IDI MUSA v. THE STATE
(2017)LCN/9425(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of January, 2017
CA/K/73/C/2016
RATIO
CONSTITUTIONAL LAW: FAIR HEARING; THE STATUTORY REQUIREMENT OF A COURT TO PROVIDE AN INTERPRETER WHERE THE ACCUSED DOES NOT SPEAK THE LANGUAGE OF THE COURT
“Now, by Section 36 (6) (e) of the Constitution FRN 1999 (as amended), every person who is charged with a criminal offence shall be entitled to have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence. To give effect to this constitutional requirement, Sections 241 & 242 (2) of the State C.P.C. mandate the trial Court not only to make use of the services of an interpreter but also to ensure that the record of the Court shows the name of the interpreter, the language from and to which he interprets, and where a confessional statement recorded by a police officer in accordance with the Law is admitted in evidence, Section 126(4) requires that same be read out in Court.”
What stands out from the combined effect of these provisions is that where an accused person in a criminal trial does not understand or decides not to speak the language of the Court, which is English language, (MADU V. STATE (1997) 11 NWLR (PT.484) 386), the Court shall endeavour to provide an interpreter who understands and speaks both the English language and the language understood and spoken by the accused person in satisfaction of the constitutional and procedural requirements rooted in the hallowed principles of fair hearing which itself stems or originates from the rule of natural justice. PER AMINA AUDI WAMBAI, J.C.A.
PROCEDURE: THE DUTY OF JUDGE NOT TO SHOW ON RECORD OF PROCEEDINGS THE PROVISION OF THE SERVICES OF AN INTERPRETER SUBSEQUENTLY AFTER IT HAS BEEN RECORDED
it is now settled law that once a trial Judge, as in the instant case, has recorded in a proceeding the provision of the services of an interpreter, there is no absolute requirement on him to show on the record that the interpreter was present on each and every subsequent day of the trial, particularly where as in this appeal, the accused person was represented throughout the trial by a Counsel. The presumption of regularity in Section 168 (1) of the Evidence Act 2011 comes into play to the effect that the interpreter was present and interpreted on each and every subsequent day of the trial, the trial Judge having recorded that the accused did not understand the language of the Court and having provided him with an interpreter on arraignment. See MADU V STATE (SUPRA). PER AMINA AUDI WAMBAI, J.C.A.
CRIMINAL PROCEDURE: WHEN CAN THE OBJECTION OF ABSENCE OR INADEQUATE INTERPRETATION BE RAISED IN COURT
It is settled law that the proper time for an accused person who was represented by a Counsel at the trial Court to raise an objection on the absence or inadequacy of interpretation, is at the trial Court where and when the denial allegedly took place and not on appeal for the first time, as the Appellant seeks to do in this appeal. The objection can only be raised on appeal for the first time where the accused was unrepresented by Counsel at trial or his objection thereat was refused but not where he was represented at the trial Court by Counsel who kept mute and acquiesced to an irregular proceedings. See MADU V. STATE (SUPRA). A party who abstains from interfering when a violation of his right is in progress, would appropriately be deemed to have acquiesced to the violation and waived his right to subsequently complain. Having fully participated in the irregular proceedings, he will be forbidden from asserting the legal right when he later wakes up from his slumber or indolence, as the Law aids only the vigilant and not the indolent “vigilanti boues et non domientibus Jura sub venriunt” see YUSUFF V. DADA (1990) 4 NWLR (PT. 146) 657. PER AMINA AUDI WAMBAI, J.C.A.
EVIDENCE: BURDEN OF PROOF; WHO HAS THE BURDEN OF PROOF IN CRIMINAL PROCEEDINGS
It is now firmly established in our Criminal jurisprudence and proceedings that the burden of proving that any person has committed an offence is on his accuser, usually the prosecution, to prove what he asserts; beyond reasonable doubt, by virtue of Section 36(5) of the Constitution FRN 1999 (as amended) and Section 135(2) Evidence Act, 2011. See ANI V. STATE (2009) 16 NWLR (PT. 1168) 443 SC, NWEKE V. STATE (2001) 4 NWLR (PT. 704) 588, BABUGA V. THE STATE (1996) 7 NWLR (PT.460) 279. PER AMINA AUDI WAMBAI, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVING CULPABLE HOMICIDE
What the prosecution must prove in a charge of culpable homicide punishable with death, have been stated and restated in several decisions including the case of MUSA V. STATE (SUPRA) cited by the learned Respondent’s Counsel to be the following:-
(a) that the death of a human being has actually taken place;
(b) that such death has been caused by the accused;
(c) that the act was done with the intention of causing death or that the accused knew (or had reason to know) that death would be the probable consequence of his act.
It is needless to re-emphasize that all these ingredients must together be proved beyond reasonable doubt and failure to prove any of the ingredients, means failure to prove the charge. PER AMINA AUDI WAMBAI, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO 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
IDI MUSA Appellant(s)
AND
THE STATE Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): At the Jigawa State High Court of justice in charge No JDU/052C/2012 dated 8th October 2012 the Appellant was charged with the offence of culpable homicide punishable with death in that on or about the 11th July 2012 at Matamu Fulani settlement in Birniwa Local Government Area, Jigawa State within the Jigawa Judicial Division, he caused the death of Garba Maijama’a by stabbing him at his neck and chest with a knife and thereby committed an offence punishable under Section 221(a) of the Penal Code.
The Appellant pleaded not guilty to the charge, consequent upon which the prosecution called six witnesses and tendered 4 Exhibits. In defence of the charge, the Appellant testified as DW1 but called no other witness nor tendered any Exhibit. Upon the conclusion of the trial and the review of the evidence for both the prosecution and the defence and consideration of the final written addresses of both Counsel, the learned trial Judge found the Appellant guilty as charged, convicted and sentenced him to death by hanging until he is dead.
Aggrieved and disconsolate, the
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Appellant commenced this appeal by a notice of appeal dated 28th January 2016 predicated on five (5) grounds of appeal, pursuant to an order of this Court granted on 21/01/2016 to appeal out of time.
In the prosecution of the appeal, briefs of argument were filed and exchanged. The Appellant’s brief of argument dated and filed on the 8th March 2016 and settled by Baffa Alhassan Esq. raised four (4) issues for determination to wit:-
“(1) Whether the evidence of PW1, PW2, PW3 are cogent, compelling or reliable and linked the Appellant to the commission of the offence charged.
(2) Whether at the course of the proceedings and in evaluating evidence, the lower Court had deprived the Appellant of his constitutional right to fair hearing and trial thereby occasioning miscarriage of justice.
(3) Whether the lower Court can safely convict the Appellant solely on Exhibit P3 and P4 without corroboration.
(4) Whether the prosecution had proved its case beyond reasonable doubt to sustain conviction against the Appellant?.
In the Respondent’s brief of argument dated and filed on the 31st March 2016, three (3) issues which are
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substantially the same with the Appellant’s issues, were identified for determination.
I adopt for determination in this appeal, the issues set out by the learned Appellant’s Counsel but for purpose of clarity and precision, are hereby reframed as follows:-
(1) Whether the Appellant was accorded a fair hearing and the learned trial Judge was right to rely on the Appellants statements (Exhibits P3 & P4)
(2) Whether by a proper evaluation of the evidence before the Court the learned trial judge was right in holding that the prosecution proved its case against the Appellant.
ISSUE NO 1
It was contended on this issue, that although the Appellant was represented throughout the trial by a Counsel, the failure of the lower Court to provide an interpreter from the beginning of the proceedings to its end, contravenes Section 242 (2) of the Jigawa State Criminal Procedure Code and Section 36(6)(e) of the Constitution of the FRN 1999 (as amended). The further failure of the learned trial Judge to cause Exhibits P3 & P4 to be read in the open Court as required by Section 126(4) of the Criminal Procedure Code (now simply
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referred to as the C.P.C) especially that the Appellant denied making them, it was argued, denied the Appellant the opportunity to know their contents to enable him rebut the specific contents therein, that he went to the deceased’s house and stabbed him twice, which would have afforded him the opportunity to offer explanation or raise a good defence rather than the general denial which did not impress the trial Judge citing the case of HASSAN V. STATE (2001) 15 NWLR (PT. 735) 184. The said failure to read and interpret the contents of Exhibits P3 & P4 it was further submitted, deprived the Appellant his constitutional right to prepare for his defence and occasioned a miscarriage of justice more so that the learned trial Judge heavily, albeit, wrongly relied on the statements without testing their veracity citing in support, the case of ALARAPE V. STATE (2001) FWLR (PT. 41) 1872. We were urged to resolve the issue in favour of the Appellant.
?Arguing per contra, the Hon Attorney General for the Respondent contended that the record reveals that from the beginning of the proceedings at page 2, the Registrar of the Court read and explained the
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proceedings to the accused/Appellant and having done so on that occasion, by virtue of Section 168(1) of the Evidence Act, it should be presumed that same was done throughout the trial.
Additionally, he argued that assuming without conceding that no interpretation was provided by the Court, the Appellant having been represented by a Counsel throughout the trial, it is now too late to raise the issue on appeal having not raised same at the trial, citing in support the case of UDOSEN V. STATE (2007) 4 NWLR (PT.1023) 166 PARAS D-E.
The grouse of the learned Appellant’s Counsel centres on the absence of interpretation of the Court’s proceedings in the language understood by the Appellant vis-a-vis the Appellant’s right to fair hearing.
?Now, by Section 36 (6) (e) of the Constitution FRN 1999 (as amended), every person who is charged with a criminal offence shall be entitled to have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence. To give effect to this constitutional requirement, Sections 241 & 242 (2) of the State C.P.C. mandate the trial Court not only to make use
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of the services of an interpreter but also to ensure that the record of the Court shows the name of the interpreter, the language from and to which he interprets, and where a confessional statement recorded by a police officer in accordance with the Law is admitted in evidence, Section 126(4) requires that same be ?read out in Court?.
What stands out from the combined effect of these provisions is that where an accused person in a criminal trial does not understand or decides not to speak the language of the Court, which is English language, (MADU V. STATE (1997) 11 NWLR (PT.484) 386), the Court shall endeavour to provide an interpreter who understands and speaks both the English language and the language understood and spoken by the accused person in satisfaction of the constitutional and procedural requirements rooted in the hallowed principles of fair hearing which itself stems or originates from the rule of natural justice.
?The question that arises in this appeal is whether an interpreter was provided by the learned trial Judge for the interpretation of the proceedings thereat including the reading of the contents of the
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confessional statements (Exhibits P3 & P4) and if the answer is in the negative, what is the effect of such a failure?
A look at the record of appeal as recorded at pages 1&2 shows the following:-
“Resumed 20/11/12
Mr. N.S. Tafida:-……………..Appears for the State
Mr Garba Muhd Nabayi:-…Appears for the accused.
Mr Tafida:-…….The case is for mention and the case is coming up for the first time in this Court and represented by a Counsel. We are ready to proceed.
Mr Nabayi :-……… We are equally ready.
Court:…………………………….. You may proceed.
Mr Tafida:-…………..If the leave is granted, we further apply for the charge to be read to the hearing and understanding of the accused person and his plea to be taken thereto.
Court/Reg:-CHARGE READ AND EXPLAINED TO THE ACCUSED PERSON WHO APPEARS TO HAVE UNDERSTOOD SAME.
Court/Accused: …………. Are you guilty or not.
Accused:. I am not guilty”.
The above proceedings of the lower Court on the 20/11/2012, when the accused/Appellant was first arraigned before the
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Court and the charge read and explained to him, visibly shows sufficient compliance with the constitutional and procedural requirement of interpretation of the Court’s proceedings as transpired on that date. There is however no indication expressly on record that the interpreter carried out the interpretation on the subsequent days of the trial including the day when PW 6 through whom the statements of the Appellant were admitted as Exhibits P3 & P4, testified. This notwithstanding, although it is highly recommended and desirable that the record of a trial Court should show that interpretation is done on every day of the trial, it is now settled law that once a trial Judge, as in the instant case, has recorded in a proceeding the provision of the services of an interpreter, there is no absolute requirement on him to show on the record that the interpreter was present on each and every subsequent day of the trial, particularly where as in this appeal, the accused person was represented throughout the trial by a Counsel. The presumption of regularity in Section 168 (1) of the Evidence Act 2011 comes into play to the effect that the interpreter was present
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and interpreted on each and every subsequent day of the trial, the trial Judge having recorded that the accused did not understand the language of the Court and having provided him with an interpreter on arraignment. See MADU V STATE (SUPRA).
The situation might however be different had the Appellant not been represented by a Counsel and is able to affirmatively prove that the interpreter was in fact not present on the stated or subsequent days of the trial. He would in such a case have shown that his fundamental right to fair hearing has been breached see LOCKNAN & ANOR. V THE STATE (1972) ALL NLR 498. But that is not the case here. The Appellant herein was represented throughout the trial by a Counsel who raised no such objection at the trial but rather decided to lay ambush for the prosecution or more appropriately, I should say, acquiesced to the proceedings only to come on appeal to raise the objection. Agreed the law requires that there should be adequate interpretation to an accused person of anything said in the course of and throughout the trial in a language he understands see STATE V. GWONTO & ORS (1983) NSCC 104 @ 112, but where an
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accused person represented by Counsel raises no objection at the trial, Can he raise the objection on appeal for the first time?
The simple answer is in the negative. It is settled law that the proper time for an accused person who was represented by a Counsel at the trial Court to raise an objection on the absence or inadequacy of interpretation, is at the trial Court where and when the denial allegedly took place and not on appeal for the first time, as the Appellant seeks to do in this appeal. The objection can only be raised on appeal for the first time where the accused was unrepresented by Counsel at trial or his objection thereat was refused but not where he was represented at the trial Court by Counsel who kept mute and acquiesced to an irregular proceedings. See MADU V. STATE (SUPRA). A party who abstains from interfering when a violation of his right is in progress, would appropriately be deemed to have acquiesced to the violation and waived his right to subsequently complain. Having fully participated in the irregular proceedings, he will be forbidden from asserting the legal right when he later wakes up from his slumber or indolence, as the
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Law aids only the vigilant and not the indolent “vigilanti boues et non domientibus Jura sub venriunt” see YUSUFF V. DADA (1990) 4 NWLR (PT. 146) 657. Such an Appellant will be precluded on appeal, from complaining of denial of fair hearing on ground of lack of interpretation except he had, at the trial Court first raised the objection.
See MADU V. STATE (SUPRA). See also UDOSEN V. STATE (SUPRA), QUEEN V. EGUABOR (1962) 1 ALL NLR 287.
In the instant case, the record shows that the Appellant was represented throughout the trial but nothing to show that the Counsel ever applied for and was refused or denied an interpreter nor that the Learned Counsel raised any objection at the trial.
In all conscience, it puzzles and beats my imagination hands down that the defence Counsel would have sat in the Court and watched the proceedings being conducted in English Language not being interpreted to his client and yet keep mute without requesting for an interpreter or raising any objection. It is inconceivable and highly improbable. Had interpretation not taken place, the defence Counsel would have raised an objection as he did when the medical report was 1st
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tendered on 23/01/2013, as recorded at page 11 of the record. Obviously, if it is the case of the Appellant that no interpreter was provided by the Court and the accused requested for one but was refused by the Court, there would have been a clear violation of Section 36 (6)(e) of the Constitution; but that is not the case here.
Worthy of note also is the fact that the Appellant testified in his defence as DW1 and was recorded to have been affirmed in Hausa Language. (See page 18 of the record) which per force presupposes that the services of an interpreter was employed to interpret his evidence in chief and cross-examination from Hausa to English and vice versa.
The learned Counsel for the Appellant has branded the absence of express indication on the record that an interpreter was used as a deprivation of the Appellant’s right to fair hearing. I disagree with him.
Indeed even where an accused was not represented by Counsel at the Court of trial, absence of interpretation per se does not automatically result in denial of fair hearing except a miscarriage of justice occurs ? see OKORO V. STATE (SUPRA). After all the right to
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interpretation is not indispensable and where the accused did not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter had led to a miscarriage of justice -QUEEN V. EGUABOR (1962) 1 ALL NLR, 287.
I do not therefore think that the heavens will fall on the universe or the sun will set from the East merely because an interpreter was not provided or shown to have been provided to an accused person who was represented by a Counsel and who was always in attendance and fully participated throughout the trial. In other words the absence of the provision of an interpreter in such a situation is not enough to upturn a conviction secured by the prosecution or to vitiate the trial, merely and solely on that ground.
?Still on this issue, the learned Appellant’s Counsel contended that the failure to read Exhibits P3 and P4 in Court denied the Appellant the opportunity to know their contents to prepare for his defence in specific denial of the facts therein stated rather than the general denial which did not impress the learned trial
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Judge.
Again, stretching from the penultimate reasoning, I make bold to say that the same reasoning and legal principle equally applies to the failure to read the confessional statement in the open Court where the accused was represented by a Counsel. This is so because assuming the confessional statements were not read in the open Court after they were admitted, the Counsel representing the accused had the right and indeed a duty not only to request that they be so read to the hearing of the accused/Appellant, but also to request for and make use of the statements to confer with the accused whom he represents, and to use same for the purpose of cross-examination.
Furthermore, assuming the said Exhibits P3 and P4 were not read in Court, the proper venue and time to request for their reading or to object to their none reading, is situate at the lower Court where and when the statements were admitted in evidence, and not at this Court. Having failed to complain or raise an objection at the lower Court, the Appellant is not entitled to raise the objection for the first time on appeal.
?Moreover, the learned defence Counsel having asked
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questions in cross-examination from the contents of Exhibits P3 and P4 as shown at page 17 of the record, belies and knocks the bottom off his argument that the Appellant who was represented by Counsel did not know the contents of Exhibits P3 and P4 or was deprived of the opportunity to rebut the specific allegations therein.
In effect, the heavy weather and fuss made by the Appellant’s Counsel on the absence of interpreter and reading of the confessional statements to the accused, in my humble view is only but a storm without a fury. The whole argument forceful as it was, is lame in Law and is only but a storm in a tea pot. I cannot therefore in the least be persuaded to align with the Appellant’s argument since it does not cut the ice of the Law in the light of the decided cases, and I discountenance the submission.
?It is therefore my most candid view that the provision of Section 36 (6)(e) of the Constitution, FRN 1999 (as amended) was not violated and the Appellant was not, in the circumstance, denied a fair hearing. In consequence thereof, the statements of the Appellant, Exhibits P3 and P4 could be relied upon by the Court. Resultantly, I
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resolve this issue against the Appellant.
ISSUE NO.2
On this issue which encapsulates the Appellant’s issues 1, 3, 4 and part of issue 2, the learned Appellant’s Counsel contended that the prosecution did not prove its case beyond reasonable doubt against the Appellant as it did not adduce reliable, cogent and compelling evidence linking the Appellant to the crime because the evidence of the prosecution witnesses were fraught with material contradictions, in that PW1 (the wife of the deceased) who said in chief that the (accused/Appellant) killed her husband, contradicted herself in cross-examination that she did not know who killed her husband, and while PW2 (father of the deceased) said he was the one who told PW3 what the deceased told him that it was the accused/Appellant who killed him, PW3 stated that the deceased said so to him directly and PW1 said she did not hear anything. According to him, these contradictions throw a doubt in the prosecution’s case.
?In the opinion of the learned Counsel, the conviction of the Appellant was brought about as a result of the errors committed by the learned trial Judge and his manufacturing of
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evidence in favour of the prosecution in that:-
Firstly, rather than ascertain the truthfulness of the retracted confession which Exhibits P3 and P4 were, the learned trial Judge on the wrong assumption that a trial within trial was conducted on the voluntariness of the confession, erroneously held that he was satisfied that Exhibits P3 and P4 were voluntarily made and heavily relied upon them;
Secondly, that the learned trial Judge manufactured evidence that the foot prints of the assailant were traced to the house of the Appellant as against the evidence of PW3 who did not say that the foot prints were traced to any particular house or place and;
Thirdly, that the trial Judge accepted the evidence of PW3 that he (PW3) noticed blood stained clothes on the Appellant when arrested without adverting his mind to the fact that the said clothes were not tendered in evidence.
?All these irregularities and errors on the part of the trial Judge leading to the conviction of the Appellant without which it is doubtful if the Respondent would have secured a conviction, learned Counsel argued, had occasioned a miscarriage and failure of justice
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against the Appellant, citing the case of ABDU DAN SARKI NOMA V. ZARIA N. A. (1963) NNLR (incomplete citation) for the meaning of failure of justice.
On the reliance placed on Exhibits P3 and P4 by the trial Court, while the learned Counsel concedes that a confessional statement alone can, in appropriate cases sustain a conviction, he contended that before acting on such a retracted confession, its truth must be tested and same must be corroborated by an independent evidence outside the confession – citing the cases of IKO V. STATE (2001) 14 NWLR (PT. 737) 22 andDELE V. STATE (2011) 1 NWLR (PT. 1229) 508 but that the evidence of PW1, PW2, and PW3 cannot sufficiently corroborate the truth of the confession. He relied on the case of ALARAPE V. THE STATE (2001) FWLR (PT.41) 1872 for the tests to which a retracted confession must be subjected and which according to him, Exhibits P3 and P4 failed to pass. He argued that the alleged confession could not have been possible because it is not usual or normal that the Appellant who for two days of interrogation at the Birniwa Police Station maintained his denial of the offence, could have admitted same offence
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and even if he did so after 6 days of interrogation at the C.I.D. office, he must have been unsettled when he signed the statements, a fact which the learned trial Judge failed to consider but which is one of the 3 grounds upon which an accused person can impeach his confessional statement, citing in support the case of OSETOLA V. STATE (2012) 6 SCNJ 312.
Additionally, learned Counsel argued that though the prosecution is not duty bound to produce all its witnesses, it must however call all material witnesses, such as one Cpl. Musa Muhammad whom the Respondent listed as one of the witnesses but failed to call, the failure of which makes the Respondent guilty of withholding of evidence under Section 167 (d) of the Evidence Act, citing also in support, the case of EFFIONG EKAIDEM V. STATE (2012) ALL FWLR (PT. 631) 1587.
Finally, it was submitted that the prosecution having failed to prove the ingredients of the offence as enunciated in the case of MUSA V. STATE (2009) 6-7 SC (without citing the page number) and the Appellant not having been linked with the offence and coupled with the huge doubt on the credibility of Exhibits P3 and P4 which
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cannot be safely acted upon, a doubt was created in the prosecution’s case which he urged us to resolve in favour of the Appellant to discharge and acquit him, finding support for this submission, on the authorities of BELLO V. STATE (2013) 8 NWLR 207 AND FRN V. IWEKA (2013) NWLR P. 285 (sic) (incomplete citation).
Arguing per contra, and contending that the prosecution proved its case beyond reasonable doubt against the Appellant, the learned Hon. Attorney-General for the Respondent contended that all the ingredients which the prosecution must prove beyond reasonable doubt to secure a conviction as enunciated in the case of MUSA V. STATE (2009) 6-7 SC were proved by cogent, and compelling evidence through PWs 1- 6 and Exhibits 1-4.
Learned Counsel contended that the evidence of PWs 1 – 3 and 5 as well as Exhibit I proved that the deceased, a human being died. On the 2nd ingredient, it was argued that the evidence of PW1, PW2 and PW3 on the stab wounds they saw on the deceased and what they heard him say as to the person who stabbed him qualify as dying declaration by the deceased and admissible in evidence, OKORO V. STATE (2007) 2 NWLR (PT.
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1019) 530, @ 545 B-D, which together with Exhibits P3 and P4 wherein the Appellant confessed the commission of the crime, and the nature and extent of the injury inflicted on the deceased, proved that the Appellant was the killer of the deceased and intended to or knew that death would be the probable consequence of his act.
It was further submitted that circumstantial evidence in this case which alone is sufficient to ground a conviction, ADIO & ANOR V. THE STATE (1986) 2 NWLR (PT.24) 581, points to no one but the Appellant in that the evidence of the Appellant that the deceased was chasing his wife and even gave birth to a baby girl for the deceased, provided the motive for the crime and the evidence of PW3 that he saw blood stains on the clothes of the Appellant when he was arrested, all point unequivocally at the Appellant.
On the alleged contradictions in the prosecution’s case, it was argued on the authority of OCHEMAJE V. STATE (2008) 15 NWLR (PT.1109) 57 @ 79-80 that except for material contradictions it is not every contradiction in a party’s case that vitiates the probative value of the evidence. He contended that whatever
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contradiction there was in the evidence of PW1 in cross-examination was clarified in re-examination and that the evidence of PW2 and PW3 are not contradictory but rather identical as found and held by the learned trial Judge at page 39 of the record; thus, according to him, the cases of BORISHADE V. FRN (2012) 18 NWLR (PT.1332) & AJOSE V. FRN (2001) 18 NWLR (PT.1244) 465 relied upon by the Appellant’s Counsel do not apply here.
On the mention of the conduct of a “trial within trial” learned Respondent’s Counsel argued that it was a mere error which did not occasion a miscarriage of justice or sufficient to nullify the proceedings, for it is not every error that leads to nullification of the proceedings, fortifying his position by the Supreme Court’s pronouncement in the cases of SULE V. STATE (2009) 17 NWLR (PT. 1169) 33, 64 F- H AND TANKO V. STATE (2009) NWLR (PT.1131) 430, 473 – 474 PARAS H-C.
On whether Exhibits P3 and P4 require corroboration, the learned Hon. Attorney-General submitted that a free and voluntary confession alone could warrant a conviction without the need for any corroboration, citing NWACHUKWU V. STATE (2007) 17 NWLR
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(PT. 1062) 65 @ 66, SOLOLA V. STATE (2005) 11 NWLR (PT. 937) 46 and that assuming without conceding that corroboration was required, the evidence of PWs 1, 2, 3, 4, 5 and 6 heavily provided the corroboration.
We were urged to dismiss the appeal and affirm the Judgment of the Lower Court.
It is now firmly established in our Criminal jurisprudence and proceedings that the burden of proving that any person has committed an offence is on his accuser, usually the prosecution, to prove what he asserts; beyond reasonable doubt, by virtue of Section 36(5) of the Constitution FRN 1999 (as amended) and Section 135(2) Evidence Act, 2011. See ANI V. STATE (2009) 16 NWLR (PT. 1168) 443 SC, NWEKE V. STATE (2001) 4 NWLR (PT. 704) 588, BABUGA V. THE STATE (1996) 7 NWLR (PT.460) 279.
What the prosecution must prove in a charge of culpable homicide punishable with death, have been stated and restated in several decisions including the case of MUSA V. STATE (SUPRA) cited by the learned Respondent’s Counsel to be the following:-
(a) that the death of a human being has actually taken place;
(b) that such death has been caused by the accused;
(c) that the
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act was done with the intention of causing death or that the accused knew (or had reason to know) that death would be the probable consequence of his act.
It is needless to re-emphasize that all these ingredients must together be proved beyond reasonable doubt and failure to prove any of the ingredients, means failure to prove the charge.
The prosecution called six witnesses three of whom were the relations of the deceased and the others were the Bulama of the Village (PW4), the medical doctor (PW5) and the I.P.O. (PW6).
On the 1st ingredient that a human being died, there is no contention that the deceased, Garba Maijama’a died. This fact was not contested. The evidence of PW1, the wife of the deceased, PW2, the father of the deceased, PW3, the brother of the deceased, PW4, the Bulama of the village that the deceased died, was confirmed by PW5, the medical doctor who confirmed the deceased dead.
On the second ingredient, that the Appellant is the killer or the person who caused the death of the deceased, the evidence of PW1 at pages 3-4 of the record inter alia was:-
?I was sleeping when I heard that my late husband
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and the accused person were wrestling and Gambo (the deceased) was calling his father and his senior brother and before I came out of the room the accused had already ran away. Both the father and the senior brother of the deceased came to the scene. I did not hear anything as I was beside them.”
In cross-examination, she stated:-
“…… the incident happened at midnight, I don’t know what happened, I don’t know who killed my husband…”
PW2 who was the father of the deceased testified that:-
I was sleeping when I heard my son calling me to come immediately, I then came out hurriedly and met him at the door in pool of blood coming out of his chest and neck. He told me that it was Idi (the accused person) that stabbed him. One Mallam Hussaini who is also my son came out on hearing the call made by Gambo (the deceased) so I informed him of what happened to Gambo and ask him to report the matter to Bulama…..”
PW3, the deceased’s brother stated in evidence that:-
“…… at night while I was sleeping in my house I heard Gambo (the deceased) calling me asking me to assist him and I came out hurriedly and went to where
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animals were and stood up….my father informed me of what happened to the deceased. I went to (sic) close to the deceased while he was standing and he told me that it was Idi (the accused) that came to his room and stabbed him with a knife. He further told me that it was Idi Musa and when I enquired as to which Idi, he said the son of Musa the person who migrated from our settlement to Gaidam. I came close to the deceased and observed injuries near his chest and one at his neck.”
?
What comes out of the totality of the evidence of these 3 prosecution witnesses is that none of them witnessed the commission of the crime; in other words, there was no direct eye witness to the commission of the offence and their evidence cannot be classified as eye witnesses account of the incident. This fact the learned trial Judge took cognisance of in his evaluation of the evidence at page 44 of the record.
Evidence of eye witness account of the commission of a crime is however not the only way by which the guilt of an accused person can be proved. In the absence of eye witness(es) the guilt of an accused person can also be proved either by confessional statement of
26
the accused or by circumstantial evidence or both. See HARUNA V. ATTORNEY GENERAL OF FED. (2012) LPELR – 7821 (SC), EMEKA V. STATE (2001) 14 NWLR (PT. 734) 666, IGABELE v. STATE (2006) 6 NWLR (PT.975) 100).
On proof of guilt by a confessional statement, the Law is that a free and voluntary confession of guilt made by an accused person, either judicial or extra judicial, which is direct, positive and properly proved, is sufficient to warrant a conviction of the accused person without any corroborative evidence so long as the Court is satisfied with the truth of the confession. Such a confession constitutes proof of guilt of the accused and suffices as evidence upon which to ground or sustain his conviction. SeeIDOWU V. STATE (2000) 12 NWLR (PT. 680) 48, DIBIE V. THE STATE (2007) 9 NWLR (PT.1038) 30, OMOJU v. FRN (2008) 7 NWLR (PT. 1085) 38.
?Indeed there is no Law that precludes or prohibits a Court of Law from convicting an accused person solely on his own confession as the circumstances justify, so long as the Court is satisfied of the truth of the confession. What is important is that the confession is direct, positive and satisfactorily
27
proved; it is immaterial that the accused person retracts or resiles from the confession.
The confessional statements of the accused/Appellant, Exhibit P3 and P4, it is noted, were retracted by the Appellant, who, in his evidence in Court, resiled from the confession. It is therefore desirable by prudence and the well laid down practice that before convicting the accused person upon such a retracted confession, the Court should first look for some corroboration outside the confession which would make the confession probable. In other words, the duty of the trial Court is first to look for some evidence outside the confession, circumstantial or otherwise which connects or tends to connect the accused person with the commission of the offence. BASSEY V. THE STATE (2012) LPELR – 7813 (SC), KAREEM V. STATE (2002) FWLR (PT.125) 796. What this means is that the trial Court is to subject the retracted confession to the well laid down tests in the English case of R V. SKYES (1913) 18 CR. APP. REPORTS, approved by the West African Court of Appeal (WACA) inR V. KANU 14 WACA 30 and endorsed and applied by our Supreme Court in a legion of cases including KAREEM
28
V. FRN NO. 2 (2002) 8 NWLR (PT. 770) 664, DAWA V. THE STATE (1980), SHAZALI V. STATE (1988) NWLR (PT. 93) 164, AKINMOJU V. STATE (2000) 6 NWLR (PT.662) 608, by asking itself these questions:-
(i) Is there anything outside the confession which shows that it is true?
(ii) Is it corroborated in any way?
(iii) Are the relevant statements of fact made in it most likely to be true as far as they can be tested?
(iv) Did the accused have the opportunity of committing the offence?
(v) Is the confession possible?
On whether the confessional statement of the Appellant met the stated requirement of the Law for weight to be attached to it, the learned trial Judge at page 44 of the record held inter alia:-
“…… I still have to say that the statement is admissible in law and it had satisfied all the test required by law and it has even corroborated the evidence of all the prosecution witnesses and this Court can safely act upon it in deciding the fate of the accused person and I so hold”.
The learned Appellant’s Counsel has picked hole with this finding by the learned trial Judge and completely disagrees with same contending
29
that the confession, the veracity of which was neither tested nor was it corroborated by any other evidence, is not possible.
The pertinent and relevant question is whether there was/is any independent evidence outside Exhibits P3 and P4 however slight that connects or tends to connect the Appellant with the crime; any evidence that implicates the Appellant and confirms in some material particular not only that the crime had been committed, but also that the Appellant committed the crime. OKABICHI V. THE STATE (1975) 3 SC 96; IKO VS THE STATE (2001) 14 NWLR (PT.732) 195; STATE VS GWANGWAN (2015) LPELR-24837 (SC). In other words, whether there is any other piece or pieces of evidence on record direct or circumstantial that support or strengthen the confession showing or tending to show that the Appellant committed the offence.
The other pieces of evidence on record comprise the evidence of prosecution witnesses (PWs) 1, 2, 3, 4, 5, and 6.
The evidence of PWs 1 – 3 the relations of the deceased is that they heard the deceased shouting calling out on PW2 and Pw3 to come. PW2 & PW3 gave evidence on what the deceased said before
30
he died, regarding the person who inflicted the injuries on him, whose evidence, the learned Respondent’s Counsel submitted, constitutes evidence of dying declaration which is admissible in evidence.
Undoubtedly, a statement made by a person as to the cause of his death, or as to any of the circumstances of the events resulting into his death is relevant and admissible as dying declaration in cases in which the cause of his death becomes an issue, where such a deceased person at the time of making the statement, believed himself to be in danger of approaching death or in imminent fear that death was knocking on his door, although he may have entertained some hope of recovery. AKPAN V. THE STATE (2009) LPELR 2542 (SC), OLABODE V. STATE (2009) LPELR 2542 (SC).
?Thus, when as in the case at hand an issue arises as to the cause of death of a deceased person, any statement made by him during his life time as to the cause of his death to the effect that he may die from injury received from a person whom he identified as the person who inflicted the injury that eventually caused his death, is relevant and admissible as dying
31
declaration.
The witnesses who were at the scene immediately after the incident happened, are PW1, PW2 and PW3; whose evidence has already been reproduced in this Judgment. I shall again take the pains, even at the risk of repetition, to reproduce some parts of the evidence for their relevance on this issue, PW2 stated Inter alia:-
He told me that it was Idi (the accused person) that stabbed him.
One Mallam Hussaini who is also my son came out on hearing the call made by Gambo the deceased and so I informed him of what happened to Gambo and asked him to report the matter to Bulama.
The evidence of PW3 on the dying declaration inter alia is that:-
“he told me that it was Idi (the accused) that came to his room and stabbed him with a knife. He further told me that it was Idi Musa and when I further enquired as to which Idi, he said the son of Musa the person who migrated from our settlement to Gaidam…..”
The evidence of PW1, the wife of the accused is that:-
“…….Both the father and the senior brother of the deceased came to the scene. I did not hear anything as I was beside them.” [Underlining mine, for
32
emphasis only]
The learned Counsel to the Appellant has labelled the said evidence of these 3 witnesses as contradictory to each other, for while PW1 said she did not hear anything, the evidence of PW2 is that he was the person who told PW3 what the deceased told him, and the evidence of PW3 is that he heard it direct from the deceased. Let me pause here to ask
When is evidence said to be contradictory?
A piece of evidence is said to be contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are minor discrepancies in say, details between them. In other words, contradiction between 2 pieces of evidence goes rather to the essentiality of something being or not being at the same time. DAGAYYA V. STATE (2006) 7 NWLR (PT. 980) 687, GABRIEL V. STATE (1989) 5 NWLR (PT. 122) 457.
A contradiction is material or substantial when it touches on an important element or issue which the prosecution, or a party, as the case may be, needs to prove to succeed in its or his case. In IGBI V. STATE (2000) NWLR (PT.648) 169 Ayoola JSC succinctly explained the principle
33
thus:-
“Discrepancies or contradictions in the evidence of a witness or witnesses may be said to be material where they go to an issue of fact which must he determined before a proper verdict can be arrived at in a case or where the circumstances in which they occurred, they were such as to cast a doubt on the credibility of the witness or witnesses”.
Thus, the question as to whether the deceased made a dying declaration and to whom the declaration if any was made, is an important issue of fact and which touches on an important element of dying declaration that the prosecution needs to prove to succeed before reliance can be placed on the statement as evidence of dying declaration either in support of the conviction or as evidence in corroboration of the confession. It follows that any contradiction touching on the fact whether or not the deceased made any statement before he died and or to whom or the exact words used by the deceased, are material contradictions that affect the substantiality of what is to be proved, and the credibility of the witness or witnesses who
34
seek to prove that fact.
Such contradictions go beyond mere discrepancies.
In the case at hand, as shown, the evidence of PW1 the wife of the deceased and with whom they slept in the same room before the incident, is that though she was beside PW2 and PW3, she did not hear anything. This evidence of PW1 which is diametrically opposite to those of PWs 2 and 3 and at an axis that will never converge at the same point with those of PW2 and PW3, is, by all standards, materially contradictory to the evidence of PW2 and PW3 who testified that the deceased made a dying declaration that it was the Appellant who stabbed him.
Obviously, the evidence of PW1 is in violent conflict and disagreement with those of PWs 2 and 3. Both positions cannot be correct. It is curious that only PW2 and PW3 claim to have heard the deceased make a statement as to who stabbed him, but not PW1 whom they met at the scene and remained with them, and who should be the first to hear anything if said by the deceased. How could it be that only PW2 and PW3 who only later joined PW1 heard the deceased make a statement?
?Again, even as between PW2 and PW3
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there is no concurrence but another disagreement and indeed a contradiction as to whether PW3 heard the statement directly from the deceased and the exact wordings used or if he heard it through PW2.
Did the deceased make the statement directly to PW3 and in the details as given by PW3 or was it PW2 who informed PW3 and in the words stated by PW2? While the evidence of PW2 is simply that the deceased told him it was IDI (the accused) who stabbed him, the evidence of PW3 went much further than that.
The account of all the details given by PW3 were not given by PW2.
There is clearly an ambiguity or uncertainty as to the exact words used as between the two pieces of evidence which cannot be dismissed with a wave of hand or treated as a mere discrepancy as evidence of dying declaration must be strictly proved and in the exact words used by the deceased. The words must be clear, precise, definite and unambiguous. Any ambiguity, imprecision, uncertainty or interpolations in the exact words used by the deceased person is viewed as a serious contradiction which weakens and hampers the acceptability of the evidence, seeOKOKOR V. STATE (1967) NMLR
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189, AKPAN V. STATE (1994) NWLR (PT.361) 226.
In HAUSA V. STATE (1994) 6 NWLR (PT. 350) 28 where the words used by the deceased on being shot as related by PW2 therein were:-
“Hausa has shot me; Hausa has shot me;” but in the words of PW3 they were:-
“Hausa it is you that shot me; Hausa you have killed me?
The Supreme Court held that:-
“Where the Court must rely on the account given by an eye-witness who heard a dying declaration made by the deceased, strict proof is required of the dying declaration in the exact words used by the deceased………..
Thus, if the words used in the dying declaration are unclear, in-precise and not free from ambiguity, such a manifest contradiction would militate against its application”.
The Court held that the words were divergent and uncertain.
So is it in the case at hand that the serious contradictions between the evidence of PW1 and those of PW2 and PW3 on one hand, and the uncertainty of and disagreement between the evidence of PW2 and PW3 on the other, which casts serious doubts in their credibility, renders their evidence inadmissible as evidence of dying
37
declaration and precludes same from being relied upon.
Before I consider myself done on this point, I need also to state that the admissibility of the evidence of dying declaration of a deceased person as an exception to the hearsay rule, is limited only to the person who heard the declaration directly from the deceased. It does not extend to a 3rd person who heard the statement from a witness who heard the declaration directly from the deceased; as is the case with evidence of PW3.
There is yet another evidence given by PW3 relied upon by the learned trial Judge as circumstantial evidence; that when the Appellant was arrested, he was seen with blood stained clothes. To use his words, PW3 said:-
Later the Bulama of Maja village called us through GSM and told us that they arrested the accused person. On getting there we saw blood stain on his clothes which is an indication that he was the person that committed the offence.
Circumstantial evidence connotes evidence of surrounding circumstances which by undersigned coincide, is capable of proving a proposition with the accuracy of Mathematics, that the accused but no one else
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is responsible for the offence. The proposition must be cogent and compelling and must attain the highest degree of exactitute. See NWEKE V. THE STATE (2001) 4 NWLR (PT. 704) 588, EBRE & ORS V. THE STATE (2001) 12 NWLR (PT. 728) 617.
It is clear from the quoted evidence of PW3 that the blood stains seen on the clothes of the Appellant as related by PW3, was after his arrest, which arrest was made by the Police. The pronoun used by the PW3 is in the first person plural, that is “we saw blood stains….” which simply means by his evidence, that he was not the only person who saw the blood stains on the Appellant’s clothes. However, no other witness gave evidence of seeing any blood stains or any stains on the Appellant’s clothes, not the Bulama (PW4) who informed him (PW3) that the Appellant had been arrested or even the Police officer who investigated the case (PW6).
?PW3 as the record shows, is a brother to the deceased, while PW2, the father of the deceased. That is not to say that they are not competent witnesses or their evidence cannot be relied upon. NO. There is no Law which prohibits or precludes blood relations of the victim of a
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crime from testifying for the prosecution where such a relation is the victim of the offence committed. OMOTOLA V. THE STATE (2009) 7 NWLR (PT.1139) 148 S.C. A case is not lost merely because the prosecution witnesses are blood relations of the victim. In fact in some cases the only available witnesses may be the blood relations of the victim who in Law, are competent witnesses. AREHIA v. THE STATE (1982) 4 – SC 78 @ 92, NKEBISI & ANOR V. THE STATE (2010) 5 NWLR (Pt. 1188) 471 SC, ADELUMOLA V. THE STATE (1988) 1 NWLR (PT.78) 663.
So the issue is not whether they are competent witnesses for the prosecution but whether they are credible witnesses. So long their evidence is cogent and compelling and the probability of deliberate falsehood or bias can be ruled out, their evidence is acceptable – ALI V. THE STATE (2015) LPELR-24711 (SC).
However the Court must be circumspect in evaluating and scrutinizing their evidence to ascertain their credibility so as to exclude the possibility of their evidence being tainted with falsehood or bias.
?This is why their evidence must be examined with a tooth comb to ensure that they are not tainted
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witnesses who have some purpose of their own to serve, and if the Court finds that they are tainted witnesses whose special purpose is to ensure that the accused person was convicted of the offence charged, their evidence would deserve no atom’s weight of credibility and the Court should be wary of acting on such evidence to ground a conviction.
In the case at hand, taking a panoramic view of the evidence of PW3 from what has so far been demonstrated of his character, it is not difficult to arrive at the conclusion that he had a special interest and purpose of his own to serve, that of ensuring that the Appellant was convicted of the offence charged. I say so for these reasons:-
(1) PW3 was the only witness who gave evidence of blood stains on the clothes of the Appellant though by his evidence, he was not the only person who saw the blood stains, albeit without mentioning the name(s) of the other person(s) who saw the blood stains. Most significantly, even the I.P.O. who investigated the case never made mention of any blood stained clothes let alone said he saw any.
?(2) The said blood stained clothes, such a vital evidence, was not tendered
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in Court nor was any explanation offered for its non- production in Court. In any case, the I.P.O. knew nothing about it, said nothing about it and could not have tendered what was not before him.
(3) PW3 has, by his evidence of dying declaration, proved himself to be unworthy of any credit.
It is now well settled, by a long line of cases since the case of R V. SALA SATI (1938) 4 WACA 10, that to support a conviction based on circumstantial evidence, the evidence must not only be cogent, complete and unequivocal but also compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer; it must leave no ground for reasonable doubt. LORI V. STATE (1980) 8 ? 11 SC 81. There must be no other co-existing circumstances capable of weakening the inference. EDOBOR V. THE STATE (1975) 9 ? 11 SC 69, 75, ADEPETU V. STATE (1998) 9 NWLR (PT.565) 185.
?This cannot be said of the evidence of PW3. His evidence is anything but cogent, credible, it does not in the least lead to the conclusion of guilt of the Appellant and same cannot safely be relied upon as circumstantial evidence against the Appellant or as
42
evidence in corroboration of the confession. Evidence which is incredible cannot serve as corroborative evidence, as corroborative evidence must in itself be credible. EZIGBO V. STATE (2012) LPELR – 7855 (SC).
Another evidence which the learned trial Judge relied upon as circumstantial evidence is that of foot print of the assailant being traced to the house of the Appellant. This finding and conclusion by the learned trial Judge, the Appellant’s Counsel has argued, was predicated on manufactured evidence by the trial Judge.
At page 44 of the record, the learned trial Judge held inter alia:-
?But however, from the evidence before this Court, circumstances have revealed that the accused went to the house of the deceased that fateful day because a foot print was traced to the house of the accused but he was not found therein….. ” (Underlining mine, for emphasis)
The only witness who gave evidence of following foot print of the assailant was PW3.
His evidence in chief was that:-
“…..while we were following the foot print we met the DPO of Birniwa who asked us to go back home due to the problem of
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night….”
and in cross-examination, stated thus:-
“…..so we followed his foot print in order to trace him out we could not trace him…” [Underlining for emphasis] Pages 6-7 of the record.
It is clear that the above finding made by the learned trial Judge, as rightly submitted by the Appellant’s Counsel, is not borne out of the evidence on record. It is not part of the evidence of PW3 or of any witness. Rather, the evidence on record is that the foot prints could not be traced. I entirely agree with the learned Appellant’s Counsel that the said finding by the learned trial Judge based on the evidence he manufactured, is perverse, more so that he was greatly influenced by the perverse finding and the conclusion he arrived at. A finding of fact is said to be perverse when it runs counter to the evidence or pleadings, or where it has been shown that the trial Court took into account matters which it ought not have taken into account; or where the trial Court shuts its eyes to the obvious or the decision has occasioned a miscarriage of justice – MINI LODGE LTD V. NGEI, LAGGA V. SARHUNA (2008) 16 NWLR (PT.1114) 427, MOMOH & ORS V.
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UMORU (2011) LPELR – 8130 (SC). Similarly, a conclusion arrived at by a trial Court is perverse where it is not justified by the evidence led by parties or where the vital pieces of evidence were not adverted to. ALHASSAN ADO GARBA v. ALHAJI SAIDU ALI GALADIMA (1993) 4 NWLR (PT.285) 72.
In the instant case, the finding of fact made by the learned trial Judge predicated on his manufactured evidence that the foot prints were traced to the Appellant’s house, which runs counter to the evidence on record cannot be anything but perverse, and the conclusion thereon arrived at which weighed heavily on the mind of the trial Judge, is most unjustifiable.
?Another aspect of this appeal which needs commenting about is the absence of any nexus between Exhibit P2 and the Appellant aside from the contents of Exhibits P3 and P4. The only evidence provided by PW6 was that the knife (Exhibit P2), was transferred along with the case diary to the State CID. There is a complete absence of evidence on record, as to the recovery of the knife. The serious mindboggling questions are ?WHO recovered the knife”, “WHEN”, ?HOW” and from ‘WHOM” was it recovered?
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These are very vital and material unanswered questions, which the evidence of the prosecution needed to have provided answers for.
Perhaps, if the IPO at the Birniwa Police Station, listed as a witness in the proof of evidence had been called as a witness these questions might have been answered since the evidence of PW6 was silent on these material facts. Any attempt to answer these questions without any direct and positive evidence on record would only be speculative which is outside the duty and jurisdiction of the Court- ARCHIBONG v. ITA (2004) 117 LRCN 3801, ONYIRIMBA V. STATE (2002) 11 NWLR (PT.777) 83.
These unanswered questions no doubt creates a great gap in the prosecution’s case and a disconnect between the Appellant and the knife, which is the weapon allegedly used in the commission of the offence.
?It follows that from the dissection of the evaluation of the evidence made by the learned trial Judge, it is clear as we have graphically demonstrated, that the learned trial Judge failed to properly assess the credibility of the witnesses and to ascribe the proper probative value to their evidence, but rather went out of his way to
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interpolate into the evidence what was not placed before the Court which beclouded his mind from seeing the material contradictions between the evidence of PW1, PW2 and PW3, making their evidence, in particular, of PW3, unsafe to rely upon as proving circumstantial evidence or corroboration of the confession. The learned trial Judge also, with respect to him, failed to see the great gaps in the prosecution’s case. The cumulative effect of all the material contradictions and the unfilled gaps in the prosecution’s case, is that there is not, outside the confession, any credible evidence corroborating or strengthening the confession which implicates or links the Appellant to the crime.
Obviously, the findings of the learned trial Judge that the evidence of PWs 1 – 6 support the confession is without basis. Further, his findings at page 39 of the record that:-
?….the above pieces of evidence of PW2 and PW3 are very much identical…”,
at page 45 that:-
“….because a foot print was traced to the house of accused but he was not found therein
at the page 48 that:-
“…..when PW3 saw him (accused) he notice some
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blood stained (sic) in (sic) his clothes…”
are all perverse as well as his conclusion predicated upon the perverse findings. These perverse findings and conclusion together with the untested and uncorroborated confession which led to the conviction of the Appellant, occasioned a miscarriage of justice against the Appellant.
Learned Respondent’s Counsel has alluded to the motive for the commission of the offence as another factor in support of the confession. While the existence of motive is a relevant fact in determining whether a person did what he is alleged to have done, ISHOLA V. THE STATE (1978) 9 ? 10 SC 81, the guilt of an accused person is not proved merely by his motive, but by cogent evidence, direct or circumstantial linking the accused to the crime. And where as in this case there is no direct evidence and the circumstantial evidence is deficient and incredible, it only helps an accused person to acquittal. LORI V. STATE (1980) SC 811, as suspicion however strong cannot take the place of legal proof NSOFOR v. THE STATE (2004) 18 NWLR (PT.905) 292 SC, SHEHU V. STATE (2010) ALL FWLR (PT.523) 1850. Neither the contradictory
48
evidence of dying declaration nor the manufactured and incredible circumstantial evidence relied upon by the learned trial Judge supplied an independent credible evidence outside the confession.
It is settled Law that where the findings of a trial or Lower Court is not supported by the printed record or the finding is not the proper conclusion or inference to be drawn from the evidence, an Appellate Court will and must, in the interest of justice, interfere by altering reversing or setting aside such perverse finding of the Lower/trial Court.
OGBUOKUELU & ORS V. UMEANA FUMKWA & ANOR (1994) 4 NWLR (PT.341) 1676, LAYINKA V. MAKINDE (2002) 10 NWLR (PT.775) 358. This is indeed one of such situations when this Court has to interfere with the perverse findings and conclusion. Where, as in this appeal, at the end of a criminal trial on the whole of the evidence before it, the trial Court and indeed an Appellate Court is in a state of doubt, the prosecution would have failed to discharge the burden of proof placed upon it and the accused person is entitled to an acquittal ?IKE V. STATE (2010) 5 NWLR (PT.1186) 41, OBI V. STATE (2013) 5 NWLR
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(PT.1346) 66. Any reasonable doubt, and I do not say unreasonable, fanciful or shadow of doubt, which is created and lingers on in the mind of the Court or Tribunal, must be resolved in favour of the Accused person for the principle of Law which has now become an adage, that it is better for nine guilty persons go free than to send one innocent person to his grave, still holds true to date. The Appellant is entitled to the benefit of that doubt.
The result is that this issue is resolved in favour of the Appellant, against the Respondent. Consequently, I set aside the perverse findings and conclusion by the learned trial Judge, and allow the appeal. The conviction and sentence of the Appellant by the Lower Court are all set aside and in their stead, the Appellant is discharged and acquitted.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my lord AMINA AUDI WAMBAI JCA and I agree completely with the reasoning and conclusions reached by my lord in the said judgment. The case against the Appellant as the accused at the lower Court was riddled with yawning gaps and contradictory evidence of witnesses, such
50
that it cannot be said that the case against him was proved beyond reasonable doubt. Yes, the deceased was killed but who killed him? Was it the Appellant? From the state of the evidence, it cannot be said with reasonable assurance that the Appellant was responsible for the death of the deceased. The law is that the case against an accused person must be proved beyond reasonable doubt. This demand of the law, is of considerable antiquity and is probably derived from the Latin maxim- in criminalibus probationes debent esse luce clariores (in criminal cases, proofs must be clearer than daylight). In other words, no man should be convicted if there is any doubt about his guilt. In the lead judgment, my lord has shown just how porous the case against the Appellant is. The doubts in the case which are indeed many, ought to be resolved in his favour. For this reason and the more detailed reasons given in the lead judgment, this appeal is allowed. The judgment of the lower Court is set aside. The Appellant is hereby discharged and acquitted.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the lead judgment of my
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learned brother Amina Audi Wambai JCA.
I agree with the reasons and conclusions therein. I also allow the appeal and set aside the conviction and sentence of the Appellant by the lower Court.
?The Appellant is accordingly discharged and acquitted
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Appearances:
Baffa AlasanFor Appellant(s)
S. H. Garun Gabas – Hon Attorney-General, with him, Adamu Mukhtar, Musa M. Imam, Muneer Musdapher, Aliyu Abdullahi, Zakiyu Mohammed and Muhammed El-Usman- Ministry of Justice Jigawa StateFor Respondent(s)
Appearances
Baffa AlasanFor Appellant
AND
S. H. Garun Gabas – Hon Attorney-General, with him, Adamu Mukhtar, Musa M. Imam, Muneer Musdapher, Aliyu Abdullahi, Zakiyu Mohammed and Muhammed El-Usman- Ministry of Justice Jigawa StateFor Respondent
