JUMMAI HASSA v. THE STATE
(2012)LCN/5516(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2012
CA/J/357C/2007
RATIO
WORDS AND PHRASES: MEANING OF A YOUNG PERSON
Section 2 of the Children and Young Persons Law defines young Person thus:
“…a person who has attained the age of fourteen years but has not attained the age of eighteen years.” PER CLARA BATA OGUNBIYI, J.C.A.
COURT: HOW SHOULD THE EXERCISE OF DISCRETION BE MADE BY THE COURT
The exercise of this discretion must as a matter of law and principle be judicious and judicial and not whimsical or as if on a spur of the moment. In other words, the exercise must be rationale and the judge having satisfied himself that the relevant laws were duly complied with in confirmation and to justify the use of his discretion. See the authority in the cases of Isaac Sambo v. The State (1993) 6 NWLR (Pt. 308) page 399: Peter v. State (2007) 5 ACLR page 192 at 202 and Dogagya v. State 9 (2005) 1 NCC 533 at 542. PER CLARA BATA OGUNBIYI, J.C.A.
EVIDENCE: BURDEN OF PROOF IN CRIMINAL CASES
It is trite law and well settled and established that the burden of proof in any criminal case is on the prosecution and by Section 138 of the Evidence Act, he who alleges must prove. The standard of proof is also beyond reasonable doubt. See the case of Ahmed v. The State (2001) 2 ACLR page 131 at 134. PER CLARA BATA OGUNBIYI, J.C.A.
CRIMINAL LAW: INGREDIENTS OF PROVING THE OFFENCE OF MURDER UNDER THE PENAL CODE
For the prosecution to secure or ground the conviction of an accused person under Section 221 of the Panel Code, the following ingredients must first be proved:
That the person alleged to be killed is actually dead.
That the cause of death was as a result of the intentional act of the accused.
Whether any act of the accused person was described in Section 220 of the Panel Code. PER CLARA BATA OGUNBIYI, J.C.A.
APPEAL: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH FINDINGS MADE BY THE TRIAL COURT
An appellate Court will not therefore normally interfere with the trial Court’s appraisal of facts unless it is unreasonable or perverse or if the trial Court did not properly appraise the evidence adduced before arriving of its conclusion. Such has not been shown to apply to the case of hand. The following cases are relevant and in support. Aroyewun v. The State (2005) 4 ACLR page 61; Sanusi Abdullahi v. The State (1985) 4 SC (Pt. 2) page 183 at 192, Joseph Saliba v. Roda Yassin (2002) 9 NSCGR 177 and Idiok v. The State (2008) 6 MJSC 36 at 49 – 49. PER CLARA BATA OGUNBIYI, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
JUMMAI HASSA Appellant(s)
AND
THE STATE Respondent(s)
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment): The accused/appellant Jummai Hassan was charged along with two (2) others namely Michael Akinola and Oluseyi Seriki at the trial High Court No. 9 sitting in Maiduguri Borno State on a three count charge of conspiracy, kidnapping and culpable homicide contrary to S.97(1), S.273 and S.221(b) all of the Panel Code respectively.
The three count charge are as follows:
Count I
“That you Jummai Hassan, female 14 years of age, Michael Akinola Ashade ‘M’ and Oluseyi Seriki ‘M’ on or about the 17th day of July, 2001 at Pompanari Housing Estate, Maiduguri, which is within the jurisdiction of this Honourable Court agreed to do illegal act to wit: Kidnap and Kill Ibrahim Chinda ‘M’ and that the same illegal act was done in pursuance of the agreement and that you thereby committed an offence punishable under S.97(1) of the Penal Code.”
Count II
That you Jummai Hassan ‘F’ 14 years of age on or about the 17th day of July, 2001 at Pompanari Housing Estate, Maiduguri, which is within the jurisdiction of this Honourable Court Kidnapped Ibrahim Chinda ‘M’ and minder under 3 years of age from the lawful guardianship of Joseph T. Chinda and thereby committed an offence punishable under Section 273 of the Penal Code.”
Count III
“That you Jummai Hassan, “F” 14 years of Age, Michael Akinola ‘M’ and Oluseyi Seriki ‘M’ on or about the 17th day of July, 2001 at Pompanari Housing Estate, Maiduguri, which is within the jurisdiction of this Honourable Court did commit culpable homicide punishable with death in that you caused the death of Ibrahim Chinda ‘M’ by doing an act to wit – strangulating him with the intention of causing death and you thereby committed an offence under Section 221(b) of the Penal Code.”
In the course of the trial the 3rd accused Oluseyi Seriki was discharged and acquitted after a no case submission on the 16/7/2004. However, the appellant and the 2nd accused proceeded to a full trial. The prosecution called a total of 8 (eight) witnesses and tendered 31 exhibits before the court. The appellant and the 2nd accused on their part called 5 (five) defence witnesses.
At the end of the trial, the trial court convicted and sentenced the appellant to 15 years imprisonment. The 2nd accused was however discharged and acquitted.
The Accused/appellant being dissatisfied with the judgment of the Court below filed a motion on the 27th March, 2007 seeking leave of this court to appeal out of time and some was granted on the 27th June, 2007. On the 9th of July, 2007 seven grounds of appeal were filed on behalf of the appellant which reproduction without their particulars are as follows:
GROUND ONE
The learned trial judge erred in Law when he sentenced the appellant in contravention of the provision of S.10 and S.12 Children and Young Persons Law, CAP 26, Borno State and S.243A Criminal procedure Code Laws of Borno State.
Particulars of Error (a), (b) and (c) are Supplied
GROUND TWO
The learned trial judge erred in Law when he passed a sentence of 15 years imprisonment without due regards to S.9 the Children and Young Persons Law, Cap 26, Laws of Borno State.
Particulars of Error (a), (b) and (c) are Supplied
GROUND THREE
The learned trial judge erred when he held that:
“The accused was 14 years of age in July, 2001, will be at the age of 18 years in July, 2005. This section will not avail the accused”
Particulars of Error (a), (b) and (c) are Supplied
GROUND FOUR
The learned trial judge erred when he held that: “I hereby sentence you Jummai Hassan to 15 years imprisonment having a/ready served 4 years in detention, you are to remain in Custody as directed by the Commissioner or Governor as the Case may be for the next 11 years.”
Particulars of Error (a), (b) and (c) are Supplied
GROUND FIVE
The learned trial judge erred in law when he acted on the evidence of the appellant as DW1 and PW2 contrary to Sections 154, 179 and 182 of the Evidence Act.
Particulars of Error (a), (b) and (c) are Supplied
GROUND SIX
The decision of the learned trial judge is altogether unwarranted, unreasonable, and cannot be supported having regard to the evidence.
GROUND SEVEN
Additional ground will be filed on the receipt of the Records of proceeding.
In compliance with the rules of court briefs were exchanged between the parties. While that filed on behalf of the appellant on the 2nd May, 2008 was by the order of this court deemed filed on the 24th November, 2008, the respondent’s brief was filed on the 6th January, 2009.
On the 17th April, 2012 when the appeal came up for hearing, none of the parties or their counsel was in court. The court in the circumstance of the case however deemed the briefs of parties as having been duty argued and adjourned for judgment.
From the appellant’s seven grounds of appeal, while four issues were distilled from grounds 1- 6, the 7th ground was abandoned; some Therefore hold is hereby struck out. The reproduction of the appellant’s four issues state as follows:
ISSUE ONE
Whether the appellant who was 14 years at the time of commission of the offence was rightly convicted and sentenced.
ISSUE TWO
Whether the appellant was rightly convicted and sentenced to 15 years imprisonment, and if the answer is in the negative, whether the irregular procedure adopted by the trial judge in respect thereof will be sufficient to vitiate the trial.
ISSUE THREE
Whether the failure of the trial judge in complying with the requirements of Ss.155,180 and 183 of the Evidence Act had adversely affected the receipt of the evidence of DW-1 and PW-1.
ISSUE FOUR
Whether by the procedure adopted by the trial court the appellant had received fair trial within the purview of the provisions of the enabling laws.
The respondent on its own behalf distilled three issues which are also as follows:-
ISSUE NO 1
Whether the appellant was properly convicted and sentenced in accordance to the provisions of the law (this is related to grounds 1, 2, 3, and 4)
ISSUE NO 2
Whether the testimonies of PW2 and PW 3 were properly received in evidence in accordance to section 155 and 183 of the evidence Act. (Related to ground 5)
ISSUE 3
Whether the prosecution had proved the case against the appellant beyond reasonable doubt. (related to Ground 6)
Having regard to the totality of the issues filed by both parties, I shall adopt those filed on behalf of the respondent which had fused appellant’s issues one and two into the respondents issue one. For the determination of this appeal I would consider it pertinent to first take and dispose of issues 2 and 3 together and which should be followed by issue No. 1.
Issues 2 and 3 taken together
The two issues pose the question whether the prosecution having regard to the evidence adduced at the trial Court had in fact proved the case against the Appellant beyond reasonable doubt. The determination would of course take into consideration the evidential testimonies given by the witnesses by taking into account their credibility with strict regard have had to Sections 155 and 183 of the Evidence Act.
The learned Appellant’s counsel while submitting on Sections 155, 180 and 183 of the Evidence Act related some to the witnesses PW2 and DW1 (the Appellant) who are 12 and 14 years respectively. That there is nothing reflected on the record of proceeding to show that the witnesses were first tested to understand the nature of telling the truth before their testimonies were received in evidence. That with the emphatic restatement of Section 183(3) of the Evidence Act learned counsel faulted the evidence of DW1 in Court and Exhibits A1 – A3 as stated by the trial Court and that some ought to be taken with great caution. That the evidence of PW2 being a child as envisaged under the Children and Young Persons Law (CYPL) some had fallen short of Section 155 and 183 of the said Act. Reliance was made to the case of Ngwuto Mbele v. The State (1990) 14 NWLR (Pt. 145) 484, a decision of the apex Court. Reference was also made to the case of Nigerian Navy and 2 Ors. v. Ltd. Commander S.A. Ibe Lambert (2007) All FWLR (Pt. 396) 574 at 583 per Oguntade JSC on the definition of confessional statement.
The view also held by Mohammed JSC in the same authority of page 585 was heavily relied upon. The learned counsel had called upon the Court to hold that the said Exhibits A1-A3 and the vivo voce evidence by the Appellant in Court do not and cannot amount to a confession. That the Court should follow the decision in the case of Gbadamosi v. State (1991) 6 NWLR (Pt.196) 182 at 202 – 203 per Tobi JCA (as he then was) and reject the flawed statement tagged as confessional statement. That there is nothing on the record to convict the Appellant with the evidence being uncorroborated. See also the cases of Afolabi v. COP (1961) All NLR 654: Nwaebanyi v. The State (1994) 5 SCNJ 86 and Augustine Guobadia v. State (2003) 3 WLR NC (Pt. 12) 69.
Further still and that on the authority of Section 138 of the Evidence Act, the evidence before the Court has not met the standard of proof required by law and hence the prosecution did not discharge the burden placed on them. See the case of Oluseyi v. Oyefusi (1986) 3 NWLR (Pt.31) 634. That contrary to the allegation by the prosecution the Appellant in this case never caused the death of the deceased nor were any act proved to have been done by her. See again Ogbu v. State (2007) 5 MJSC 199.
That with the Appellant being a juvenile, would she have carried out the act without the help of another, in this case the 2nd accused. That This Court should follow the decision in the case of Ebri v. State (2004) 11 NWLR (Pt.885) page 589. That in that case which was similar to the case at hand, the two accused persons were discharged and acquitted of the Court of Appeal. On further appeal to the apex Court, same was allowed and a verdict of a discharge and acquittal entered for the Appellant.
That the Appellant was not given a fair trial as provided by Section 36(4) of the 1999 Constitution. That the 15 years imprisonment which the trial Court passed on the Appellant violated Section 36(12) and that even in the CYPL such years of imprisonment are not provided for. Counsel urged this Court to hold that the trial was not fair and same ought to be set aside and the Appellant is to be discharged and acquitted as the penalty was not prescribed in any written law. Counsel urged that the issue be resolved in favour of the Appellant.
On the entire gamut of this appeal, the Counsel called upon this Court to evaluate the totality of the evidence vis-a-vis the requirements of the enabling laws as shown on the printed records, ascribe the burden as required by law, allow the appeal and set aside the conviction of 15 years and enter a verdict of discharge and acquittal .
The learned Respondent’s counsel in response to the submission by the Appellant’s counsel, argued the inapplicability of Section 183 of the Evidence Act to the Evidence of DW1 whom counsel opined was not a child but a young person That the trial Court had therefore taken steps to satisfy himself that the relevant laws were complied with the use of his discretion. Counsel in substantiation cited the views held in the authorities of: Isaac Sambo v. The State (1993) 6 NWLR (Pt.308) page 399: Peter v. State (2007) 5 ACLR page 192 at 202 and Dagayya v. State (2005) 1 NCC 533 at 542. That the case of hand is clearly distinguishable from the case of Ngwuto Mbel v. State relied upon by the Appellant’s Counsel (supra). That even if, taken for granted, the evidence of PW3 is disregarded, it will not affect the decision of the trial Court. Reliance was further made on the case of Bassey v. Ekanem (2001) 1 NWLR (Pt. 694) page 360 at 378 where it was held that any wrongful admission of evidence shall not constitute a ground of reversing a decision unless the party complaining can show as well that without such evidence, the decision complained of would have been otherwise. That Exhibit A1-A3 were admitted without objection and were confessional in nature. The learned counsel copiously related to numerous decided authorities and re-iterate in particular the testimonies of PW4 and PW5. That it is therefore the duty of the accused to give explanation as to how the deceased died. That in the absence of any explanation, the Court was justified in arriving at the inference that the accused killed the deceased: see the case of Lateef Adeniji v. the State (2001) 5 SCNJ.
That the analysis of Exhibits A1 – A3 and the appraisal of the testimonies of PW4 and PW5 are findings of facts by the trial Court. Counsel informed that an appellate Court will not interfere with the trial Court appraisal of facts unless it is unreasonable or perverse or where the trial Court did not property appraise the evidence adduced before arriving to its conclusion. Reliance was acedeously made on the following authorities of: Aroyewun v. The State (2005) 4 ACLR page 61, Ezembe v. Ibeneme (2000) 10 NWLR (Pt.674); Ejekpo v. Osla (2007) 5 MJSC page 77 at 111 112; Buhari v. Tokumo (1994) 2 NWLR (Pt.325) page 183 at 193; Sanusa Abdullah v. The State (1985) 4 SC (Pt.2) page 183 at 192. Joseph Saliba v. Roda Yassin (2002) 9 NSC GR 177.
That by taking together the Exhibit A1 – A3 and also the evidence of PW4 and PW5 , the trial Court did property appraised same and hence the reason for disregarding the submission by the Appellant’s counsel . That while it is argued by Appellant that the Court should follow the decision per Niki Tobi (JSC) in the case of Ebri v. State (supra), the Respondent’s counsel urged further that the case be read alongside another authority f the case of Idiok v. The State (2008) 6 MJSC 36 at 48 – 49 also by the said jurist. That the two cases are clearly distinguishable. That the evidence against the Appellant and the two accused persons who were discharged and acquitted by the learned trial judge were not based on the some facts. That the 2nd accused person was discharged and acquitted on the basis of the police failing to investigate the defence of Alibi he raised. That the evidence upon which the Appellant was convicted is not interwoven but separable from that held and grounding the discharge and acquittal of the 2nd accused.
Furthermore counsel re-iterated, contrary to the submission by the Appellant’s counsel, the trial Court did not act on any extraneous matter. That the Appellant also had fair trial in accordance to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. That the prosecution had in the circumstance proved its case against the Appellant beyond reasonable doubt.
Counsel on the totality urged that this Court should on the said issues 1, 2 and 3, set aside the sentence and affirm the conviction of the Appellant and use its discretion under Section 20 of the Court of Appeal Act and order that the appellant be detained in accordance to Section 272 of the Criminal Procedure Code.
As a Pre-requisite to the determination as to whether or not the Prosecution had proved the case levied against the Appellant beyond reasonable doubt, it is mandatory to first dispose of the relevance of Sections 155, 180 and 183 of the Evidence Act and the legal effect on the appeal. The reproduction of the provisions will therefore give a clearer purview, insight and understanding.
“S.155(1)- All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answer to those questions by reason of tender years, extreme old age, disease whether of body of mind, or any other cause of the same kind.
S.180- Save as otherwise provided in Section 181 and 182 of this Act all oral evidence given in any proceeding must be given upon Oath or Affirmation administered in accordance with the provisions of the Oath and Affirmation ordinance.
S.183-(1) In Any proceeding for any offence the evidence of any child who is tendered as a witness and does not, in the opinion of the court, understand the nature of an oath, may be received, though not given on oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth.
2) If the court is of the opinion as stated in subsection (1) the deposition of a child may be taken though not on oath and shall be administered in evidence in all proceedings where such deposition is made by an adult would be admissible.
3) A person shall not be liable to be convicted of the offence unless the testimony admitted by virtue of this Section and given on behalf of the prosecution is corroborated by some other material evidence in support thereof implicating the accused.
4) ………………………………………..”
In relation to the foregoing sections, the learned Appellant’s Counsel in his submission had seriously raised the issue of the competence of the evidence of PW3 and DW1 who of the time they testified before the trial Court, were 12 and 15 years respectively. Emphasis in particular was laid on Section 183(3) with the emphatic use of the phrase that a person “shall not” be liable to be convicted unless such evidence is corroborated.
It is pertinent to recapitulated that of the time of their testimonies the said witnesses PW3 one Esq. Hassan and DW1, the Appellant herself, were 12 and 15 years respectively. Pages 19 and 62 of the record of appeal is in evidence.
It is an established fact that the Appellant was 14 years of the time she was alleged to have committed the offence. Section 2 of the Children and Young Persons Law defines young Person thus:
“…a person who has attained the age of fourteen years but has not attained the age of eighteen years.”
Based on the foregoing definition of a young person therefore, DW1 who was fourteen years of the date of the alleged offence did not come within the description of being a child. Hence, Section 183 of the Evidence Act reproduced (supra) cannot apply before taking her testimony. By taking their evidence therefore, the presumption is that the Court had as a matter of law and fact satisfied itself of the competency of PW3 and DW1 with due regard having had to Section 155(1) of the Evidence Act which requires that the Court exercises some sort of discretion where necessary. The exercise of this discretion must as a matter of law and principle be judicious and judicial and not whimsical or as if on a spur of the moment. In other words, the exercise must be rationale and the judge having satisfied himself that the relevant laws were duly complied with in confirmation and to justify the use of his discretion. See the authority in the cases of Isaac Sambo v. The State (1993) 6 NWLR (Pt. 308) page 399: Peter v. State (2007) 5 ACLR page 192 at 202 and Dogagya v. State 9 (2005) 1 NCC 533 at 542.
The interpretation of Section 183 of the Evidence Act court properly be conceived from the pronouncement by His Lordship Ogundare JSC (of blessed memory) where he quoted from G.B.A. Coker JSC in the case of Okeye v. The State (1972) 12 SC at pages 125 – 126 as follows:
“Section 183 of the Evidence Act is aimed at a child who does not understand the nature of an oath. Where, therefore, in the opinion of the court, a child understands the nature of an oath, it is not necessary for the court to carry out further preliminary investigation for the purpose of ascertaining whether the child has sufficient intelligence to satisfy his given such evidence and understand the duty of speaking the truth as prescribed by section 183 Evidence Act.” (emphasis is mine.)The use of discretion is upon the Court and which some is presumed having been exercised in accordance with the law. The confirmation is the absence of anything to the contrary on the record to show that PW3 or DW1 as the case May be did not understand the nature of on oath or duty of speaking the truth. In other words the duty to first carry out any preliminary investigation envisaged by Sections 155 and 183 of the Evidence Act did not arise in this case. The learned Appellant’s counsel relied on the case of Ngwuto Mbel v. State (1990) 4 NWLR (Pt.145) 484. The witness PW4 in that case was a child of ten years and therefore did not come under the definition of the provision of Section 2 of the CYPL (supra). The question and answers were by his Lordship Agbaje JSC as a necessary preliminary investigation for purpose of confirming rationality of the witness. The said authority cited is greatly distinguishable from the case at hand especially where DW1 was not a child but a young person.
In respect of the evidence of PW3 who is classified as a child, the law did not lay down that the investigation must be conducted. Rather that Section 183 is only aimed of a child who does not understand the nature of an oath. PW3’s testimony spans from pages 18 – 22 of the record of appeal.
At page 179 of the said record of appeal, the leaned trial judge held thus and said:
“The prosecutions case revolve around the purported confessional/statement of the 1st accused Jummai Hassan and her evidence in chief when she was giving evidence for her defence.”
Also at pages 194 and 195 of the some record of appeal, the learned trial judge in his judgment found as follows:
“In respect of the 1st accused, despite the flaws observed in the confessional statement made by her which is marked Exhibit A1 – 43, such flaws are not so fundamental that this Court will not attach any relevance to as regards her link to the killing of the deceased Ibrahim Chinda. There is no eye witness or direct evidence linking the 1st accused with the death of the deceased Ibrahim Chinda. However circumstances available before this Court points to the 1st accused as regards the death of the deceased. The 1st accused admitted in both her statement Exhibit A1 – 43 and her testimony before this Court that she took the deceased Ibrahin Chinda from the custody of his grandmother on the 17th day of July 2001. Since the 1st accused took the deceased from the lawful custody of his grandmother, he has never been seen again PW4 testified that the 1st accused took his son Ibrahin Chinda on the fateful day. Later the 1st accused led them to a grave where the deceased Ibrahim Chinda was exhumed. PW5, the grandmother of Ibrahim Chinda also gave evidence before this Court that the 1st accused Jummai Hassan took the deceased from her on the date the deceased was last seen alive. PW6, in his evidence before this court stated that he was among those who followed the 1st accused to the grave where the deceased Ibrahim Chinda was exhumed. The police took picture of the 1st accused and the deceased in different positions. The medical report and the testimony of PW8 before this court confirmed that a child of about 3 years was examined and that the corpse named Ibrahim Chinda died as a result of suffocation. How and why he was killed is not material. Therefore surrounding circumstance leading to the death of the deceased Ibrahim Chinda directly points toward the direction of the 1st accused. The evidence before the court although circumstantial, are cogent, complete and unequivocal and so compelling leading to the irresistible conclusion that the 1st accused and no one else murdered the deceased Ibrahim Chinda.”
From the foregoing findings, it is conclusive that the trial Court formed its opinion of guilt of the appellant based on Exhibit A1 – A3 which were admitted in evidence without any objection. The learned trial judge in other words did not make any use of the testimony of PW3. The learned trial Judge, as rightly submitted by Respondent’s counsel after reviewing the totality of the evidence before him proceeded to make some specific findings of facts which were based of most entirely on Exhibits A1 – A3 and only made use of the testimonies of PW4 and PW3 as corroborative only to Exhibit A1 – A3. In the case at hand, the trial judge did not rely on the evidence of PW3 in convicting the Appellant. The corollary which would hold true is, even if the evidence of PW3 is disregarded it will not affect the decision of the Court. Reliance can be made on the authority of the case of Bassey v. Ekanem (2001) 1 NLWR (Part 694) page 360 at 378 wherein it was held that any wrongful admission of evidence shall not constitute a ground of reversing a decision unless the party complaining can show as well that without such evidence the decision complained of would have been otherwise. The totality of the evidence by PW3, Esta Hassan being a child of 12 years old did not in law affect the judgment of the trial Court, who did not in fact rely thereon f or the conviction of the Appellant being a young person and whose evidence did not also come under the coverage of Sections 155, 180 and 183 of the Evidence Act as grossly misconceived by the learned appellant’s counsel.
The next point for consideration is the aspect relating to the prosecution having to prove the appellant’s guilt beyond reasonable doubt. While the absence of fair hearing was alleged on behalf of the Appellant, the Respondent however denies such and rather re-affirmed the proof in strict compliance with the law.
It is trite law and well settled and established that the burden of proof in any criminal case is on the prosecution and by Section 138 of the Evidence Act, he who alleges must prove. The standard of proof is also beyond reasonable doubt. See the case of Ahmed v. The State (2001) 2 ACLR page 131 at 134.
For the prosecution to secure or ground the conviction of an accused person under Section 221 of the Panel Code, the following ingredients must first be proved:
(a) That the person alleged to be killed is actually dead.
(b) That the cause of death was as a result of the intentional act of the accused.
(c) Whether any act of the accused person was described in Section 220 of the Panel Code.
By taking the 1st element, it is not in dispute that the deceased Ibrahim Chinda is dead. The evidence of this fact is clear from the testimony of PW5 and PW6 namely Magaret Buba and Sgt. David Adamu whose testimonies had been submitted upon by the learned Prosecution counsel, Mr. Y. J. Mamzo. The Medical Report and the coroner’s form marked Exhibits L and M respectively are also a confirmation of the death of the deceased Ibrahim Chinda. The evidence of PW8 Dr. Ibrahim Kido also confirmed the death of the deceased.
The next ingredient is that the act of the accused must have caused the death of the deceased. The learned Appellant’s counsel in his submission posed a question whether, the Appellant being a juvenile, would have carried out this act without the help of another, in this case the 2nd accused. It is pertinent to restate that the question before us is the issue relating the Appellant and not any other in this case the 2nd accused. It is on record that there was no direct eye witness who sow the Appellant killed the deceased. At pages 194 – 195 of the record being the judgment of the trial Court reproduced (supra), the conviction was squarely based on the Exhibits A1 – A3 the statements made by the accused/Appellant as well as the circumstances which were available to the trial Court.
It is clearly pointed out from the record of appeal that the following salient points are opt and established:
1) That the accused admitted taking the deceased Ibrahim Chinda from the lawful custody of his grand mother on the 11th day of July, 2011.
2) That since that day the deceased was never seen alive again.
3) That PW4 the father of the deceased testified that the appellant took his son Ibrahim Chinda on the fateful day.
4) That the ft accused led them to a grave where the deceased Ibrahin Chinda was exhumed.
5) That PW5, the grandmother of the deceased testified that the 1st accused/appellant took the deceased from her on the day when he was last seen.
6) That PW6 one Sgt. David Adamu a police officer attached to C. I. D. Maiduguri was in company of those who followed the appellant who took them to where the deceased’s body was exhumed.
This is what the witness PW6 said at pages 32 – 33 of the record of appeal.
“…we went to the house of the 1st accused in company of the 1st accused on reaching the 1st accused compound she entered her mother s room and picked a hoe and she led us to the scene where she buried 2 years old baby by name Ibrahim Chinda. She started digging the grave by herself. Later we recovered the body of the 2 year old baby covered with some braches of trees. … Thereafter we return to the CID headquarters, where I recorded the Statement of the 1st accused.”
7) The medical report and the testimony of PW9 before the Court confirmed that a child of about 3 years was examined and that the corpse named Ibrahim Chinda, died as a result of suffocation.
The statement of the 1st accused Jummai Hassan dated 19th July 2001 was admitted in evidence through the witness PW6 and marked Exhibits A1 – A3. Certain portion of the Exhibits are hereby reproduced and read as follows:
“On the 17/7/2001 about 1500 hrs. I went Mr. Chinda Tijethe (sic) house and collect Ibrahim Chinda from his grandmother hands and take him to Mr. Ashade house then Ashade gave him banana. Thereafter Ashade robbed him a certain white object on his body (Esp) exceptional head and face, to enable him not to cry, later roll me (sic) apply a certain powder to turn his senses and we chin alives to a place near Cocal Colal Company and robbed another slippery liquor their we removed the heart and the boy died and we wrapped with a while cloth while we take him chane (sic) and dugged a grave at the back of my late father house and buried him…”
From all deductions, and considering the Appellant’s statement in the light of the evidence by PW4, PW5, PW6 and PW8 (supra), it is obvious that they all go to corroborate the evidence of PW3 which are also corroborative of the statements Exhibits A1 – A3. Exhibits A1 – A3 no doubt are found to be direct, positive and unequivocal and the contents which are suggestive of inference that the appellant intended to kill and in fact did kill the deceased. The law is trite that a trial Court can convict an accused person based on confessional statement made by such an accused person provided that the confession is direct, positive and unequivocal. Any free and voluntary confession of guilt if it is direct and positive and properly established, is sufficient proof of guilt and is enough to sustain a conviction so long as the Court, is satisfied with the truth of such confession. The following authorities are available in support: Nwachukwu v. State (2007) 11 QCCR page 80 at 110; State v. Oboh (2005) 4 ACLR page 602; Kasa v. State (1995) 2 NWLR (Pt.325) page 143; Hassan v. State (2001) 7 SCNJ page 643 and Sunday Ihuebeko v. State (2000) 2 NSCQR page 186.The statement made by the Appellant, had not been found to be forced upon her or made against her volition. The confession has also shown to be very consistent with other facts which have been ascertained and proved of the trial especially in the fight of the evidence by the witnesses highlighted (supra). See also the cases of Ikpase v. A.G. Bendel State (1981) 9 SC page 7: Akpan v. State (1992) 6 NWLR (Pt.248) page 439 at 460 and Nwangbomu v. The State (1994) 2 NWLR (Pt.327) page 380.
It is also trite that a confessional statement admitted in evidence becomes part of the case of the prosecution which the trial judge is bound to consider its probative value. See the cases of Egboghoname v. The State (1993) NWLR (Pt.306) page 383 at 380. The trial Court judge as rightly submitted by the learned Respondent’s counsel, I hold, correctly applied the principles of law regarding confessional statement as stated in the decided authorities (supra), as well considered the probative value of Exhibits Al A3 and also the evidence of PW4 and PW5. The Court therefore come to the irresistible conclusion that no one else killed the deceased but the Appellant.
The principle of law is also well established and laid down that where there is no direct evidence of an eye witness to the commission of an offence, the Court can infer and is within its power to infer from the facts proved, the existence of other facts which logically and conclusively established the guilt beyond reasonable doubt. See the cases of Adepetu v. The State (1993) 9 NWLR (Pt.566) page 183: Awachukwu Eze v. The State (1976) 1 SC 125 and Mogaji v. Nig. Army (2008) 4 MAJSC page 33.
In the case of State v. Ogbubunjo (2001) 2 NWLR (Pt.698) 576 at 607 Achike JSC said:
“Generally and ideally the offence preferred against the accused is proved by eye-witness evidence or such other direct evidence (e.g documentary evidence). But circumstantial evidence can be equally potent and often more telling and devastating than direct or eye-witness evidence if the circumstantial evidence is so cogent, complete and unequivocal and point or lead to the irresistible conclusion that the accused and no one else is the perpetrator of the offence under reference. See The State v. Macauley Uzor (1972) 1 NMLR 208 at 212.”The findings by the learned trial judge relating Exhibits A1 – A3 as well as the appraisal of evidence of PW4 and PW5 are findings of facts. An appellate Court will not therefore normally interfere with the trial Court’s appraisal of facts unless it is unreasonable or perverse or if the trial Court did not properly appraise the evidence adduced before arriving of its conclusion. Such has not been shown to apply to the case of hand. The following cases are relevant and in support. Aroyewun v. The State (2005) 4 ACLR page 61; Sanusi Abdullahi v. The State (1985) 4 SC (Pt. 2) page 183 at 192, Joseph Saliba v. Roda Yassin (2002) 9 NSCGR 177 and Idiok v. The State (2008) 6 MJSC 36 at 49 – 49.
The learned Appellant’s counsel relied on the authorities of Gbadamosi v. The State, Afolabi v. COP: Augustine Guobadia v. State as well as William Omosivbe v. C.O.P. (supra) and urged us to set aside the conviction and sentence of the Appellant. It is pertinent to restate here that unlike the authorities under reference, the case at hand, was not wonting for absence of corroboration. In other words the learned trial judge in this case found that the evidence of PW4 and PW5 affirmatively corroborated Exhibits A1 – A3, and thus a clear and distinguishing difference between this case and the authorities cited under reference.
The other authority also heavily relied upon by the Appellant is the case of Ebri v. State (supra) wherein two of the accused persons were discharged and acquitted at the Court of Appeal. On further appeal to the apex Court, their Lordships in a considered judgment allowed the appeal and acquitted the Appellant; Tobi in delivering the lead judgment had this to say:
“Where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar, to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of the others. This is if one or more of the accused persons is discharged for want of convincing evidence, that must automatically affect all the others in the light of the fact that the evidence against all the accused person is tied together. ”
It is interesting to also note the case of Idiok v. The State (supra) wherein Niki tobi JSC at page 589 of the report had this to say:
“It is not the law that once an accused person is discharged and acquitted, the co-accused must as a matter of course of routine be discharged and acquitted entirely on the facts of the case before the Court. A court would only be right in discharging and acquitting the co-accused if the evidence in exculpation of the two accused persons is the same and nothing but the same and not merely in some nexus or proximity. Putting if differently, where the court finds as a fact that no case has been made against the accused persons he can be discharged and acquitted. The court can convict the co-accused on the same bases of the inculpatory evidence against him.” (Emphasis is mine)
As rightly submitted by the learned Respondent’s counsel, the authority of Ebri v. The State (supra) can only apply as clearly amplified by his Lordship Niki Tobi JSC in the case of Idiok v. The State, where the evidence led by the prosecution against all the accused persons is “inextricably interwoven and inseparable”. It follows therefore that where the evidence led by the prosecution is not interwoven in all material respect but separate, then it does not automatically follow that on acquittal of one co-accused person must lead to the acquittal of the other. Each of the accused person’s case will be determined on its own merits if the evidence led by the prosecution is not interwoven. See the authorities in the cases of: Akpan v. The State (2002) 10 MJSC 78 at 87 and Abudu v. The State (1985) 1 NWLR (Pt.1).
The evidence against the Appellant which the trial Court considered and relied on were Exhibits Al – A3 as well as the evidence of PW4 and PW5 and the use of the evidence was against the Appellant only to the exclusion of the other accused persons. The evidence unlike that in Ebri v. The State was not inextricably interwoven against the Appellant and the two other accused persons who were discharged and acquitted. The authority of Ebri v. The State cannot be on all fours with the case at hand but greatly distinguishable. The learned Appellant’s counsel has greatly misconceived the interpretation of this case.
The learned trial judge contrary to the submission by the Appellant’s counsel did not act on any extraneous matter but evidence led before the Court. The Appellant had a fair trial in accordance with Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as rightly submitted by the Respondent’s counsel.
The learned Appellant’s counsel also advanced arguments that with the Appellant being a juvenile, the commission of the act could not hove been carried out by her. It is obvious that with the circumstantial evidence before the Court, some had greatly negated the submission in that behalf. Even of the risk of repeating myself I would again restate the findings by the trial Court wherein it said thus at page 195 of the record:
“The evidence before the court although circumstantial, are cogent, complete and unequivocal and so compelling leading to the irresistible conclusion that the 1st accused end no one else murdered the deceased Ibrahin Chinda.”
The case of The State v. Ogbusunjo (2001) 1 SCNJ Page 86 at 103 is well grounded and in support. For all intent and purpose, the question of intention on the port of the Appellant is conclusive from the confessional statement and which needed no further proof. In other words the only conclusive motive was to kill and do away with the deceased Ibrahim Chinda which she did. The prosecution I hold, had on the totality proved its case beyond all reasonable doubt and hence the findings and conclusions arrived at by the learned trial judge at pages 195 – 196 reproduced (supra). The findings of the Appellant as guilty and convicted, I hold, cannot in the circumstance be faulted.
However and despite the findings arrived thereat I hasten to say that the aspect relating lo the sentence is on issue for consideration only after having determined the 1st issue raised in respect of the age of the appellant at the time of committing the offence.
The 1st issue raises the question whether the appellant was properly convicted and sentenced in accordance with the provisions of the law.
Submitting on the 1st issue raised, the learned appellant’s counsel argued that the trial court ought to have created a defence for the appellant in view of her age and the nature of the offence charged and conviction. In other words, that the Appellant should have dealt with differently in view of Sections 9 & 10 of the Children and Young Person Law (CYPL) of Borno State. That the sentence of 15 years on the appellant who was 14 years of the time of commission of the offence and therefore fess thon 18 years is not in consonance with Section 272(1) and (2) of the CYPL. That if the appropriate legal procedure affecting the appellant was followed considering her age at the commission and sentence, she would have been fairly dealt with as a young person.
Further reference was also made to sections 12, 13 and 14 of the CYPL as well as section 72 of the Penal Code where alternative ways of sentencing are provided f or off enders in the situational circumstances of hand. That the law recognizes as relevant the time when the offence was committed and not the sentencing. Cited to buttress his submission is the case of Orisakwe Vs State (2004) 12 NWLR (Pt.887) 258 at 283 per Uwais CJN. Several other authorities were specified in reference to further buttress the appellant’s submission. That the trial court mis-interpreted the provisions of S.272(1) and (2) read in conjunction with section 303 of the CPC. Other further reference in support is the decision of this court by Ogbuogu (JCA) (as he then was) in the case of Rev. Joshua Elso Kallamu v. Nuhu Bobo Gurun (2003) 16 NWLR (Pt.847) 493 at 577. That the procedure of sentencing was submitted as irregular and had affected the appellant even though she was found guilty.
Counsel therefore urged that the appeal be allowed on this ground, while a verdict of a discharge and an acquittal is to be entered for the appellant.
Submitting in response to the said issue, the learned respondent’s counsel is at consensus with the contention by the appellant’s counsel appellant’s submitting regarding the age of the appellant which counsel submitted is not in issue. That section 12(1) of the CYPL is also not applicable while subsection (2) is discretional as to whether or not a young person is to be imprisoned. Also that section 13 of CYPL as well as S.72 of the Penal Code are not relevant and applicable but wrongly adverted to by the appellant’s counsel.
Submitting further on the provision of Sections 272(1) and 303 C.P.C. the respondents counsel conceded to the appellant’s submission that the trial court should hove followed the procedure laid down in the said foregoing sections. However that by virtue of section 20 of the Court of Appeal Act 2004 where the sentence passed by the trial court is wrong in principle this court can exercise its discretion and alter some. Reliance was made on the case of Clark vs State (2007) 5 C.A.L.R Page 100 at 128-129. That the court should on this issue therefore so hold and in accordance to section 272(1) of the C.P.C.
As rightly submitted by both counsel, it is not in dispute or on issue that the appellant was 74 years of d of the time of commission of offence.
The age of the appellant in other words was clearly determined even before the charge was read out to her and therefore Section 9 of the CYPL cited by the appellant’s counsel is of no relevance. It is pertinent to restate for emphasis that Section 9 of the CYPL and Section 243 ‘A’ of the Criminal Procedure Code are only relevant when “it is necessary to determine the age of a person for the purpose of the low” i.e. CYPC. Also at Page 195 of the record, the trial court did consider the provision of section 2 of the CYPL and came to the conclusion that the section will not avail the appellant. This is what the learned trial judge had to say:
“Section 2 of the Children and Young Persons Law defines young Person as:
“‘Young Person’ means a Person who has attained the age of 14 years but who has not attained the age eighteen years.”
The 1st accused was 14 years in July 2001 and will be at the 18 years in July 2005. This section will not avail the accused.”
Sections 12(1) and 13 of the CYPL as well as Section 72 of the Penal Code were copiously related to by both counsel in the course of their submission. Recourse on the some would, be had and on in-depth consideration into the said sections would throw more fight and a better insight.
The provision of Section 12(1) states that “no child shall be sent to a term of imprisonment”. As rightly submitted by the learned respondent’s counsel, the appellant, by section 2 of the CYPL (supra) was not a child but a young person Subsection 2 of the said Section 12 also gives: discretion to the trial Court not to imprison a young person if in the opinion of the court he con be suitably dealt with in any other way whether by probation, fine, corporal punishment, committed to a place of detention to an approved institution or otherwise. Section 13 of the some law is also only relevant where o juvenile is found guilty of an attempt to commit murder, manslaughter, or wounding with intend to do grievous harm.
The reproduction of section 72 of the Penal Code also states thus:
“when an accused person who has completed his seventeenth but not completed his eighteen years of age is convicted by a court of any offence the court may instead of passing the sentence prescribed by law, deal with such accused person in accordance with the provision of children and young person law.”
Submitting on the foregoing provision, the learned appellant’s counsel faulted the judgment of the trial court for not complying with the provisions of the CYPL and thus wrongly sentencing the appellant as it did.
As rightly submitted by the respondent’s counsel, while the appellant was convicted for the offence contrary to Section 221 of the Penal Code Law, the Children and Young Person Law only prescribed for the procedure in dealing with a young person found guilty of the offences prescribed there under. The law explicitly did not therefore relate to procedure dealing with a young person found guilty of the offence under section 221 of the Penal Code. The submission and expectation by the appellant’s counsel of the trial court in that regard was not provided f or under the CYPL.
However, the law is explicit as pronounced from the decided authorities that the time for the consideration of the finding of guilt is the time of commission of offence and not the time of sentence. His Lordship Uwais CJN in the case of Orisakwe v. State (2004) 12 NWLR (Pt 887) 258 had this to say at page 283.
“However, where the offender who in the opinion of the court has not attained the age of seventeen years has been found guilty of murder, such an offender shall not be sentenced to death but shall be ordered to be detained during the Governor’s pleasure”.
The position taken in the foregoing authority had been confirmed by the respondent’s counsel who also in addition cited the case of Queen v. Bangaza (1960) N.S.C.C. page 1 at 2. In other words, the authorities under reference have hitherto interpreted the position of the law as provided in Sections 272(1), 272(2) and S303 of f of the Criminal Procedure Code which reproduction ore relevant and as follows:
Section 272(1)
“where a person is convicted of an offence punishable with death and it appears to the court by which he is convicted that he was under the age of Seventeen when he committed the offence the court shall order that he be detained during the Governors please, and if the court so orders, he shall be detained in accordance with the provisions of Section 303 notwithstanding anything to the contrary in any written law.”
Section 272(2) provides:
“The court shall report to the commissioner every case in which an order has been made under this provisions of subsection (1)”.
Section 303 provides
“1) when any person is so ordered to be detained during the Governor s pleasure he shall not withstanding anything in the Criminal Procedure Code or in any other written law be liable to be detained in such place and under such conditions as the Governor may direct and whilst so detained shall be deemed to be in legal custody.
2) A person detained during the Governor’s pleasure may at anytime be discharged by the Governor on license.
3) A license may be in such form and may contain such conditions as the Governor may direct.
4) A license may at any time be revoked or varied by the Governor and where a license has been revoked the person to whom the license relates shall proceed to such place as the Governor may direct and if he fails to do so, may be arrested without warrant and taken to place”.
The provisions of S.272(1) and S.303(1) are very clear and unambiguous, that it is the Governor who can make or pass a detention order with S.303 (1) specifically and emphatically stating that such power is “not withstanding anything in this Criminal Procedure Code or any other written law be liable to be detained.”
The benefit of these sections, were, as rightly submitted by the appellant’s counsel and also conceded to by the respondent’s, denied the appellant. In other words, that the trial court should have followed the procedure laid down in the two sections (supra).
The underlying intendment of the sections appear to give the court the power in the course of its judicial functions to find the appellant guilty as charged and then pass the bulk of sentencing to the governor to carry out as directed and at his discretion which was not done in the case of hand.
In the case of Rev. Joshuo Elson Kallamu v. Nuhu Bobo gurini (2003) 16 NWLR (Pt. 847) 493 at 517 Ogbuogu JCA (as he then was) said:
“It is no longer in doubt that the word “shall” when used in a statute or rules of court, makes if mandatory that the rule, must be observed. In other words, generally, the term shall is a word of command and denotes obligation and thus gives no room to discretion. It imposes duty.”
The learned appellant’s counsel in view of the error fallen into by the trial Court and thus depriving the Appellant of the benefit of Sections 272(1) read along with 3030 of the C.P.C.. had called upon this Court to discharge and acquit the appellant. I hasten to add at this point that the justice of the entire circumstances surrounding this case ought to be carefully examined and analysed.
It is not in controversy that the Appellant was, of the time of commission of the offence, 14 years old but had not attained the age of 18 years at the time she was convicted and sentenced by the trial Court. The provision of Section 72 of the Penal Code has been reproduced earlier in the course of this judgment. The law has also clearly laid down that the time for the consideration of the finding of guilt is the time of commission of offence and not the time of sentence. The case of Orisakwe v. State (2004) 12 NWLR (Pt.887) 258 at 283 I again repeat has rendered a confirmative support wherein Uwais CJN said:
“However, where the offender who in the opinion of the court has not attained the age of seventeen years has been found guilty of murder, such an offender shall not be sentence to death but shall be ordered to be detained during the Governor’s pleasure.”
A further reference in the case of Queen v. Bongooga (1960) NSCC page 1 of 2 which was cited by the learned Respondent’s counsel is also in of relevance and in support.
The Appellant in the case at hand I hold comes within the coverage of the foregoing authorities under reference (supra). In other words and as rightly submitted by both counsel, the learned trial judge in the circumstance of the case ought to hove followed the procedure laid down in Section 272(1) of the C.P.C. and order that the Appellant be detained in accordance with the provisions of Section 303 of the some C.P.C. To this extent and thus far, the phrase “instead of” used in Section 71 of the Panel Code CAP 102 Laws of Borno State if it was given its literal and plain meaning would have brought the interpretation within the intendment of the CYPL. The following authorities would serve to explain the position as sought to be in the proper perspective: Muhammadu Buhari and 1 Other v. Chief Olusegun Obasanjo and 264 Other (2005) All FWLR (273) 1 at 144 Per Ejiwunmi JSC and Agbareh v. Mimra (2008) 2 MJSC 134 at 18.
However, and despite the mis-interpretation and application by the learned trial judge, the justice and circumstance of this case would demand that recourse be had to the provision of Section 20 of the Court of Appeal Act which the learned Respondent’s counsel had called upon us to take note thereof. Specifically the reproduction of sub-section (1) states as follows:
“(1) If it appears to the Court of Appeal that an appellant, though not properly convicted on some count or part of the information or charge, has been properly convicted on some other count or part of the information or charge, the Court of Appeal may either affirm the sentence passed on the appellant of the trial, or Pass such sentence in substitution therefore as it thinks proper and as may be warranted in law by the verdict on the count or part of the information or charge on which the Court of Appeal considers that the appellant has been properly convicted.”
The case of Clark v. State (1986) 4 NWLR (Pt.35) 381 at 387 is also in support wherein Nnaemeka-Agu JCA (as he then was and of blessed memory) held that:
“For a Court of Appeal to interfere with the sentences imposed on an appellant, the sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle before the Court will interfere.”
In the result therefore, the conviction of the Appellant is hereby affirmed while the sentence of fifteen years passed thereon her is set aside and in its place I make an order that the Appellant be detained on the pleasure and discretion of the Governor in accordance with Section 272(1) of the CPC.
The 1st issue is partially resolved in favour of the appeal.
On the totality of this appeal therefore some succeeds in part. In other words while issues 2 and 3 are resolved against the appellant, issue 1 succeeds in part.
The conviction of the appellant is hereby affirmed while the sentence passed and invoked by the trial Court is set aside and in its place the appellant is to be detained at the pleasure of the Governor in accordance with Section 272(1) of the Criminal Procedure Code (C.P.C).
JUMMAI HANNATU SANKEY, J.C.A.: I have had the opportunity of reading before now, the lead Judgment of my learned brother, Ogunbiyi, J.C.A., and I agree with the reasons he gave in allowing the Appeal in part.
My learned brother has thoroughly dealt with all the issues, on law and facts, and I have nothing more useful to contribute.
For these same reasons, I also hereby affirm the conviction of the Appellant, and set aside the sentence. I abide by the consequential order given in the lead Judgment pursuant to Order 272(11 of the Criminal Procedure Code (C.P.C.)
HON. JUSTICE PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Clara Bata Ogunbiyi J.C.A. I am in total agreement with all the reasoning and conclusions therein.
I affirm the conviction of the appellant and also set aside the sentence passed by the trial court. In its place, the appellant is to be detained at the pleasure of the Governor in accordance with Section 272 (1) of the Criminal Procedure Code.
Appearances
Ibrahim Watila EsqFor Appellant
AND
Yakubu Hamza DDCL (MOJ) MaiduguriFor Respondent
