ISAH v. STATE
(2022)LCN/16885(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Friday, June 03, 2022
CA/S/22C/2018
Before Our Lordships:
Ali Abubakar Babandi Gumel Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
MURTALA ISAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE BASIS OF ADMISSIBILITY OF EVIDENCE AT TRIAL
It is axiomatic and well settled in litigation and adjudication that the fountain head of admissibility of evidence at a trial is relevance. The catch–phrase is that every admissible document has to be relevant. Therefore what makes a piece of evidence relevant is when sufficient facts relating to the piece of evidence or documentary evidence are, for example, in a civil case, copiously pleaded. This goes to show its relevance to the case of the party in question and once the piece of evidence is competent, that is to say that there is no legal bar to its admissibility, then the document is admissible. Generally speaking, evidence is relevant if it tends in any reasonable degree to establish the probability or improbability of a fact in issue. It is for this reason that the question of relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. To the extent of being a relevant document, I am of the view that the certificate of cause of death dated 07/05/2012 was rightly admitted in evidence in the circumstances of the instant appeal. PER GUMEL, J.C.A.
WHETHER OR NOT THE PROSECUTION CAN RELY ON AN ACCUSED PERSON’S CONFESSIONAL STATEMENT TO PROVE GUILT AND COMMISSION OF A CRIME
In the course of criminal trials, the prosecution sometimes relies on confessional statements of accused persons to prove guilt and commission of crimes. This method of proof of guilt is very well known in the administration of criminal justice and is fully recognised by statutory provisions and case law. For example, in OBINAH JOHN V. THE STATE (2016) LPELR – 40103 (SC), the Supreme Court referred to and applied the provisions of Section 28 of the Evidence Act, 2011 where a confession was defined as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Therefore, retracted confessions are usually extra–judicial statements which amount to confessions which turnout to be inconsistent with the testimony at the trial. See OGUDO V. THE STATE (2011) LPELR – 860 (SC) per Rhodes – Vivour, JSC at page 19 D – E. PER GUMEL, J.C.A.
THE POSITION OF LAW ON CONFESSIONAL STATEMENTS
In a number of decided cases of this Court and the Supreme Court, it has been held that a confession is a statement oral or in writing by a person accused of the commission of an offence at the time it was made, agreeing or admitting that he had committed the offence which he was accused. Such a statement may be used at the trial of such a person for the crime with which he was accused in the discharge of the burden of proof placed by law on the prosecution. However, for a confession to be relevant and admissible at the trial of the matter, it must have been made freely and voluntarily by the maker without any let or hindrance or undue influence of whatever nature by or from persons in authority, usually, in the circumstances of criminal trials here, the police or other crimes investigation agencies. Added to this initial scenario, there is a duty on the Court to test the truth of a confessional statement tendered and admitted in evidence by examining it in the light of other credible evidence before it. In doing that, the usual questions to ask are:-
a. Whether there is anything outside the confession to show that it was true;
b. Whether it is corroborated;
c. Whether relevant statements made in it of facts are true as far as they can be tested.
d. Whether the accused person had the opportunity of committing the offence charged;
e. Whether the confession is possible; and
f. Whether the confession is consistent with other facts which have been ascertained and have been proved.
See OKPANG V. QUEEN (1961) 1 SCNLR 53, MBENU V. THE STATE (1988) 3 NWLR (PT. 84) 615, UDOFIA V. THE STATE (1984) 12 SC 139, AKPA V. THE STATE (2007) ALL FWLR (PT. 351) 1560 and HASSAN WAKILI V. THE STATE (2016) LPELR – 40237 (CA) etc. PER GUMEL, J.C.A.
WHETHER OR NOT THE COURT CAN RELY ON A RETRACTED CONFESSIONAL STATEMENT WHEN CONSIDERING THE EVIDENCE PLACED BEFORE IT
A denial or retraction of a confessional statement is a matter to be taken into consideration to decide what weight could be attached to it. As usual, the Appellant herein made extra–judicial statements which were tendered and admitted in evidence but were seemingly retracted while giving evidence in Court. It is trite and well established that a trial Court can convict on such retracted statements if found to be sufficiently confessional, provided there was other evidence confirming them in material respects. That fact that an accused person has retracted a confessional statement does not mean that the Court cannot act on it. But before a conviction can be properly founded on retracted statement, it is desirable to have some evidence outside of the confession which would make it probable that it was true. See UBIERHO V. THE STATE (2005) 5 NWLR (PT. 919) 644 and ADEYEMO V. FED. REP. OF NIG. (2016) LPELR – 40535 (CA).
In a long line of decided cases of the Supreme Court and this Court, it has been decided and settled beyond any peradventure that in criminal trials, the prosecution is required to prove the guilt of an accused person beyond reasonable doubt. This is heavily anchored on the fundamental human right of the accused as a Constitutional imperative, under Section 36 (5), of being presumed innocent until proven guilty. It is also a procedural safeguard from capricious and whimsical attitude by judges.
Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt but simply means establishing the guilt of the accused person by compelling and conclusive evidence. As pointed out by learned counsel to the Respondent, a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt also envisages that there was sufficient admissible and credible evidence that all the essential ingredients or elements constituting the offence the accused was charged with, were fully established that would justify the conviction of the accused person by the Court. See JUA V. STATE (2010) 4 NWLR (PT. 1184) 217, AMAH V. STATE (1978) 6 – 7 SC 27, AFOLALU V. STATE (2010) 16 NWLR (PT. 1220) 584 and SMART V. STATE (2016) 9 NWLR (PT. 1518) 447 etc. PER GUMEL, J.C.A.
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Sokoto State High Court delivered on 16th June, 2016 in charge No. SS/16C/2013.
On 24th July, 2013, the Appellant was arraigned before the Sokoto State High Court (lower Court or trial Court) along with 7 other accused persons on a 3 Count amended charge to wit:-
“1. That you Murtala Isah (M), Bilal Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammad (M) and Ali Kahiri (M) (At large), Dangiwa (M) (At alrge) Manju (M) (At large), Fatihu (M) (At large), Dan asabe (M) (At large) all of Rumbukawa area of Sokoto North Local Government Area of Sokoto State, on or about the 6th day of April, 2012 at about 23 – 24 hours at Tsalibawa Area of Sokoto North local Government area within the Sokoto Judiciary Division did agree to do an illegal Act to wit you attacked Mustapha Aliyu Ango, Shazaliyu U. Sahabi, Muntari Abubakar, Ibrahim Gandi, Muhammadu Macca, Sanusi Ahmed, Mustapha Abdullahi, Adamu and Sulaiman Muhammad all of Tsalibawa Area of Sokoto North Local Government Area with swords, cutlass, Machete and sticks in which Mustapha Aliyu Ango and Sanusi Ahmed died and the same act was done in pursuance of the agreement. You are thereby committed (sic) an offence Punishable under Section 97 of the Penal Code.
2. That you Murtala Isah (M), Bilal Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammad (M) and Ali Kahiri (M) (At large), Dangiwa (M) (At large) Nasiru Kanbi (M) (At large), Manju (M) (At large), Fatihu (M) (At large), Dan asabe (M) (At large) all of Rumbukawa area of Sokoto North Local Government Area of Sokoto State, on or about the 6th day of April 2012 at about 23 – 24 hours at Tsalibawa Area of Sokoto North local Government area within the Sokoto Judiciary Division, voluntarily caused grievous hurt on one Shazaliyu U. Sahabi, Muntari Abubakar, Ibrahim Gandi, Muhammed Maccah, Adamu, Mustapha, Abdullahi and Sulaiman Muhammad all of Tsalibawa Area of Sokoto North Local Government area with swords, cutlass, Machete and sticks thereby committed an offence Punishable under Section 248 of the Penal Code.
3. That you Murtala Isah (M), Bilal Baba Attah (M), Nasiru Bello (M), Fodio Aminu (M), Nafiu Bello (M), Muhammad Adamu (M), Abdullahi Labaran (M), Naziru Muhammad (M) and Ali Kahiri (M) (At large), Dangiwa (M) (At alrge) Manju (M) (At large), Fatihu (M) (At large), Dan asabe (M) (At large) all of Rumbukawa area of Sokoto North Local Government Area of Sokoto State, on or about the 6th day of April, 2012 at about 23 – 24:00 hours at Tsalibawa Area of Sokoto North local Government area within the Sokoto Judiciary Division, did commit Culpable homicide punishable with death in that you caused the death of one Mustapha Aliyu Ango (M) and Sanusi Ahmad (M) of the same address as by doing an act of attacking them with swords, cutlass, machete and sticks which resulted to their death, with the knowledge that death would be the probable consequences of your act and thereby committed an offence punishable under Section 221 (a) of the Penal Code.”
Upon the arraignment, the Appellant along with all the other accused persons pleaded not guilty and the matter proceeded to trial. At the trial, the prosecution called and relied on the oral evidence of 13 witnesses (PW1 – PW13) their evidence in chief, cross-examination and/or re-examinations are recorded at various pages between pages 116 to 167 of the printed record of appeal. In addition to the oral evidence of those witnesses, the prosecution also tendered some documents as evidence and marked as exhibits at the trial.
At the end of the trial and the conclusion of addresses by respective learned counsel, the prosecution, pursuant to Section 161 of the Criminal Procedure Code (CPC) of Sokoto State, further amended the 3 Count charge to include an additional count. The accused persons in a further exercise all pleaded not guilty to the further amended 4 count charge. The Appellant, as the 1st accused person along with the 2nd, 3rd and 8th Accused persons entered their defence and gave oral evidence as DW1 – DW4. The Appellant was DW1. His oral evidence in chief and cross-examination are at pages 172 to 173 of the record of appeal.
After the evidence of witnesses at the trial, respective learned counsel were ordered to file and exchange written addresses. They obliged accordingly. The filed and exchanged written addresses of respective learned counsel were adopted during the proceedings of the lower Court on 15th April, 2015 at pages 222 to 223 of the record of appeal. The case was then adjourned for judgment. In its judgment, the lower Court found against all the accused persons on 3 of the 4 Count further amended charge and convicted them of the offences contrary to Sections 97, 248 and 221 (a) of the Penal Code of Sokoto State.
The Appellant was dissatisfied with this judgment. He appealed to this Court in a notice of appeal dated 19th July, 2016 but filed on 20th July, 2016. The Appellant was granted leave by this Court on 24th January, 2022 to file and argue additional grounds of appeal and to amend the original notice of appeal to incorporate the additional grounds of appeal. Sequel to that, the amended notice of appeal filed on 7th January, 2022 was deemed properly filed on 24th January, 2022. It contains 5 grounds of appeal.
To argue the appeal, learned counsel Mr. B. I. Ibeke filed the Appellant’s brief of argument on 7th January, 2022. By an order of this Court, it was deemed properly filed and served on 24th January, 2022. The Respondent’s brief of argument was filed on 18th February, 2022 by K. O. Fagbemi, of counsel. In response, Mr. Ibeke, filed a reply brief on 3rd March, 2022. From the 5 grounds of the amended notice of appeal, learned counsel, on behalf of the Appellant formulated the following 5 issues for determination in this appeal. They are:-
“(i). Whether the learned trial Judge was right when he admitted and relied on Exhibits B, K(1), K(2) and L(1) – L(7) in convicting the Appellant. (Distilled from Ground 1 of the Amended Notice of Appeal)
(ii). Whether the learned trial Judge was right in admitting and relying on Exhibits J and J1 (the retracted and unsigned confessional statement of the Appellant) in convicting the Appellant. (Distilled from Ground 2 of the Amended Notice of Appeal)
(iii). Whether the Prosecution proved the offence of voluntarily causing grievous hurt as to warrant the conviction of the Appellant for the said offence by the learned trial Judge. (Distilled from Ground 3 of the Amended Notice of Appeal)
(iv). Whether the learned trial Judge was right in convicting the Appellant for the offence of culpable homicide punishable with death upon the evidence placed before him. (Distilled from Ground 4 of the Amended Notice of Appeal)
(v). Whether the evidence placed before the learned trial Judge was enough to ground a conviction of the Appellant for the offence of criminal conspiracy as done by the learned trial Judge. (Distilled from Ground 5 of the Amended Notice of Appeal)”
In paragraph 3.1 at page 4 of the Respondent’s brief of argument, learned counsel Mr. Fagbemi formulated a single issue for determination. It is:-
“Having regard to the evidence led by the Respondent, whether the trial Court was right when it convicted and sentenced the Appellant for the offences of criminal conspiracy, causing grievous hurt and culpable homicide punishable with death, so charged? (Grounds 1,2,3, 4 and 5)”
At the hearing of the appeal before us, learned counsel Mr. Ibeke for the Appellant identified, adopted and relied on the brief of the Appellant. He urged on the Court to resolve all the issues for determination in favour of the Appellant, allow the appeal and set aside the judgment of the lower Court. On behalf of the Respondent, Mr. Fagbemi, of counsel adopted and relied on its brief of argument and urged on the Court to dismiss the appeal and affirm the judgment of the lower Court.
Before I go to the resolution of the issues for determination in this appeal, I think it is appropriate to at this stage point out some of the key and material facts that gave rise to this case. The deceased was a young man who lived at Tsalibawa Area of Sokoto North Local Government. PW1, Alhaji Aliyu Tsalibawa, is the father of the deceased. The deceased was called Mustapha Aliyu. He also had some aliases. The Appellant lived at Rumbukawa Area of Sokoto North Local Government, along with the other accused persons. On the night of 6th April, 2012, the Appellant and the other accused persons were alleged to have armed themselves with sticks, axes and cutlasses etc, after they were told of a rumoured impending attack by the youths of Tsalibawa. While armed, the Appellant led the other youths, including the accused persons allegedly towards Tsalibawa with a view to challenging or checkmating the rumoured impending attack. PW3, PW4, PW5 and PW7 etc were eye witnesses to the events of the night of 6th April, 2012. The account of the events from the mouth of PW5 as recorded at page 21 of the record of appeal goes thus: –
“My name is Ibrahim Ahmed, I live at Tsalibawa area in Sokoto North Local Government. I am an Okada rider. I know Mustapha Aliyu and Sanusi Ahmed. They are all dead. I know Alh. Aliyu Tsalibawa he is before the Court. This witness identifies PW1. I see the accused persons I know them all. I don’t know their names all, but only some. I know Mustapha Isah and Bilal Baba Attah. The rest I know by face. I can recall this at midnight on 06/04/13 I was together with Hali (PW3), then the late Mustapha begged us to escort him to get Ice block. We then met the 1st accused with his boys on the way the 1st accused then held the late Mustapha and axed him on the head about two times and PW3 and myself ran away. The 1st accused and his boys were all armed, with another axe or cutlasses. We ran to the deceased parents to inform them what happened. He was then taken to the Specialist Hospital, Sokoto but died a day after his admission at the Teaching Hospital.”
Now, back to the issues for determination in this appeal. While learned counsel to the Appellant opted to be expansive by formulating up to 5 issues from the 5 grounds of appeal, learned counsel to the Respondent remained a bit restrictive in lumping up all the 5 grounds of appeal into a single issue for determination. Because learned counsel Mr. Ibeke for the Appellant had related each issue for determination to a specific ground of appeal, I feel more obliged to determine this appeal on the 5 issues formulated on behalf of the Appellant.
Issues one and two are related and not too dissimilar in context and effect. In arguing the 1st issue, learned counsel Mr. Ibeke began by explaining that the lower Court admitted and relied on Exhibits B, K1, K2 and Li – L7 in convicting the Appellant. According to learned counsel Exhibit B is a medical certificate of cause of death of one Aliyu Mustapha. He went on to cite some of the other features and particulars of Exhibit B. Against this, learned counsel forcefully argued that the name of the person on Exhibit B is not the same person that is referred to in the amended charge as Mustapha Aliyu Ango.
While also referring to some of the particulars of PW1, on record as the father of the deceased, learned counsel pointed out that PW1 being the father of the deceased and being called Alhaji Aliyu Tsalibawa necessarily made the surname of the deceased to be Aliyu and not Mustapha as contained in Exhibit B. Learned counsel then went on to refer to the decision inKUBOR V. DICKSON (2013) 4 NWLR (PT. 1345) 534 at 578 E – F and submitted that Exhibit B was an irrelevant document and inadmissible. And as a wrongly admitted document, learned counsel further submitted that it ought to have been expunged or treated as lacking in any probative value.
In another effort, learned counsel explained that Exhibits K1 and K2 are negatives from which the pictures in Exhibits L1 – L7 were produced and were tendered and admitted in evidence through PW13, an officer of the Nigeria Security and Civil Defence Corps (NSCDC). To that extent, learned counsel argued that PW13 was not the maker of Exhibits K1, K2 and L1 to L7. He referred to parts of the oral evidence of PW13 at pages 156 and 161 of the record of appeal and the decision of this Court in KACHI V. STATE (2015) 9 NWLR (PT. 1464) 213 at 234 to submit that those Exhibits are computer generated evidence that were not accompanied by a Certificate as required by Section 84 (2) and (4) of the Evidence Act 2011 and to that extent inadmissible. He further cited and quoted extensively from the decisions in DICKSON V. SYLVA (2017) 8 NWLR (PT. 1567) 167 at 203 F – H and OMISORE V. AREGBESOLA (2015) 15 NWLR (PT. 1482) 205 at 295 D – F. He urged on the Court to resolve this issue in favour of the Appellant and expunge Exhibits K1, K2, L1 to L7 from the record for being documentary hearsay and therefore inadmissible.
On the 2nd issue for determination, Mr. Ibeke, of counsel explained that Exhibits J and J1 were tendered and admitted in evidence as the Appellant’s extra-judicial statements. Learned counsel added that the Appellant denied making those statements in the course of giving evidence in his defence as DW1 at the trial. According to Mr. Ibeke, the Appellant did not sign his original statement in Hausa language but its translated English version was said to have been thumb printed by him. Also, according to learned counsel, the combined effect of the Supreme Court decision in AGBOOLA V. THE STATE (2013) LPELR 20652 at 4 E, ALI V. STATE (2021) 12 NWLR (PT. 1789) 159 at 189 E – F and GUNDIRI V. NYAKO (2014) 2 NWLR (PT. 1391) 211 at 241 A – D, G – H and 261 B – C is to render the unsigned statement of the Appellant as worthless and not capable of being used to make a safe finding of guilt or conviction. He urged on the Court to hold that because the Appellant denied making Exhibits J and J1, there was nothing by way of corroboration of their contents that the lower Court could use to convict him. He further urged on the Court to discountenance and expunge Exhibits J and J1 from the record and proceed to resolve issue two in favour of the Appellant.
In arguing issue 3, learned counsel Mr. Ibeke, also began by pointing out by way of an explanation that Shazaliyu U. Sahabi mentioned in the charge as the person attacked and grievously hurt was not called to testify. According to Mr. Ibeke, PW7 (Shazaligu Umar) who testified that he was grievously hurt was not the person mentioned in the charge as having been grievously hurt. Learned counsel added that Shazaliyu U. Sahabi, who is mentioned in charge as the person that was grievously hurt, is not the same person as Shazaligu Umar (PW7).
Despite his stand on Exhibits L1 to L7 in issue one, learned counsel still went on to argue that no photograph of PW7 showing his alleged grievous hurt is included in Exhibits L1 – L7 and neither did PW7 show any hurt scar to the Court. He added that no medical report of any alleged grievous hurt, including that of PW7 was placed before the Court. While also relying on a number of decided cases on the meaning, effect and consequences of dumping of documentary evidence, learned counsel maintained that PW13 merely dumped Exhibits K1, K2 and L1 to L7 on the lower Court. He accordingly submitted that it well settled that documents dumped on the Court, without oral evidence explaining them to the Court and relating them to specific areas of the case of a party, are worthless.
In a further effort, learned counsel explained that in convicting the Appellant of the offence of voluntarily causing grievous hurt, the lower Court relied on the testimonies of PW4 and PW8. He then quickly pointed out that PW4 and PW8 were not victims of the alleged attacks and none of the victims they mentioned was called to testify. Learned counsel emphatically maintained that PW4 and PW8 did not mention the name of Shazaliyu U. Sahabi as set out in the charge as the only victim of the offence of grievous hurt. Against the backdrop of this supposition, learned counsel boldly submitted that since none of the victims of the attack could come to Court to testify and none of the witnesses mentioned the victims of the attack mentioned in the charge, it follows that it is either there was no such attack or the Appellant was not part of any such attack and therefore PW4 and PW8 cannot cry more than the bereaved. Learned counsel urged on the Court to hold that there was no evidence that the Appellant caused grievous hurt to the person mentioned in the charge and the lower Court was therefore wrong in convicting the Appellant for the offence of voluntarily causing grievous hurt. He then urged on the Court to, upon so holding, resolve issue 3 in favour of the Appellant.
In arguing issue 4, learned counsel began by relying on the case of EDOHO V. STATE (2010) 14 NWLR (PT. 1214) 651 at 678 – 679 G – C where the Supreme Court restated the ingredients of the offence of murder. With respect to the instant case, learned counsel pointed out that in finding the Appellant guilty as charged, the lower Court relied on the evidence of PW3 and PW5 as well as Exhibit B. According to Mr. Ibeke, of counsel, the evidence of PW3 is inconsistent. To illustrate the extent of the purported inconsistencies learned counsel referred to some aspects of the evidence-in-chief and cross-examination of PW3 and PW5, more particularly at pages 121, 122, 123, 125 and 126 etc as being the highlights of them.
Against the perceived purported inconsistencies, learned counsel maintained that in view of the irreconcilable differences in the evidence of the prosecution witnesses their evidence ought to have been rejected by the lower Court. Learned counsel argued further that the lower Court wrongly relied on inadmissible and unreliable evidence in convicting the Appellant and that occasioned a miscarriage of justice in the circumstance of the instant matter. He urged on the Court to so hold and resolve issue 4 in favour of the Appellant.
In arguing issue 5, as the final issue, Mr. Ibeke, of counsel tried to emphasise the following points thus:-
1. The substantive offences of voluntarily causing grievous harm and culpable homicide punishable with death have not been proved.
2. The evidence of PW3 and PW5 relied on by the learned trial Judge is contradictory and manifestly unreliable.
3. None of the persons listed in the charge as having been attacked was called to testify Shazaliyu U. Sahabi listed in the charge as one of the persons attacked is not one and the same person with Shazaliyu Umar (PW7).
4. Exhibits J and J1 relied on by the learned trial Judge is/are unsigned, retracted and uncorroborated.
5. No agreement of mind with the other accused persons can be inferred from the conduct of the Appellant and evidence on record.
6. The decision of the learned trial Judge was based on wrong principles of law and that has occasioned a miscarriage of justice.
He also urged on the Court to resolved this issue in favour of the Appellant.
In his response, learned counsel to the Respondent Mr. Fagbemi began by a discourse on the Constitutional imperative and procedural safeguard in criminal trials before our Courts, the presumption of innocence under Section 36 (5) of the 1999 Constitution, as amended. Added to that, Mr. Fagbemi explained that the proof of guilt of an accused person is proof beyond reasonable doubt but which does not mean proof beyond all shadows of doubt. He relied on a number of decided cases such as EZEANI V. FRN (2019) 12 NWLR (PT. 1086) 221 at 248 E – G, NWATURUOCHA V. THE STATE (2011) 6 NWLR (PT. 1242, AKINLOLU V. STATE (2015) LPELR – 25986 (SC) and OSENI V. STATE (2012) LPELR – 7833 (SC) etc to highlight the principle that proof beyond reasonable doubt simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. While also relying on a further number of decided cases, learned counsel went on to highlight the 3 ways of proving a criminal charge.
In an attempt to explain himself better, learned counsel quoted very extensively from the oral evidence of PW3, PW4, PW5, PW6, PW7, PW8 and PW9 as being the direct evidence of witnesses to the ugly incident of the night of 6th April, 2012. Mr. Fagbemi, of counsel pointed out that the evidence of these witnesses was not impugned or discredited despite the rigorous cross – examination of the witnesses. He submitted that the trial Court was much obliged to rely on all the established facts in the evidence led by the prosecution. While also relying on some decided cases, learned counsel explained what amounts to a confessional statement and he typified it to involve an accused person’s own admission of guilt. According to learned counsel, there is no evidence stronger than a personal admission of guilt because it is evidence which is within the knowledge of the person who testifies to the commission of an offence.
With respect to the facts and circumstances in the instant appeal, learned counsel explained that the extra-judicial statements of the Appellant were tendered and admitted at the trial as Exhibits J and J1 and after quoting very extensively from Exhibit J1, learned counsel pointed out that the Appellant vividly and unequivocally admitted guilt for all the offences he was charged with.
According to learned counsel because the statements in Exhibit J and J1 are direct and positive, they are sufficient proof of the guilt of the Appellant, despite his half–hearted attempt to resile and deny them. Learned counsel also added that the retraction of the confessional statement by the Appellant was not an objection to admissibility but to the weight to be attached to the extra-judicial statement. He relied and quoted extensively from the judgment of the Supreme Court in the case of DAIRO V. STATE (2018) 7 NWLR (PT. 1619) 399 at 415 – 416 G – A.
In a further effort, learned counsel referred to the case of OSENI V. STATE (supra) at 374 B – F where the Supreme Court recalled and applied the decision in R. V. SYKES (1913) 8 Cr. 233 which was earlier adopted and applied in KANU V. KING (1952/55) 14 WACA 301 to the effect that whether a conviction based on a confessional statement will be upheld or not will depend on whether or not it satisfactorily passed the 6 prescribed tests. The tests enunciated in the decided cases, according to Mr. Fagbemi, are: –
(1). Is there anything outside the confession to show that it is true?
(2). Is it corroborated?
(3). Are the relevant statements made in it of facts, true as far as they can be tested?
(4). Was the prisoner one who had the opportunity of committing the murder?
(5). Is his confession possible?
(6). Is it consistent with other facts which has been ascertained and have been proved?
After referring to the material parts of Exhibits J1, learned counsel proceeded to apply the 6 tests as they pertain to the revelations in Exhibit J1 against those in the oral testimonies of PW3 to PW9, who according to Mr. Fagbemi, gave a cogent and credible eye witness and victim account of the events leading to the death of the deceased and injuries to PW7 and others. Subsequent to this extensive review exercise, learned counsel summarized and interpreted the facts established at the trial to mean that the event constituting the offences charged happened on 6/04/2012 at 11.00pm and it was the Appellant who spear headed the events while being accompanied by his friends, who also actively participated in the unfortunate events of that night. It was also found that one Mustapha Aliyu was hit with a stick twice on the head and also struck on the head with a cutlass leading to his falling into a gutter and abandoned while bleeding as well as other people suffering various degrees of injuries but Mustapha Aliyu died 2 days after the events of 6/04/2012. Against the backdrop of this, learned counsel submitted that there is ample evidence outside Exhibits J and J1 that confirm the truth of the statements in them and which generally passed the 6 prescribed tests. While giving a pass mark to the trial Court on its assessment, review and evaluation of the evidence before it, learned counsel after a quoting so copiously from the judgment on appeal, remarked that the evidence on record established the guilt of the Appellant with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability, i.e. proof beyond reasonable doubt. While further relying on some decided cases, learned counsel submitted that evidence abounds showing the barefaced guilt of the Appellant for the offences charged. According to Mr. Fagbemi, the Appellant’s contention in paragraph 5.8 – 5.16 of his brief of argument that hearsay evidence was relied upon in the confirmation of the guilt of the Appellant for the offences charged cannot hold any water, particularly the evidence of PW1 that the deceased was his son and had died soon after the events of 6th April, 2012 as well as the eye witness accounts in the evidence of PW3 to PW9.
With respect to the offence of causing grievous hurt charged against the Appellant, learned counsel Mr. Fagbemi, began by setting out the elements of the offence as provided under Section 248 of the Penal Code. Thereafter, he went on to refer to what he considers the relevant parts of the oral evidence of PW3 to PW9 and while re-emphasising that the evidence of these vital witnesses was not impugned or discredited, learned counsel insisted that the lower Court was bound to accept and make findings on such credible and unchallenged evidence. According to learned counsel it is inevitable to reach the conclusion that it had been established beyond reasonable doubt that by virtue of the evidence of PW3 to PW9 and Exhibits L1 to L7 that Shazaliyu U. Sahabi, Muntari Abubakar, Ibrahim Gandi etc. were caused bodily pain by the Appellant and he did so intentionally by means of a weapon without being provoked at all. He urged on the Court to so hold.
On the offence of culpable homicide punishable with death, as charged in count 3 of the further amended charge, Mr. Fagbemi, of counsel explained that in order to prove the offence as defined under Section 221 of the Penal Code, the prosecution must prove beyond reasonable doubt that: –
(a). the person the accused person is charged of killing actually died;
(b). the deceased died as a result of the act of the accused person; and
(c). the act of the accused person was intentional and he knew that death or bodily harm was its probable consequence.
Learned counsel relied on the cases of HASSAN V. STATE (2017) 15 NWLR (PT. 1557) 1 at 38 E – F and KASSIM V. STATE (2018) 4 NWLR (PT. 1608) 20 at 489 G – E and submitted that learned counsel to the Appellant had conceded that the deceased had died. And also while relying on the oral evidence of PW3 and PW5, learned counsel explained and pointed out that it is a well established fact that the Appellant hit the deceased twice on the head with a stick and later struck him with a cutlass on the head which led him to bleed and fall into a gutter. According to learned counsel by doing these acts the Appellant knew that death was not only going to be a likely but probable consequence of those acts. He anchored this remark with the authority of the case of POPOOLA V. STATE (2018) 10 NWLR (PT. 1628) 485 @ 504 where the Supreme Court, inter alia held that: –
“It is … settled that a man is presumed to intend the natural consequences of his act. We are more than satisfied that by striking the deceases on the head with an iron rod, the Appellant was much aware that death was a probable consequence of his act.”
In another effort, Mr. Fagbemi, of counsel, on behalf of the Respondent referred to Exhibits L1 to L7 which he explained showed the cuts on the heads of Mustapha Aliyu Ango and Sanusi Ahmed. He added also that Exhibit B, the medical report shows that the deceased died as a result of severe head injury occasioned by an assault. Learned counsel went on to extensively quote from parts of the judgment of the lower Court to re-inforce his submission that the offence of culpable homicide punishable with death was fully established and proved against the Appellant. He urged on the Court to so hold as found by the lower Court. In addition to the foregoing, learned counsel focused on the recorded oral evidence of PW3, PW6 and PW7 along with Exhibits J and J1 to point out that the offence of conspiracy as defined by law to involve an agreement to do an unlawful act was profoundly proved against the Appellant and the co-accused persons. He urged on the Court to so hold.
In conclusion, he submitted that the lower Court demonstrated a thorough and dispassionate consideration of the entire evidence led at the trial and came to the right conclusion by finding the Appellant guilty of 3 of the offences in the further amended charge. He urged on the Court to so find and hold and to further resolve his single issue for determination against the Appellant, as well as to dismiss the appeal and affirm the judgment of the lower Court.
In his reply brief, learned counsel Mr. Ibeke, re-emphasised on the worthlessness of Exhibits J and J1, the extra-judicial statements of the Appellant. According to learned counsel Exhibit J1 was not signed or thumb printed by the Appellant. To buttress and re – inforce his stand, Mr. Ibeke found support in the recent decision of the Supreme Court in STATE V. USMAN (2021) 16 NWLR (PT. 1801) 73 at 94 D – F to the effect that the extra-judicial statement of an illiterate accused person is the one made in vernacular while its English translation is a statement made by the IPO.
Learned counsel took up the challenge of Mr. Fagbemi, of counsel that he, Mr. Ibeke had conceded that the Respondent had established the death of the deceased as one of the initial and primary elements in the proof of the offence of culpable homicide. Learned counsel insisted that this concession was a slip of his tongue or pen. He tried to wriggle out of whatever effect it has on the outcome of this appeal. To sum up, learned counsel pointed out that counsel is a human being liable to making mistakes or errors of judgment. He added that where any such mistake or error of judgment manifests it should not be allowed to stand, particularly when it stands on the way of substantial justice. All the remaining arguments and submissions in the reply brief are a substantial re-argument of the issues in the Appellant’s brief. I therefore discountenance pages 4 to 6 of the reply brief, being remaining pages after the submission on the purported error made by counsel in admitting that the Respondent had successfully proved the death of the deceased.
In resolving the first issue for determination in this appeal, I wish to point out that the name of the deceased as set out in the further amended charge sheet is Mustapha Aliyu Ango. By that, the surname of the deceased is Ango, while Mustapha is his first name and Aliyu his middle name. There was abundant evidence at the trial that the deceased was the son of PW1. PW1 told the lower Court at page 116 of the record of appeal, in the course of his evidence in chief that his names were Alhaji Aliyu Tsalibawa. From his evidence he also told the lower Court that he lived at Tsalibawa Area of Sokoto North Local Government. It therefore necessarily means that the surname of PW1 is Tsalibawa, which is not a given name but a nickname or an alias. The first name, Alhaji, is a title, very commonly used by Nigerian’ Muslims who had performed the pilgrimage to Makkah. In normal circumstances, which this one has not been shown to be otherwise, PW1, as the father of the deceased, from his names on record is an “Alhaji” whose given name is “Aliyu” and who lived in Tsalibawa Area of Sokoto. The deceased’s given name was “Mustapha” he was the son of Alhaji Aliyu who lived in Tsalibawa Area of Sokoto. The name “Ango” simply means a bridegroom in the Hausa language. It is a common nickname or alias. It is not a given name at birth but acquired in the course of life for different reasons and/or circumstances.
Now, coming to Exhibit B, it is true as pointed out by Mr. Ibeke, of counsel that the first name of the deceased person was reflected as MUSTAPHA with the date of hospital admission being 07/04/2012 and date of death being 08/04/2012. Cause of death was said to be severe head injury and the approximate interval between the onset of the head injury or assault to the time of death was said to be 2 days. The age of the deceased was said to be 28 years. Having regards to the facts and circumstances of the trial of the Appellant and all the evidence adduced at the trial up to the time Exhibit B was tendered to be admitted in evidence, there is no doubt that the medical certificate of cause of death with the particulars in Exhibit B is a relevant document.
It is axiomatic and well settled in litigation and adjudication that the fountain head of admissibility of evidence at a trial is relevance. The catch–phrase is that every admissible document has to be relevant. Therefore what makes a piece of evidence relevant is when sufficient facts relating to the piece of evidence or documentary evidence are, for example, in a civil case, copiously pleaded. This goes to show its relevance to the case of the party in question and once the piece of evidence is competent, that is to say that there is no legal bar to its admissibility, then the document is admissible. Generally speaking, evidence is relevant if it tends in any reasonable degree to establish the probability or improbability of a fact in issue. It is for this reason that the question of relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. To the extent of being a relevant document, I am of the view that the certificate of cause of death dated 07/05/2012 was rightly admitted in evidence in the circumstances of the instant appeal.
Also, there was no issue joined by the Appellant and the Respondents if Exhibits K1, K2 and L1 to L7 were computer generated documents. I have carefully read through the proceedings of the lower Court, leading to ruling delivered on 19/05/2014 culminating to the negatives from which the photographs in Exhibits L1 to L7 were produced were admitted in evidence. The objection to the admissibility of the negatives and the photographs was taken on the ground that they were being tendered through a witness who was not the maker. The lower Court overruled the objection and admitted the negatives for being relevant and admissible. Having fully read and considered the ruling of the lower Court on the admissibility of Exhibits K1, K2 and L1 to L7, as particularly contained at pages 165 – 166 of the record of appeal, I am of the view that the approach and the views of the lower Court cannot be faulted and are impeccable in the circumstance.
The Appellant is not allowed to flip flop by being haphazard and doing the case one way at the trial and coming up to this Court to attempt to do it another way. An Appellant is not allowed to raise a fresh issue on appeal without the leave of Court. The issue of whether Exhibits K, K1 and L1 to L7 were computer generated documents bound to comply with Section 84 of the Evidence Act 2011 is totally a new issue raised for the first time before this Court. It was not decided upon by the lower Court. It cannot be raised successfully before this Court without seeking and obtaining leave.
Against all the foregoing, issue 1 is resolved against the Appellant.
I have carefully considered all the arguments and submissions of learned counsel Mr. Ibeke on the 2nd issue for determination. I have also taken a very close and hard look at Exhibits J and J1. I have also read and considered the recent decision of the Supreme Court in the case of STATE V. USMAN (supra) relied on by learned counsel. I found it very relevant and helpful. It is a pity that learned counsel to the Respondent, Mr. Fagbemi chose not to specifically respond to the arguments and submissions of Mr. Ibeke on issues one and two for determination in this appeal.
After a close look at Exhibits J and J1, it is clear that there are 3 thumb prints on Exhibit J, two of them on the first page and a single one on the 2nd page. While the two thumb impressions on the 1st page of Exhibit J do not appear as bold, the one at the 2nd page appears big and bold. The translated version of the original statement of the Appellant is the one that has 3 thumb impressions. It is the English version of the statement made by the Appellant in Hausa language. There are two thumb impressions on the 2nd page of the Hausa statement of the Appellant. One impression on each page. It is therefore a total misconception for learned counsel Mr. Ibeke to submit that the vernacular version of the statement of the Appellant was not thumb printed by him and urging for it to be visited with the most devastating consequences. The Hausa version of the extra–judicial statement of the Appellant is certainly thumb printed on the 2nd page, though the impression may have looked a bit faint. Without any doubt the statements in Exhibits J and J1 have fully satisfied the requirements of the law to be relevant and admissible in evidence in the circumstances of this appeal. issue two is therefore hereby resolved against the Appellant and therefore the decision in STATE V. USMAN (supra) though relevant, but is certainly not applicable to the facts and circumstances in the instant appeal.
On issue 3, it must be pointed out that the names of one Shazaliyu U. Sahabi were mentioned in the initial amended 3 count charge upon which the trial of the Appellant and 7 others commenced. It is the same names that appear on count 1 and 2 of the 4 count of the further amended charge. While testifying as a prosecution witness at page 130 of the record of appeal, PW7 was recorded as being “Shazaligu Umar”. Learned Counsel Mr. Ibeke is now making a very heavy weather between the name “Shazaligu Umar” as PW7 at page 130 and Shazaliyu U. Sahabi, as being an eye witness and victim of the events of 6th April, 2012. For the avoidance of any doubt, it is such a very notorious fact that the name “Shazaliyu “is an Arabic name. It is commonly used by Hausa and Fulani Muslim families. It is more often than not shortened to “Shazali”. It is therefore erroneous for Mr. Ibeke, of Counsel to blame PW7 for how the name “Shazaliyu” became “Shazaligu” on page 130 of the record of appeal. It was certainly an error by the learned trial judge. It is pardonable and excusable because it did not take long before the learned trial judge corrected the error. At page 246 of the record of appeal, in the course of reviewing the evidence of the witnesses at line 18, it was record thus: –
“PW7 is one Shazaliyu Umar.”
Therefore, all the arguments of learned counsel on the real and proper names “Shazaliyu” and “Shazaligu” as they related to PW7 are of no moment and go to no issue.
On the omission of the name “Sahabi” from the names of the PW7 as reflected on the charge, it still remains a great pity that learned counsel to the Respondent failed to offer any explanations as to how and why. Suffice it to say however, that it is yet another notorious fact capable of being of evidential value that the name “Sahabi” is not a given name but a nickname or an alias. For example, it is common for every “Abubakar” to be a “Garba”, “Sadiq” or “Sahabi” among Muslims. It is also common for every “Umar” to be “Faruk” or “Faruku” or “Sahabi”. It therefore goes without saying that no reasonable person in Sokoto will be surprised or misled if the names of PW7 are set out as “Shazali Sahabi”, “Shazaliyu Umar”, or ‘Shazaliyu Umar Sahabi” etc. Therefore, all the arguments and submissions of learned counsel on issue 3 are of no moment and totally lacking in substance.
In resolving the 4th issue for determination, it is important to bear in mind that the extra–judicial statement of the Appellant was tendered and admitted in evidence through PW13 at pages 159 to 160 of the record of appeal. The objection of learned counsel Mr. Shettima for the 1st Accused/Appellant was overruled by the lower Court, and rightly so in my view. It must be pointed out that learned counsel Mr. Shettima did not challenge the voluntariness of the extra-judicial statements of the Appellant but rather that it was not made by him. Therefore, after having considered the circumstances under which Exhibits J and J1 were tendered in evidence and admitted and after having read them, I am of the view that they are relevant documents and to that extent admissible in the circumstance. At his trial, particularly when he testified as DW1, the Appellant merely told the lower Court at page 172 of the record of appeal thus:-
“I deny the contents of Exhibit J and J1.”
Against the foregoing scenario, it is good to emphasise that when an accused person denies making a statement to the police which the prosecution seeks to tender to form part of its case, that in law constitutes retraction.
According to the Oxford Advanced Learners’ Dictionary, 6th Edition, a retraction means to say that something you have said earlier is not true or correct or that you did not mean it.
In the course of criminal trials, the prosecution sometimes relies on confessional statements of accused persons to prove guilt and commission of crimes. This method of proof of guilt is very well known in the administration of criminal justice and is fully recognised by statutory provisions and case law. For example, in OBINAH JOHN V. THE STATE (2016) LPELR – 40103 (SC), the Supreme Court referred to and applied the provisions of Section 28 of the Evidence Act, 2011 where a confession was defined as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Therefore, retracted confessions are usually extra–judicial statements which amount to confessions which turnout to be inconsistent with the testimony at the trial. See OGUDO V. THE STATE (2011) LPELR – 860 (SC) per Rhodes – Vivour, JSC at page 19 D – E.
In a number of decided cases of this Court and the Supreme Court, it has been held that a confession is a statement oral or in writing by a person accused of the commission of an offence at the time it was made, agreeing or admitting that he had committed the offence which he was accused. Such a statement may be used at the trial of such a person for the crime with which he was accused in the discharge of the burden of proof placed by law on the prosecution. However, for a confession to be relevant and admissible at the trial of the matter, it must have been made freely and voluntarily by the maker without any let or hindrance or undue influence of whatever nature by or from persons in authority, usually, in the circumstances of criminal trials here, the police or other crimes investigation agencies. Added to this initial scenario, there is a duty on the Court to test the truth of a confessional statement tendered and admitted in evidence by examining it in the light of other credible evidence before it. In doing that, the usual questions to ask are:-
a. Whether there is anything outside the confession to show that it was true;
b. Whether it is corroborated;
c. Whether relevant statements made in it of facts are true as far as they can be tested.
d. Whether the accused person had the opportunity of committing the offence charged;
e. Whether the confession is possible; and
f. Whether the confession is consistent with other facts which have been ascertained and have been proved.
See OKPANG V. QUEEN (1961) 1 SCNLR 53, MBENU V. THE STATE (1988) 3 NWLR (PT. 84) 615, UDOFIA V. THE STATE (1984) 12 SC 139, AKPA V. THE STATE (2007) ALL FWLR (PT. 351) 1560 and HASSAN WAKILI V. THE STATE (2016) LPELR – 40237 (CA) etc.
A denial or retraction of a confessional statement is a matter to be taken into consideration to decide what weight could be attached to it. As usual, the Appellant herein made extra–judicial statements which were tendered and admitted in evidence but were seemingly retracted while giving evidence in Court. It is trite and well established that a trial Court can convict on such retracted statements if found to be sufficiently confessional, provided there was other evidence confirming them in material respects. That fact that an accused person has retracted a confessional statement does not mean that the Court cannot act on it. But before a conviction can be properly founded on retracted statement, it is desirable to have some evidence outside of the confession which would make it probable that it was true. See UBIERHO V. THE STATE (2005) 5 NWLR (PT. 919) 644 and ADEYEMO V. FED. REP. OF NIG. (2016) LPELR – 40535 (CA).
In a long line of decided cases of the Supreme Court and this Court, it has been decided and settled beyond any peradventure that in criminal trials, the prosecution is required to prove the guilt of an accused person beyond reasonable doubt. This is heavily anchored on the fundamental human right of the accused as a Constitutional imperative, under Section 36 (5), of being presumed innocent until proven guilty. It is also a procedural safeguard from capricious and whimsical attitude by judges.
Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt but simply means establishing the guilt of the accused person by compelling and conclusive evidence. As pointed out by learned counsel to the Respondent, a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt also envisages that there was sufficient admissible and credible evidence that all the essential ingredients or elements constituting the offence the accused was charged with, were fully established that would justify the conviction of the accused person by the Court. See JUA V. STATE (2010) 4 NWLR (PT. 1184) 217, AMAH V. STATE (1978) 6 – 7 SC 27, AFOLALU V. STATE (2010) 16 NWLR (PT. 1220) 584 and SMART V. STATE (2016) 9 NWLR (PT. 1518) 447 etc.
To succeed in the prosecution and proof of the offence of culpable homicide under Section 221 of the Penal Code, it must be fully established that:-
(a). the person the accused is charged of killing actually died.
(b). the deceased died as a result of the act of the accused person; and
(C). the act of the accused person was intentional and he knew that death or bodily harm was likely consequence.
All the 3 ingredients must be proved. They must co-exist and must be proved before a sound and safe conviction can be secured. In the instant appeal, it was established through the credible evidence of witnesses such as PW1, PW3, PW4, PW5, PW6, PW7, PW9 etc that one Mustapha Aliyu Ango died in hospital after he sustained injuries as a result of being struck twice on the head with a stick and a cutlass. PW1 added the icing to the cake when he gave evidence that the deceased was buried. Added to this Exhibit B was tendered and admitted in evidence without any objection. It was a relevant and material evidence, it a certificate of cause of death of one Mustapha Aliyu, despite the mix up on the names, it is sufficient proof, in my view that there was the death of the deceased at the Usmanu Danfodio University Teaching Hospital Sokoto and the death was referable to the deceased in the instant appeal.
According to a number of decided cases, it is not in all cases that medical evidence is indispensable. Where there are other facts or pieces of evidence which sufficiently show the cause of death to the satisfaction of the Court, for example when the cause of death is instantaneous or unequivocally referable to the criminal assault by the accused, medical evidence is not necessary. With respect to the facts in the instant appeal Exhibit B could be expunged or discountenanced for any reason and the conviction of the Appellant still remaining safe and well founded because there was credible evidence that the deceased had died; before his death he was grievously hurt by the Appellant. He died 2 days after the heavy assault. There was also the extra-judicial statement of the Appellant that the deceased was left unconscious in a gutter.
Now to the most crucial and significant element. Was it the accused who caused the death of the deceased? Because there was credible and uncontradicted evidence that the Appellant used a stick to hit the deceased twice on the head and also used a cutlass on his head, the Appellant knew that death would be the probable consequence of his act and therefore presumed to intend the natural consequences of his act. Added to this, the Appellant, in his extra-judicial statement contained in Exhibits J and J1 said in part thus: –
“… I personally used stick to hit one Mustapha Aliyu Ango and he falled (sic) down at the same time I used my sword/cutlass and cut him, likewise my friends, Ali and Dangiyawa used sticks and other weapons on him too, while others used their sticks and other weapons on him, we left him lying down unconscious crying for help …”
While it is doubtful if a person who was already “unconscious” could be “crying for help”, the lower Court overlooked this seeming contradiction as well as all the other alleged contradictions or inconsistencies in the evidence of the prosecution witnesses. After a very well considered examination and discountenancing of the alleged contradictions or inconsistencies, the lower Court found that it was the Appellant and his co-accused persons that caused the death of the deceased. I totally agree with this finding and I uphold it without any hesitation, while relying on the cases of ADELUMOLA V. STATE (1988) 1 NWLR (T. 73) 683, ARABAMEN V. STATE (1972) 4 SC 35, GAMBA V. STATE (2000) FWLR (PT. 24) 1448, IBIKUNLE V. STATE (2007) 2 NWLR (PT. 1019) 546 and ADAVA V. STATE (2006) 9 NWLR (PT. 984) 152 etc. It is equally important to emphasise the decision of the Supreme Court in POPOOLA V. STATE (supra) where it was held that: -“…a man is presumed to intend the natural consequences of his act. We are more than satisfied that by striking the deceased on the head with an iron rod, the Appellant was very much aware that death was a probable consequence of his act.”
So too with respect to the Appellant in the instant appeal.
Learned counsel Mr. Ibeke catalogued a number of situations of facts at pages 13 to 17 of the Appellant’s brief of argument and described them as being contradictory or inconsistent. I do not agree with learned counsel because all the identified inconsistencies are neither significant, material nor substantial as to render the conviction of the Appellant to be unsafe and the lower Court was right to have discountenanced and overlooked them.
In a summing up before concluding its judgment, the lower Court remarked that: –
“What can be inferred from the facts proved in the case at hand is that on 06/04/2012, the accused persons were informed on an upending attack of their area Rumbukawa by Tsalibawa area boys. Upon hearing this, the 1st accused in company of all the accused person armed themselves and proceeded to Tsalibawa area. They met PW3, PW5 and the deceased Mustapha Aliyu Ango on the way. The 1st accused asked the deceased to hand over his cell phone and the deceased obliged; he ask the deceased to surrender his money and as the 1st accused hit him on the head with a stick and used his cutlass against him. On seeing this, both PW3 and PW5 fled and reported to the father of the deceased. When they returned to the scene. They found the deceased lying helplessly in a gutter. They then rushed him to the Specialist Hospital Sokoto and they were further referred to Usmanu Danfodio University Teaching Hospital, Sokoto and the deceased died on 08/02/2012.
Meanwhile, after the deceased. They proceeded and launched an attack on PW7, the late Sanusi Ahmed and several other people. Their victims were taken to the hospital where they were treated of various degrees of injuries. The attack on Tsalibawa area was clearly a pre – emphic attack and this can be seen from the confessional statement of 1st and 6th accused persons. There is to my mind the extension of an argument to launch an attack on Tsalibawa area. The accused person did not confess is admit to the commission of the offence, eye witness accounts have proved that he was present during the attack and have actually participated in the attack.
The fact of this case to my mind have conclusively show that an agreement can be inferred from the conduct of the accused persons and that agreement is for the purpose of committing an unlawful act to wit, lunch an attacked on the people of Tsalibawa area.
In my view, the prosecution is also able to prove the offence of criminal conspiracy contrary to Section 976 of the Penal Code and the 1st – 8th accused persons are accordingly liable and are convicted of the offence of criminal conspiracy contrary to Section 97 of the Penal Code.
Now the summary of this judgment is that for the charge of criminal conspiracy contrary to Section 92 of the Penal Code, the 1st – 8th accused persons are hereby found guilty of the offence and are all contrary to Section 248 of the Penal Code, the 1st – 8th accused persons are hereby found guilty of the said offence. On count three i.e. culpable homicide punishable with deaths contrary to Section 221 (a) of the Penal Code the 1st – 8th accused persons are hereby found guilty of the said offence and are accordingly convicted and on the las convict of culpable homicide punishable with death, the 1st – 8th accused persons are hereby discharged and acquitted.”
(See pages 289 to 291 of the record of appeal).
According to the decision in IHUEBUKA V. THE STATE (2000) 4 SC 231, where an accused is defended by counsel, it is his duty as counsel to conduct the defence properly to the best of his ability. That notwithstanding, in appropriate situations, such as in the instant appeal a trial Court is duty bound to examine and consider possible defences that could avail an accused person from the totality of the evidence adduced at the trial.
Flowing from the above settled principle of law, if a confessional statement of an accused person was admitted in evidence, it becomes part of the evidence at his trial. Therefore, the Court has a duty and obligation to consider such evidence if it contains any defence in favour of the accused. With respect to the facts and circumstances in the instant appeal, the learned trial judge did what was expected of him when he proceeded to consider if such defences as self defence or sudden fight etc were available to the Appellant. It is therefore very clear that this approach of the lower Court to the facts of the matter, the law and the evidence before it cannot be faulted.
Against the backdrop of all the foregoing, the 5 issues for determination are resolved against the Appellant. This appeal fails for lacking in merit and is accordingly dismissed. The judgment of the Sokoto State High Court delivered on 16th June, 2016 in Charge No. SS/16C/2013 is affirmed.
SAIDU TANKO HUSSAINI, J.C.A.: I had the benefit of reading in draft the leading judgment prepared and delivered by my Lord, A.A.B. Gumel, PJCA and I agree with him, the reasoning and conclusion.
The prosecution in his bid to prove his case in a criminal trial can adopt any of the three methods recognised for the establishing such cases, namely (a) proof by the evidence of witness who witnessed the incident (b) proof by reliance on the Confessional Statement ascribed to the accused person (c) proof by circumstantial evidence.
The prosecution is obliged to rely on any one of those methods or a combination of them.
Given the Confessional Statement ascribed to the appellant vide Exhibits J-J1 and indeed evidence elicited by the Prosecution through witnesses called by them, the Prosecution undoubtedly had utilized to the same.
A Court of trial can convict an accused person based on his Confessional Statement if same were proved to be the voluntary statement of the accused, positive and direct to suggest that the accused person committed the offence for which he was charged, notwithstanding that the accused person retracted that statement in the course of trial. The statement is admissible and the trial Court can act on same to convict the accused person subject to the observance of the test enunciated in the English case of R. v. Sykes (1913) 8 Cr. App-Reports 233. Given the evidence of the Prosecution witnesses who, gave eye-witness account of the incident and of course, the Medical Certificate in Exhibit B, I find no difficulty coming to the conclusion that the statement in Exhibit J-J1 was sufficiently corroborated as those evidence coming outside the confessional statement itself and the trial Court rightly made that finding.
As indicated before I am one with the conclusion in the leading judgment that all the five issues earmarked by the Appellant in his brief be resolve against him. I so hold. The appeal in effect is without merit and the same is dismissed. The judgment delivered at the Sokoto State High Court on 16th June, 2016 in charge No. SS/16C/2013 is affirmed.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother ALI A. B. GUMEL JCA. I agree with the reasoning and conclusion that this appeal fails for lack of merit and is accordingly dismissed. I abide by all the consequential orders in the lead judgment.
Appearances:
Mr. B. I. Ibeke For Appellant(s)
Mr. K. O. Fagbemi, with him, Mr. Almustapha Abubakar, DDLD, Sokoto State Ministry of Justice, Sokoto For Respondent(s)
