MALAMI MOHAMMED v. THE STATE (2018)

MALAMI MOHAMMED v. THE STATE

(2018)LCN/12192(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of November, 2018

CA/S/153C/2017

RATIO

EVIDENCE: TO PROVE A CRIME BEYOND REASONABLE DOUBT

“The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. See the cases of MUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015)11 NCC at page 40-41. Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of culpable homicide rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as a corollary to the above, is the fact that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law; a. Confessional statement. b. Circumstantial evidence. c. Evidence of an eye witness account. See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.” PER FREDERICK OZIAKPONO OHO, J.C.A.

EVIDENCE: WEIGHT ATTACHED TO A CONFESSIONAL STATEMENT

“On the question of weight to be attached to a confessional statement whether retracted or not retracted the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?” PER FREDERICK OZIAKPONO OHO, J.C.A.

JUSTICES

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

MALAMI MOHAMMED

(ALIAS MANBIRI) Appellant(s)

AND

THE STATE Respondent(s)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):

This Appeal is against the judgment of the High Court of Sokoto State sitting at Sokoto and delivered on 23rd May, 2017, by BELLO DUWALE, J wherein the Appellant, following the leave of Court granted pursuant to Section 185(b) of the Criminal Procedure Code, was charged with conspiracy and culpable homicide punishable with death under Sections 97 and 221(b) of the Penal Code applicable to Sokoto State. (See pages 1 – 5 and pages 17-19 of the Records).

Upon his arraignment, the Appellant pleaded not guilty to the two-count charge on the 29th November, 2016. The prosecution called a total of Six (6) witnesses who testified as the PW1, PW2, PW3, PW4, PW5 and PW6. The Prosecution also tendered a number of Exhibits marked as Exhibits A, B, B1, C, C1 and D. The Appellant opened and closed his defence on the 7th March, 2017 and testified for himself and called no witnesses. On the 27th day of March, 2017 learned Counsel for the defence and the Prosecution adopted their written addresses and on the 23rd day of May, 2017 the learned trial judge delivered a well considered judgment convicting the Appellant of the offences charged.

Dissatisfied with the Judgment of the trial Court, the Appellant has appealed to this Court vide a Notice of Appeal filed on 20th July, 2017 which was duly amended by order of this Court on 27th March, 2018. By the said Amended Notice of Appeal, the Appellant has initiated this appeal containing three (3) grounds of Appeal. These grounds of Appeal are reproduced here without their particulars as follows;

GROUNDS OF APPEAL

1. The judgment of the learned trial Court is against the weight of evidence.

2. The learned trial Judge erred in law when he held at page 81 of the Records of Appeal as follows:

“The offence was committed on 31st January, 2015 but Exhibits B & B1 were recorded on 6th May, 2015 because the 1st accused person went into hiding due to the reasons he stated in Exhibit D. in view of the foregoing, I am satisfied that Exhibits B & B1 are statement of the 1st accused person. The denial of Exhibits B & B1 is an afterthought. Accordingly, I hold that Exhibits B & B1 are the statements of the 1st accused and they are properly before the Court.”

3. The learned trial Judge erred in law when he failed to properly consider the defence of sudden fight which was available to the Appellant from the evidence on the Record and held at page 86 of the Record of Appeal as follows;

“Worst still it is shown in Exhibits B & B1 that it was not possible for the 1st accused person and his gang members to withdraw from the fight. He simply stated there in that the two opposing group engaged in a fight. In view of the foregoing, I hold that this pleas does not avail the 1st accused person.” (See pages 65 – 90 of the Records).

ISSUES FOR DETERMINATION:

The Appellant nominated three (3) issues for the determination of this Appeal thus:

1. Whether from the totality of evidence adduced before the Court, the prosecution proved the offence charged against the Appellant upon credible and legally admissible evidence. (Ground 1)

2. Whether the trial Court was correct in holding that Exhibits B and B1 were the statements of the Appellant. (Ground 2).

3. Whether the trial Court properly considered the defence of sudden fight which was available to the Appellant from the evidence on record. (Ground 3)

On the part of the Respondent, the three (3) issues nominated by the Appellant were duly adopted and it was in respect of these issues that learned Counsel for the parties addressed Court extensively and in the process citing a plethora of cases in support of their sides, each calling upon the Court to resolve the Appeal on behalf of their sides. The Appellant?s brief of Argument filed on the 10-4-2018, settled by DR. EHIOGIE WEST-IDAHOSA ESQ., while the Respondent?s brief of Argument filed on the 26-9-2018 and deemed filed on the same date was settled by HON. SULAIMON USMAN, ESQ., SAN for the Respondent. At the hearing of the Appeal on the 6-11-2018, learned Counsel adopted their briefs of Argument on behalf of their respective clients and urged the Court to decide the Appeal in their favour.

SUBMISSIONS OF COUNSEL:

APPELLANT:

ISSUE ONE:

Whether from the totality of evidence before the Court, the prosecution proved the offence charged against the Appellant upon credible and legally admissible evidence? (Ground 1)

In arguing this issue, learned Appellant’s Counsel contended that none of the six (6) witnesses called by the prosecution was an eye witness to the fight which led to the death of the deceased; Maniru Abubakar. He said that the PW1, Ahmad Abubakar testified before the Court and said that all he did was to register Exhibit A and kept same in his custody until it was tendered in Court. In respect of the evidence of the PW2, one Haruna Sulieman who was the Investigation Police Officer (IPO), Counsel said that he told the Court that the case was transferred from Marina Police Station to State C.I.D on the 6th May, 2015 together with the Appellant and Exhibits A, C and C1 and that thereafter he obtained the statement of the Appellant and those of the PW3, PW4 and PW5.

According to Counsel, the witness further told Court under cross-examination that the Appellant made statement to the Marina Police Station and that the relatives of the deceased reported the case to the Police; in addition, that the Accused was not arrested at the scene of crime and did not know how Exhibit A was recovered. (See pages 25 – 28 of the Records).

In respect of the evidence of the PW3, one Nasiru Abubakar this Court was told of how he testified that it was his sister who called him on phone to inform him that the deceased had been killed and that his entire narrative was pure hearsay as far as the scene of the fight was concerned; that under cross-examination, he admitted that he was not at the scene of the fight and that he got his information from his sister. In addition, that he admitted that one Ibrahim Dosu told his mother that Ibrahim Dosu killed his brother. (See pages 28 – 29 of the Records)

On account of the evidence of the PW4, Abubakar Hakimi he was said to have testified that the deceased is his biological son and that all he was told about how his son died, was that he was beaten with a stick by the Accused person while one Ibrahim Dosu beat the deceased with an iron rod. He identified the iron rod that was purportedly used in attacking the deceased. Under cross-examination, that he admitted that what he told the Court was the account that he was given by another person as he himself was not present at the scene of fight. (See pages 30 – 31 of the Records)

In the case of the PW5, one Fatima Abubakar in her testimony, she testified that her last child told her that one Ibrahim Dosu hit the deceased with an iron rod on the head and that on her way to the scene, she saw Ibrahim Dosu who told her that he (Ibrahim Dosu) killed the deceased; that under cross-examination she admitted that she was not at the scene of fight and that she did not see Exhibit A (iron rod) with the Accused. In fact, that she saw the iron rod in the room where it was removed from the head of the deceased. (See pages 31 – 32 of the Records)

In the case of the evidence of the PW6, one Sgt. Murtala Usman, this Court was told that he testified that the PW3 reported a case of culpable homicide to Marina Police Station and alleged that a gang of boys under Ibrahim Dosu and the Appellant attacked one of his brothers with heavy iron rod which led to his death; that he told the Court further that on 5th May, 2015, the Appellant came to the same Police Station to report that he went to Iraqi Area and some people attacked him and that he recognized the Appellant as one of those alleged to have killed the deceased; that he recorded Exhibit D from him voluntarily.

According to Counsel, that the witness did not find out who used Exhibit A on the deceased before he transferred the case to the State C.I.D. Counsel said that his evidence was of little help in the circumstances. (See pages 33 – 35 of the Records).

On account of the Appellant?s testimony for himself, Counsel said that he denied the charges against him and maintained that he was in Niger State on the 31st January, 2015 and that when he returned the next day, he was told of the fight between Ibrahim Dosu’s group and Sada Jankar’s group; that he admitted knowing Ibrahim Dosu but denied any knowledge of Mubarak; that he told the Court that he first saw Exhibit A (iron rod) at the State C.I.D and later in Court; that he reported Sale Jankar to the Police for beating him up and maintained that he was not part of the fight that led to the death of the deceased; never saw the dead body of the deceased. (See pages 36 – 37 of the Records).

The Appellant as Accused person, under cross-examination was said to have denied attending the schools attributed to him in the extra-judicial statement allegedly made by him. He was also said to have denied making the extra-judicial statements credited to him stated in the process. He stated again that he first saw Exhibit A at the state C.I.D.

Against the background of the foregoing, Counsel drew Court’s attention to the alleged signature of the Appellant on Exhibits C and C1 which is the statement he is said to have made to the C.I.D and Exhibit D which is the statement purportedly made to Marina Police Station. Counsel argued that it will be observed that the signature on Exhibit C is very different from that on Exhibit D. In Exhibit C, Counsel further contended that the Appellant purportedly affixed his thumb print impression while he is alleged to have signed Exhibit D. Counsel argued that both documents were disowned by the Appellant person during trial and the fact that some of the personal details of the Accused tended were denied by the Accused person during his evidence suggest that his version that what the police recorded is not what he told the police appears believable.

Learned Appellant’s Counsel at this stage also sought to clear the air on the question of who caused the death of the deceased. He submitted that the deceased Maniru Abubakar died. But posed the question whether the Appellant cause his death? In his arguments to debunk this position, Counsel told Court that there is no evidence whatsoever on the records of the Court to the effect that the Appellant caused the death of the deceased. According to Counsel, the death of the said deceased resulted from his being hit with a rod that got stuck on his head. Learned Counsel further contended that no witness whatsoever testified before the Court against the Appellant to the effect that he was seen wielding a rod or that he was seen hitting the deceased with a rod.

The further argument of Counsel is that even the PW3 who reported the incident told the Court that he heard one Ibrahim Dosu telling his mother that he killed his elder brother. In addition, that the PW3, the IPO from State C.I.D said he did not know how Exhibit A purportedly used in killing the deceased was recovered while the PW5 did not witness the fight and never told the Court that he saw Exhibit A with Appellant neither did he tell the Court that the Appellant used it on the deceased. Counsel cited the cases ofADAMU vs. THE STATE (2014) LPELR – CA/K/373/C/2013 and OFORLETE vs. THE STATE (2000) 12 NWLR (PT. 631) P. 415; OGUNTOLU vs. THE STATE (1996) LPELR – SC 121/1993 when it held that;

In a charge of murder, the cause of death of the deceased must be established unequivocally and the onus is on the prosecution. It is the law that the death of the victim must be caused by the act of the Appellant. Per OGWUEGBU, J.S.C (p. 9, paras F-G)

See also the case ofAUDU vs. THE STATE (2003) 7 NWLR (PT. 820) pg. 516.

Against the background of the ingredients of the offence for which the Appellant was convicted, learned Counsel argued that the prosecution failed woefully to establish by credible evidence that the Appellant caused the death of the deceased. He drew attention to Exhibits C and C1 (which he said that the Appellant disowned) where the Appellant stated thus:

“Ibrahim Dosu was armed with a long iron, we engaged ourselves in a fight while Sanda Janka and his boys are all armed with cutlasses, sticks and others which in the process of the fight we inflicted injuries to one Maniru Abubakar.”

As far as learned Counsel was concerned, even if the Court is to believe the Appellant, there is no way this can amount to a positive confession upon which the Court can convict.

He queried who are the ‘we’ in the said statement. Counsel also argued that the Appellant was not with a long iron rod at the time and that which of the two groups struck the mortal blow on the deceased. The argument of Counsel is that there is clear doubt in the circumstances and the Court must give the benefit of this doubt to the Appellant.

Again, Counsel contended that there was no corroborative piece of evidence to support Exhibit C (assuming without conceding) that it is held to be confessional. He said that Appellant was never seen hitting the decease by anyone and was not in possession of an iron rod, which was the object used in killing the deceased. According to Counsel, the deceased was not killed with a sword, which is the weapon Appellant said he was holding in his statements tendered as Exhibits C and C1.

With these at the background, the submission of Counsel is that the circumstances and cause of death do not support the claims in Exhibits C and C1 and that this should only lead the Court to deal with Exhibits C and C1 with great caution and attach no weight to them as some of the personal details disclosed therein were incorrect as claimed by the Appellant in his testimony. He emphasized that no eye witness was able to locate the Appellant in the crime scene and that no one saw him with the kind of weapon said to have been used in killing the deceased. He argued that in the circumstances, it will be difficult for the prosecution to rely on circumstantial evidence as no circumstances pointed to the Appellant who was not seen by anyone whatsoever attacking the deceased verbally or physically.

Learned Counsel also contended that the learned trial judge was wrong in his interpretation and application of Section 79 of the Penal Code to the instant case. He said that for the section to be validly applied there must be ample evidence before the Court of a common intention; but that there was none on this occasion. Again, he said that there was no legally admissible evidence before the Court in confirmation of any such common intention from the printed records. Counsel cited the case ofDANJUMA ALIYU & ORS vs. THE STATE (1999) LPELR – 5542 (CA), where this Court per OMAGE, JCA (as he then was) held as follows:

“Reference was made to Section 79, which states that ‘when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone’ the issue to be considered here is whether the evidence before the lower Court showed a common intention of all.”

The submission of Counsel here is that the evidence of PW3, PW4 and PW5 were hearsay as this is clear from the records. Again that the PW1, PW2 and PW6 were police officers who merely recorded the statements and exhibits in the matter and that there is no iota of credible evidence showing such common intention to have warranted the trial judge to sentence and convict the Appellant by applying Section 79 of the Penal Code. Counsel urged this Court to resolve this Issue in favour of the Appellant.

ISSUE TWO:

Whether the trial Court was correct in holding that Exhibits B and B1 were the statements of the Appellant. (Ground 2)

Learned Counsel submitted that Exhibit B1 which is the English translation of Exhibit B was not signed by the Appellant on the face of the document and that it was only signed by one CPL Suleiman on 6th May, 2015.

The argument of Counsel is that the endorsement on the statement was that “the statement was taken in English Language read over and translated to the accused/witness in English Language in my presence and hearing”. Counsel further argued that this could not have been true as the Appellant purportedly made his statement in Hausa and Exhibit B was tendered to that effect.

The Contention of Counsel is that the whole idea of signing a statement is to claim the ownership of same and that the Appellant promptly denied signing the Statement (Exhibit B1) during trial. (See page 34 of the Records). Counsel said that while the law permits same to be admitted, the question of weight that should be attached to such statement was an important matter for consideration. He cited the case of CHUKWURA OGUDO vs. THE STATE (2011) LPELR – 860 (SC). Counsel also contended that the trial judge wrongly attributed so much weight to such un-signed statement as to convict and sentence the Appellant to death based on same.

Counsel also cited the case of HARUNA YUSUF HARUNA vs. BANK OF AGRICULTURE LTD & ORS (2016) LPELR – 40467 (CA), where this Court held that;

“It is trite law that the language of the Court is English. It is the duty of the Counsel who desires to make use of a document that is not the language of the Court, to ensure translation, I hold.”

See the Supreme Court judgment where it re-affirmed this position inOJENGBEDE vs. ESAN (2001) 18 NWLR (PT. 746) 771 AT 790 PARA A-B.

Counsel also submitted that the trial Court could not have made use of Exhibit B, having been recorded in Hausa Language without reference to Exhibit B1, which is the English translation but that the difficulty in relying on Exhibit B1 is that it is un-signed by the Appellant even though it is recorded in English. He cited the case of AREGBESOLA vs. OYINLOLA (2010) LPELR – 3805 (CA), where this Court held as follows:

“We agree with the contention that any unsigned document carries no weight even if it had been admitted in evidence, Omega v. O.B.C Ltd (2005) 1 SCNJ 150; Garuba v. Kwara Investment Co. Ltd (2005) NWLR (Pt. 91 7) 160 Per OGUNBIYI, J.C.A (as he then was).”

It is further submitted by Counsel that since Exhibit B1 was unsigned, it did not have the efficacy of the law and was a worthless document and cannot sustain the conviction and sentence of the Appellant to death; that regrettably, the trial Court placed so much weight on such a worthless document in convicting and sentencing the Appellant. (See pages 82-87 of the Records). Counsel urged this Court to resolve this issue in favour of the Appellant.

ISSUE THREE:

Whether the trial Court properly considered the defence of sudden fight which was available to the Appellant from the evidence on record? (Ground 3)

In arguing this issue, Counsel assumed but without conceding that the story captured in Exhibits B and B1 are correct, the facts there tend to show that the Appellant and others were attacked on their way to a rally of PDP by a group of persons armed with cutlasses, sticks and other weapons (See pages 11 – 14 of the Records). Counsel argued that in such circumstances, the Appellant and his group were left with no option than to fight back with corresponding force.

Counsel referred to the case of MUSA vs. THE STATE (2013) LPELR – 21866 (CA), where this Court interpreted the provisions of Section 222(4) of the Penal Code to what it termed ‘sudden fight’.’He said that the Court held that the accused must have been suddenly provoked by the deceased and the provocation must lead to instant fighting leading almost immediately to death of the deceased in the course of the fight. According to Counsel, the Court held further that for the defence of ‘sudden fight’ to be effective, the Appellant can take advantage of other pieces of evidence before the Court that can encapsulate a defence of “sudden fight? in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in cruel or unusual manner”.

Counsel argued that Exhibits B and B1 deeply suggested the elements of ‘sudden fight’, which the trial Judge should have considered before dismissing same on the basis that the said exhibits did not show on its face that it was impossible for Appellant and his group to withdraw from the fight. (See page 86 of the Records). Counsel argued that it is not for the said Exhibits to show that the Appellant could not have withdrawn from the fight, rather it is for the Court to infer from the evidence before him, whether that was possible or not. He said that the trial Court did no such thing.

Counsel contended that the only piece of evidence before the Court that had direct bearing on what happened during the fight were Exhibits B and B1 and that their contents ought to have been considered along with the circumstances surrounding the fight and the role of Appellant in the fight before the defence of sudden fight was refused by the trial Court. Counsel therefore called on the Court to re-evaluate the available evidence on record and resolve this issue in favour of the Appellant.

RESPONDENT:

ISSUE ONE:

The contention of learned Counsel is that it is an established principle of law that the Court can convict any person who is alleged to have committed an offence by way of direct evidence, confessional statement and by circumstantial evidence. It is further submitted by Counsel that even if there were no eye witnesses when the incident took place, the Court can still go ahead and convict the Appellant based on his confessional statement (i.e. Exhibits B and B1).

In respect of the first ingredients of the offence of Culpable Homicide punishable by death, Counsel submitted that the PW3, PW4 and PW5 testified before the Court below that one Maniru Abubakar died. Counsel said that this piece of evidence relating to the fact of death of the deceased was never challenged by the Appellant even in his confessional statement in Exhibits B and B1. On account of this position, Counsel submitted that the first ingredient was therefore established beyond reasonable doubt and he urged this Court to so hold. Counsel cited the cases of; AJIBADE vs. STATE (2013) 8 NCC 221 AT 245 PAR. F; AIGBADION vs. STATE (2000) 7 NWLR 666 P. 686 RATIO 10 AT PAGE 691.

In respect of the second ingredient of the offence, Counsel drew attention to the Appellant’s confessional statement, which was admitted in evidence and marked as Exhibits B and B1, where the Appellant admitted participating in a fight during which he held a sword while one of his gang members by name, Ibrahim Dosu was held an iron-rod (Exhibit A), and the deceased died as a result of injuries sustained by the use of an iron rod, stuck to his head and resulting to his untimely death.

Learned Counsel drew attention to Section 79 of the Penal Code, which he also reproduced thus;

“When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as, if it were done by him alone.”

Learned Counsel referred this Court to the cases of BUJE vs. STATE (1991) 4 NWLR (PT. 185) 285 AT 297-298; AHMED vs. STATE (1998) 7 SC (PT. 1) 96 AT 105 -126 in support.

Counsel also submitted that a Court can convict based on the confessional statement alone of an accused person. He referred this Court to the following cases: AGBOOLA vs. STATE (2014) 9 NCC 593 at 601 Decisions 12 and 13; SEMI’U AFOLABI vs. STATE (2014) 9 NCC 333 at Decision 3 pg 335; ABDULLAHI ADA vs. STATE (2008) 3 NCC 549 at 551 Decisions 1 and 2; MUSA YARO vs. STATE (2008) 3 NCC 251 Decisions 1 and 2 where the apex Court stated thus;

“A person may be convicted on his own confession alone, there being no law against it. The law is that, if a man makes a free and voluntary confession which is direct and positive and is properly proved the Court may, if it thinks fit, convict him of any crime upon it?.Once a statement complies with this law and the rules governing the method for making it and it is tendered is good evidence and no amount of retraction will vitiate its admission as a voluntary statement.”

The submission of learned Counsel is that by virtue of the provision of Section 28 of the Evidence Act, 2011 a confession is an admission made at any time by the person charged with a crime, stating or suggesting the inference, that he committed that crime. Counsel further submitted that once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. He cited the cases of: IKEMSON vs. THE STATE (1989) 3 NWLR (PT. 110) 455; IDOWU vs. STATE (2000) 12 NWLR (PT. 680) 48; HASSAN vs. STATE (2001) 6 NWLR (PT. 709) 286 and; OSUAGWU V STATE (2009) 1 NWLR (PT. 1123) 523. In the instant case, Counsel contended that the Appellant’s confessional statement, (Exhibits B and B1) is direct, positive and properly established as rightly found by the learned trial judge at page 81 of the record of appeal where he stated thus:-

“The details particularly in Exhibits B and B1 cannot be manufactured by PW2 without the inputs of the 1st accused person. The offence was committed on 31/1/2015 but Exhibits B and B1 were recorded on 6/5/2015 because the 1st accused person went into hiding due to the reasons he stated in Exhibit D. In view of the foregoing, I am satisfied that, Exhibits B and B1 are the statement of the 1st accused person. The denial of Exhibits B and B1 is an afterthought.”

On the issue of the signatures in Exhibits B and B1 and D, Counsel contended that the Appellant can rightly choose whether to thumbprint or to sign a document depending on what the Appellant deems fit.

On the issue of how Exhibit A was recovered, Counsel told Court that the evidence of the PW3, PW4 and PW5 are cogent and reliable on the fact and did explain competently how Exhibit ‘A’ was removed from the head of the deceased by the use of pestle. Counsel also drew attention to the confessional statement of the Appellant, where he stated on pages 13 and 14 of the records of Appeal thus:-

“On Saturday 31/01/2015 at about 9:30hrs in the night, I was together with 1. Mubarak, 2. Mubarak alias Doki and 3. Ibrahim Dosu in my motor vehicle on our way to Asarakawa area where PDP are doing their rally, along Iraqi road one Sada Janka, Abu Musu je-je, Alusi, Usman Gala, Umaro Boro, Aja, Lukman and others, their were attacked us (sic). I told my driver to stop, where I came out with my sword together with my boys who are armed with long iron (i.e. Exhibit A) we engaged ourselves in a fight…we inflicted injuries on one Maniru Abubakar…”

In order to have the confession corroborated, Counsel referred to the evidence of the PW4 who is the father of the deceased on page 30 of the records stated where he stated thus:

“A pestle was used at home to remove the iron rod from the head of the deceased. The hospital could not remove the sharp iron rod from his head. This is the iron rod that was removed from the head of the deceased.”

With this at the background, Counsel submitted that Exhibit A has a link with the Appellant that is to say by virtue of Section 79 of the Penal Code and the cases of MUKAILA SALAWU vs. STATE (2015) 11 NCC 1 at page 15 and BUJE vs. STATE (1991) 4 NWLR (Pt. 185) 287 at 298 where the Supreme Court, per K. B. AKA’AHS, JSC at pages 19-20 had this to say;-

“When any person aids the commission of an offence by being present at the scene not as a mere on looker but with the purpose of aiding and assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal.”

It is the contention of learned Counsel that the death of Maniru Abubakar clearly attributable to the acts of the Appellant and his other gang members who are still at large when they inflicted serious injuries found on the body of the deceased. Counsel further contended that from the recorded happenings in this case, there is no slight doubt which can be resolved in favour of the Appellant in view of the presence of Exhibits A, B and B1, D and the evidence of the prosecution witnesses on the ugly incident of the 31/1/2015, which resulted to the untimely death of the deceased, one Maniru Abubakar.

Learned Counsel disagreed with the submissions of Appellant’s Counsel on the probative value of Exhibits C and C1, which were the photographs of the deceased and contended that at no time were the Exhibits disowned by the Appellant. He argued that even if at the end it is discovered that Appellant’s Counsel had mistakenly referred to Exhibits C and C1, instead of Exhibits B and B1, which are the confessional statements of the Appellant, the retraction by an accused of his confessional statement in his evidence on oath during trial does not adversely affect the situation once the Court is satisfied of its truth as the Court can rely on such confessional statement to ground a conviction. See the cases of AMOSHIMA vs. STATE (2009) 4 NCC 280 at 296; SULE vs. STATE (2009) 4 NCC 456 at 459. Against the backdrop of this position, Counsel urged the Court to hold that the prosecution has proved the second ingredient of culpable homicide punishable with death beyond reasonable doubt.

In respect of the third ingredient, Counsel argued that the position of the law is that a man intends the natural consequence of his act. He cited the case of ADEKUNLE vs. STATE (2002) 15 WRN at 55. He submitted that an intention to kill can be inferred from the weapon used, the nature of the wound inflicted and part of the body that was struck. Counsel further referred to the case ofORISAKWE vs. STATE (2004) 12 NWLR (PT. 887) 258.

It is further submitted that when Exhibit A (iron rod with some objects attached) was used on a human being more particularly at a head which is very delicate, the result intended is clearly death. According to Counsel going by the evidence of the PW4 who is the father of the deceased, even the Hospital could not remove the Exhibit A from the head of the deceased as it was at their home they used pestle to forcefully remove the Exhibit from the head of the deceased. Counsel urged this Court to hold that, the prosecution proved the third ingredient of the offence of culpable homicide punishable with death against the Appellant and beyond reasonable doubt. Counsel also urged this Court to resolve the first issue in favour of the Respondent against the Appellant.

ISSUE TWO;

The submission of Counsel is that the extra-judicial statements of the Appellant were first taken in Hausa language which is the language of the Appellant and was later translated into English language. He said that it will not be fatal to the case of the prosecution because Exhibit B was not signed by the Appellant. According to Counsel Exhibits B and B1 are one and the same thing; Exhibit B1 being only an English translated version of Exhibit B because English is the official language of the Court. He argued that for this reason, it is only the translator who is required to sign the translated version as the translator of the Hausa version and not necessarily the Appellant.

Counsel contended that it would be a misconception of the position of the law by the Appellant’s Counsel to argue that the Appellant should have signed the English translated version of his Hausa statement when that was not the statement he made. Counsel urged this Court to resolve this issue in favour of the Respondent.

ISSUE THREE:

On account of the defence of sudden fight raised by the Appellant, in Exhibits B and B1, where he stated that on reaching Asarakawa along Iraqi road Sokoto where the PDP was holding a rally the Sada Janka led gang of area boys attacked them with cutlasses and sticks and that made his gang of area boys to engage in a fight with them, Counsel submitted that for this defence to avail the Appellant, it must be shown that; the Appellant was suddenly provoked by the deceased; and that the provocation must lead to instant fight; and that the Appellant did not take undue advantage or acted in cruel or unusual manner. See the cases ofDANLADI MUSA vs. STATE (2013) LPELR 21866; AUDU vs. STATE (2003) NWLR (PT. 820) 616.

Against the backdrop of the foregoing, Counsel submitted that the defence of sudden fight will not avail the Appellant who left his house already armed with a sword and other deadly weapons such as iron-rod (Exhibit A), cutlasses, et cetera with the aim of fighting with any other person who confronts him for a fight. Counsel cited the cases of BARUWA vs. STATE (1992) NWLR AT 643, and OKONJI vs. THE STATE (1987) 1 NWLR (PT. 52) 659.

The argument of learned Counsel here is that the Appellant had every opportunity to withdraw from the fight since he had already driven past the deceased’s group with his car but had to ask his driver to stop and went back to confront the deceased’s group. He submitted that the defence of sudden fight does not avail the Appellant. Counsel urged this Court to resolve this issue in favour of the Respondent.

RESOLUTION OF APPEAL

The Appellant person was charged with agreeing to do illegal act by arming himself together with other persons in order to attack and kill Maniru Abubakar of Alkammawa Area of Sokoto State North Local Government and that he caused the death of the said Maniru Abubakar (M) by hitting him with a long iron rod on the head with knowledge that his death would be the probable consequence of his act contrary and punishable under Sections 97 and 221(b) of the aforesaid Penal Code.

Argued in this Appeal are questions arising from the voluntariness and/or the veracity of the confessional statements of the Appellant admitted as Exhibits B and B1 at the Court below. This and other issues are clearly subsumed in the much enlarged question of whether the learned trial Court rightly reached a conviction against the Appellant based on laid down principles of law.

This being an Appeal involving a trial for the offence of culpable Homicide punishable with death, for the prosecution to succeed in establishing the offence, all the ingredients of the offence as contained in Section 221 of the Penal Code must be proved or established to the satisfaction of the Court thus;

1. That the deceased had died.

2. That the death of the deceased had resulted from the act of the accused person.

3. That the act or omission of the accused which caused the death of the deceased was intentional or with the knowledge that death or grievous bodily harm was its probable consequence.

The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. See the cases of MUSA vs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE (2015)11 NCC at page 40-41.

Perhaps, what needs to be said at this point is the fact that the burden to establish the culpability of the accused person standing trial for the offence of culpable homicide rests squarely on the shoulders of the prosecution who must prove all the material ingredients of the case beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011 as Amended and plethora of decided authorities on the subject. What should perhaps, be stated here as a corollary to the above, is the fact that in all criminal trials the prosecution has the benefit of relying on any of the following forms of evidence in discharging the burden placed on it by law;

a. Confessional statement.

b. Circumstantial evidence

c. Evidence of an eye witness account.

See the cases of EMEKA vs. STATE (2001)14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012.

At page 13 of the printed records of Appeal, a reproduction of Exhibit B1, the English translation of the Appellant’s extra-Judicial statement to the Police reads as follows;

“On Saturday 31/01/2015 at about 9:30hrs in the night, I was together with (1)Mubarak (2) Mubarak alias Doki and (3) Ibrahim Dosu in my motor vehicle on our way to Asarakawa area where PDP are doing their rally along Iraqi road one Sada Janka, Abu musu, Jeje, Abusi, Usman Gala, Umaru Boro, Aja Lukman and others, they attacked us I told my driver to stop where I came out with my sword together with my boys who are armed with cutlasses and Ibrahim Dosu was armed with a long iron rod (Exhibit A). We engaged ourselves in a fight…we inflicted injuries on one Maniru Abubakar…”

Learned Appellant’s Counsel had contended very vigorously that there was no credible confessional statement warranting the trial Court to have convicted the Appellant. It would be recalled however, that Exhibits B and B1 were in the course of trial admitted as confessional statements of the Appellant without an objection. Section 27 (1) of the Evidence Act (As amended) defines a confession thus:

“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

It is further provided in Sub-section 2 that:

“Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

Against the backdrop of this position, it is important to note that the Appellant, in the course of his evidence-in-chief before the lower Court, retracted from the said Exhibits B and B1. The settled position of the law, however is that a retraction of a confession does not ipso facto render the confession inadmissible. See the old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402 (FSC) where the Supreme Court per BRETT, Ag CJF held thus;

“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the Appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.”

It would be further recalled that the Appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. But the position remains in law, that a mere denial without more, even at the earliest opportunity, cannot, on the bare facts of the case, lend any iota of weight to the denial. Apart from the fact that the denial is a bare statement bereft of any supporting facts, it is by and large, standing only on the ipsi dexit of the Appellant. To make matters rather worse and as revealed by the printed records in this case, the said statements were not even challenged on grounds of involuntariness or any other at all.

Arising from this position, in which the voluntariness or otherwise of the statements were neither raised nor challenged at the trial, this Court therefore finds and holds that the prosecution proved affirmatively that Exhibits B and B1 were voluntary confessional statements of the Appellant. Regardless of this position, the usual thing in all criminal trials is that the burden of proving affirmatively beyond doubt that the confession was made voluntarily is always on the prosecution, which this prosecution succeeded in doing as expected in this case. See the cases ofJOSHUA ADEKANBI vs. AG WESTERN NIGERIA (1961) All NLR 47; R vs. MATON PRIESTLY (1966) 50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR 60 at 65 SC on the issue.

On the question of weight to be attached to a confessional statement whether retracted or not retracted the tests are as laid down in the old English case of R vs. SYKES (1913) 8 CR APP. R.233 approved by the West African Court of Appeal in KANU vs. THE KING (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests therefore, as laid down in the case of R. vs. SYKES (Supra) to be applied to a man’s confession are; is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been as in this case proved?

In any event, it is within the province of the trial Judge to determine the admissibility of a confession upon proof by the prosecution that the statement was free and voluntary and having admitted the statements as in the instant case where there has been a retraction by the accused. It is desirable for the trial judge to find some corroboration in the evidence tending to show that the statement of the accused having regard to the circumstances of the case is true. See OKAFOR vs. THE STATE (1965) NMLR 20. Perhaps, the question to address here is whether there are any such corroborating circumstances, which makes the confessions true in this case? In order to have the confession corroborated, the evidence of the PW4 who is the father of the deceased at page 30 of the records becomes instructive where he stated thus:

In respect of the retracted statements of the Appellant, the mere fact that he did subsequently retract the Exhibits B and B1 as the facts and circumstances of this case has shown, does not necessarily mean that the learned trial Court could not have acted on the statements more so when the Court successfully tested the truth in the confessions against the guidelines issued by the Court in the case of R. VS SYKES (Supra).

In addressing the issue of whether the learned trial Court rightly found that the ingredients of culpable homicide punishable with death had been established in this case, it is rather clear that from the testimonies of the prosecution witnesses and from the contents of Exhibits B and B1 which are the statements of the Appellant tendered at the lower Court without objection, I am unable to disagree with learned Respondent’s Counsel that the prosecution did not prove its case to the hilt.

It is in this regard that this Court dismisses with the wave of the hand, the fuss raised by learned Appellant’s Counsel concerning the issue of non-signing of the English translated version of the Appellant’s extra-judicial statement. It is important to note that the extra-judicial statement of the Appellant was first taken in Hausa language, which is the language of the Appellant and was later translated into English language. The necessity of doing a translation is to bring the Appellant’s statement up in the language of the Court and no more. The Appellant having signed the important one of the two statements, that is the one he made and not necessarily the one translated, it would be needless making a storm out of tea cup of the issue. After all, the Appellant did not do the translation himself, otherwise why does he need to sign a document he did not make.

The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury which the act was intended to cause. Appellant and his cohorts on that fateful day of the incident cannot in the circumstances of this case feign ignorance of the likely consequences of their actions.

The evidence on record shows that the Appellant and his gang members had in their car, dangerous weapons ready to attack and that indeed they had every opportunity to avoid being in the fight the result of which took the life of the deceased. In his own words, the Appellant was recorded as saying that they had already driven past the deceased’s group with his car but that he had to ask his driver to stop and went back to confront the deceased’s group. It is in this connection that the defence of sudden fight in my opinion does not avail the Appellant in any way.

Perhaps, to demonstrate the complete lack of excuse on the part of the Appellant is the fact that the blow to the deceased’s person’s head was struck by the use of an iron-rod which clearly shows that the intention was to kill him and no more.

The murder weapon Exhibit A in the Appellant’s own words, was wielded by IBRAHIM DOSU, one of his ‘boys’ who rode with him in his car, while he wielded a sword which he equally used in the course of the fight. There is therefore, no way can it be said that the murder weapon Exhibit A has no link with the Appellant and the application of Section 79 of the Penal Code.

The Appellant having clearly aided the commission of the offence of culpable Homicide by being present at the scene not as a mere on looker but as someone who aided and assisted the said IBRAHIM DOSU who was one of his ‘boys’ clearly makes him guilty of committing the offence of culpable Homicide as a principal. See the cases of MUKAILA SALAWU vs. STATE (Supra) and BUJE vs. STATE (Supra) and the observation of the apex Court per K. B. AKA?AHS, JSC on the subject.

To this end, this Appeal is moribund and lacks merit and it is accordingly dismissed. The judgment of the High Court of justice sitting at Sokoto and delivered on the 23-5-2017 by BELLO DUWALE, J. is hereby affirmed.

AMINA AUDI WAMBAI, J.C.A.: I have read the judgment of my learned brother, Fredrlck O. Oho, J.C.A. I am in agreement with his reasoning and conclusion that this appeal lacks merit. I also dismiss the appeal.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read the lead Judgment just delivered by my learned Brother Justice Frederick O. Oho J.C.A. I agree that the Appeal is moribund, lacks merit and is hereby dismissed. I affirm the Judgment delivered by Bello Dawule J., of Sokoto State High Court on 23/05/2017.

Appearances:

Dr. Ehiogie West IdahosaFor Appellant(s)

Kabiru M. Tafarki, Esq. (M.O.J. Sokoto State)For Respondent(s)