JAMES BADUNG v. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND
(2019)LCN/12851(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of March, 2019
CA/J/424D/C/2017
RATIO
DEFENCE: DEFENCE OF ALIBI
“Where an accused person has unequivocally raised the defence of alibi that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged he must give some facts and circumstances of his whereabout for the prosecution to be duty bound to investigate the alibi set up, to verify its truthfulness or otherwise. SEE: TIRIMISIYU ADEBAYO V. THE STATE (2014) 5 SCNJ 825; CHIEF VINCENT DURU V. THE STATE (2017) ALL FWLR (PT. 893) 1243. In law, the defence of alibi cannot succeed where an accused person is miserly in giving particulars of his whereabouts and in whose company he was but merely states that he was not at the scene of the crime. He is bound to give the lead and particulars of his where about at the earliest opportunity which will assist the prosecution in their investigation of the alibi as the police is not expected to go on a wild goose chase in order to investigate an alibi.” PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: ADMISSIBILITY OF EVIDENCE
“So, where a piece of evidence which is inadmissible in law is wrongly admitted in evidence the Court cannot use it at any stage of the proceedings; even where no objection was raised against it at trial. An inadmissible evidence, admitted in evidence with or without objection at the time it was admitted, remains irrelevant and inadmissible. See: IFARAMOYE V. STATE (2017) 8 NWLR (PT. 1568) SC 457; ILIYASU SUBERU V. THE STATE (2010) 3 SC. PT.2 105; BISICHI TIN CO. LTD. V. COMMISSIONER OF POLICE (1963) NNLR 71.” PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: WHETHER THE ADMISSIBLE EVIDENCE CAN AFFECT THE COURT’S DECISION
“Once the appellate Court is of the opinion that the admissible evidence could not reasonably have affected the decision, it will not interfere. See: Section 251 (1) of the Evidence Act, 2011; ITU V. STATE (2016) LPELR 26063 (SC); ARCHIBONG V. STATE (2006) 14 NWLR (PT. 1000) 349; NWAEZE V. STATE (1996) LPELR ? 2091 (SC); EZEOKE V. NWAGBO (1988) 1 NWLR (PT. 72) 616 AT 630: MONIER CONSTRUCTION CO. LTD. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 AT 88; AJAYI V. FISHER (1956) 1 F.S.C. 90: R. V. THOMAS (1958) 3 F.S.C. 8; LAYONU AND OTHERS V. THE STATE (1967) 1 ALL NLR 198. Accordingly, I hold that an appellate Court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See: AYANWALE V. ATANDA (1988) 1 NWLR (PT. 68) 22.” UCHECHUKWU ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
JAMES BADUNG Appellant(s)
AND
COMMISSIONER OF POLICE, PLATEAU STATE COMMAND Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A.(Delivering the Leading Judgment):
The conviction and sentence of the Appellant to death by hanging for the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 and 221 of the Penal Code Law, CAP 89 Laws of Northern Nigeria 1963 as applicable to Plateau State, respectively, is the reason for this appeal. The judgment was entered on 22nd May, 2017 by C.L. Dabup, J. of the High Court of Plateau State.
The Appellant who was the 3rd accused at the trial Court, dissatisfied with his conviction and sentence, appealed to this Court by a Notice of Appeal dated 17th August, 2017, and filed 18th August, 2017. With the leave of this Court on 26th March, 2018; the Appellant was granted leave to make use of and rely on the Record of Appeal compiled and transmitted in Appeal No. CA/J/424A/C/2017 in arguing his Notice of Appeal.
The necessary facts of the case leading to this appeal is that the Appellant was charged along with four others for the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 and 221 of the Penal Code Law, CAP 89 Laws of Northern Nigeria, 1963 as applicable to Plateau State respectively.
The case for the prosecution is that on 23rd December, 2012 at about 6:00pm the Appellant along with others went to the house of one Simon Badung, (PW1) where they accused his mother, one Lyop Badung, (herein after called ?the deceased?), of witchcraft. They alleged that the deceased inflicted one Rachael Yohana, 10 years old daughter of the 1st accused at the trial Court with witchcraft as a result of which she was critically ill. The deceased was confronted with the allegation based on the confession of one Victoria Badung, a 13 year old girl who alleged that it was she and the deceased that inflicted the said Rachael Yohanna with the sickness.
While in the house of the said deceased, Victoria Badung requested that she be locked up in a room with the deceased and the sick Rachael Yohanna so they could loose her from the witchcraft. Shortly after they were locked up in a room, Victoria Badung requested that they should open the door so that she could ease herself. The Appellant escorted her but returned shortly thereafter to inform others that Rachael had escaped.
When the Appellant together with others entered the room where they were locked up, they discovered that Rachael Yohanna had died. There and then the Appellant and other people descended on the deceased and attacked her consequent upon which she died on the spot. The matter was reported at the Riyom Divisional Police Station whereupon the Appellant and other accused/convicts were arrested the following day. The photograph of the deceased was taken after which the corpse was conveyed to the hospital and thereafter released to the family for burial.
The prosecution called four (4) witnesses to prove its case at the trial. PW1 and PW2 are the children of the deceased that witnessed the attack and killing of their mother. PW3 and PW4 are the Investigating Police officers at the Divisional and State Criminal Investigation Department (CID) respectively. The prosecution tendered some documents/items which were admitted in evidence as follows:
Exhibit ?P3″- The extra-judicial statement of the Appellant at Riyom Police Station, admitted in evidence without objection.
Exhibits ‘P6A’ and ‘P6B’- Printed copies of photographs taken of the deceased
Exhibits ‘P7A’ and ‘P7B’- 2 sticks
Exhibit ‘P8’ a cutlass and
‘P11’ -The extra-judicial Statement of the Appellant at the State Criminal Investigation Department, Jos, admitted in evidence after trial within trial.
At the close of the Respondent’s case, the Appellant opened his case wherein he gave evidence for himself as DW1 and thereafter closed his case. After hearing, and in a considered judgment, the trial Court convicted the Appellant for the offences so charged and sentenced him to death by hanging.
With the Appellant’s appeal, after counsel for the parties had filed their respective briefs of argument the appeal was ripe for hearing and the same was heard on 17th January, 2019, wherein E. E. Duniya Esq. appeared for the Appellant, and N. D. Shaseet Esq. Director Citizens Right/Law Reform Ministry Of Justice Plateau State with K. D. Kyentu Esq. Principal State Counsel (PSC), N. Mbap Esq. PSC, S. F. Dalyop Esq., I. M. Saleh Esq. PSC and J. I. Mantu Esq. appeared for the Respondent.
Mr. Duniya argued the appeal. He referred to the Appellant?s brief filed 9th May, 2018 and also the reply brief filed 31st October, 2018 but deemed properly filed and served on 1st November, 2018. He adopted the processes in urging the Court to allow the appeal. Mr. Shaseet referred to and adopted the Respondent?s brief filed 25th June, 2018 but deemed properly filed and served on 1st November, 2018 in urging the Court to dismiss the appeal. He invited the Court to note that the reply brief of the Appellant is a re-argument of the issues and as such should be discountenanced.
In the Appellant’s brief settled by Mr. Eric E. Duniya, 4 issues were raised for determination. The 4 issues are:
1.Whether the learned trial Judge was wrong to have admitted Exhibits ‘P6A’, ‘P6B’ and ‘P11″ at the trial before the lower Court.
2. Whether the learned trial Judge was wrong when she found and held that the Appellant failed to raise his alibi at the earliest opportune time.
3. Whether the learned trial Judge was wrong when she found the Appellant guilty of culpable homicide punishable with death, and sentenced him accordingly.
4. Whether the learned trial Judge was wrong when she convicted the Appellant for the offence of culpable homicide punishable with death by hanging, even when the evidence in the record shows that the Appellant was a child as the date of the alleged commission of the crime.
For the Respondent, Mr. N.D. Shaseet who settled the brief formulated the following 4 issues for determination, which are:
1. Whether exhibits P6A, P6B admitted in evidence without same being relied upon to convict the appellant has occasioned a miscarriage of justice.
2. Whether the learned trial Judge was wrong when she found and held that the appellant failed to raise his defense of alibi at the earliest opportunity.
3. Whether the prosecution had proved the offences of criminal conspiracy and culpable homicide punishable with death under Section 97 & 221 of the Penal Code Law respectively.
4. Whether the learned trial Judge was wrong when she convicted the appellant for the offence of culpable homicide punishable with death by hanging, even when the evidence in the record shows that the appellant was a child as at the date of the alleged commission of the crime.
Having regard to the grounds of appeal contained in the Appellant’s Notice of Appeal at pages 224 to 229 of the records transmitted in Appeal No. CA/J/424A/C/17, and the fact that the issues raised by both counsel are same except for phraseology, I shall adopt the issues distilled by the Appellant’s counsel in the determination of this appeal.
SUBMISSIONS ON ISSUE 1
Whether the learned trial Judge was wrong to have admitted Exhibits ‘P6A’, ‘P6B’ and ‘P11″ at the trial before the lower Court.
Mr. Duniya learned counsel for the Appellant, submitted that Exhibits ‘P6A’, ‘P6B’ and ‘P11″ which were admitted by the trial Court despite objection to their admissibility were inadmissible, he therefore urged the Court to expunge the same from the record.
On the inadmissibility of Exhibits ‘P6A’ and ‘P6B’, he submitted that Exhibits ‘P6A’ and ‘P6B’ are secondary evidence and the Respondent either failed or refused to lay proper foundation for their reception in evidence. He argued that the referred exhibits failed to comply with the condition precedent for their admissibility in evidence under Section 84 of the Evidence Act, 2011. He cited: BLAISE V. F.R.N. (2017) 6 NWLR (PT. 1560) 90. The learned counsel urged the Court to hold that the learned trial Judge erred in law in admitting the photographs in evidence as Exhibits ‘P6A’ and ‘P6B’, and to consequently expunge the same.
On the inadmissibility of Exhibit ‘P11″ in evidence, the Appellant?s contention is that Exhibit ‘P11″ was given in Hausa language but it was recorded in English language. He submitted that where an accused person does not understand or speak English, and he makes a statement in any language other than the language of the Court, i.e., English language, the said statement must first be recorded in the language in which it was made before it can be translated into English. He cited: Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999; ASUQUO V. STATE (2016) 14 NWLR (PT.1532) SC 309; BELLO V. C.O.P. (2018) 2 NWLR (PT. 1603) SC 267; IFARAMOYE V. STATE (2017) 8 NWLR (PT. 1568) SC 457; YAHAYA V. DANKWAMBO (2016) 7 NWLR (PT. 1511) SC 284.
He further submitted that flowing from the facts and decided cases relied upon in arguing this issue, the same ought to be answered in the affirmative and in favour of the Appellant to the effect that, the learned trial Judge was wrong to have admitted Exhibits ‘P6A’, ‘P6B’ and P11′ in evidence, and to expunge them
In response, Mr. Shaseet learned counsel for the Respondent submitted that Exhibits P6A & P6B were objected to at the point of their admission. The objection was overruled and they were then admitted in evidence. He contended that the overruling of the objection to the admissibility of Exhibits P6A & P6B was an interlocutory ruling which was not appealed against before the final determination of the case. He argued that the Appellant having made it a ground and an issue in this appeal against the final judgment of the trial Court, leave of Court ought to have been sought for and obtained before raising same, which he failed to do. He cited: AMADI V. COP (2015) ALL FWLR (PT. 797) 705.
The learned counsel urged the Court to hold that ground 1 of the grounds of appeal is incompetent, leave not having been sought, it should be struck out.
Then again, Mr. Shaseet for the Respondent argued that Exhibits P6A & P6B though admitted in evidence were not referred to or relied upon by the learned trial Judge in considering the case of the prosecution before convicting the Appellant. He cited: IBRAHIM V. STATE (2015) ALL FWLR (PT. 770) 1401; in urging the Court to hold that the Appellant failed to state the injustice the admission of Exhibits P6A and P6B occasioned as the learned trial Judge did not take same into consideration in finding the Appellant guilty as charged. He cited: ALI MOHAMED MAMMAN V. FRN (2013) 2 SCNJ 292; CPL. DESMOND ONONUJU V. THE STATE (2015) ALL FWLR (PT. 810) 1192; ANTHONY ITU V. THE STATE (2016) ALL FWLR (PT. 823) 1983; Section 251 of the Evidence Act.
It was further contended for the Respondent that, from the evidence of PW3 and PW4 on the recording of Exhibits P3 and P11 respectively, there is nowhere any of the prosecution witnesses stated that the statements of the Appellant were first recorded in Hausa Language before same were translated to him in English Language, rather the PW3 and PW4 stated that they recorded the statements in English Language and then read and translated same to the Appellant in Hausa Language. The learned counsel conceded that it is an encouraged practice to record the statement of an accused in the Language he understands before translating it to English, which is the Language of the Court, but argued that nothing stops the recording officer who understands both the Language of the accused and the English Language from recording directly from the Language of the accused to English Language. He referred to: MOHAMMED BELLO V. COP PLATEAU STATE (2018) 2 NWLR [PT. 1603] 267; also relied on by the Appellant’s counsel, to submit that the Supreme Court equally held in that case that it is only when it is practicable that one must first record the statement in the language of the accused before translating same to English Language. He invited the Court to Pages 331@ paras F-H of the referred case.
He further submitted that, a statement volunteered by an accused person in his language can be recorded by direct translation from the language spoken by the accused to English language by the recording Police Officer without first recording it in the language of the accused, provided that it will be recorded in the first person singular as did Pw3 and Pw4 in this case. He cited MALLAM ZAKARI AHMED V. THE STATE (2001) FWLR (PT. 34) 438; DARE JIMOH V. THE STATE (2014) 3 SCNJ 1.
He finally urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUE 1
On the competence of Ground 1 of the Grounds of Appeal the learned counsel for the Respondent urged the Court to strike out Ground 1 and the ensuing issue as the said ground stems from the interlocutory ruling of the trial Court which the Appellant appealed along with the final judgment. A party is encouraged to appeal against a ruling when he comes to appeal against the final judgment to avoid undue delay by appealing separately. However, there is a laid down procedure to be followed in order to merge the two appeals. The party has to obtain leave to appeal against the interlocutory ruling because by Section 25 of the Court of Appeal Act, a party has 14 days within which to appeal against an interlocutory ruling. See: KAKIH V. PDP & ORS. (2014) LPELR ? 23277 (SC); OGIGIE V. OBIYAN (1997) 10 SCNJ 4; N.L.C V. PACIFIC MERCHANT BANK LTD. (2012) ALL FWLR (PT. 640) 1211; CBN V. OKOJIE (2002) 8 NWLR (PT. 768) 48.
The Respondent’s contention is that the overruling of the objection to the admissibility of Exhibits P6A & P6B (photographs of the deceased) was an interlocutory ruling for which leave of Court must be first sought and obtained before the same could be appealed along with the final judgment. That the said overruling which was appealed along with the final decision without leave makes Ground 1 which is a complaint on the admissibility of Exhibits P6A & P6B incompetent. The position of the law is clear and the contention of the Respondent in line with the correct position of the law but there is a misconception on the fact that the Appellant appealed against an interlocutory ruling along with the final judgment. With regards to Exhibits P6A & P6B, the overruling of the objection to their admissibility was part of the proceedings of the Court which culminated to the final decision and as such there is no such thing as appeal against interlocutory ruling along with final judgment for which leave was be obtained. The trial Court did not make any distinct ruling appealable at that stage and which was not promptly appealed against only to be belatedly appealed along with the final judgment. Where as in this case a Court makes a decision on the admissibility of evidence be it oral or documentary; the order rejecting or admitting the evidence is part of the main trial and not an interlocutory decision appealable at that stage of the proceeding. Therefore a complaint of an Appellant against a ruling for wrongful admission of evidence or wrongful rejection of evidence can be made a ground in the appeal against the final judgment and no leave shall be required. See: ONWE V. OKE (2001) 3 NWLR (PT. 700) 406 SC; OKOBIA V. AJANYA (1998) 6 NWLR (PT. 554) 348 SC; DUNALIN INV. LTD. V. BGL PLC. (2016) 18 NWLR (PT. 1544) 262. I therefore do not agree with the Respondent?s counsel that Ground 1 of the Grounds of Appeal and the ensuing issue is incompetent for failure to obtain leave.
On the Appellant’s contention that the admission of Exhibits ‘P6A’ and ‘P6B’ offends Section 84 of the Evidence Act, 2011 and as such should be expunged. The said exhibits which are pictures of the deceased were tendered without recourse to the requirements of Section 84 of the Evidence Act, 2011. The Respondent’s counsel subtly conceded to this as he did not make submissions on this but rather stemmed his argument on the fact that the referred exhibits did not influence the trial Court in its decision. The pictures were tendered without the negatives or any explanation. Where if the photographs were taken with a digital camera or produced from a digital camera, that becomes a computer generated document by virtue of Section 84 (5) (c) of the Evidence Act, 2011 which provides that;
a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
In that case, the camera that was used in taking the photographs ought to have been tendered in evidence, but that was not done. Rather the printed photographs were tendered in evidence without their negatives. Also, the certification which is a pre-requisite for its admissibility in evidence under Section 84 of the Evidence Act, 2011 was not made. Notably, Section 84 of the Evidence Act, 2011 permits the admission of any document generated or produced by a computer. However, the document may only be admissible if, and only if it is shown that the conditions in Subsection (2) therein are duly satisfied in relation to the document sought to be tendered. The conditions precedent to the admissibility of such documents are contained in Subsection (2) (a) – (d) of Section 84 of the Evidence Act, 2011. Categorically, Section 84 (4) (a) and (b) of the Evidence Act, 2011 made it mandatory that, before a computer generated document can be admissible, a certificate identifying the document and describing the manner in which the document was produced as well as the particulars of the device used in producing or generating the document must first be provided. Exhibits ‘P6A’ and ‘P6B’ failed woefully to abide the requirements of Section 84 of the Evidence Act thereby making the pictures of the deceased Exhibits ‘P6A’ and ‘P6B’ inadmissible. I therefore hold that Exhibits ‘P6A’ and ‘P6B’ were wrongly admitted in evidence and I hereby expunge them from the record.
The issue therefore begging for resolution at this point is whether, by reason of the wrongful admission of Exhibits ‘P6A’ and ‘P6B’ the judgment of the trial Court was liable to be set aside on that ground.
Wrongful admission of evidence or exhibits as in this case without more is not a ground for the reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have influenced the decision or that such decision would have still been the same even if such evidence had not been admitted. Once the appellate Court is of the opinion that the admissible evidence could not reasonably have affected the decision, it will not interfere. See: Section 251 (1) of the Evidence Act, 2011; ITU V. STATE (2016) LPELR 26063 (SC); ARCHIBONG V. STATE (2006) 14 NWLR (PT. 1000) 349; NWAEZE V. STATE (1996) LPELR ? 2091 (SC); EZEOKE V. NWAGBO (1988) 1 NWLR (PT. 72) 616 AT 630: MONIER CONSTRUCTION CO. LTD. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 AT 88; AJAYI V. FISHER (1956) 1 F.S.C. 90: R. V. THOMAS (1958) 3 F.S.C. 8; LAYONU AND OTHERS V. THE STATE (1967) 1 ALL NLR 198. Accordingly, I hold that an appellate Court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. See: AYANWALE V. ATANDA (1988) 1 NWLR (PT. 68) 22.
In the present case, nowhere in the whole judgment did the trial Court rely on Exhibits ‘P6A’ and ‘P6B’ to find the Appellant guilty of the charge against him. This means with or without considering the said exhibits, the decision of the trial Court could not in any way be affected. The settled position of the law was stated by the apex Court thus:
By the provision of Section 251 (1) of the Evidence Act, 2011, wrongful admission of evidence would not by itself, be a ground for reversing a decision where an appellate Court finds that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same even if such evidence had not been so admitted. In the instant case, where there was sufficient evidence to still ground the appellant’s conviction outside the confessional statement alleged to be wrongfully admitted the Court of Appeal appropriately dismissed the appellant’s appeal. See: ANTHONY ITU V. THE STATE (2016) ALL FWLR (PT. 823) 1983.
Consequent upon the above, I hold that the wrongful admission of Exhibits ‘P6A’ and ‘P6B’ which did not influence the judgment of the trial Court appealed against; did not occasion a miscarriage of justice and cannot warrant the setting aside of the judgment of the trial Court.
Now on the contention of the admissibility of Exhibits ‘P3’ and ‘P11’, the Appellant submitted that the referred exhibits were wrongly admitted. May I observe at this point that there is a great difference in the legal effect of wrongly admitted admissible evidence and the admission of inadmissible evidence in proceedings. Admitting in evidence a piece of evidence, which by law, is inadmissible is an illegality. So, where a piece of evidence which is inadmissible in law is wrongly admitted in evidence the Court cannot use it at any stage of the proceedings; even where no objection was raised against it at trial. An inadmissible evidence, admitted in evidence with or without objection at the time it was admitted, remains irrelevant and inadmissible. See: IFARAMOYE V. STATE (2017) 8 NWLR (PT. 1568) SC 457; ILIYASU SUBERU V. THE STATE (2010) 3 SC. PT.2 105; BISICHI TIN CO. LTD. V. COMMISSIONER OF POLICE (1963) NNLR 71.
The issue of the admissibility of Exhibits P3 and P11 is based on the mode they were recorded by the police officers and tendered in evidence. It was contended that the Appellant?s statements which were given in Hausa language ought to have been first recorded in the language in which they were made before translating same into English. The Appellant’s contention is in tandem with the position of the law as set down by the Supreme Court in its holding that:
It is a constitutional requirement that if an accused person does not understand English at all and he makes a statement it must be recorded in the language he speaks or understands and later translated into English. See: Section 36 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
See: ASUQUO V. STATE (2016) 14 NWLR (PT.1532) SC 309 AT 329, PARAS., D ? E. SEE ALSO: IFARAMOYE V. STATE (2017) 8 NWLR (PT.1568) SC 457; BELLO V. C.O.P. (2018) 2 NWLR (PT. 1603) SC 267.
I equally agree with the learned counsel for the Appellant that it is the firm position of the law that where a statement was originally made in vernacular before an interpreter translated the same into English language, both versions must be tendered in evidence together. On this the apex Court held as follows:
The language of the Court is English Language. Where a statement or deposition is made in another language and later translated to the language of the Court, the English version must be tendered in evidence along with the version in the other language…. In other words, where a witness as an illiterate has made his statement in a foreign language as in this case in Hausa language, both the statement in the foreign language and the English translation thereof have to be tendered together. In the instant case, the depositions made in Hausa Language were never before the tribunal nor identified by the witnesses. Only the alleged English Language versions of the original depositions were tendered without a jurat….? see: YAHAYA V. DANKWAMBO (2016) 7 NWLR (PT. 1511) SC 284 AT 292, RATIO 7 AND ALSO AT PAGES 317, PARAS., A-D AND 328 – 329, PARAS., D-C.
The Courts have always maintained that statements should, wherever practicable, be recorded in the language in which they are made not only to avoid technical arguments but also to ensure the correctness and accuracy of the statements made by the accused. May I now refer to the evidence contained at page 146 lines 6 to 9; page 149 lines 2 to 9 and page 151 of the record. From the referred record it is clear that the Appellant gave or made his statements to PW3 and PW4 in Hausa language, thus, the Appellant’s argument is that, there must be Hausa versions of the statements, from which PW3 and PW4 read over to the Appellant and from which Exhibits ‘P3’ and ‘P11″ ought to have been made. I have carefully read the decisions of the apex Court heavily relied upon by the Appellant?s counsel particularly the cases of ASUQUO V. STATE (supra) and IFARAMOYE V. STATE (supra). In ASUQUO V. STATE (supra), notwithstanding the principle of law stated above; the apex Court on whether the statement of an accused person must be recorded in the language he speaks or understands and later translated into English; His Lordship Akaahs JSC said that where as in that case the accused person was cautioned in English language and he signed his caution, his statement recorded in English language was admissible in evidence although he made his statement in Efik.
Then in IFARAMOYE V. STATE (supra); the same Supreme Court while considering; whether an interpreter who interpreted a confessional statement to a police officer as well as the police officer must be called to testify before the statement will be admitted, came to the conclusion that where in a case an accused person does not speak English, and the police officer does not understand the language of the accused, then an interpreter or translator shall be required, in which case the statement of the accused must be first recorded in the language he speaks and understands, then the same shall be translated and recorded in English, and at trial both the statements of the accused person in both vernacular and English must be tendered before the Court and both the interpreter (translator) and the police officer who recorded the statement in English must give evidence for the statements to be admissible. The Appellant’s counsel contended that Exhibits ‘P3″ and ‘P11’ are inadmissible in evidence because the Appellant, only understands and speaks Hausa and his statements (Exhibits ‘P3’ and ‘P11’) were not first recorded in the original language (Hausa) in which they were made; or if so recorded, were not tendered along with the translated versions (English). He submitted that the trial Court erred in law which occasioned a miscarriage of Justice when it admitted only the English versions of the Appellant?s statements in evidence as Exhibits ‘P3’ and ‘P11’.
Despite the principles of law stated above, the cases of ASUQUO V. THE STATE (Supra) and IFARAMOYE V. STATE (supra) were decided on their respective facts and circumstances. I must note that both cases are different from the present case in both facts and circumstances. In the present case, there was no need for an interpreter as the police officers who recorded Exhibits P3 and P11 understood and spoke Hausa. In their evidence as PW3 and PW4, they stated that they recorded the statements of the Appellant who spoke in Hausa in English and later interpreted the same to him in Hausa and he admitted the same to be correct before he signed. This procedure does not in any way run counter of the decisions of the apex Court stated above. Where in the course of recording an accused person?s statement the Investigating Police Officer has no need for an interpreter in that he understands the language of the accused person, the recording of the accused person’s statement in English will satisfy the law where it is shown that the police officer after recording interpreted it to the accused and the accused admitted same to be correct before signing it. I therefore do not agree with the Appellant’s counsel that Exhibits P3 and P11 were inadmissible in evidence. I hold that the trial Court rightly admitted Exhibits P3 and P11 in evidence.
For all I have said above, I substantially resolve the issue in favour of the Respondent.
SUBMISSIONS ON ISSUE 2
Whether the learned trial Judge was wrong when she found and held that the Appellant failed to raise his alibi at the earliest opportune time.
On the Appellant’s defence of alibi the learned counsel for the Appellant referred to line 16 of page 202 to line 17 of page 203 of the record of appeal to submit that the learned trial Judge misdirected himself on the facts and findings that the Appellant only raised the issue of alibi during trial and not before, which occasioned a miscarriage of justice. The learned counsel argued that the Appellant at the earliest opportunity after his arrest, and in his statement at Riyom Police Station, raised the defence of alibi. He referred to Exhibit ‘P3’ at page 46 of the record.
On the meaning of alibi, Mr. Duniya learned counsel for the Appellant cited: UDO V. STATE (2016) 12 NWLR (PT. 1525) SC 1; ADEBIYI V. STATE (2016) 8 NWLR (PT. 1515) SC 459.
?It was contended that the Appellant complied with the position of the law as to the time and manner to raise the defence of alibi when on 24th December, 2012, (a day after his arrest) he timeously stated in his extra-judicial statement to the police which was admitted in evidence and marked Exhibit ?P3″ that at the time the deceased was allegedly killed, he was in his house, thus, the deceased was already dead by the time he returned to her house.
He submitted that the duty of the police to investigate the defence of alibi raised by the Appellant on 24th December, 2012 became due at that material time, and as such the findings of the trial Court that the Appellant was fixed at the scene of crime by the evidence of PW1 which is contained at pages 202 – 203 of the record of appeal is erroneous because the duty to investigate and confirm or confute the defence of alibi was expected to be discharged by the prosecution even before trial. He argued that the prosecution, having failed to do so, the oral testimony of PW1 relied upon by the learned trial Judge, which came during trial and after the said failure, cannot, by any stretch of imagination be said to relieve the prosecution from discharging its onerous duty of confirming or confuting the defence of alibi at the time it was raised.
The learned counsel finally submitted on the effect of failure of the prosecution to investigate the defence of alibi and cited: OSUAGWU V. STATE (2016) 16 NWLR (PT. 1537) SC 31. He urged the Court to resolve the issue in favour of the Appellant.
On the side of the Respondent, Mr. Shaseet learned counsel referred to the Appellant?s extra judicial statements Exhibits P3 and P11 at pages 46? 47 and 24 of the records respectively. He noted that excerpts from the Appellant?s statements to the police made it obvious that he was at the scene of crime when Mama Lyop Badung was killed meaning that he was not elsewhere when the crime was committed.
He reproduced the statement of the Appellant at the State CID in Exhibit P11 at page 24 lines 17 ? 23, and also the evidence of the Appellant as DW3 at page 175 – 176 of the records stated in lines 11 ? 15 to contend that the Appellant in the referred evidence set up a different scenario in his defence before the Court and at all points never gave the particulars of his alibi.
He urged the Court to hold that the trial Court was right in rejecting the defence of alibi raised by the Appellant at his trial and to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUE 2
The grouse of the Appellant in this issue is the holding of the trial Court thus:
Properly appraising the evidence of the accused persons, the Court observes that they only raised the issue of alibi during trial and not before. Had they given slightest indication of being elsewhere on the date and time of the incidence, the police would have had the obligation to investigate. It is the evidence of the prosecution that in the evening of 23-12-12, the date of the incidence the accused persons were all present at the scene, the house of PW1. They were fixed at the scene of the incidence. The submission of the prosecution on this point is upheld as same is based on the evidence before the Court…. so for some of the accused to proffer a defence of alibi for the first time during trial, in the witness box is bad enough. See: line 16 of page 202 to line 17 of page 203 of the record of appeal.
Contrary to the above findings, the Appellant’s counsel contended that at the earliest opportunity on 24th December, 2012 at Riyom police station, the Appellant raised the defence of alibi. He stemmed this argument on Exhibit P3 at page 46 – 47 where the Appellant specifically stated that:
“…They were asking the old woman name Lyop Badung to untie the child so that she will not die. Immediately I saw them, I went back home. After some time, I heard people shouting. I went there and saw my brother daughter by name Racheal Yohanna die. Immediately after that the people in the compound beat the old woman name Lyop Badung to dead. But I don?t actually know the people that killed her…”
The question in essence is whether the extra-judicial statement of the Appellant at Riyom Police Division (Exhibit ‘P3’) made on 24th December, 2012 during investigation (a day after the alleged incident took place) as reproduced above created an alibi which the Prosecution was duty bound to investigate. Importantly, it is well settled that by raising the defence of alibi the accused person does not seek to prove his innocence or the alibi, rather to raise a doubt as to the proof beyond reasonable doubt by the prosecution against him. Alibi is simply a defence where an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere and so he could not have committed the offence. The defence must be raised at the earliest opportunity after an accused person is arrested, and usually in his statement to the police. See: UDO V. STATE (2016) 12 NWLR (PT. 1525) SC 1; ADEBIYI V. STATE (2016) 8 NWLR (PT. 1515) SC 459.
Where an accused person has unequivocally raised the defence of alibi that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged he must give some facts and circumstances of his whereabout for the prosecution to be duty bound to investigate the alibi set up, to verify its truthfulness or otherwise. SEE: TIRIMISIYU ADEBAYO V. THE STATE (2014) 5 SCNJ 825; CHIEF VINCENT DURU V. THE STATE (2017) ALL FWLR (PT. 893) 1243.
In law, the defence of alibi cannot succeed where an accused person is miserly in giving particulars of his whereabouts and in whose company he was but merely states that he was not at the scene of the crime. He is bound to give the lead and particulars of his where about at the earliest opportunity which will assist the prosecution in their investigation of the alibi as the police is not expected to go on a wild goose chase in order to investigate an alibi.
In the instant case, the Appellant’s alibi is that he went back home after witnessing Yohanna Davou with his three brothers and others pleading with the victim to untie Rachael. He did not stop there, in his statement which the Appellant contends raised an alibi, he added that, when he heard people shouting he later went back to the scene of crime, and on getting there he discovered that Rachael, the Sick daughter of his brother was dead. That on realizing Rachael was dead, the people in the compound including Yohanna Davou (1st accused convict) beat the late mama Lyop to death, but he does not know who actually killed her. This statement of the Appellant (Exhibit P3) in my view shows the Appellant was among those in the compound when the late mama Lyop was beaten to death. I therefore agree with the Respondent that by Exhibit P3 the Appellant was not elsewhere when the crime was committed.
Following what I have said, I hold that the Appellant did not raise the defence of alibi in his statement to the police on 24th December, 2012. However even where it could be found that the Appellant herein raised alibi in Exhibit P3, it is long settled that where the prosecution adduces sufficient and accepted evidence to fix the accused person at the scene of crime at all times material to the commission of a crime, any alibi raised by him is logically demolished. See: MICHAEL HAUSA V. THE STATE (1994) 6 NWLR (PT.350) 281 S.C.; NJOVENS V. THE STATE (1973) 5 S.C. 17, PETER V. THE STATE (1997) 3 NWLR (PT. 496) 625, NTAM V. THE STATE (1968) NMLR 86. In the present case, there was overwhelming evidence accepted by the trial Court particularly the Evidence of PW1 at pages 139 to 140; and PW2 at pages 142 to 143; which fixed the Appellant at the scene of crime at all material times. This could only lead to the conclusion that that the Appellant was at the scene of crime when the victim was beaten to death and not elsewhere.
Finally on the alibi raised by the Appellant in his evidence, I agree with the learned trial Judge that it was raised too late and did not give the Prosecution the opportunity to investigate same. I therefore find that the defence of alibi does not avail the Appellant as was rightly held by the learned trial Judge.
Accordingly, Issue 2 is resolved in favour of the Respondent.
SUBMISSIONS ON ISSUE 3
Whether the learned trial Judge was wrong when she found the Appellant guilty of culpable homicide punishable with death, and sentenced him accordingly.
Mr. Duniya the learned counsel for the Appellant submitted that the learned trial Judge did not properly evaluate and apply the evidence elicited both from the Appellant and Prosecution, thereby leading to the decision of the learned trial Judge convicting and sentencing the Appellant to death. He contended that the learned trial Judge gave credence and weight to Exhibit ‘P11′ in finding that the Appellant was guilty of the offences of conspiracy and culpable homicide punishable with death, which he ought not to have done because the Appellant’s extra judicial statement Exhibit P11 made previously was inconsistent with his testimony during trial. He therefore submitted that the Appellant’s previous statement (Exhibit P11) did not constitute an evidence upon which the trial Court could act on. He cited:OMINI V. STATE (1999) 12 NWLR (PT. 630) SC 168; OJO V. FRN (2008) 11 NWLR (PT. 1099) CA 467.
He also referred to pages 175-176 of the records for the evidence of the Appellant during trial. Further relying on: SUBERU V. STATE (2010) 8 NWLR (PT. 1197) SC 586; the learned counsel submitted that the statement of the Appellant to the police is evidence of the fact that it was made, but being an extra-judicial statement, it is not evidence of the truth of its contents.
He referred to lines 5 to 9 of page 149 and lines 13 and 14 of page 151 of the records for the evidence of PW4 the police officer to submit that; the PW4 having cautioned and received the Appellant?s statement in Hausa language and recorded or translated it into English (which is now Exhibit ?P11?) and later interpreted it back to the Appellant (who does not speak nor understands English) in Hausa language, the PW 4 who invariably acted in dual capacity of an interpreter and recorder of Exhibit P11; ought to have told the trial Court the questions that he asked the Appellant and the Appellant?s response in answer thereto, for the said statement to be credible and given weight by the trial Court. He noted that, the prosecution having failed to follow this procedure, Exhibit ?P11″ which could not therefore be verified cannot ground conviction of the Appellant. He cited: ASUQUO V. STATE (SUPRA); BELLO V. C.O.P. (SUPRA); IFARAMOYE V. STATE (SUPRA) AND YAHAYA V. DANKWAMBO (SUPRA). He urged the Court to hold that Exhibit ?P11? is inadmissible in evidence.
Furthermore, the learned counsel for the Appellant referred to the last paragraph of page 205 of the records on the finding of the trial Court on Exhibit P3 to contend that the holding of the trial Court that Exhibit P3 is a confessional statement was in error. For what amounts to a confession, he cited: UDO V. STATE (supra). The learned counsel submitted that this finding or evaluation is perverse; and it occasioned a miscarriage of justice. He urged the Court to set aside the decision reached by the trial Court. He relied on:OJO V. F.R.N. (2008) 11 NWLR (PT. 1099) 467; STATE V. AJAYI (SUPRA).
Mr. Duniya noted that when the Court has expunged Exhibit P11 from the record for being inadmissible, and rightly evaluate Exhibit P3 as not a confessional statement, then there will be no confessional statement left for the evidence of PW1 and PW2 to corroborate. He went on to highlight the evidence of PW1 and PW2 and argued that from the totality of their evidence there is nowhere they stated that the Appellant beat the deceased using a stick and/or cutlass. He therefore urged the Court to find and hold that the said finding and holding of the trial Court that the evidence of the PW1 and PW2 corroborated Exhibits P3 and P11 is perverse, and to set same aside.
On the issue of criminal conspiracy, the learned counsel for the Appellant argued that there was no evidence on record from any of the prosecution witnesses that proved that the Appellant and any other person(s) set out for the home of the deceased or agreed to either kill the deceased or cause the deceased grievous bodily harm. Rather, the evidence on the record is that a crowd had gathered at the home of the deceased, the Appellant came and met the 1st accused convict and his brothers begging the victim and one Victoria to untie one Rachael whom they alleged was inflicted with sickness through witchcraft by the victim and Victoria. He left the scene and went back to his house but by the time he came back to the scene of crime the victim had been beaten to death. He referred to the evidence of PW1 at the first paragraph of page 139, the evidence of PW4 at the last paragraph of page 169 of the records and Exhibit ?P3?. He argued that the inference that could be drawn there from is that a mob had gathered in front of the home of the deceased who eventually attacked her. That neither PW1 nor PW2 gave evidence that the mob mobilized from somewhere and then arrived at the home of the deceased and that there is no evidence of conspiracy involving the Appellant. Consequently, he urged the Court to find and hold that the finding and holding of the learned trial Judge that the Appellant set out along with other persons for the house of the deceased was perverse.
He finally urged the Court to find and hold that the judgment of the trial Court convicting and sentencing the Appellant to death by hanging is unreasonable, unwarranted and is not supported by weight of evidence, and to allow the appeal.
In his unfavourable reaction to the third issue, Mr. Shaseet the learned counsel for the Respondent noted the evidence of the Appellant who testified as DW3 as contained at pages 175-176 of the records to contend that his retraction of his extra judicial statements in Exhibits P3 and P11 in his evidence in Court did not affect the case of the prosecution owing to the evidence of PW1 and PW2 who were not only eye witnesses but who also tried to intervene to no avail. He referred to: FABIAN IMOH V. THE STATE (2017) ALL FWLR [PT. 887] 88. The learned counsel submitted that the Appellant in his defence did not discharge the burden bestowed on him to impeach his earlier statement. He cited: TIRIMISIYU ADEBAYO V. THE STATE (supra).
On failure to tender the Hausa version of Exhibits P3 and P11, the learned counsel adopted his submissions on this in issue 1. He relied on: MOHAMMED BELLO V. COP PLATEAU STATE (SUPRA); MALLAM ZAKARI AHMED V. THE STATE (SUPRA); DARE JIMOH V. THE STATE (Supra).
The learned counsel for the Respondent referred to paragraph 6.13-6.19 of the Appellant?s brief which was an attack on the conclusion of the Court that an accused can be convicted on his confessional statement alone while relying on Exhibits P1-P5 of which Exhibit P3 is the statement of the Appellant which was recorded at Riyom Divisional Police Station. Mr. Shaseet submitted that even though the Appellant in Exhibit P3 did not categorically state that he participated in beating the deceased, that the learned trial Judge equally placed reliance on Exhibit P11 which is the statement made by the Appellant at the state CID and which confessional statement was admitted after trial within trial. He referred to the holding of the learned trial Judge at pages 205 – 206 to argue that the trial Court did not rely only on Exhibit P3 to convict the Appellant, it also relied on Exhibit P11, and the evidence of PW1 and PW2 who gave eye witness account of the role played by the Appellant and all other accused/convicts in the event that led to the death of their mother. He further referred to the holding of the trial Court at page 207 lines 16-20. The learned counsel for the Respondent?s urged the Court to find that from the available evidence on record there was enough evidence of eye witnesses? accounts to convict the Appellant as did the trial Court even without placing reliance on Exhibits P3 and P11; and to affirm the conclusion reached by the trial Court in finding the accused guilty.
On the fact that the Appellant is not linked with the death of the deceased based on the argument of the Appellant?s counsel that the Appellant was not categorically identified to have beaten the victim with either stick or cutlass. Mr. Shaseet, the learned counsel for the Respondent referred to the evidence of PW1 and PW2 to submit that the Appellant was positively identified as one of those who attacked the deceased. He argued that, even if the Appellant is not the person that inflicted the cutlass injury on the deceased it is true that he was in company of others who attacked the deceased that led to her death on the spot, more so since Exhibits P3 and P11, the confessional statements of the Appellant and the evidence of PW1 and PW2 unequivocally and positively identified the Appellant as among the persons that attacked the victim as a result of which she died on the spot. He relied on: OMOJOLA AKINLOLU V. THE STATE (2018) ALL FWLR [PT. 927] 1; ISIOMA OKEJERE V. THE STATE (2017) ALL FWLR [PT. 866] 386.
On the cause of death, the learned counsel contended that with the Appellant?s confessional statements and the evidence of PW1 and PW2 to the effect that the deceased died on the spot while being beaten by the Appellant and others; the prosecution was no longer required in law to establish the cause of death. He cited: SAMBO ALH. GALADIMA V. STATE (2017) ALL FWLR [PT. 899] 302; ADUADA SHAIBU V. THE STATE (supra). He urged the Court to discountenance the Appellant?s argument that the prosecution did not establish the cause of death of the victim.
On the offence of criminal conspiracy against the Appellant, Mr. Shaseet for the Respondent defined conspiracy. He referred to: SHOLA FAMUYIWA V. THE STATE (2018) ALL FWLR (PT. 9191) 24; ABIODUN ADEKOYA V. THE STATE ALL FWLR [PT. 879] 693. The learned counsel contended that from the acts of the Appellant and his collaborators it is clear that he conspired with other co-convicts to kill the deceased. He added that the agreement is demonstrated by the following, the Appellant and others going to the house of the deceased chanting that they must kill the victim whether she is a witch or not, locking up the deceased in a room where the sick daughter of the 1st accused/convict was placed on the lap of one Victoria with an order for them to loose her of the witchcraft inflicted on her, the Appellant and others pulling out the deceased from the room on realizing that the sick Rachael was dead, beating her with other co- convicts and cutting her with cutlass whereupon she died on the spot. He submitted that there was enough evidence including Exhibits P3 and P11, the confessional statements of the Appellant and eye witnesses’ account of PW1 and PW2 before the Court, for the Court to hold that the offence of criminal conspiracy was established against the Appellant.
He urged the Court to resolve the issue in favour of the Respondent and to dismiss the appeal.
RESOLUTION OF ISSUE 3
The law is trite that an offence may be proved either by direct evidence of eye witnesses, compelling circumstantial evidence, lawful confessional statement of the accused or a combination of any of the three. Accordingly, an accused person can be convicted on his confession alone once it is direct, positive and properly proved and admitted in evidence. See: MUSA V. THE STATE (2019) LPELR ? 46350 (SC); KARIMU SUNDAY V. THE STATE (2017) LPELR- 42259 (SC); TIRIMISIYU ADEBAYO V. THE STATE (2014) 5 SCNJ 825; OLUFEMI AJAYI V. THE STATE (2014) 6 SCNJ 284. This is so because confession in the eye of the law remains the best form of evidence against an accused person as no rational being, all things being equal, says anything against his interest. See: MUSA V. THE STATE (SUPRA); ADEBAYO V. THE STATE (2014) LPELR-22988 (SC); OLANIPEKUN V. STATE (2016) LPELR-40597 (SC). On the probative value of a confession of an accused person, the apex Court held thus:
Evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true.
See ADEBAYO V. STATE (SUPRA); REP. V. CHARTWOOD (1980) 1 WLR 874; JAMES OBI ACHABUA V. THE STATE (1976) 12 SC 63; JIMOH YESUFU V. THE STATE (1976) 6 SC; INUSA SAIDU V. THE STATE (1982) 4 SC 41.
It is equally instructive to note that once a confessional statement has been admitted in evidence, it becomes part of the case for the prosecution. Even where it is subsequently retracted, the trial judge is bound to consider its probative value when considering the retraction made subsequently. See: MOHAMMED V. STATE (2019) LPELR ? 46420 (SC); ADEBAYO V. STATE SUPRA); EGBOGHONOME V. THE STATE (1993) 7 NWLR (PT. 306) 383; EKPE V. STATE (1994) 9 NWLR (PT. 368) 263. In law, where an accused person retracts from or denies his extra judicial statement, he has the burden to impeach his earlier statement. See: ADEBAYO V. STATE (SUPRA); NWACHUKWU V. THE STATE (2007) 12 SCM (PT. 2) 447; (2007) 17 NWLR (PT. 1062) 31; HASSAN V. STATE (2001) 11 SCM 100; (2001) 35 WRN 175; (2001) 15 NWLR (PT. 735) 184.
Accordingly, during trial, an accused person who intends to impeach his extra judicial statement has the duty to establish that his earlier confessional statement cannot be true or correct by showing any of the following:-
(i) That he did not in fact make any such statement as presented; or
(ii) That he was not correctly recorded; or
(iii) That he was unsettled in mind at the time he made the statement, or
(iv) That he was induced to make the statement.
See: HASSAN V. STATE (SUPRA); FOLORUNSHO KEZEEM V. THE STATE (2009) 29 WRN 43 AT 68 – 69.
Let me start with Exhibit P3 which is the extra judicial statement of the Appellant made on 24th December, 2012 at Riyom Police Division also found at pages 46 and 47 of the records. I have carefully gone through the said Exhibit P3 and I agree with the learned counsel for the Appellant that the same is not a confessional statement in that the Appellant did not anyway in the said document admit or infer that he committed the crime as charged. The finding of the trial Court therefore that Exhibit ?P3? is a confessional statement is perverse and liable to be set aside. See: STATE V. AJAYI (SUPRA); OJO V. F.R.N. (supra). I hereby set the referred finding of the learned trial Judge aside. As to whether the above referred perverse finding occasioned a miscarriage of justice to warrant the setting aside of the judgment of the trial Court on that ground, that cannot be determined at this stage in view of the holding of the trial Court that:
It is trite law that a person can be convicted on his confessional statement alone where the Court is satisfied that the confession is consistent with other ascertained facts which have been proved… As has been noted earlier in the course of this judgment Exhibits ‘P1’ – ‘P5’ (sic) are the confessional statements of the accused persons made at Riyom Police Station on 24 – 12 – 2012.? See: page 205 of the records.
The import of the above holding is that the learned trial Judge did not only rely on Exhibit P3 to find the Appellant guilty.
On retraction of confessional statement, in this case it relates to Exhibit P11 since I have held that Exhibit P3 is not a confessional statement. In law an accused person who retracts his extra judicial statement has the burden of impeaching the same at the point of tendering the confessional statement by calling evidence during trial within trial to show that: he did not in fact make any such statement; or he was not correctly recorded; or he was unsettled in mind at the time he made the statement, or he was induced to make the statement. See: ADEBAYO V. STATE (SUPRA); OSETOLA & ANOR V. THE STATE (2012) 12 SCM (PT. 1329) 251; (2012) 50 (2) NSCQR 598.
In the instant case, the Appellant objected to the tendering and admission of Exhibit P11 and after a trial within trial, the learned trial Judge held that the Appellant made Exhibit P11 voluntarily and thereupon admitted the same in evidence. This part of the trial Court?s decision was not made an issue in this appeal which means the Appellant is satisfied with it. Since this decision subsists, it is binding on the Appellant. This in my view makes Exhibit P11 a free and voluntary confessional statement which if rightly found direct and positive would in law ground the conviction of the Appellant. In Exhibit P11, the Appellant positively and unequivocally stated at page 24 lines 15-19 as follows:
I heard people shouting and when I came out, I saw people beating the old woman that Rachael was death and it was the old woman Lyop Badung that killed her; so I joined them in beating her only once and left.
With the direct statement of the Appellant that he joined others in beating the victim who eventually died in the course of the beating, I hold that in law Exhibit P11 qualified a confessional statement. Then again, the question is the effect of the retraction of Exhibit P11 by the Appellant.
The well settled principle of law is that an accused person can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. However, it is always desirable that before a conviction can be properly based on a retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: FABIAN IMOH V. THE STATE (2017) ALL FWLR (PT. 887) 88; ASUQUO V. THE STATE (2016) 14 NWLR (PT. 1532) 309 SC; ULUEBEKA V. THE STATE (2000) 7 NWLR (FT. 565) 41; OKOH V. STATE (2014) 8 NWLR (PT. 1410) 502.
Part of the relevant evidence on record that was before the trial Court in aid for the determination of the guilt or non-guilt of the Appellant is Exhibit P11 (the Appellant?s confessional statement), and the evidence of the eye witness particularly PW1 and PW2. Let me refer again to the excerpt from Exhibit P11 at page 24 lines 15-19, already reproduced above. This piece of evidence though retracted was cogent, direct and unequivocal to the role of the Appellant towards the death of the deceased. The trial Court soberly evaluated the confession with other pieces of evidence placed before him and found corroboration with the evidence of eye witnesses PW1 and PW2 in particular. I will lay emphasis on the evidence of PW2 who at page 142 of the records testified in the following words.
They started to drag my mother from her room outside, they began to beat her. Those who dragged her out are Pam Dalyop, and Yohanna Davou, Pam Davou, John Davou and James Badung the accused persons. They started beating her with hands and then stick and cutlass. Pam Davou used a cutlass on her. We tried to stop them but failed. They killed my mother. As I tried to stop them they wounded me on my head, back and neck as a result one of my ears is affected and I cannot ear well.
In law evidence in corroboration must be an independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the accused person committed it. See:IKUMONIHAN V. STATE (2018) LPELR ? 44362 (SC); REX V. BASKERVILLE [1916] 2 K.B. 658; OKABICHI & ORS V. STATE (1975) LPELR ? 2406 (SC); OMISADE & ORS V. THE QUEEN (1964) 1 ALL N.L.R. 233; OKABICHI & ORS V. STATE (SUPRA); R. V. MADAN (1938) 4 W.A.C.A. 39; OLALEYE V. THE STATE (1970) 1 ALL N.L.R. 300.
In the instant case therefore, it was the duty of the trial Court to ascertain whether the evidence of PW1 and PW2 corroborated Exhibit P11, the confessional statement of the Appellant in that, their evidence was: independent of Exhibit P11, supported the story of the Appellant in Exhibit P11 to the effect that it renders that story more probable, and implicated the Appellant in material particular that he conspired with others and caused the death of the victim. The learned trial Judge on the pages of the records made a clear and apt evaluation of the confessional statement of the Appellant Exhibit P11 with the evidence of the eye witnesses PW1 and PW2, and other pieces of evidence before he arrived at the conclusion that the evidence of PW1 and PW2 corroborated Exhibit P11. The PW1 at page 140 said the Appellant and the other accused convicts at the trial Court were all shouting in the PW1?s compound that they must kill the victim whether she was a witch or not. He begged them not to kill her or any other person for that matter in his compound. He added that the Appellant herein carried a pestle and said he was going to kill the victim and one Victoria but that he kept begging all of them until when it was realized that Rachael had died, they all began to beat the victim. For the PW2 he said the Appellant and others started beating the victim immediately they realized Rachael had died with hands, sticks and cutlass. From the evidence of the two eye witnesses on record therefore, I agree that their evidence was not only independent but reasonably confirmed the story in Exhibit P11 that the Appellant with others caused the death of the victim in question. I therefore hold that the trial Court was right when it held that the evidence of the eye witnesses PW1 and PW2 corroborated the confessional statement of the Appellant Exhibit P11 and went ahead to convict the Appellant based on that.
On the issue of the objection to the admission of Exhibits P3 and P11 based on the mode they were recorded by the police officers and tendered in evidence. The Appellant’s counsel contended that the Appellant’s statements which were given in Hausa language ought to have been first recorded in the language in which they were made before translating same into English. I adopt my position on this as in my resolution of issue 1. I accordingly hold that the trial Court rightly admitted Exhibits P3 and P11 in evidence.
Before I conclude let me just emphasis that where as in this case the evidence of the eye witnesses and the confessional statement of the Appellant abound with the fact that the deceased was beaten to death on the spot, the argument of the Appellant’s counsel that the prosecution did not prove the death of the deceased is otiose. It is not in all cases that the prosecution must establish the cause of death. The Court will certainly dispense with medical report or will not be bound to produce medical report in a situation where the death can reasonably be inferred or where there had been a direct and positive account of the act that led to the death of the victim. See:SAMBO ALH. GALADIMA V. STATE (2017) ALL FWLR (PT. 899) 302; ADUADA SHAIBU V. THE STATE (supra) 1973.
Where as in this case Mama Lyop Badung was attacked with cutlass and sticks, and she died on the spot, it could be properly inferred that the beating and the wound inflicted caused the death. So where the cause of the death is obvious, medical evidence ceases to be of any practical or legal importance in homicide cases. Such a situation arises where death is instantaneous or nearly so. In the instance case, the evidence before the Court is that the victim died on the spot upon being beaten by the Appellant and other accused/convicts who came to her house on the allegation that she inflicted sickness on one Rachael Yohanna by witchcraft. Her death being instantaneous, I hereby discountenance the Appellant?s argument that the prosecution did not establish the cause of death of the deceased. Rather with the facts and circumstances of the death of the victim, I hold the learned trial Judge was right to find that the cause of death of Madam Lyop Badung was established by the prosecution.
I will not fail to note that in convicting the Appellant to death, the trial Court found great support in Exhibit P11. Be that as it may, I will herein reiterate the law that the guilt of an accused person can be proved through any or combination of the following methods; – (1) through confessional statement of the accused, or (2) through circumstantial evidence (3) through the testimony of eye witness or eye witnesses. See: ITU V. STATE (2016) LPELR ? 26063 (SC); EMEKA V. STATE (2001) 14 NWLR (PT. 734) 666; IGABELE V. STATE (2006) 2 SC (PT. 11) 61. A calm examination of the judgment of the trial Court shows that the trial Court also relied heavily on the evidence of the eye witnesses PW1 and PW2 the children of the deceased to arrive at its verdict of conviction and sentencing of the Appellant. So even if the exhibits under consideration were held to be inadmissible, in the instant case, the testimonies of PW1 and PW2 who had a fairly long encounter with the Appellant in that they witnessed the crime, tried to stop the Appellant and others from beating the victim in any form in which course the PW2 got injured and was rushed to the hospital, are enough to ground conviction with or without the extra-judicial statement of the Appellant. See: Section 251 (1) of the Evidence Act, 2011. I therefore hold that the learned trial Judge was right when he found the Appellant guilty of criminal conspiracy and culpable homicide punishable with death, and sentenced him accordingly.
Accordingly, I resolve issue 3 in favour of the Respondent.
SUBMISSIONS ON ISSUE 4
Whether the learned trial Judge was wrong when she convicted the Appellant for the offence of culpable homicide punishable with death by hanging, even when the evidence in the record shows that the Appellant was a child as at the date of the alleged commission of the crime.
Mr. Duniya, the learned counsel for the Appellant contended that from the evidence on record the Appellant was a child as at the date of the alleged commission of the crime. He invited the Court to the evidence of the Appellant that he was 19 years of age as at 15th April, 2016 when he testified as DW3 which means as at 23rd December, 2012 when the alleged offence was committed, the Appellant was 15 years of age, and therefore a child. He referred to page 175 of the records.
The learned counsel submitted that the law prohibits the joint trial of a child with an adult, as well as the sentencing of a child to death. He defined who a child is relying on: The Child Rights Act, 2003 at Section 277; Section 2 of the Plateau State Child Rights Law, 2005. He argued that in law it is settled that the age of a person accused of committing an offence is reckoned with as at the date he allegedly committed the offence and not the date of his conviction. He cited: DA?U V. STATE (2016) 7 NWLR (PT. 1510) 83.
He further submitted that, the learned trial Judge was wrong to have ?convicted? and ?sentenced? the Appellant to death by hanging since it was on record that the Appellant was a child as at the time of commission of the offence. He referred to: Section 213 (2) of the Child Rights Act, 2003; Section 214 of the Plateau State Child Rights Law, 2005; Section 221 (1) of the Child Rights Act, 2003; Sections 206 and 222 of the Plateau State Child Rights Law, 2005.
The learned counsel finally urged the Court to find and hold that the judgment of the trial Court convicting and sentencing the Appellant to death by hanging is unreasonable, unwarranted and is not supported by weight of evidence, and to allow this appeal.
In adverse reaction to the contentions of the learned counsel for the Appellant, Mr. Shaseet for the Respondent urged the Court to consider other evidence admitted in Court during trial and the fact that though the Appellant was represented by counsel throughout the trial, the issue of age was not raised neither was it ruled upon by the trial Court. He referred to Exhibit P3 which was admitted in evidence at the trial without objection and wherein the age of the Appellant was recorded as 21 years. He also invited the Court to note Exhibit P11 which is the confessional statement of the Appellant personally written by him at the state CID where he recorded his age as 21 years. He contended that it was only during his testimony in Court as DW3 that he gave his age as 19 years, yet the counsel who represented him at the trial did not raise any issue on that.
He added that the law frowns at a party canvassing different issues from what was decided at the trial Court on appeal. Mr. Shaseet argued that since the Appellant did not raise the issue of age at the trial Court neither did the trial Court make any pronouncement on it, the issue of age cannot become an issue on appeal before this Court. He further contended that leave of Court was not sought and obtained to raise the issue of age in this Court the same being a fresh issue of fact raised for the first time on appeal. He cited:ADAUDA SHAIBU V. THE STATE (2017) ALL FWLR (PT. 897) 1973; and urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUE 4
The law no doubt is clear that:
No child shall be ordered to be:
(a) Imprisoned; or
(b) Subjected to corporal punishment; or
(c)Subjected to the death penalty or have the death penalty recorded against him?.
See: Section 221 (1) of the Child Rights Act, 2003; Sections 206 and 222 of the Plateau State Child Rights Law, 2005; Section 213 (2) of the Child Rights Act, 2003; Section 214 of the Plateau State Child Rights Law, 2005; DA?U V. STATE (2016) 7 NWLR (PT. 1510) 83.
By the various relevant laws a child is defined to mean ‘a person under the age of eighteen years”. See: Section 277 of The Child Rights Act, 2003; Section 2 of the Plateau State Child Rights Law, 2005. Also the age under reckon is the age the alleged offence was committed and not the date of conviction and sentence. See DA?U V. STATE (2016) 7 NWLR (PT. 1510) 83.
The contention of the counsel for the Appellant herein is that by the oral evidence of the Appellant in Court as DW3 he put his age at 19 years meaning that his age at the time the offences for which he was charged with others were committed, he was only 15 years, further meaning he was wrongly charged with the other accused/convicts who were adults and his conviction and sentence therefore in law was unlawful. Mr. Shaseet contended that this was not the case of the Appellant at the trial Court as Mr. Duniya learned counsel for the Appellant did not make the age of the Appellant an issue at the trial Court and the same was not pronounced upon by the learned trial Judge. He referred to the Appellant’s extra judicial statements Exhibits P3 and P11, noting that while Exhibit P3 was admitted without objection, Exhibit P11 was personally written by the Appellant. In both Exhibits P3 and P11, the Appellant gave his age as 21 years. I shall briefly examine the import of the extra judicial statements of the Appellant. Exhibit P3 was admitted without objection by neither the Appellant nor his counsel (see page 146 of the records), which in law presupposes that the Appellant was comfortable with the statement. He cannot ordinarily turn round to challenge its content in his oral evidence in Court. Whereas in this case, an extra judicial statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. When this is the case, the trial Court has the right to act on the content of the statement. See: FRIDAY SMART V. THE STATE (2016) ALL FWLR (PT. 826) 548. Again is Exhibit P11 which was written by the Appellant himself, therein he equally stated his age as 21 years.
It was only in his evidence at page 175 of the records that he said his age was 19 years without explaining how come he had a change in age. Also his counsel did not raise the issue of the Appellant?s age nor address the Court on the difference in Appellant’s age between his extra judicial statements and his evidence in Court and as such the Court did not pronounce on the issue of age. Since the question of age was not an issue at the trial Court and was not pronounced on, the same is a fresh issue in this appeal for which the Appellant ought to have sought and obtained leave of Court to raise for the trite law that a party is not allowed to set up a case different from the case he fought at a lower Court on an appeal. See: ADAUDA SHAIBU V. THE STATE (2017) ALL FWLR (PT. 897) 1973 @ 1999-2000. The Appellant having failed to properly raise this fresh issue on appeal, issue 4 is incompetent for failure to obtain leave before raising the fresh issue.
Issue 4 is accordingly resolved in favour of the Respondent.
Having resolved all the issues in favour of the Respondent, the appeal is bereft of legs to stand on. The same fails and is hereby dismissed.
I hereby affirm the conviction and death sentence by hanging passed on the Appellant by the trial Court in Case No. PLD/BL5C/2013 delivered on 22nd May, 2017 by the High Court of Plateau State coram C. L. Dabup, J.
May God have mercy on your soul JAMES BADUNG.
TANI YUSUF HASSAN, J.C.A.: I am at one with my learned brother, UCHECHUKWU ONYEMENAM, JCA in his reasoning culminating in the dismissal of the appeal of the appellant. I also affirm the conviction and sentence of the appellant to death by the trial court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
The four issues submitted for determination of this Appeal has been properly resolved in such a manner that anything I add would amount to repetition.
Therefore, and for the reasoning articulated in the leading judgment by my learned brother and which I adopt as mine, the Appeal shall be and it is hereby as well, dismissed by me. I abide by the consequential orders and the prayer on the soul of James Badung.
Appearances:
E. E. Duniya, Esq.For Appellant(s)
N. D. Shaseet, Esq. (Director Citizens Right/Law Reform MOJ Plateau State) with him K. D. Kyentu, Esq. PSC, N. Mbap, Esq. PSC, S. F. Dalyop, Esq. PSC, I. M. Saleh, Esq. PSC and J. I. Mantu, Esq. PSC.For Respondent(s)
