 and UKANA VS. COP (1995) 8 NWLR (Pt 416) 206 that a document is a public document only if two candidates are satisfied, viz:- that
(1) It is available for inspection and
(2) It is brought into existence or made for that purpose.

He argued that not so, are Exhibits 2, 6 and 7A which are documents from the police diary subject of investigation and are not meant for public and to which the public has no access. STATE vs. MBAGWU (1972) 2 ECSLR 462. The case of TABIK (Supra) relied upon by the Appellant, Respondent’s Counsel argued, does not by virtue of

Sections 122 and 126 (1)-(4) Criminal Procedure Code and Section 83 Evidence Act refer to documents contained in Police diary, nor does Section 18 (1) of the Interpretation Act which makes a Police Officer a public officer make all documents emanating from the Police to be public documents.

The substance of the contention of the Appellant’s Counsel in this issue is that the Appellant having testified in his defence that he was tortured to make Exhibits 2 and 7 A, the trial Judge was bound to have conducted a trial within trial before relying on the statements, his failure to so conduct the trial within trial placing reliance on the purported confessional statements (Exhibits 2 and 7A) which also are public documents but uncertified, is fatal to the conviction of the Appellant which was predicated on the said statements.

Court that notwithstanding that it may be true, it was not made or obtained by oppression of the maker or in consequence of anything said or done in the circumstances existing at the time to render same unreliable. See Section 28 and 29 of the Evidence Act, 2011. In other words, whereas a confessional statement which is direct and positive and relevant to the fact in issue is relevant against its maker, SAIDU VS. THE STATE (1982) 3 SC 41, NWACHUKWU VS. THE STATE (2007) 11 MJSC 39, and is sufficient to ground conviction of the maker, OLALEKAN VS. THE STATE (2001) 18 NWLR (Pt.746) 793, STATE VS. SALAWU (2011) 18 NSLR (Pt. 1271) 883 at 906, the confession must have been voluntarily and freely made by the maker to be so admissible see MANSHEP NAMSOH vs. THE STATE (1993) 5 NWLR (Pt. 292) 129, RABIU Vs. THE STATE (2010) LPELR – 4888 (CA).

VS.THE STATE (2009) ALL FWLR (Pt. 465) 1749, KEKE VS. THE STATE (2003) FWLR (Pt.159) 1381 at 1451.

It is also quite settled that the recognized and acceptable procedure for determining whether a statement of an accused person was voluntarily made or otherwise, is by conducting a mini trial known as a trial within trial whereby the Court hears the parties, takes evidence from the prosecution and the defence (accused and or witnesses) only on the purported confessional statement and at the conclusion of hearing, delivers its ruling either rejecting or admitting the statement.

This is because the Law is now firmly settled that where an accused person alleges that a statement which amounts to a confession of the commission of

the offence with which he stands charged was not made by him voluntarily, the proper time or stage of the trial at which such an objection is to be raised is when the prosecution seeks to tender or put such statement in evidence as part of the prosecution’s evidence in prove of the crime allegedly committed by the accused. OLUFEMI ALO Vs. THE STATE (2010) LPELR – 375 (CA) NWACHUKWU Vs. STATE (2004) 17 NWLR (Pt. 902) 262, At 273
In practice, this is the stage when the prosecution through a prosecution witness who recorded or played a role in the recording of or with respect to the statement of the accused person, and in the course of testimony of the said witness, applies to the Court to tender in evidence the said statement of the accused. After the witness narrates his role with respect to the said statement of the accused, the statement is shown to him, he identifies same, and then the prosecutor/prosecuting counsel usually says “I seek to tender the statement in evidence”.
It is at that stage that the accused or his Counsel would stand up to raise the objection that the statement was not made voluntarily by him. This is the proper time or

stage when an accused person is required by Law to raise an objection to the voluntariness of a confessional statement, and not afterwords.
Any objection taken to the voluntariness of a confessional statement after this stage, especially, where as in this case the accused/Appellant was represented by Counsel who knows or ought to know what to do at each stage of the proceedings, would be belated and considered as an afterthought which would not avail the maker. Thus, in Law, once a confessional statement is admitted in evidence, it becomes part of the case of the prosecution which the Court is bound to consider for its probative value. EKPO VS. THE STATE (2008) LPELR – 4370 (CA) NWACHUKWU VS. STATE (2004) 17 NWLR (Pt.902) 262.
In the Ogudo vs. State’s case (Supra) wrongly relied upon by the Appellant’s Counsel, the Supreme Court Per Muntaka Coomassie JSC while stating the position of the Law, on the vexed issue of admissibility of retracted confessional statement after its admission, inter alia, made it very clear that the objection to its admissibility must be made or taken when the statement is tendered in evidence to warrant the conduct of a trial

within trial. Except the objection is raised at that stage, there will be no basis to embark on a trial within trial, for the accused person will be deemed to have no challenge to the voluntariness of the statement.

In the instant appeal, when the two statements of the Appellant were tendered in evidence through PW4 and 6, the defence Counsel did not raise any objection to their admissibility nor were the two prosecution witnesses cross-examined on the voluntariness of the two statements, admitted as Exhibits 2 and 7 A. The Appellant must in Law be deemed to have conceded to the voluntariness of the two statements and cannot later, at the defence stage, be heard to challenge the voluntary nature of the two statements.

I must therefore in the circumstance, hold that the learned trial Judge was right in not conducting a trial within trial to determine whether Exhibits 2 and 7 A were voluntarily made by the Appellant.

On the submission that ERxhibits 2, 7 A and 6 are public documents within Section 102(a) which have not been certified and also that only their certified true copies and not their originals are admissible in evidence by virtue of

Sections 104(1)-(3) and 105 of the Evidence Act and on the authority of Tabik Investment Ltd. Vs. GTB Plc. (Supra), it is important to consider not only whether Exhibits 2, 6 and 7 A are public documents but also whether if public documents they are, only their certified true copies but not their original copies are admissible in evidence.

Generally, by Section 88 of the Evidence Act 2011, documents shall be proved by primary evidence except in the cases mentioned in the Act; thus, contents of documents, may, by Section 85 of the Evidence Act, be proved either by primary or secondary evidence. While primary evidence means the document itself produced for the inspection of the Court, [section 86(1)], secondary evidence by Section 87 (a)-(e) includes:-
“(a) Certified copies given under the provision hereafter contained in the Act”.
?By these definitions, documents are either primary or secondary evidence. In the case of primary evidence, the document itself produced for the inspection of the Court is the admissible primary evidence and in the case of secondary evidence, Section 89 provides for the circumstances when and the types of secondary

evidence admissible in each of the specified situations. For instance and for the purpose of this issue under consideration, secondary evidence of the contents of a document may be given when the original is a public document within the meaning of Section 102, Section 89 (e) or where the original is a document of which a certified copy is permitted by the Evidence Act or any Law in force in Nigeria, to be given in evidence [Section 89 (f)].

?The documents in contention being statements of the Appellant recorded by the Police officers

who are said to be public officers and the medical report emanating from the Government Hospital said to be a public office are contended to be public documents within Section 102 (a)(iii) of which secondary evidence are admissible, the nature of which by Section 90 (1) (c), is the certified true copy of the document but no other evidence is admissible.

Once a public document is certified in accordance with Section 104, copies of such certified documents are presumed to be regular and may, by Section 105 be produced in proof of the contents of the public document or any part of it of which it purports to be copy(ies) of.

?The sum effect of the foregoing Sections 85, 86-90, 102-105 provisions, is that the contents of a document may be proved either by producing the original document itself in the primary form referred to by the Evidence Act as the primary evidence, or in its absence, a copy of the original document and of the type of the permissible copy, referred to as the admissible secondary evidence of the original. Where the document, is a public document, the only permissible copy of the original document admissible is the certified true copy

(C.T.C) and no other copy.
ARAKA VS. EGBUE (2003) 17 NWLR (Pt. 848) 1 at 6 ONOBRUCHERE & ANOR. VS. ESEGINE (1986) 1 NSCC 343, 356,
KUBOR & ANOR VS. DICKSON & ORS. (2012) LPELR – 9817 (SC),
AWOPE VS. OSANIBI & ORS. (2009) LPELR – 3954 (CA).

It is therefore beyond argument that the only admissible secondary copy of a public document is the certified true copy and no other type.

The documents tendered and admitted in this case as Exhibits 2, and 7 A, & 6 are the original statements of the Appellant as recorded by the PW 4 and 6 and the medical report issued by the General Hospital, respectively, in their original form. They are therefore the primary and not the secondary copies of the documents which by Sections 86 and 88 are admissible as primary evidence, see ONOBRUCHERE VS. ESEGINE (1986) NWLR (Pt 19) 799 DAGGASH VS. BULAMA (2004) 14 NWLR (Pt. 892) 144.

Learned Counsel to the Appellant has argued on the authority of Tabik Investment Co. Ltd Vs. GTB (Supra) that the primary evidence of a public document is not admissible in evidence, but its certified true copy.

The said case of Tabik Investment Co. Ltd Vs. GTB

(Supra) retied upon by the Appellant’s counsel I must say, with respect to the Counsel was quoted out of con and does not support his preposition as there is no such pronouncement of law made by the Supreme Court in the said case.

The main issue before the apex Court for determination in the Tabik’s case (Supra) was whether a public document is admissible in evidence without proper certification in that the legal fees for certification was not paid. In other words, whether a public officer is exempted from the payment of or the receipt of payment for the legal fees for the certification of a public document in the custody of a public servant before securing the certified true copy of the public document and if not so exempted, whether the document is admissible without payment of the requisite fees. The Court answered the first arm of the question in the negative to the effect that there was no such exemption and that even if there was any, it did not avail the Appellants who were not Government Officials or Government Agencies. Although the Supreme Court Per Rhodes Vivor JSC held that a Police Officer is a public officer and all documents from the

Police especially documents to be used in Court are public documents which require certification, there is no pronouncement therein made by the learned jurist which prohibits the admissibility of original documents or that requires certification of original documents before being admitted in evidence. There is therefore no support in the Tabik’s case for the Appellant’s preposition.

On the contrary, several decisions of the Supreme Court and this Court abound that primary evidence of a public document is not only admissible in evidence but it is also the best admissible evidence of the document, see ONOBRUCHERE VS. ESEGINE (Supra), ITEOGU VS. LPDC (2009) 17 NWLR (Pt 1171) 614 SC, DAGGASH VS. BULAMA (Supra).
Only recently, the Supreme Court in PDP VS. INEC (2014) 17 NWLR (Pt. 1437) at p. 563 para B-C in no Uncertain terms, unequivocally and tersely reaffirmed the law that:-
“the only categories of public documents that are admissible are either the original document itself or, in the absence of such original, certified copies and no other”.

?That was exactly what the trial Court did by admitting the original statements of the Appellant as

Exhibits 2 and 7 A as well as the original copy of the medical report as Exhibit 6. Of course, it goes without saying that the original document requires no certification. There is therefore no basis to hold that the conviction of the Appellant based on Exhibits 2, 6, and 7 A is wrong simply because a trial within trial was not conducted or to discountenance or expunge the said exhibits which were properly admitted by the trial Court. In the circumstance, I resolve this issue against the Appellant.
I now proceed to consider the 2nd issue.
ISSUE NO. 2
WHETHER THE RESPONDENT PROVED ITS CASE BEYOND REASONABLE DOUBT AS REQUIRED BY LAW.
On this issue, the Appellant’s Counsel argued that the Appellant is, by Section 36 (5) of the Constitution of the Federal Republic of Nigeria, presumed to be innocent until the contrary is proved. That the onus of proving the guilt of the Accused/Appellant beyond reasonable doubt especially in a murder charge as in the instant case, is by Section 131 (1) (b) heavily placed on the Respondent which it can only discharge by proving each and every material ingredient of the offence charged contending that the

Respondent failed to discharge the onus having regard to their submission that the confessional statements, Exhibits 2 and 7 A were wrongly admitted and should be discountenanced or expunged.

Learned Counsel (also) argued that the Respondent failed to prove the 3 material ingredients of the offence all of which must co-exist as reiterated by the Supreme Court in Maiyaki vs. State (2008) 15 NWLR (pt. 1109) 173, at 192 and has thus failed to establish by credible evidence that the death of the deceased resulted from the act of the Appellant or that the Appellant was linked with the crime especially as none of the 6 prosecution witnesses testified that he was an eye witness to the alleged strangling of the deceased nor is there evidence that the Appellant was at the scene of crime, citing Almu vs. State (2009) 10 NWLR (Pt.1148) 31 at 58-59, Maiyaki vs. State (Supra).

The failure of the Respondent to investigate and disprove the defence of alibi raised by the Appellant or any defence whatsoever, however worthless or stupid Counsel submitted on the authority of Olaiya vs. State (2010) 3 NWLR (Pt. 1181) 423, 436, amounts to an admission of the defence as

it is also fatal to the Judgment of the trial Court. The case s of Attah vs. State (2010) 10 NWLR (Pt 1201) 190 at 221, Pele Oguinye vs. The State (incomplete citation provided) Almu vs. State (2009) 10 NWLR (Pt. 1148) 31 at 58-59 were cited.

It was Counsel’s submission that where the accused gives an account consistent with his innocence which would be true and not proved otherwise, he is entitled to a discharge and acquittal, citing Chukwudi vs. Gwanyi (2010) 14 NWLR (Pt. 1213) 379, 412.

In response, the Respondent’s Counsel contended that it proved all the ingredients of the offence of culpable homicide punishable with death under Section 221 (b) and criminal conspiracy contrary to Section 97 of the Penal Code against the Appellant. He stated that a person will be guilty of the offence under Section 221 (b) if he does an act which causes the death of a person or if he knows or had reason to know that death would be the probable consequence of his act. Nyam & Ors. Vs. The State (1964) All NLR 356. He argued that where the intentional act of an accused person which causes such bodily injury is sufficient to cause death and the probability of

death is very high as in the instant case where the Appellant covered the mouth of the deceased and the co-accused held and pressed hard on the throat of the deceased, the Appellant would be deemed to have intended to cause the death of the deceased, his grandfather.
USMAN KALA VS. THE STATE 33 NSC QR (Pt 2) 1351, 1412-1413.

The contents of Exhibits 2 and 7A Appellant’s Counsel submitted proved that the death of the deceased was caused by the act of the Appellant and the co-accused (Ado Haladu) disclosing how the Appellant and the co-accused intentionally suffocated the deceased to death.

The offence of criminal conspiracy, which is complete by an agreement by two or more persons to commit an offence, Counsel submitted, can be inferred from available facts – OYAKHIRE VS. STATE (2002) QCCR Vol, 4, Page 113 at 127 Lines 5-15 and which in this case is clearly stated in Exhibits 2 and 7 A that the Appellant and the co-accused – Ado Haladu, agreed to kill the deceased.

Learned Counsel also contended that a crime can be proved either by evidence of eye witness, a confessional evidence or circumstantial evidence – Emeka Vs. State (2001) 5 MJSC 1

at 12, Nweeze Vs. State (1996) 2 SCNJ 42 and that the Appellant can be convicted solely on his confessional statements, Exhibits 2 and 7 A – Nwachukwu vs. State (2007) 11 MJSC 39, the trial Court according to the Respondent’s Counsel, was right in convicting the Appellant on Exhibits 2 and 7 A.

On the defence of alibi raised by the Appellant in his evidence before the Lower Court, Respondent’s Counsel argued that it cannot avail him as it was an afterthought same not having been timeously raised at the earliest opportunity in the Appellant’s extra judicial statement to the Police so as to afford the Respondent the ample time and opportunity of investigating same.
Tanko vs. State (2008) QCCR Vol, 12 Page 24, Lines 5-38 Udoebere Vs. State (2001) 5 MJSC 146 at 156 Paras F-G Ndidi vs. State (2005) QCCR Vol. 4 Page 10
Usufu vs. State (2007) 1 NWLR (Pt.1020) 24 at 122 A-D.

It was his contention that evidence in support of alibi being one peculiarly within the knowledge of the Appellant, the Appellant was bound to call evidence to support same, his failure so to do, he argued, his ” ipse dixit” was not sufficient to establish the burden of a

successful alibi –
Usufu vs. State (Supra), Odili vs. State (1997) 4 SC 1 at 6
Counsel urged upon us to hold that the prosecution/Respondent proved its case beyond reasonable doubt against the Appellant and to dismiss the appeal and affirm the conviction and sentence of the Appellant by the Lower Court.

It is a constitutional and statutory requirement encapsulated in Section 36 (5) of the 1999 Constitution of FRN as amended and Section 135 (1) of the Evidence Act, 2011 as also judicially engraved in a plethoral of decisions like Ani vs. State (2009) 16 NWLR (Pt 1168) 443. The State vs. Nnolim & Anon (1994) 5 NWLR (Pt 345) 394, (also reported in (1994) 6 SCNJ 48), that a person accused of a criminal offence is presumed to be innocent until his guilt is proved beyond reasonable doubt by the prosecution.

which is a sine qua non to the conviction and sentence of the accused person, entitles the accused to a discharge and acquittal. Adekoya vs. The State (2010) LPELR 3605 (CA).
The prosecution will be said to have proved its case beyond reasonable doubt when it adduces evidence against the accused as to leave only a remote possibility in his favour which can be dismissed by the sentence “of course it is possible but not in the least probable” ? see Michael vs. State (2008) 13 NWLR (Pt.1104) 361 SC and when it has proved all the ingredients of the offence with which the accused is charged Isiaka vs. The State Namsoh vs. State (1993) 6 SCNJ (Pt.1) 55 at 59, Jamani vs. State (2005) 21 WRN 191, which must show with the certainty of the Law, that an offence has been committed and that no other person than the accused committed the offence Oseni vs. State (2010) LPELR 4033 (CA), Mufutau Bakare vs. State (1987) 3 SC 1 at 5.
The said evidence must, with a degree of compulsion, be consistent w1h a high degree of probability Miller vs. Ministry of Pensions (1947) 2 ER 372, Shurumo vs. State (2010) 19 NWLR (Pt 1226) 73.

?However, proof beyond reasonable

doubt does not mean proof beyond all shadows of doubt, nor proof beyond all possible or imaginary doubt or such proof that precludes every hypothesis except that which it tends to support. It is only such proof as satisfies the judgment and conscience of the Judge as a reasonable man applying his reason to the evidence before him that the crime charged has been committed by the accused as to leave no other reasonable conclusion possible. Afolalu vs. State (2010) LPELR – 197 (SC).
The prosecution is therefore required only to prove with credible evidence the material ingredients of the offences to support the charge against the Appellant with a high degree of probability that the Appellant committed the offences. Michael vs. State (Supra).

The offences for which the Appellant was tried, found guilty, convicted and sentenced are culpable homicide punishable with death under Section 221 (b) and criminal conspiracy contrary to Section 96 of the Kano State Penal Code.

For the offence of culpable homicide punishable with death, the prosecution must prove, as reiterated in the case of Maiyaki vs. State (Supra), Akpan vs. State (2007) 2 NWLR (Pt 1019)

500 the following ingredients.
“(1) That the death of a human being (the deceased) has taken Place.
(2) That such death has resulted from the act of accused and
(3) That the act or omission of the accused which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily injury/harm was its probable consequence.
All these three ingredients, must co-exist to secure a conviction, and where one of them is absent or tainted with some doubt, the charge cannot be said to have been proved.

In the instant case, the prosecution called six witnesses in support of its case, while the Appellant testified in his defence.

The first witness for the prosecution (PW1) Musa Haladu, an uncle to the Appellant, testified inter alia, as contained at pp. 9-11 of the record that when their father Haladu Adamu (the deceased) threatened to use charm to kill the thief of his two bulls allegedly stolen from Ado Haladu, in whose custody they were, and realizing that the deceased was serious with the threats, Ado Haladu (1st accused before the Lower Court) confessed to him to have sold the two bulls, and then

apologized to the deceased and promised to sell his house to refund the money. However, on the same day, he was informed that the deceased was attacked at about 10:00 PM. He along with his other brother, took their father (deceased) to the hospital where he died about 6 days after.

The evidence of PW2 Sani Musa at page 11-12 of the record that the 1st accused (Ado Haladu) told him that he know something about the missing bulls and upon request, accompanied Ado Haladu to his father who begged and pleaded with his father for two weeks to sell his house to refund the money.

PW3 Sani Usman, neighbour to the deceased, testified that he heard the deceased shout once when being attacked but as the door was locked, he could not enter the house but when he peeped into the house, he saw people running away crossing over the wall of the house. The deceased came out from the house but became unconscious and could not talk. His children took him to hospital but he later died.

?PW4, Corporal Ali Idris at Pages 14-18 testified that on the 22/03/2011 at about 22:00 hours Musa Haladu (PW1) reported at their office along with his father that his father was beaten

by unknown persons. He took the deceased to the General Hospital. A few days later, PW1 was back to say that he was suspecting Ado Haladu. Ado was arrested and during investigation, Ado Haladu confessed that himself and the Appellant went and attempted to kill the deceased. Ado confessed that he was the person who sold the bulls and gave N1,000 to the Appellant out of the proceeds of the sale, and that they conspired to kill their father and grandfather.

The Appellant was arrested and one Sergeant Abdullahi recorded the statement of the Appellant in Hausa Language. PW4 translated the statement into English Language, which statement was endorsed by the DCO. The statement was tendered and admitted as evidence without objection as exhibit 2.

Also during investigation, the sum of N65,000.00 was recovered from the Ado Haladu part of the proceeds of the sale of the 2 bulls at N110,000.00. The Appellant told PW4 that Ado gave him N1,000.00 from the proceeds of the sale of the two bulls.

?The evidence of the PW5 contained at pages 13-15 of the record is to the effect that he was directed to assist PW4 in recording the statements of the accused

persons which he did in Hausa Language after the cautionary word. When the Hausa statements of the 3 accused persons were tendered, defence Counsel stated that they were made under duress but would not apply for trial within trial.

The Appellant’s statement recorded in Hausa Language was thus tendered and admitted as Exhibit 5.

PW6 as contained at pp. 21-24 of the record, testified that the case was transferred to C.I.D. on 01/04/2011 and assigned to him for investigation. He personally cautioned the accused persons and each of them made a statement in Hausa Language; which being confessional statements, he took to the OC Homicide for endorsement.

As part of his investigation, he went to the General Hospital but the deceased had died before his arrival. The picture of the corpse of the deceased and the report of the post-mortem examination were tendered and admitted as exhibits P6 and P6A. Investigation revealed that the Appellant was given N1,000.00 and 3rd accused N3,000.00, by Ado, from the proceeds of the sale of the bulls, and that the 1st accused (Ado) as well as the Appellant confessed to their roles in the killing of Haladu Adamu.<br< p=””

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Appellant’s statement in English Language was tendered and admitted as exhibit 7 A.

The Appellant testified as DW2, being the 2nd accused at the Lower Court, that the deceased was his paternal grandfather but did not know when the deceased was attacked because he (the Appellant travelled in January, 2011 to Makarfi in Kaduna State to buy sugarcane when the incident happened and only returned on 29/02/2011. He was arrested on 30/02/2011 and was tortured to make a statement and though he did not make any, he did not know when he was made to sign the statement credited to him. He denied participating in killing his father or making any statement, also, at Bichi Police Station, or being given the sum of N1,000.00 by Ado Haladu. He also denied leaving his shoes anywhere and that the shoes/slippers brought was of size of 9 1/2 while his size was 11 1/2.

At the close of evidence, both the defence Counsel A.G. Ibrahim and the prosecuting Counsel, Ibrahim Mukhtar Esq. waived their right of address but urged the Court to deliver its Judgment based on the evidence before it.

In its Judgment, the trial Judge identified two issues for determination,

thus:-
“(1) Whether the prosecution has successfully proved the offences of culpable homicide punishable under Section 221(b) of the Penal Code against the 1st and 2nd accused person, the offence of criminal conspiracy under Section 97 of the Penal Code against all the 3 accused persons and the offence of abetment under Section 85 of the Penal Code against the 3rd accused.
(2) Whether any defence is available to the accused person in the circumstance of the case”.

The learned trial Judge resolved both issues in favour of the prosecution and entered a verdict of guilty for the Appellant and the other co-accused, (the 1st and 3rd accused therein).

The contention of the Appellant’s counsel is that the prosecution/Respondent failed to prove its case beyond reasonable doubt against the Appellant as the Court was duty bound to consider every defence howsoever weak, or stupid but the trial Judge failed to call on the Respondent to controvert the defence of alibi raised by the Appellant which was consistent with his innocence. The learned trial Judge he argued, was thus in great error to have rejected the Appellant’s defence of alibi which the

Respondent failed to puncture, thereby entitling the Appellant to a discharge and acquittal, in that a doubt was created on the guilt of the Appellant.

In the instant case, it is being contended that the Appellant raised the defence of alibi. The defence of alibi simply means that the accused person was elsewhere other than where the prosecution alleges he was at the time of the commission of the offence and could not have committed or participated in the commission of the offence with which he is charged, as he cannot be in two places at the same time. Bozin vs. The State (1985) 2 NWLR (Pt. 8) 465; Eyisi & Ors. Vs. State (2000) 12 SC (Pt I) 24.
This plea or defence of alibi postulates the physical impossibility of the presence of the accused at the

scene of crime and also being present at the same time elsewhere. Tanko vs. State (2009) All FWLR (Pt. 456) 1977 at 1999, Dogo vs. State (2001) 3 NWLR (Pt 699) 192.

The Appellant as DW2, stated in his testimony at pp. 28-29 of the record that:-
“…When the incident took place I was in Makarfi in Kaduna State. I went there to buy sugarcane. I don’t know when my grandfather was attacked. I travelled in January, 2011 and came back on 29/02/2011 and I was arrested on 30/02/2011…”

This defence of alibi was raised for the first time when the Appellant testified in his defence. It is now settled law that an accused person who desires to raise and take advantage of the defence of alibi, should not only provide the full particulars of his whereabout as to the specific time and place he was as at the time of the commission of the offence stating the person or persons he was together with, including the event if any that transpired at the place and time so as to enable the Police investigate his claim, Udeodebere & 2 Ors. Vs. The State (2001) 6 SCNJ, 54 at 66- 67, also reported in (2001) 5 MJSC 146, Ebre & Ors. vs. The State (2011) LPELR 995

(SC). He must also raise the defence at the earliest opportunity during investigation to enable the prosecution investigate the claim to either disprove or affirm same. Ike vs. State (2010) 5 NWLR (Pt. 1186) 41, Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92, Adio vs. State (1986) 3 NWLR 714.
Therefore, for the Appellant to raise the defence of alibi when testifying in his defence at the trial, in my view, is to deliberately deny the prosecution its right and duty to investigate the defence, Gachi vs. The State (1965) NWLR 333, Ndidi vs. State (2005) QCCR Vol. 4 Page 10 and to ambush the prosecution, which entitles the prosecution to validly ignore the alibi. See Samson Ebenehi & Anor Vs. State (2009) 6 NWLR (Pt 1136) 431, at 444 Per Ogebe JSC.

In Ibrahim vs. State (1991) 4 NWLR (Pt 186) 399, at 416 Belgore JSC (as he then was) held inter alia:-
“But at the trial, an accused person who never raised an alibi when making his statement to the Police, on oath in his defence raised the issue of his not being at “Locus criminis” at the time the offence he is alleged to have committed took place raises a new issue entirely from alibi. For alibi is a

defence raised before trial for Police to investigate so as to decide its veracity, but once before the Court, an accused person who raises a defence of his being elsewhere at the time the offence was committed, has made an assertion he must prove”

Where as in this case the alibi is not raised at the earliest time to afford Police opportunity to investigate the claim, it would not be sufficient for the accused to merely raise the defence during trial without supporting same with cogent and credible evidence.

The Appellant in the instant case did not raise the defence of alibi in his two statements to the Police but in his oral evidence before the Court which defence also did not tally with the established evidence before the Court as to bring same within the meaning of an “alibi” even if timeously raised. Whereas the Appellant’s evidence of alibi is that he travelled out of Agata to Makarfi in January 2011 and returned only on 29/02/2011 and was arrested on 30/02/2011, the offence was not committed between January and 29th February, 2011 when the Appellant was away from Agata, the offence was by the charge, the evidence of PW2, at page 14 of the

record and Exhibit 6 (the medical report) at pages 56-57 of the record, committed on or about the 21st March, 2011, about three (3) weeks after the Appellant’s return to Agata. It is therefore obvious that the defence of alibi raised by the Appellant in his evidence before the Court claiming his absence from the “Locus criminis” at a time when the offence was yet to be committed, is only a facile, impotent and would not avail him.

The learned trial Judge at page 87 of the record considered the alibi raised by the Appellant and rightly rejected same. I find no reason to fault his reason for rejecting the alibi. I also reject the impotent plea of alibi made up by the Appellant.

As to whether the respondent as

prosecution proved all the ingredients of the offence against the Appellant, there is no dispute that the death of a human being, Haladu Adamu took place. The Appellant admits this fact and the Respondent proved same through PWs 1 to 6 and in particular Exhibits 6A and 6, the photograph of the corpse and post mortem medical report on the deceased.

The other ingredients are whether the death of the deceased was caused by the act of the Appellant intentionally to cause death or with his knowledge or when he had reason to know that death would be the probable consequence of his action or of any bodily injury caused by him, Akpan vs. State (Supra) Adara vs. State (2006) 9 NWLR (Pt.984) 154, at 167, Edoho vs. State (2010) 14 NWLR (Pt.1214) 651.

In the instant appeal, there is no eye witness evidence, but two confessional statements of the Appellant, translated into English language as Exhibits

2 and 7A, The Appellant however, in his evidence before the Lower Court resiled from the confession contained in the Exhibits 2 and 7A.
The law is that the fact that an accused has retracted his confessional statement does not mean that the Court cannot act upon it, neither does it preclude the Court from convicting upon it.
Ubierho vs. The State (2005) 2 SC (Pt. 1) 18
Akinmoju vs. The State (200) 6 NWLR (Pt. 662) 608
Hassan vs. The State (2001) 15 NWLR (Pt.745) Per Karibi-Whyte JSC.
It is however desirable to have some evidence outside the confession which would make it probable that the confession was true Ubierho vs. State (Supra).

I have already resolved in issue No. I that the two confessional statements of the Appellant, were properly admitted in evidence and as the law stands, can properly be relied upon to ground the conviction of the Appellant. And though retracted, if there is any evidence outside the statements to make them true the Appellant could properly be convicted based on the confessional statements.

In Exhibit 2, at pp. 39-40 of the record, the Appellant stated inter alia:-
“….I could remember that

about one week ago Magaji (same as Ado) who is my uncle ask me to help him to kill his father who is my grandfather who give me the sum of N1,000.00 the time when he stole the two cows of his father and sold them.
About one week at about 22:00 hours myself and the Magaji cross over to the house of my grandfather try to suffocating him which I hold his mouth as he cannot breath and the Magaji held his Osopogus (sic)…”

The same story was repeated in exhibit 7A with the addition that when PW3 peeped from the wall as a result of the shout by the deceased, they ran away in the process of which his shoes which he put inside his pocket fell down at the scene.

These statements of the Appellant no doubt, constitute admission of not only the intention to kill the deceased and the act committed by the Appellant in furtherance of the intention to kill, but also criminal conspiracy, which is the agreement to commit the offence of culpable homicide punishable with death.

As it is by practice desirable, it is important to consider whether there is any other evidence or relevant facts outside these confessional statements as to make them true or likely

to be true or which corrobotes the confession. The Supreme in Nwaebonyi vs. State (1994) 5 NWLR (pt. 343) 138 laid down factors for consideration in placing weight on a retracted confession, thus:-
(1) Is there anything outside the confession which shows that it is true?
(2) Is it corroboted in any way?
(3) Are the relevant facts made in it most likely to be true as far as they can be tested?
(4) Did the accused have the opportunity of committing the offence?
(5) Is the confession Possible?
I find in particular, the evidence of PW6 at pages 21 of the record of appeal and those of PW1-3 at page 9-13 very instructive in answering all these questions in the affirmative. For instance, PW6 testified that:-
“The exhibits transferred include the sum of N60,500.00, a locally made gun and a fair (sic) of slippers belonging to the 2nd accused”. (Underlining for emphasis only)

The Appellant as the 2nd accused stated in Exhibit 7A that when running away from the scene, his slippers fell down from his pocket. Thus, this evidence of PW6 outside the confessional statements shows that the confession was true. The evidence of PW3 that

he saw people running away crossing the wall of the house also corrobotes the confession.

The learned trial Judge held that he was satisfied that the prosecution had successfully proved beyond reasonable doubt the offences punishable under Section 221 (b) and under Section 97 of the Penal Code against the Appellant. I too agree with the Court in its finding and also hold that the prosecution proved its case of culpable homicide punishable with death under Section 221 (b) and criminal conspiracy under Section 97 of the Penal Code Law (Cap 105) 1991 as charged. Consequently, this appeal lacks merit and is entitled to be and is accordingly dismissed.

The conviction and sentence of the Appellant as contained in the Judgment of the Kano State High Court delivered on 31st July, 2012 are hereby affirmed.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother Amina Audi Wambai JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that the appeal lacks merit I dismiss the appeal and affirm the decision of the trial Court.

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OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am at one with the lead judgment of my learned brother AMINA AUDI WAMBAI, JCA and with Her Lordship’s thorough appraisal of the facts, which facts are encapsulated in the judgment.

I emphasise a few points. Learned counsel to the Appellant has objected to the admissibility of Exhibits 2,7A and 6, being confessional statements from the Nigeria Police and the Report from the General Hospital.

His objection, in summary, is that though these documents are original copies they are inadmissible, as only certified copies are admissible of public documents by the provisions of Section 104 (1)-(3) and Section 105 of the Evidence Act.

I have looked at the documents in question, which documents are original copies. Being original copies, they are primary evidence. The law, with regard to proof of the contents of documents, is as contained in Sections 85 and 86, of the Evidence Law 2011, which provide as follows:-
SECTION 85
The contents of documents may be proved either by primary or secondary evidence.
SECTION 86
1. Primary evidence means the document itself produced

for the inspection of the Court.
The interpretation of these sections is that when the primary evidence itself is available, there is no need to require secondary evidence of it.

The Apex Court, in the recent case of P.D.P v INEC (2014) 17 NWLR Part 1437 Page 525 at 562 had reason to pronounce on whether primary evidence which is a public document requires certification under Section 104 of the Evidence Act. In the appeal before them the argument was whether the original of a letter from INEC was properly tendered without the necessity of subjecting it to certification. Reading the lead Judgment, His Lordship, Okoro JSC, at Pages 562 to 563 Para E-C held as follows:
“The learned Senior Counsel for the 1st – 24th respondents however submitted that the letter written by Independent Notional Electoral Commission to the 25th respondent was properly tendered by him without the necessity of subjecting it to certification since it was in his custody. He cited and relied on the case of Iteogu V. LPDC (2009) 17 NWLR (Pt.1171) at 684 paragraphs G – H.
There is no doubt that Exhibit W05 was written by Independent Notional Electoral Commission

Commissioner and addressed to the 25th respondent who had custody of it up to the point of tendering same.
Was this document of a character that ought to have been certified before tendering? Section 102 of the Evidence Act 2011 makes the following documents public documents. It says:
“The following are public documents:
(a) documents forming the official acts or records of the official acts,
(i) of the sovereign authority,
(ii) of official bodies and tribunals,
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.”
By Section 103 of the Act, all documents other than public documents are classified as private documents.
Exhibit WO5 the subject of this issue was the original correspondence between the 25th respondent and Independent National Electoral Commission. The said letter was in the custody of the 25th respondent and remained so up to the point it was tendered. It is my view that there was no need to certify the original copy of the letter even though it was issued to him by a public officer. It is the public

officer who keeps the original of a public document who certifies a copy of it which can be tendered where the original cannot be tendered. Put differently, the only categories of public documents that are admissible are either the original document itself or, in the absence of such original, certified copies and no other.” Emphasis Mine
It is patent therefore, that where the original copy of a document is available, it is admissible without the requirement for certification. See also Daggash v Bulama (2004) 14 NWLR Part 892 Page 144

The case of Tabik Investment Ltd v Guaranty Trust Bank PLC (2011) 17 NWLR Part 1276 Page 240 at 261-262 cited by the Appellant’s Counsel did not state the contrary. What His Lordship Rhodes-Vivour JSC held in that case was that a Police Officer is a Public Officer by virtue of Section 318(h) of the Constitution and Section 18(1) of the Interpretation Act Cap 192 LFN 1990. All documents from the custody of the Police, especially documents to be used in Court are public documents. Before a public document can be tendered and accepted by the Court, it must be certified, he held.
That case never deliberated nor stated that

where primary evidence is available, it must be certified.
Learned Counsel to the Appellant also cited in support of his contention, the case of Araka v. Egbue (2003) 17 NWLR Part 848 Page 1.

In that case His Lordship, Tobi JSC, reading the Lead Judgment, at Page 20 Para G-H held as follows:
“One main objective behind Section 97(2) (c) of the Evidence Act (now Sections 89 and 90 of Evidence Act 2011) is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents.”

The learned Jurist, at Page 19-20 Paragraphs H-A of the said Judgment, referred to their earlier decision in the case of Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799, where Oputa JSC, of blessed memory, held that where there is failure to produce the original copy of public documents, the only type of secondary evidence that can be produced is a certified true copy of the document. The original, Oputa JSC held, would be admissible under Section 93(1) of the Evidence Act (now Section 86(1) of the Evidence Act 2011).

It is therefore not correct to say that the case of Araka v Egbue

decided that where the original copy is available it cannot be tendered. The decision in that case is that in the event of failure to produce the original of a public document, it is only a certified true copy that can be produced in evidence.

I accordingly hold that in line with the Sections 85 and 86 of the Evidence Act Supra and the authorities above cited, the statements of the Appellant and the Report from the Hospital, being original copies, were properly received by the trial Judge in evidence.

The Appellant’s counsel has also accused the Respondent of failure to investigate and disprove the defence of Alibi raised by the Appellant.
This defence was however only raised by the Appellant in his testimony before the Court. It is settled law that an accused person who intends to raise this defence must raise it at the earliest opportunity available to him, usually when writing his statement, giving sufficient details to enable the police investigate his defence. See Eke v State (2011) 3 NWIR Part 1235 P. 589 at 605 Para D-E per Fabiyi JSC.

This, the Appellant did not do, merely raising it for the first time in Court, making it

impossible for the police to investigate this defence.

An accused person who did not raise an alibi when making his statement to the police to enable them prove or disprove the alibi but raised same in Court, must prove his assertion. See the case of Ibrahim V State (1991) 4 NWLR Part 185 Page 399 at 415 Para C-D per Belgore JSC (as he then was).

No proof, apart from his mere ipse dixit was given by the Appellant.
The Defence is clearly an afterthought, I hold, and was rightly rejected by the trial Court.

For the fuller reasons given by my learned brother, I also dismiss this appeal as lacking in merit.

The conviction and sentence of the Appellant by the lower Court are hereby affirmed.

Appearances:

W. O. DiriwariFor Appellant(s)

Dalhatu Yusuf Dada (DLD) with him, Amina Y. Yargata (DDPP)For Respondent(s)

Appearances

W. O. DiriwariFor Appellant

AND

Dalhatu Yusuf Dada (DLD) with him, Amina Y. Yargata (DDPP)For Respondent

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