PAM DAVOU v. COMMISSIONER OF POLICE, PLATEAU STATE COMMAND
(2019)LCN/13865(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of March, 2019
CA/J/424A/C/2017
RATIO
whether, by reason of the wrongful admission of Exhibits P6A and P6B, the judgment of the trial Court occasioned a miscarriage of justice for which reason it must be set aside
Wrongful admission of evidence or Exhibits as in this case without more is not a ground for reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have affected that decision and that said decision would have been the same even if such evidence had not been admitted. Once the appeal Court is of the opinion that the admissible evidence could not reasonably have affected the decision, it will not interfere. See: Section 251 (1) of the Evidence Act, 2011; ITU V. STATE (2016) LPELR ? 26063 (SC); ARCHIBONG V. STATE (2006) 14 NWLR (PT. 1000) 349; NWAEZE V. STATE (1996) LPELR ? 2091 (SC); EZEOKE V. NWAGBO (1988) 1 NWLR (PT.72) 616 AT 630: MONIER CONSTRUCTION CO. LTD. V. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 AT 88; AJAYI V. FISHER (1956) 1 F.S.C. 90: R. V. THOMAS (1958) 3 F.S.C. 8; LAYONU AND ORS V. THE STATE (1967) 1 ALL NLR 198.
The settled position of the law was stated by the apex Court thus: By the provision of Section 251 (1) of the Evidence Act, 2011, wrongful admission of evidence would not by itself, be a ground for reversing a decision where an appellate Court finds that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same even if such evidence had not been so admitted. In the instant case, where there was sufficient evidence to still ground the appellant’s conviction outside the confessional statement alleged to be wrongfully admitted the Court of appeal appropriately dismissed the appellant’s appeal.” See: ANTHONY ITU V. THE STATE (2016) ALL FWLR (PT. 823) 1983. PER UCHECHUKWU ONYEMENAM, J.C.A.
WHETHER CONFESSION IS ENOUGH TO WARRANT THE CONVICTION OF AN ACCUSED WITHOUT CORROBORATIVE EVIDENCE
In law a direct, positive, free and voluntary confession of guilt by an accused person is sufficient to warrant his conviction without any corroborative evidence. See: TIRIMISIYU ADEBAYO V. THE STATE (2014) 5 SCNJ 825. Remarkably, where an accused retracts his confession during trial, it will not in any way affect the case of the prosecution if there is sufficient evidence outside his confessional statement. Importantly, let me note that an accused person who makes a retraction of his statement during trial has evidential burden to impeach his earlier statement. In TIRIMISIYU ADEBAYO V. THE STATE (SUPRA) @ 811 PARA 10; the Supreme Court held thus:
?it is trite law that where an accused person during trial retracted or denies the extra judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his said earlier statement.”
Also the apex Court in OLUFEMI AJAYI V. THE STATE (2014) 6 SCNJ 284 @ 304 PARAS 10-15, P. 305 PARAS 10-35; held as follows:
This Court has, in decisions too numerous to call stated that though desirable that convictions be based on evidence outside the confessional statement of an accused as well nothing stops the trial Court from convicting an accused solely on his confessional statement that is found voluntary, positive and unequivocal. It is trite law that there cannot be evidence that is stronger than an accused own direct, positive and unequivocal confessional statement which alone is on the authorities, sufficient to ground conviction.?
So, it is a well settled principle of the law that an accused can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. PER UCHECHUKWU ONYEMENAM, J.C.A.
WHEN A CONVICTION CAN BE CORRECTLY BASED ON A RETARCTED CONFESSIONAL STATEMENT
However, it is desirable that before a conviction can be properly based on a retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See:FABIAN IMOH V. THE STATE (2017) ALL FWLR (PT. 887) 88; ASUQUO V. THE STATE (2016) 14 NWLR (PT. 1532) 309 SC; ULUEBEKA V. THE STATE (2000) 7 NWLR (FT. 565) 41; OKOH V. STATE (2014) 8 NWLR (PT. 1410) 502.
Part of the relevant evidence on record that was before the trial Court in aid for the determination of the guilt or non guilt of the Appellant are Exhibits P2 and P13 (the Appellant?s confessional statements), and the evidence of the eye witnesses PW1 and PW2. Let me start with an excerpt of Exhibit P2 at page 45 of the record where the Appellant in his confessional statement alluded thus:
?…. I now started looking for Mama Lyop Badung, I went and met her inside one house hiding behind the door. I jack her outside the house as from there I slapped her, I went and took stick and beat her with it, one of my younger brother name John Davou took a stick and he join me in beating Mama Lyop Badung and many other people, she fall down on the ground and she died. PER UCHECHUKWU ONYEMENAM, J.C.A.
CONFESSIONAL STATEMENT: WHEN A PARTY SAYS ANYTHING INCONSISTENT WITH THE STATEMENT ADMITTED
If the said counsel/Appellant in his further testimony says anything inconsistent with the statement he admitted, that will be of no moment owing to the principle of Qui approbat non reprobate meaning there can be no reprobation after an approbation. See: SEGUN FASINU V. THE STATE (2017) ALL FWLR (PT. 908) 1884; CODRINGTON V. CODRIGTON (1875) 45 L. J CH. 660; EXPRESS NEWSPAPERS V. NEWS (U.K) LTD. (1990) 3 ALL E. R. 376. PER UCHECHUKWU ONYEMENAM, J.C.A.
DUTY OF THE COURT ON CORROBORATIVE EVIDENCE
In as much as Corroboration is evidence which may be direct or circumstantial, it is the duty of the Court to ascertain that whatever is being used or regarded as corroboration is independent of the evidence to be corroborated and supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular. Accordingly, no stereotyped category of evidence is envisaged and a great deal depends upon the circumstances of each case. See: OMISADE & ORS V. THE QUEEN (1964) 1 ALL N.L.R. 233; OKABICHI & ORS V. STATE (SUPRA); R. V. MADAN (1938) 4 W.A.C.A. 39; OLALEYE V. THE STATE (1970) 1 ALL N.L.R. 300. PER UCHECHUKWU ONYEMENAM, J.C.A.
WHEN THE COURT WILL DISPENSE WITH MEDICAL EVIDENCE IN MURDER TRIALS
It is not in all cases that the prosecution must establish the cause of death. The Court will certainly dispense with medical report or will not be bound by medical report in a situation where the death can reasonably be inferred or where there had been a direct and positive account of the act that led to the death of the victim. See: SAMBO ALH. GALADIMA V. STATE (2017) ALL FWLR (PT. 899) 302; ADUADA SHAIBU V. THE STATE (supra) 1973. PER UCHECHUKWU ONYEMENAM, J.C.A.
THE VARIOUS WAYS BY WHICH GUILT CAN BE PROVED
I will herein emphasis that the law is trite, that guilt of an accused person can be proved through any of the following methods; – (1) Through confessional statement of the accused, or (2) Through circumstantial evidence (3) Through the testimony of eye witness or eye witnesses. See: ITU V. STATE (2016) LPELR ? 26063 (SC); EMEKA V. STATE (2001) 14 NWLR (PT. 734) 666; IGABELE V. STATE (2006) 2 SC (PT. 11) 61. A calm reading of the judgment of the trial Court shows that the trial Court also relied heavily on the evidence of the eye witnesses PW1 and PW2, the children of the deceased to arrive at its verdict of conviction and sentence of the Appellant. So even if the Exhibits under consideration were held to be inadmissible, the conviction of the Appellant will still stand in the light of Section 251 (1) of the Evidence Act, 2011. PER UCHECHUKWU ONYEMENAM, J.C.A.
Before Their Lordships
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
PAM DAVOU Appellant(s)
AND
COMMISSIONER OF POLICE, PLATEAU STATE COMMAND Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is predicated on the conviction and sentence of the Appellant to death by hanging for the offences of conspiracy and culpable homicide punishable with death under Sections 97 and 221 of Penal Code Law, CAP 89 Laws of Northern Nigeria 1963 4th Edition 1987 respectively. The judgment was entered on the 22nd May, 2017 by C.L. Dabup, J. of the High Court of Plateau State.
The brief facts of the case is that the Appellant who was the 5th accused at the trial court was charged along with four others for the offences of criminal conspiracy and culpable homicide punishable with death under Sections 97 and 221 of the Penal Code Law, CAP 89 Laws of Northern Nigeria, 1963 as applicable in Plateau State respectively.
The case of the prosecution is that on the 23rd December, 2012 at about 6:00pm the Appellant along with others went to the house of one Simon Badung, (PW1) where they accused one Lyop Badung, to the PW1, of witchcraft. They alleged that the accused inflicted one Rachael Yohanna, 10 years old daughter of one of the accused/convicts with witchcraft as a result of which she was critically ill. The deceased was confronted with the allegation based on the confession of one Victoria Bandag, a 13 year old girl who alleged that it was herself and the deceased that inflicted the said Rachael Yohanna with the sickness.
While in the house of the said deceased, Victoria Badung requested that she and the deceased together with the sick Rachael Yohana be locked up in a room so that they can loose Rachael from the witchcraft they inflicted on her. Shortly after they were locked up in a room, Victoria Badung requested that they should open the door so that she could ease herself. The door was opened and she was escorted by one of the accused persons who returned shortly thereafter to inform others that Racheal had escaped. When the Appellant together with others entered the room where they were locked up, they discovered that Rachael Yohanna had already died. Consequently, the Appellant and the other accused/convicts descended on the deceased and attacked her as a result of which she died on the spot.
The matter was reported at the Riyom Divisional Police Station while the Appellant and the other accused/convicts were arrested the following day. The photograph of the deceased was taken after which the corpse was conveyed to the hospital and thereafter released to the family for burial.
The prosecution called four (4) witnesses to prove its case at the trial. PW1 and PW2 were the children of the deceased; PW3 and PW4 were the Investigating Police officers at the Divisional and State Criminal Investigation Department (CID) respectively.
The prosecution also tendered some documents/items which were admitted in evidence as follows:
Exhibit P2 is the statement of the Appellant recorded at the Riyom Divisional Police Station without objection.
Exhibit P6A & P6B are photographs of the deceased.
Exhibit P7A & P7B are two sticks.
Exhibits P8 – cutlass.
Exhibit P13 is the statement of the Appellant recorded at the state CID which was admitted in evidence after a trial- within trial.
The confessional statements of the Appellant who was the 5th accused at the trial Court were admitted in evidence as Exhibits P2 without objection and P13 after a trial within trial was conducted. The Appellant testified as DW5 and
