JARIDU AHMAD v. THE STATE (2019)

JARIDU AHMAD v. THE STATE

(2019)LCN/13234(CA)

In The Court of Appeal of Nigeria

On Friday, the 10th day of May, 2019

CA/J/350C/18

RATIO

CONFESSIONAL STATEMENT: INSTANCES WHEN A TRIAL WITHIN TRIAL WILL NOT BE ORDERED AND WHEN IT CAN BE ORDERED

Now the gist of appellants contention here is that his confessional statement was not made voluntarily and therefore wrongly admitted in evidence. That is even as appellant also insisted that he did not even volunteer a statement, that the policeman (P.W.1) simply brought out paper and pen and proceeded to record ?whatever he liked? as his statement and compelled him to sign it, which in itself is not a ground for trial within trial: see Ifaramoye v. The State (2017) LPELR-42031(SC) p. 36-39; Ogudo v. The State (2011) LPELR-860 (SC);Nwangbomu v. The State (1994) 2NWLR (PT 327) 380; Okeke v. State (2016) 7 NWLR (Pt 1512) 417 @ 439-441. Nevertheless, a trial within trial was conducted by the trial judge for the purpose of ascertaining the voluntariness or otherwise of the making of the said confessional statement by appellant.PER BOLOUKUROMO MOSES UGO, J.C.A.

CONFESSIONAL STATEMENT: WHETHER A MERE DENIAL WILL AFFECT THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT
The law is that his mere denial will not affect the admissibility of the confessional statement. The stories he gave of how the confessional statement was recorded from him in the night etc were mere stories that are far from the truth…PER BOLOUKUROMO MOSES UGO, J.C.A.

APPEAL: THE APPELLATE COURT’S RIGHT ATTITUDE WHEN INTERFERING IN THE CONDUCT A TRIAL WITHIN TRIAL FROM THE LOWER COURT
The Supreme Court (Rhodes-Vivour, J.S.C. pronouncing lead judgment) in Nnamdi Osuagwu v. State (2013) LPELR-19823 (S.C.) at p. 29-30; (2013) FWLR (PT 672) 1605 @ 1623 set out the approach an appellate Court should adopt in such circumstances thus:
A trial within trial is a mini trial that must be conducted when an accused person says that his confessional statement was not made voluntarily. It is the duty of the prosecution to lead evidence to show that the statement was made voluntarily, while the accused person and his witnesses are to prove the opposite. This is a trial where the credibility of witnesses, demeanour is very important.
Now in such a trial, credibility is based on demeanour. An appeal Court cannot or ought not to interfere since it never had the advantage of seeing the witnesses. It can only interfere if the findings were based on inference drawn from evidence.PER BOLOUKUROMO MOSES UGO, J.C.A.

CRIMINAL LAW:MURDER: BURDEN OF PROOF IN MURDER CASES AND HOW TO PROVE MURDER
To secure a conviction on a charge of culpable homicide the prosecution, as rightly admitted by both sides, will need to prove beyond reasonable doubt (1) that the person alleged killed by appellant, Hajara Adamu, has really died, (2) that her death was caused by the appellant, and that (3) the said act of appellant that caused her death, namely lacing her tea with rat poison as charged, was done by the accused with the intention or knowledge that death would be its probable consequence: see Iliyasu v. The State (2015) LPELR-24403 (SC).PER BOLOUKUROMO MOSES UGO, J.C.A.

CRIMINAL LAW: 3 WAYS BY WHICH A CRIME CAN BE PROVED

That, the State can do by direct evidence of eyewitnesses, by circumstantial evidence, or by the confession of the accused person to the commission of the crime: Akpan v. State (2016) 9 NWLR (PT 1516) 110 @ 119. PER BOLOUKUROMO MOSES UGO, J.C.A.

CONFESSION: A CONFESSION IS ENOUGH TO CONVICT A PERSON
In Idowu v. State (2000) 7 SCNJ 245 @ 286, it was also stated (Uwaifo, J.S.C.) that:
It has been laid down as good law that a free and voluntary confession of guilt by an accused person which is direct and positive, so long as it is possible, is sufficient to warrant his conviction, provided the Court is satisfied of the truth of the confession. It will only then be a matter of prudence to look for any corroborative evidence.
See also Okeke v. State (2015) 11 NWLR (PT 1366) 435 (S.C.); Salawu v. State (2011) LPELR-9351 (SC) p. 36, 48.PER BOLOUKUROMO MOSES UGO, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

JARIDU AHMAD Appellant(s)

AND

THE STATE Respondent(s)

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Bauchi State of 11/05/2018 convicting appellant for culpable homicide punishable with death. Appellant was charged with causing the death of one Hajara Adamu, his eleven-year-old daughter born out of wedlock, by compelling her to drink a cup of tea laced with rat poison, knowing or having reason to believe that death would be the probable consequence, an offence punishable under Section 221 of the Penal Code. He was said to have committed the offence on the 30th day of August 2015 at about 9.00 hours at C293 Railway Road, Bauchi and buried the corpse that same day in a hole in his toilet which he had earlier commissioned one Lalu to dig for that purpose. The Investigating Police Officer, Police Sgt. Dauda Usman, prosecution?s first witness (P.W.1), stated in his evidence that he recovered the body of the deceased and took it to ATBU (Abubakar Tafawa Balewa University) Teaching Hospital, where it was certified dead by a medical doctor. On searching appellant?s house, he (P.W.1) continued, he also recovered a rat

poison popularly called Commando, which he packaged and sent for forensic analysis. The result of that analysis was never tendered in evidence, and that is one of several reasons of appellant in contending both at the trial and in this Court that the charge against him was not proved beyond reasonable doubt by the prosecution.

PW.1 further said he obtained a confessional statement from appellant in Hausa Language which he, PW.1, translated to English Language. Both the original Hausa version and its English language translation were tendered by the prosecution but the appellant alleged, at the point of tendering, that it was obtained by the police by threatening him to sign it. A trial-within-trial was therefore conducted by the Court for the prosecution to prove the voluntariness of its making by appellant. P.W.1 and the appellant testified in that trial, following which the trial judge, after receiving written legal submissions from the prosecution and Mr. O.J. Bichi for the appellant, ruled that he was satisfied that appellant made the confession voluntarily and admitted the two versions of the statement in evidence as Exhibits A1 and A2.

Under cross-examination, this witness (I.P.O.) stated that it was appellant that supplied the information on the burial of the deceased, thus suggesting that he also showed them the burial site where he said he recovered the deceased?s corpse.

The deceased?s mother, Maryam Musa, next testified for the prosecution as P.W.2, while appellant?s elder brother, Dahiru Ahmad Liman, testified as P.W.3. One Hajiya Maimuna Mohammed was P.W.4 and introduced herself as wife of an Islamic cleric who is also an elder brother or uncle of appellant and P.W.3.
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P.W.2 (the mother of the deceased) swore she took her daughter to appellant on Friday 28/8/2015 at about 4.00 hours around Emir?s Palace at No. C293 Railway Road, Bauchi but left her with his uncle, the cleric. On the following Monday, being the 30th of August 2015, appellant?s elder brother (P.W.3) went to her place to inform her that they were looking for her daughter, appellant having told him that he had returned her to P.W.2 that same Friday 28/08/2015. She (P.W.2) replied him that appellant never did. She then went back into her house and told her relatives that the deceased was

being looked for. Hearing no further information on the issue, she left the following day to meet the cleric husband of P.W.4 with whom she had left the deceased but was told that her daughter was dead and they did not know the cause of her death but that the appellant was under arrest. She returned to her place to break the sad news to her people and they all returned to the same cleric?s house, where she was informed of how the appellant killed and buried her daughter in a hole in his toilet. She rounded of her evidence-in-chief by confirming that her daughter was actually dead.
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On his part, appellant?s elder brother, P.W.3, stated how on 30/8/2015 he was at home when he was told by his wife that their uncle Liman wanted to see him. When he went to meet him, Liman asked for appellant and he replied him that he was not yet back. The cleric then told him to ask appellant where he took the deceased that he promised taking to him. Upon appellant?s return, he said he asked him as suggested by the cleric, Liman, but appellant swore he had returned the deceased to her mother (P.W.2), that they (appellant and him) should go and confirm from

her, to which he responded that he would not go because P.W.2 had earlier confirmed to him that it was not true that appellant returned the deceased to her after she had taken her to their uncle the cleric. After finally going with appellant to meet their uncle Liman, the cleric on the issue, he continued, himself and the cleric handed over appellant to the police. The following morning, the police came to their premises to ask about a hole that was dug in the house and he told them that he heard sound of someone digging a hole in the house and when he confronted the said person whom he named as one Lalu, he told him that they were digging drainage to allow passage of water that used to flood his house from appellant?s house. Under cross-examination from appellant?s counsel, this witness told the trial Court that though water actually used to flood his house from appellant?s house, he had done some plumbing there and the flooding had stopped. He also confirmed that he never met the deceased in person.

On her part, P.W.4, Hajiya Maimuna, wife of the cleric uncle of appellant and P.W.3, Liman, confirmed to the Court that on 28/8/2015 one

girl ?and a smaller girl? came to her and told her she came to see her husband?s eldest wife. When she confirmed to them that she was the husband?s eldest wife, the older girl then told her that she was sent to bring the smaller girl to her. Because her husband was busy attending to people, she said, she could not take the girl to him but rather let her pass the night with her. When she took the smaller girl to her husband the following morning, he informed her that he knew of the girl?s (deceased?s) presence in the house as he had earlier discussed with her mother (P.W.2) and appellant. He then told her to keep the girl, sent for appellant and went out. Given that appellant in his defence swore he never even knew the deceased at all, it is important that I reproduce what P.W.4 testified in-chief, unchallenged, as to what transpired next between her and appellant. She said:
?Jaridu [appellant] came and told me that he will take her back to their house. It was Jaridu who told me he was taking her to her house and they were together with Malam who said he should take her to their house and Malam said he should do

that.
?Yes, it was Malam that asked Jaridu to take her to their house (Malam is the Imam).
?On that very day around 4.30pm the elder sister of the mother returned the girl to me. I do not know the name of the elder sister of the mother.
?I do not know the name of the mother of the girl.
?The elder sister told me that the girl has come to do holiday with us to know her relatives, after the holiday she will come and take her and that her uniform and books should be brought to her.
?When Liman came back, I told him and also told Jaridu.
?Jaridu said he will come and take her back to his uncle.
?The next day after she bath and has taken her breakfast he sent one of the Almajiris (students) of the house and said Hajara to come with him.
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?The girl was returned to his uncle?s house in the Palace, so the girl never returned.
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The Police Exhibit Keeper, through whom an unopened sachet of rat poison and piece of wrapper respectively

were admitted in evidence as Exhibits A3 and A4, testified as P.W.5. This witness also tried to tender photographs of the corpse of the deceased but the defence successfully objected to their admission on the ground that foundational evidence for their admission was not satisfied by the prosecution.

After the evidence of P.W.5, the prosecution made attempts to call the medical officer who examined the corpse of the deceased. The records (see last line of p.50 of the records) reveal that it even served a subpoena on him. After getting fruitless adjournments to get the doctor and warned by the trial judge that the adjournment of 25/5/2017 was the last he would grant to call him, it was forced to apply to close its case on 6/7/2017.
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The appellant thereafter testified in his defence and there denied having anything to do with the death of the deceased or even making any statement to the police. He said he maintained all through his arrest by the police that he did not commit the offence for which he was charged; that P.W.1 simply wrote whatever he liked and compelled him to sign it even as he kept insisting that he knew nothing about the charge against

him.

Under cross-examination, he denied even the very existence of his deceased daughter Hajara or even knowing her mother, P.W.2. He said this about them:
?I do not know Maryam Musa.
?I do not know Hajara.
?Yes, I was taken to the police station.
?I did not discuss the issue of taking a certain Hajara to my uncle?s house with Hajiya Maimuna.
?I did not discuss with Hajiya Maimuna concerning the deceased.
?I do not know any girl called Hajara.
?I did not take any girl to anywhere; I want the Court to believe what I say now that I did not carry any girl to anywhere.
?I know that I am in detention up to now.
?I am detained for alleged offence of committing murder, the police said I killed my daughter but I do not know that one.
?I felt terrible when the police said I killed my daughter.?
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The trial judge in his judgment did not believe him. He dismissed his denial of the offence and claim of being forced to sign a confessional statement he never made. He called that an afterthought and described the said confessional statement of

appellant as ?direct, positive and probable and enough to prove all the ingredients of the offence of culpable homicide with death to which the accused person is standing trial? and relied on it to convict appellant after finding corroboration, which he also said was not necessary, in the hole he was said to have dug to bury the deceased.

Appellant has brought this seven-ground appeal to contest the correctness of that judgment and framed the following two issues, which the State also adopted, from his seven grounds of appeal:
1. Whether his confessional statement was made voluntarily and admissible in evidence considering how it was obtained.
2. Whether the prosecution proved the case of murder /culpable homicide against him beyond reasonable doubt having regard to the evidence of its witnesses before the Court.

On issue 1, appellant through his counsel O.J. Bichi referring to Section 28 of the Evidence Act and a number of cases including Suberu v. State (2010) 1 NWLR (PT 1176) 494 @ 449 and State v. Salawu (2011) 8 NWLR (PT 1279) 580 @ 604-605 made the point that a confession is an admission made at any stage by an accused

charged with a crime stating or suggesting the inference that he committed the offence. He argued that a confession is only admissible if it is shown that the accused person made it voluntarily, not when it is said to have been ?obtained? or ?demanded? from the accused person, which counsel maintains is the case with Exhibit A1 here going by the evidence of the police officer, P.W.1, as well as that of appellant himself who said P.W.1 told him he would write ?whatever he wants.? Counsel cited dictum of Ngwuta J.S.C. in Salawu v. State supra at 604-605 to support his argument that the word ?obtain? connotes a demand and a statement said to have been demanded from a suspect cannot be said to have been made voluntarily.

Learned counsel also argued that P.W.1 and appellant were in agreement that Exhibit A1/A2 was a product of questions put to appellant by P.W.1 and answers made in return by appellant, which counsel argued further disqualifies it as a confession. For this proposition, counsel relied on the dictum of Kutigi, J.S.C. (later CJN) in Namsoh v. State (1993) 5 NWLR (PT 292) 129 @ 144.
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Counsel also argued that the evidence of appellant during the trial within trial, which evidence he submitted was largely unchallenged and so deemed admitted, showed that the said confession was in fact obtained by the prosecution under duress, intimidation, threat and mental torture unleashed on appellant by P.W.1, contrary to Section 29 of the Evidence Act 2011.

For all these reasons, learned counsel argued that the said confessional statement of appellant on which the trial judge relied to convict him was not proved by the State, whose duty it is to prove it, to have been made voluntarily, contrary to His Lordship?s finding to the contrary, and we should so hold.
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On its part, the State maintained that it proved the voluntariness of the making of the said confession by appellant and the trial judge right in so finding. The evidence before the trial judge, Learned Principal State Counsel, Abubakar Ahmed, submitted, was direct and positive and corroborated by the evidence of P.W?s.1 ? 3 together with other evidence adduced at the trial by the prosecution so the mere fact that appellant retracted it at the trial did not render it

inadmissible.

Resolution of issue
Now the gist of appellants contention here is that his confessional statement was not made voluntarily and therefore wrongly admitted in evidence. That is even as appellant also insisted that he did not even volunteer a statement, that the policeman (P.W.1) simply brought out paper and pen and proceeded to record ?whatever he liked? as his statement and compelled him to sign it, which in itself is not a ground for trial within trial: see Ifaramoye v. The State (2017) LPELR-42031(SC) p. 36-39; Ogudo v. The State (2011) LPELR-860 (SC);Nwangbomu v. The State (1994) 2NWLR (PT 327) 380; Okeke v. State (2016) 7 NWLR (Pt 1512) 417 @ 439-441. Nevertheless, a trial within trial was conducted by the trial judge for the purpose of ascertaining the voluntariness or otherwise of the making of the said confessional statement by appellant. In that mini trial P.W.1 and appellant testified, at the end of which the trial judge, having watched them in the witness box, held that he was satisfied that appellant made his confession, Exhibit A1/A2, voluntarily. He even reconfirmed that in his judgment after watching

appellant testify for a second time in his defence along the same lines. His Lordship said:
?I have the privilege of observing the demeanour of the accused person while he was giving evidence. He does not appear to be telling the truth in his denial, he is only denying both the statement and the alleged offence.
?The law is that his mere denial will not affect the admissibility of the confessional statement. The stories he gave of how the confessional statement was recorded from him in the night etc were mere stories that are far from the truth?…?
Has the appellant shown any good reason why this Court should interfere with such finding of fact by the trial judge based on demeanour of witnesses? I think not. The trial judge holds a preeminent position in this area and an appellate Court, which never saw the two parties in the witness box, has to be slow in interfering with his decision. The Supreme Court (Rhodes-Vivour, J.S.C. pronouncing lead judgment) in Nnamdi Osuagwu v. State (2013) LPELR-19823 (S.C.) at p. 29-30; (2013) FWLR (PT 672) 1605 @ 1623 set out the approach an appellate Court should adopt in such

circumstances thus:
?A trial within trial is a mini trial that must be conducted when an accused person says that his confessional statement was not made voluntarily. It is the duty of the prosecution to lead evidence to show that the statement was made voluntarily, while the accused person and his witnesses are to prove the opposite. This is a trial where the credibility of witnesses, demeanour is very important.
?Now in such a trial, credibility is based on demeanour. An appeal Court cannot or ought not to interfere since it never had the advantage of seeing the witnesses. It can only interfere if the findings were based on inference drawn from evidence.
?The learned trial judge admitted Exhibit E as voluntarily made by the appellant. This was based on the finding of fact by the trial Court based on credibility of witnesses after watching demeanour. An Appeal Court would not upset such findings. If I may add, it is during a trial within trial that the defence counsel must ensure that the confessional statement is not admitted in evidence, and not on appeal.?
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Having said that, let me also address appellant?s

counsel?s further contentions that because both the policeman (P.W.1) and the appellant were in agreement that the confession in issue (Exhibit A1/A2) was ?obtained? by P.W.1 from appellant and it was equally the product of questions put to appellant by the policeman and answers given by him in return, that also vitiated the confession. To buttress his contention on the question and answer submission, counsel cited the dictum of Kutigi J.S.C (later CJN) in Namsoh v. State (1993) 5 NWLR (PT 292) 129 @ 144, (1993) 6 SCNJ (PT 1) 55 where His Lordship said:
?Once a Police Officer decides to make a complaint against an accused person in a prescribed form, if the accused decides to volunteer a statement, he may write it himself or the Police Officer may write it for him. A statement such as Exhibit H in this case will not be regarded as free and voluntary when it is evident that the so called statement was as a result of questions selected by and put to the accused by the police officer himself. That procedure is against the provision of Order 6 of the Criminal Procedure (Statement to Police Officers) Rules, 1960, Cap 30 of the laws of Northern Nigeria, 1963 (Judges Rules)

wherein it is provided as follows:
A person against whom a Police Officer has decided to make a complaint and who makes a voluntary statement shall not be cross-examined, and no question shall be put to him about such statement except for the purpose of removing any ambiguity in what he has actually said.
?To all intents and purposes Exhibit H was not legal evidence and was clearly inadmissible. See R. v. Kwagho (1962) N.N.L.R. 4. It should never have been admitted at all in evidence, but since it was wrongly admitted the proper thing would be to discountenance it completely when writing judgment.?
That was the state of the law in 1993, not now, for the National Assembly has since taken care of appellant?s complaint and this dictum by introducing a fresh provision to the Evidence Act 2011, Cap. E14, Laws of the Federation of Nigeria, 2011, to make confession obtained by question and answer admissible if the confession is relevant. That is contained in Section 31 of the Evidence Act 2011 which reads as follows:
S. 31: If a confession is otherwise relevant, it does not become irrelevant

merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.
Evidence, it must be noted, is a Federal matter under the 1999 Constitution of this country and placed as Item No. 23 in the Exclusive Legislative List in Part 1 of the Second Schedule of the Constitution, so the legality of Section 31 of the Evidence Act 2011, especially over the Criminal Procedure (Statement to Police Officers) Rules, 1960, Cap 30 of the Laws of Northern Nigeria 1963 (Judges Rules), a Regional law on which the dictum in Namsoh v. State supra was founded cannot be questioned nor doubted.
?Incidentally, the same provisions of Section 31 of the Evidence Act 2011 also suggest, strongly, that the use of the words ?obtain? by the police officer (P.W.1) regarding how he got the confessional statement (Exhibit A1/A2)

from appellant, on which Mr. Bichi also made quite a mountain and cited the dictum of Ngwuta J.S.C. in State v. Salawu (2011) 8 NWLR (PT 1279) 580 @ 604-605, is of no moment. That much is also clear from the expression ?for the purpose of obtaining it? employed by the lawmaker in the same Section 31 of the Evidence Act 2011. In other words, Section 31 of the Evidence Act 2011 has also effectively neutralized the dictum of Ngwuta J.S.C. in State v. Salawu (2011) 8 NWLR (PT 1279) 580 @ 604-605 regarding the use of the word ?obtain? in relation to getting confession from a suspect by law enforcement agents. I note, too, that State v. Salawu supra was even decided on the provisions of the Evidence Act, 1990, Cap 112 (particularly Section 27 thereof) which did not have any provision similar to Section 31 of the extant 2011 Evidence Act.
I even get the very strong feeling that dicta like that of Their Lordships Kutigi, J.S.C., in Namsoh v. State supra and Ngwuta, J.S.C., in State v. Salawu supra cited by Mr. Bichi here may have informed the introduction by the National Assembly of the innovative provisions of Section 31 in the 2011 version of our Evidence Act. ?

In summary, I resolve issue 1 against appellant.

?On issue 2, appellant through his counsel Bichi submitted, correctly, that it is the duty of the prosecution to prove beyond reasonable doubt every element of the offence an accused person stands charged with and it must do so with vital and relevant evidence. That burden, counsel argued, is not even discharged by the fact that the prosecution is in possession of a confessional statement – for which counsel cited Barewa Pharmaceutical Ltd v. F.R.N. (2016) 17 NWLR (PT 1540) 63 @ 70-71. Counsel set out the elements of the offence of culpable homicide, namely (1) that a human being died, (2) that his death was caused by the accused person, and (3) that the act that caused such death was done by the accused with the intention or knowledge that death would be its probable consequence, and submitted that all three elements must co-exist for the offence to be deemed proved. In this case, he went on, even the very fact of the death of the deceased, Hajara Adamu, was not proved as the evidence that was led on that point by her mother (P.W.2) Maryam Musa shows that she (P.W.2)

herself was also informed of her daughter?s death by Liman, the cleric husband of P.W4. The said Liman, counsel pointed out, was not called by the prosecution so the evidence of P.W.2 is hearsay and cannot form the basis of a judgment let alone conviction.

Even the evidence of P.W.1 (the Investigating Police Officer) regarding what happened is also hearsay evidence, counsel argued, in so far as P.W.1 admitted before the Court that what he told the Court is what he was told by the relatives of appellant including P.W.3, Dahiru Ahmed.

Counsel also argued that there was even no evidence that the deceased ever lived or died at C293 Railway Road Bauchi where the charge alleged appellant killed her. Neither P.W.3 nor P.W.4 who all live in that house told the Court that anybody died there.

The prosecution also failed to call vital witnesses in Mallam Liman and the Almajiri he allegedly sent to take the deceased from P.W.4 to appellant, counsel submitted. The evidence of Mallam Liman, he argued, is vital given particularly that it is he that knew about the death of the deceased and reported appellant to the police. While conceding that the

prosecution need not call a host of witnesses to prove a charge, counsel argued that vital witnesses, which he defined as witnesses who know something significant about a matter, must be called and failure to call such witnesses is fatal to the prosecution?s case, for which he cited Ochiba v. State (2011) 17 NWLR (PT 1277) 663 @ 669.

Counsel also contended that the prosecution failed to prove the second element of the offence, namely, what caused the death of the deceased; assuming she was even dead. This must also be proved beyond reasonable doubt and such proof is generally by medical evidence, he submitted, so the trial judge was wrong in ruling that medical evidence was not necessary. The prosecution having relied on the fact that it was administration of rat poison on the deceased that caused her death, scientific proof of same by medical evidence became a necessity, counsel argued, citing State v. Okpala (2012) 3 NWLR (PT 1287) 388 among other cases. No evidence was produced before the Court that her death was caused by lacing of her tea with rat poison as charged let alone that it was the appellant that laced it, he also submitted. The

prosecution?s failure to call a medical doctor and produce the result of the forensic examination of the said rat poison, which it admitted it sent for examination, counsel submitted, warrants invocation of Section 167(d) of the Evidence Act against it by this Court to presume that if medical evidence was called it would have been against the prosecution.

Counsel also submitted that the prosecution also failed to produce any evidence to corroborate the said confessional statement as he said is required in law; for which he cited State v. Isah (2012) 16 NWLR (PT 1327) 613 @ 626- 633 among other cases. He noted that even the trial judge conceded in his judgment that the evidence of P.W.1 – 3 is not corroborative of the said confession, yet he turned around to find corroboration in the evidence of P.W.3. Counsel argued that the learned trial judge failed in his duty to properly assess the evidence that was adduced before him. If he did, counsel argued, his conclusion would have been different.
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For all these, learned counsel urged us to intervene, resolve this issue too in favour of appellant, allow the appeal, set aside appellant?s

conviction and order his discharge and acquittal.

In response, the State argued that a confessional statement which is direct and positive and proved to have been made voluntarily is sufficient to sustain a conviction even without any corroborative evidence, so long as the Court is satisfied of its truth. It cited the cases of Yahaya v. State (1986) 12 SC 282 @ 290 and Stephen v. State (1986) 12 S.C 45 among others for this. In this case, it submitted, the confessional statement of appellant, Exhibits A1 translated to Exhibit A2, was corroborated by the evidence of P.W.1 and P.W.3 and so satisfied the R. v. Sykes (1913) 8 CR. APP 233 test for its truth. In any case, it was further argued by the State, the trial judge did not even rely on the evidence of P.W.3 but only on the confessional statement of appellant to convict him and he was correct. A confession, it argued, does not become inadmissible simply because an accused person denied it in Court.

On appellant?s argument of need for medical evidence, the State cited Uluebeka v. The State (2000) 4 SCNJ 93 to argue that though medical evidence is desirable to prove cause of death, once such

cause of death is obvious as in this case, medical evidence becomes unnecessary and can be dispensed with. Proof beyond reasonable doubt, it further submitted, does not also mean proof beyond any shadow of doubt; it suffices once all the ingredients of an offence charged were established, as it insists was the case here.

It finally urged us not to interfere with the decision of the Court, as the duty of the appellate Court is to ascertain whether there was evidence on which the trial judge could reach the decision it reached; that once that is confirmed, the appellate Court will not interfere, in support of which it referred us to the case of Bashaya v. The State (1998) 53 LRCN 3596 @ 3600.

Resolution of issue
To secure a conviction on a charge of culpable homicide the prosecution, as rightly admitted by both sides, will need to prove beyond reasonable doubt (1) that the person alleged killed by appellant, Hajara Adamu, has really died, (2) that her death was caused by the appellant, and that (3) the said act of appellant that caused her death, namely lacing her tea with rat poison as charged, was done by the accused with the intention or

knowledge that death would be its probable consequence: see Iliyasu v. The State (2015) LPELR-24403 (SC). That, the State can do by direct evidence of eyewitnesses, by circumstantial evidence, or by the confession of the accused person to the commission of the crime: Akpan v. State (2016) 9 NWLR (PT 1516) 110 @ 119. The trial judge in this case relied on the extra-judicial statement of the appellant, a confession to how he invited the deceased his unwanted child (as the evidence even from his denial shows) into his room, laced her tea with rat poison and compelled her to drink it, watched her agonize to death from the pain and buried her in a hole in his toilet which he had earlier paid one Lalu to dig for the purpose of disposing her body. In the said statement made on 31/8/2015, just a day after the incident, appellant is recorded to have first introduced himself as follows:
?1 of the above name and address wishes to state as follows: – I was born and brought up in Bauchi, I attended Unguwar Borno Primary School Bauchi and finished in 1995, then I proceeded to Kafar idi Secondary School but I left when I was in class three. I got married in 2005

to one Suwaibatu Adamu but popularly known as Aisha.
?I had three children all female, we were twenty-three from same father, eleven female and twelve male, I am the ninth among us.
?
He then proceeded to explain in the following manner the motive for his action and what actually transpired on that same 30/08/2015 in his house:
?Before I got married I have a girlfriend named Ladidi Adamu ?F? of Wayar Makali Bauchi, from 2003, she got pregnant after four month, before I denied later I agreed, she gave birth to a baby girl which I named Hajara, when she reached age, her mother who we were not together enlisted her into Primary School at Jahun Bauchi. The girl, my daughter now is eleven years old, her mother is divorce, since when my daughter is five years old, the mother was trying to bring her back to me, but whenever she brought her I will return her back, up to this time around. On Thursday 27/8/15 about 1000hrs, the mother Ladidi Adamu brought her, Hajara and left, she slept in my house, the following day 28/8/2015 about 0900hrs, I tell my elder brother Mallam Bala Ahmad, then I took her back to her mother Ladidi Adamu,

I console her then she collected her back, on same date about 1600hrs, I came back home and saw her again, she slept there, my wife and children were not around, they left to Gwallameji Bauchi for a ceremony and they will sleep there, that is why my Daughter Hajara sleep with my elder brother?s wife, Maimuna Bala in our house, the following day, 29/8/2015 about 0800hrs I went and told my said elder brother, he said I should go and meet the mother to find out what is the problem. Then after environmental sanitation I took her along back to her mother?s house, I come back, bath and left to farm. Later I come back about 1800hrs, bath and went outside, later about 2100hrs I come back then and the said Maimuna Bala, wife of my elder Brother came and told me that Hajara had came back and I should know what to do with her but not here in this house. Since then I don?t know what to do and I don?t know where to take her. The following day 30/8/2015 about 0630hrs, I went to Bakaro where I met one Lalu ?m? who used to dig, I told him I need him to dig a pit toilet in my house because the one I am using had filled up. he came and dig it

near my toilet, I paid him N500 then I went outside and bought Rat poison from a hawker, I bought two at one hundred Naira each, I brought it to my house, I was still alone my wife had not returned. I mixed Lipton tea two cups and I put one sachet of Rat poison in one cup, then Hajara entered I asked her how now? She said it is Maimuna Bala who told her to come, then I told her to drink the mixed Lipton tea she said, she is satisfied, I insist she must drink it, she (drank) sip it four times, then she told me her stomach is paining her, I just watching her, she struggle in the floor until she stopped lifeless, when I am sure she is dead, I took her to that hole I dig in the toilet, I dig it for that purpose, I buried her there, the remaining mixed Lipton I threw it away, the other one is in my bedroom on top of drawer, since that time I cannot come out unless to pray. Later on 31/8/15 in the morning, my relative started asking me about Hajara, I said she is around she entered into my toilet and saw where I took back the sand that was dig out, then I told them everything, my relative that I told them were Mallam Bala Ahmad and Dahiru Ahmad, that is what I

know.?

The trial judge in his judgment said of this confession thus:
?I have looked at Exhibit A2 which is the confessional statement of the accused person in this case it gives a vivid account of how the offence of culpable homicide of one Hajara the victim was committed. It is so direct and positive and also probable.?
I hold that confessional statement of the accused person in Exhibit A2 is voluntary and free and free, direct and positive, same can ground a conviction.?

Now, a conviction, even for a capital offence, as the learned trial judge also stated in his judgment, can be secured on an accused person?s confessional statement even without corroboration provided the confession is positive and direct and the Court is convinced of its truth. There is a long line of authorities in support of that proposition some of which were cited by the learned trial judge in his judgment. In Obasi Onyenye v. State (2012) LPELR-SC 306/2010 it was said by I.T. Mohammed, J.S.C. (now Ag. C.J.N.) that:
?It is not in all cases that confession must be corroborated. Just not long

ago this Court stated in the case of Olabode v. The State (2009) 11 NWLR (PT 1152) 254 that:
?It is settled that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.”
In Idowu v. State (2000) 7 SCNJ 245 @ 286, it was also stated (Uwaifo, J.S.C.) that:
?It has been laid down as good law that a free and voluntary confession of guilt by an accused person which is direct and positive, so long as it is possible, is sufficient to warrant his conviction, provided the Court is satisfied of the truth of the confession. It will only then be a matter of prudence to look for any corroborative evidence.?
See also Okeke v. State (2015) 11 NWLR (PT 1366) 435 (S.C.); Salawu v. State (2011) LPELR-9351 (SC) p. 36, 48.
It is therefore not correct as suggested by Mr. Bichi for appellant that corroboration of a confessional statement is always a necessity and was needed in this very straight-forward and direct confession of the appellant.
?
As for Counsel?s contention that further evidence

in the form of a medical doctor?s confirmation of the cause of death and the result of the forensic examination of the rat poison was necessary and failure to produce such evidence, together with other available witnesses like the cleric Liman and his Almajiri that were not called also meant appellant?s conviction was not proved beyond reasonable doubt, I note that counsel also conceded, correctly (see Ubani v. State (2003) 18 NWLR (PT 851) 224@ 247; Uguru v. State (2002) LPELR-3325, p. 16-17), that where cause of death is obvious medical evidence is not necessary. That is just as the prosecution, he further agreed, is not bound to call a host of witnesses to prove its case, that all it need do is produce such evidence as would prove its case beyond reasonable doubt.
?
There can be no better proof of the death of the deceased and its cause than the confession of the same person (appellant) charged with it admitting with his own mouth and explaining in details as he did in Exhibit A1/A2 of how he killed her by compelling her to drink tea which he had laced with rat poison, watched her writhe and die before him and disposed off her body in a hole

prepared by him beforehand for that very purpose. At any rate, if corroborative evidence was needed, which I do not concede, it was aplenty in the evidence of P.W.2, P.W.3 and P.W.4 concerning the events preceding the death of the deceased as earlier shown in this judgment. Their evidence matched the facts as recounted by appellant in his said confession, Exhibit A1/A2. For instance, the mother of the deceased, P.W.2, testified to how she took the deceased to appellant on 28/8/2015 but he returned her and she in turn again returned her to P.W.4?s husband (the cleric), a fact also confirmed by appellant?s elder brother Dahiru Ahmad (P.W.3), before her death on 30/08/2015. Appellant confirmed that fact in Exhibit A2/A1 and even admitted in evidence that what his said brother related to the Court in his evidence was correct. There is also agreement between appellant?s confession and the evidence of the same Dahiru (P.W.3) on how appellant hired a certain Lalu (both of them mentioned him by name) to dig a hole in his toilet, which appellant admitted in his confession was the very same place he buried the deceased after killing her. So what is the

further corroboration or medical evidence that was necessary to support Exhibit A1/A2? Appellant, for reasons that he disclosed in his confession, took it upon himself to kill his obviously unwanted daughter whose existence as a person he even denied in his defence – even as he had earlier admitted her existence both in his extra-judicial statement and during the trial within trial – by lacing her tea with rat poison, watch her die and disposed of her body. His said confession even disclosed his motive, namely to do away with her, especially as he had been told by his elder brother?s wife, Maimuna Bala (apparently P.W.4) that ?Hajara had come back and I [he] should know what to do with her but not here in this house.? He even added in his said confession that since then he did not know what to do and where to take her. Apparently heeding Maimuna Bala?s advice/warning and not knowing what to do with the deceased or where to take her, appellant did what seemed to him right in the circumstances: kill his daughter who has become a rat in his life, dispose off her body and solve his problem once and for all. Motive, when shown, is a relevant

fact: Section 6(1) of the Evidence Act 2011.

In all, I am of the opinion that the available evidence on record proved appellant?s culpability beyond reasonable doubt and he was properly convicted as charged. In the event, I also resolve this issue against him.
In summary, I find this appeal devoid of merit and here dismiss it and affirm the judgment of Gurama M. Mahmood, J. of the Bauchi State High Court convicting the appellant.

UCHECHUKWU ONYEMENAM, J.C.A.: I have had the privilege of reading the judgment prepared and delivered by my learned brother BOLOUKUROMO MOSES UGO, JCA.
I agree with the reasoning and conclusion reached thereat in dismissing the appeal. I too dismiss the appeal for lacking in merit and affirm the judgment of the High Court of Bauchi State delivered on 11th May, 2018 by Gurama M. Mahmood, J. in Suit No. BA/50C/2015.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with and

abide the conclusion reached therein.

The Appellant was charged with culpable homicide punishable with death. He was alleged to have caused the death of one Hajara Adamu, his eleven year old daughter, by compelling her to drink a cup of tea laced with rat poison, knowing or having reason to believe that death would be the probable cause of his action. The Appellant pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called five witnesses and tendered exhibits, while the Appellant alone testified in his defence. The lower Court found the Appellant guilty as charged and sentenced him accordingly. This appeal is against the conviction and sentence and the contentions in this appeal revolve around the discharge of the burden of proof by the Respondent.
?
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the

burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal ? Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, lwunze vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1324) 119, Njoku vs State (2013) 2 NWLR (Pt 1339) 548, Osuagwu vs State (2013) 5 NWLR (Pt 1347) 360, Ajayi vs State (2013) 9 NWLR (Pt 1360) 589.
?It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt thus simply means establishing the guilt of the defendant with compelling and conclusive evidence to a degree of compulsion which is consistent with a high degree of probability. Once the prosecution has been able to prove that an offence

has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Adeleke vs state (2013) 16 NWLR (Pt 1381) 556 and Babarinde vs state (2014) 3 NWLR (Pt 1395) 568.

A charge of culpable homicide punishable with death is the same as a charge of murder and it has been held in a plethora of cases that the essential ingredients that the prosecution must prove in order to secure a conviction are (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence ? see, for example, Sule vs state (2009) 19 NWLR (Pt 1169) 33, Nkebisi vs state (2010) 5 NWLR (Pt 1188) 471, Mbang vs state (2010) 7 NWLR (Pt 1194) 431, Usman vs State (2011) 3 NWLR (Pt 1233) 1, Uluebeka vs State (2011) 4 NWLR (Pt 1237) 358.
?
Counsel to the Appellant contended that the Respondent did not prove any of the three ingredients to warrant the conviction and sentence of the Appellant. Counsel

stated that there was no proof that the person named on the charge as the deceased, Hajara Adamu, is dead. Counsel stated that the evidence led by the prosecution witnesses on the death of the deceased was hearsay evidence and thus not admissible. Now, hearsay evidence is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is testimony or documents quoting people who are not present in Court, making it difficult to establish its credibility or to test it by cross examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made ? Brila Energy Ltd Vs Federal Republic of Nigeria (2018) LPELR 43926(CA), Simeon vs State (2018) LPELR 44388(SC).
?
The first prosecution witness, the Investigating Police Officer, testified that he recovered the body of the deceased from where it was buried in a hole dug at the back of the house of the Appellant and that he took the corpse to the Abubakar Tafawa Balewa University Teaching Hospital where it was certified dead by the medical doctor. This is definitely not hearsay evidence, but direct

evidence proving the death of the deceased. The records of appeal show that an attempt was made to tender the photographs of the corpse in the course of trial, but that they were rejected by the lower Court. The law is that a conviction for murder or culpable homicide punishable with death can be made in the absence of the corpus delicti (dead body) if there is positive evidence that the deceased has been killed ? Edim Vs The State (1972) 4 SC 160, Enewoh vs State (1990) 4 NWLR (Pt 145) 469, Afosi vs State (2013) 13 NWLR (Pt 1371) 329. The evidence of the first prosecution witness was positive proof of the death of the deceased and it was ably corroborated by the testimonies of the second, third and fourth prosecution witnesses. The finding of the lower Court that the Respondent proved the first ingredient of the charge against the Appellant was on firm ground.
?
On the second ingredient of the offence, that the death of the deceased resulted from the act of the defendant, it is trite that prosecution can prove this either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and

voluntary confessional statement of guilt which is direct and positive – Emeka vs State (2001) 14 NWLR (Pt 734) 666, Nigerian Navy vs Lambert (2007) 18 NWLR (Pt 1066) 300, Jua vs State (2010) 4 NWLR (Pt 1184) 217, Mbang vs State supra, Dele vs State (2011) 1 NWLR (Pt 1229) 508. A look through the records of appeal shows that the Respondent relied on the confessional statement of the Appellant and it was on this basis that the lower Court convicted the Appellant.

Counsel to the Appellant upbraided the lower Court for placing reliance on the confessional statement on the grounds (i) that it was given under duress, was involuntary and ought not to have been admitted; (ii) it was obtained from the Appellant and was thus unreliable and (iii) that it was a product of a question and answer session and should not have been accorded any probative value.
?
The Respondent tendered the Hausa version and the English translation of confessional statement of the Appellant as Exhibits A1 and A2. The records show that the Appellant objected to the admissibility of the confessional statement on the ground of involuntariness. The lower Court conducted a trial within

trial on the strength of the objection and in the course of which the parties led evidence on the making of the confessional statement and their respective Counsel addressed the lower Court. The lower Court evaluated the evidence led by the parties and made findings thereon and concluded therefrom that the confessional statement was voluntarily made before admitting same in evidence. The Appellant did not appeal against the findings of fact made by the lower Court in the Ruling delivered in the trial within trial.
Findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings – Osuagwu vs state (2013) 5 NWLR (Pt 1347) 360, Abiodun vs State (2013) 9 N WLR (Pt 1358) 138. Further, it is settled that where there is no appeal against any specific finding of fact made by a trial Court, the finding remains unassailable and is binding on the parties ? Amale Vs Sokoto Local Government (2012) 5 NWLR (Pt 1292) 181, SCC (Nigeria) Ltd vs Anya (2012) 9 NWLR (Pt 1305) 213, Uwazurike Vs Nwachukwu (2013) 3 N WLR (Pt 1342) 503, Nwaogu Vs Atuma ?

2013) 11 NWLR (Pt 1364) 117. In effect the decision of the lower Court on the voluntariness of the second confessional statement remains binding and conclusive between the parties on the issue. It cannot be re-examined by this Court Alakija vs Abdulai (1998) 6 NWLR (Pt 552) 1 and opara vs Dowel Schlumberger (Nigeria) Ltd (2006) 15 NWLR (Pt 1002) 342.

Additionally, the evidence of the Appellant in his oral testimony in his defence was that he maintained all through his arrest that he did not commit the offence for which he was charged and that the Investigative Police Officer, the first prosecution witness, simply wrote whatever he liked in the confessional statement and compelled him to sign it. In Okonkwo Vs State (1998) 8 NWLR (Pt 561) 210 it was held that where an allegation of involuntariness of a confessional statement is made, the Court is empowered to look through the contents of the confessional statement to determine if the structure and pattern of the contents were consistent with a statement made involuntarily. Looking at the contents of Exhibit A2, the English translation of the confessional statement that the Appellant challenged on

the ground of involuntariness, (and which was fully reproduced in the lead judgment), it started with the family, educational and work backgrounds of the Appellant and from there proceeded to his relationship with the second prosecution witness and which led to the procreation of the deceased child, Hajara Adamu.
?
The confessional statement thereafter related the events that occurred from the 27th of August, 2015 to the 30th of August, 2015, culminating in the death of the deceased, and gave a detailed account of the specific things done and steps taken by the Appellant that caused the death of the deceased and his subsequent disposal of corpse of the deceased. The story was properly sequenced, well structured and patterned and it was a continuous narrative which told a flowing and consistent story. The Appellant did not deny his family, educational and work backgrounds as related in the confessional statement and did not explain how the first prosecution witness could have otherwise known the information and of the circumstances of the birth of the deceased. It is obvious to any discerning mind that confessional statement was not concocted by the first

prosecution witness as suggested by the Appellant, but was the product of a rendition of a true story that could only have been done by the Appellant. The assertion of the Appellant on the involuntariness of his confessional statements and his retraction of them was thus clearly an afterthought and an affront to reason. In Aiguokhian Vs State (2004) 7 N WLR (Pt 873) 565, the Supreme Court said that where the statement or evidence of a witness is of such obvious exaggerated proportions that it enters into the realm of either fantasy or is an affront to intelligence or is reckless in its utterance, it should be ignored, treated with utmost contempt and rejected in its entirety. The finding of the lower Court that the confessional statement of the Appellant was voluntarily made cannot be faulted.

On the further contentions of the Appellant that the confessional statement was obtained by the first prosecution witness from the Appellant and was a product of a question and answer session and should thus not have been accorded any probative value, Counsel placed reliance on the cases of Namsoh Vs State (1993) 5 N WLR (Pt 292) 129 and state vs Salawu (2011) 8

NWLR (Pt 1279) 580. With respect to Counsel to the Appellant, his contentions do not represent the correct position of the law and his reliance on the decisions of the Supreme Court in Namsoh Vs State supra and State Vs Salawu supra was misplaced.
The decision of the Supreme Court in Namsoh Vs State did not lay down a general principle of law that a confessional statement obtained by question and answer session automatically became involuntary and inadmissible, and Namsoh’s case was decided on its peculiar facts and circumstances. This point was explained by the Supreme Court itself, per Tabai, JSC, in the case of State Vs Jimoh Salawu (2011) 18 NWLR (Pt 1279) 883 at pages 908 – 909 thus:
“…From the above , there is one clear striking feature in the Namsoh’s case. It is that the Police Sgt (PW7) who recorded the statement of the accused person was armed with a sheet of paper which contained selected questions already prepared by his superiors and designed to excite from him self-implicating answers. It was the view of this Court therefore that the alleged statement of the accused person made up of answers to such specially prepared questions

could not be said to be free and voluntary.
That situation does not exist in this case. Unlike the Namsoh’s case, there is in this case no evidence of the specific questions asked by the PW 1, in response to which the admissions in Exhibits 1, 2 and 3 were made. Nor was there evidence that the facts constituting the admissions in the said statements were prompted by the questions from PWI.
It is perhaps necessary to emphasise that it is not a rule of our Criminal Procedure Law and the law of evidence that where in the course of recording the statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary and thus inadmissible in law. That was not the principle upon which Namsoh’s case was decided by this Court. A careful look at the Namsoh’s case shows that the specially prepared questions were oppressive of the accused in the sense that they were meant to sap and indeed sapped the free will of the accused person and thus rendered his ensuing statement involuntary. It is my firm view and I hold with respect the Namsoh v State (supra) is quite

distinguishable from this case and was therefore wrongly applied by the Court below. The mere assertion by the PW 1 that in the course of recording the statements of the respondent he asked questions and recorded the answers does not ipso facto render the statements involuntary. An alleged confessional statement made by an accused person to the police only becomes objectionable and inadmissible in evidence in a criminal proceeding, if the making of the confession is proved to have been prompted by any inducement, threat or promise by the police and sufficient to give the accused person the impression that by making it he would gain an advantage or avoid an evil…”
The peculiar facts present in the case of Namsoh vs State supra are not present in the instant case and the decision in that case is thus inapplicable in this case. The mere facts that that first prosecution witness stated that in the course of recording the confessional statement of the Appellant he asked questions and recorded the answers did not affect the voluntariness of the confessional statement and has no effect on the admissibility or probative value of the confessional statement.<br< p=””

</br<

Similarly, the case of The State Vs Olashehu Salawu (2011) 8 N WLR (Pt 1279) 580, did not also lay down a general principle of law that once a Police Officer states in his evidence that he obtained the statement of an accused defendant, that statement automatically becomes involuntary and inadmissible. The dictum of Ngwuta, JSC, at pages 604-605 of the law report, and upon which Counsel to Appellant relied, was made on the strength of the evidence of the Police Officer in that case, PW 3, who stated that he was directed by his superior officer to obtain the statement of the accused person. The dictum was on the peculiar facts of the case, and nothing more. This point was succinctly explained by my learned brother, Daniel Kalio, JCA, inDairo vs state (2015) LPELR 41740(CA) thus:
“Another matter which the appellant’s learned counsel made a meal of, is the use of the word ‘obtained’ by PW3 and PW 4 in their evidence in Court. I see no need to put a spin on that word. The word ‘obtain?, according to the Chambers Concise Dictionary, means; ‘to get something; to become the owner or come into possession of something, often by effort or

planning, to gain something.
The above definition does not necessarily make ‘effort’ crucial to the meaning of the word. One can ‘obtain’ with or without effort. The case of State vs. Salawu (2011) 8 NWLR cited by the appellant’s learned counsel is distinguishable from this case. The PW 3 in Salawu’s case stated that he was instructed by his team leader to obtain the statement of the accused person… The obtaining in that case being the result of an instruction from a superior officer clearly carried an element of compulsion. Not so in this case. In this case, PW 3 stated in evidence under cross-examination as follows:
‘The two accused person spoke to me in English Language and they authorized me to record their statements in English Language. I obtained the statements at the Anti-Robbery Section. I was not the only policeman in that room at that time.’
?On his part PW 4 testified as follows while giving evidence under cross-examination:
‘I obtained the statement of the accused persons in English and I read it (sic) over to them and they understood. At the time I was obtaining the statements of the accused persons, I was not alone

in the office because it is an open office.’
The evidence of PW3 and PW4 above clearly indicate that there was no directive from anyone in authority that they should obtain the statements, quite unlike the case ofState vs. Salawu (supra). The word ‘obtaining’ used by PW3 and PW4 therefore means no more than ‘taking’ or ‘bringing in’ or ‘getting’ the statements of the appellant. Some of the synonyms of the word ‘obtain’ include ‘to bring in’ and ‘to
In the instant case, the statement of the first prosecution witness in the course of his evidence that he obtained the evidence of the Appellant, cannot thus, without more, affect the voluntariness of the confessional statement of the Appellant. The entire contentions of the Counsel to the Appellant against the admissibility and probative value of the confessional statement of the Appellant, Exhibits A1 and A2, are misconceived.
?
It is correct that the Appellant denied the making of the confessional statement when he testified in his defence; he retracted the confessional statement. It is settled law that a confession does not become inadmissible merely because a defendant denies having

made it. The denial of a statement made by a defendant to the police is only an issue of fact to be decided in the judgment and it is not an issue which affects admissibility of the statement – Akpa vs state (2008) 14 NWLR (Pt 1106) 72, Sule vs State (2009) 17 NWLR (Pt 1169) 33, Mbang Vs State supra, Nwokearu Vs State 2010) 15 NWLR (Pt 1215) 1 and Dele Vs State supra. What is required is that before the Court would believe and act on such a retracted confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible;
vi and whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu Vs State (2009) 1 N WLR (Pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State supra and Dele Vs State supra. ?

Now, corroborative evidence is evidence which is supplementary to that already given and tending to strengthen of confirm it. It is additional evidence of different character on the same point ? Stephen Vs State (2013) LPELR 20178(SC), Musa Vs State (2013) LPELR 19932(SC). Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person Omisade vs The Queen (1964) NSCC 170, Okabichi vs state (1975) 3 SC 96, Ogugu Vs State (1994) 9 N WLR (Pt 366) 1, Ogunbayo Vs The State (2007) 8 NWLR (Pt 1035) 157. The corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission Queen vs Obiasa (1962) 2 SCNLR 402, Achabua vs The state (1976) 12 SC 63,

Durugo Vs State (1992) 7 NWLR (Pt 255) 525. To amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question ?Ezigbo Vs The State (2012) LPELR-7855 (SC).

The contents of the confessional statement of the Appellant were corroborated in material particulars by the evidence led by the first to the fourth prosecution witnesses in their respective testimonies. The first prosecution witness testified that he recovered the corpse of the deceased in the compound of the deceased and the second bottle of the rat poison from the room of the Appellant. The testimonies of the second, third and fourth prosecution witnesses on the where about of the deceased from the 27th of August, 2015 up to the morning of the 30th of August, 2015, when the Appellant sent for her, tally with the account given by the Appellant in the confessional statement. These were evidence of facts outside the confessional statement that point to the truth of the facts contained in the confessional statement. They corroborate the facts in the confessional statement. It is trite that a conviction can be sustained

on a free and voluntary confession of a defendant notwithstanding that he retracted the confession ? Solola Vs State (2005) 11 NWLR (Pt 937) 460, Osuagwu Vs State (2009) 1 NWLR (Pt 1123) 523, Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Oseni vs State (2011) 6 NWLR (Pt 1242) 138.

Counsel to the Appellant made heavy weather of the failure of the Respondent to tender medical evidence of the cause of death of the deceased and/or the forensic result of the analysis carried out on the bottle of rat poison found in the room of the Appellant. It is trite that where there is evidence that a deceased person was hale and hearty before the occurrence of an offending act and death is instantaneous or nearly so and there is no break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death of the deceased will be attributed to that act, even without medical evidence of the cause of death ? Essien vs State (1984) 3 SC 14, Adekunle vs State (1989) 5 NWLR (Pt 123) 505, Azu vs State (1993) 6 NWLR (Pt 299) 303 and Akpa vs State (2008) 14 NWLR (Pt 1106) 72.
?
It was evident from the

testimonies of the second to the fourth prosecution witness that the deceased was hale and hearty before the Appellant sent for her in the morning of the 30th of August, 2015. The Appellant stated in his confessional statement that he mixed rat poison in a cup of Lipton tea and cajoled the deceased to drink it and that the deceased took some sips of the tea and then told him that her stomach was paining her and he just watched her as she struggled on the floor until she stopped lifeless and that when he was sure she was dead, he took out the corpse and buried it in a hole he had had dug the day before for that purpose. The Appellant confessed to the cause of death and to the fact that it was his act that caused the death. The non-production of medical evidence of death and of the forensic result of the analysis of the bottle of rat poison found in the room of the Appellant cannot be fatal to the case of the Respondent in these circumstances.

The finding of the lower Court that the Respondent led credible evidence to prove the second ingredient of the offence of culpable homicide against the Respondent beyond reasonable doubt was well founded.

This leaves to the third requirement of the offence of culpable homicide punishable with death is ? whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as “specific intention” necessary for sustaining a murder charge.

It is settled law that in order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused ?Iden vs State (1994) 8 NWLR (Pt 365) 719.

?In the instant case, it cannot be contested that by administering rat poison to the tea given to the deceased, the Appellant intended to cause the deceased grievous bodily harm. That could only have been the only intention of the Appellant. It is the law that a person intends the natural

consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder Nwokearu Vs State (2010) 15 N WLR (Pt 1215) 1, Njoku vs state (2013) 2 NWLR (Pt 1339) 548, Afosi vs State (2013) 13 NWLR (Pt 1371) 329. I cannot fault the finding of the lower Court that the evidence led by the Respondent proved the third ingredient of the offence of culpable homicide punishable with death beyond reasonable doubt.

I agree with the lower Court that the Respondent led credible evidence to establish the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt. I too find no merit in the appeal and I hereby dismiss same. I affirm the judgment of the High Court of Bauchi State delivered by Honorable Justice Gurama M. Mahmood in Charge No on the 11th of May, 2018 and the conviction and sentence passed on the Appellant therein.

Appearances:

O.J. Bichi, Esq.For Appellant(s)

Abubakar Ahmed, Esq. (Principal State Counsel, Bauchi State Ministry of Justice)For Respondent(s)

Appearances

O.J. Bichi, Esq.For Appellant

AND

Abubakar Ahmed, Esq. (Principal State Counsel, Bauchi State Ministry of Justice)For Respondent