JOHN DAVOU v. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND
(2019)LCN/13863(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of March, 2019
CA/J/424E/C/2017
RATIO
APPEAL: MERGING APPEALS
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 AT PP. 1222 ? 1223; CBN V. OKOJIE (2002) 8 NWLR (PT. 768) 48. PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: WHEN A COURT MAKES A DECISION ON ADMISSIBLITY OF EVIDENCE, IT IS PART OF THE MAIN APPEAL NOT INTERLOCUTORY IN NATURE
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 that must be distinctly appealed against. 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. PER UCHECHUKWU ONYEMENAM, J.C.A.
APPEAL: WHEN THE APPEAL COURT IS OF THE OPINION THAT THE ADMISSIBLE EVIDENCE COULD NOT HAVE AFFECTED THE DECISION, IT WILL NOT INTERFERE
Once the Appeal 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. PER UCHECHUKWU ONYEMENAM, J.C.A.
CONFESSIONAL STATEMENT: WHEN IT IS NOT OBJECTED BY THE MAKER OR HIS COUNSEL
Whereas in this case, a confessional 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. The further implication is that the maker made the statement voluntarily and it is the truth on his role in the crime. When this is the case, the trial Court has the right to convict the accused based on his confessional statement. See FRIDAY SMART V. THE STATE (2016) ALL FWLR (PT 826) 548. This above position of the law notwithstanding, it is important to state that admitting in evidence a piece of evidence, which by law, is inadmissible is an illegality. Where a piece of evidence which is inadmissible in evidence 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 PER UCHECHUKWU ONYEMENAM, J.C.A.
WHEN ACCUSED CANNOT SPEAK OR UNDERSTAND ENGLISH
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.
PER UCHECHUKWU ONYEMENAM, J.C.A.
WHETHER A CONFESSIONAL STATMENT IS SUFFICIENT TO CONVICT A PARTY AND THE DUTY OF AN ACCUSED WHO RETRACTS HIS CONFESSIONAL STATEMENT
So, it is a well settled principle of the law that an accused 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 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 (PT. 565) 41; OKOH V. STATE (2014) 8 NWLR (PT. 1410) 502. PER UCHECHUKWU ONYEMENAM, J.C.A.
CORROBORATION: NATURE OF CORROBORATIVE EVIDENCE
It would be fruitless to attempt to distill the kind of evidence that would be regarded as corroboration. Let me just simply state that corroborative evidence is evidence which tends to show that the story of the accomplice or witness that the accused person committed the crime is true, not merely that the crime had been committed but that, it was committed by the accused. See: IKUMONIHAN V. STATE (2018) LPELR ? 44362 (SC); REX V. BASKERVILLE [1916] 2 K.B. 658; OKABICHI & ORS V. STATE (1975) LPELR 2406 (SC).
In as much as Corroboration is evidence which may be direct or circumstantial, it is the duty of the Court to ascertain that whatever is being used or regarded as corroboration is independent of the evidence to be corroborated and supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular. Accordingly, no stereotyped category of evidence is envisaged and a great deal depend upon the circumstances of each case. See: 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. PER UCHECHUKWU ONYEMENAM, J.C.A.
Before Their Lordships
UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria
TANI YUSUF HASSANJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
JOHN DAVOU Appellant(s)
AND
COMMISSIONER OF POLICE, PLATEAU STATE COMMAND Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): Against the decision of C. L. Dabup, J. of the High Court of Plateau State sitting in Jos, made on May 22, 2017; has this appeal been brought, wherein the Appellant was convicted and sentenced to death by hanging for the offence of criminal conspiracy and culpable homicide punishable with death under Section 97 and 221 of Penal Code Law respectively. Dissatisfied with the said decision, the Appellant appealed to this Court by a Notice of Appeal filed on 18th August, 2017. By the Order of 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 filed on 18th August, 2017.
The brief history of the case is that the Appellant who was the 4th accused at the trial Court 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 in Plateau State respectively.
The case of the prosecution is that on the 23rd December, 2012 at about 6:00pm the Appellant along with others went to the house of one Simon Badung, (PW1) where they accused one Lyop Badung, mother to the PW1, of witchcraft. They alleged that the accused inflicted one Rachael Yohana, 10 years old daughter of one of the accused/convicts 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 Bandag, a 13 year old girl who alleged that it was herself 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 and the deceased together with the sick Rachael Yohanna be locked up in a room so they can loose Rachael from the witchcraft they inflicted on her. 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 door was opened and she was escorted by one of the accused persons who returned shortly thereafter to inform others that Racheal had escaped. When the Appellant along with others entered the room where
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they were locked up, they discovered that Rachael Yohanna had died. Consequently, the Appellant and the other accused/ convicts descended on the deceased and attacked her as a result of which she died on the spot.
The matter was reported at the Riyom Divisional Police Station while the Appellant and the 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 were the children of the deceased;
