SANUSI UMARU v. THE STATE
(2016)LCN/8478(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/S/23C/2015
RATIO
EVIDENCE: BURDEN OF PROOF IN CRIMINAL CASES
I agree with learned appellant’s counsel that the burden of proof in criminal cases is on the prosecution who has the duty to prove the guilt of the accused beyond reasonable doubt. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A COURT CAN CONVICT ON A RETRACTED CONFESSIONAL STATEMENT
This question was answered in HARUNA V THE A-G OF FEDERATION (2012) LPELR SC 72/2010 where Adekeye JSC had this to say
A Court can convict on the retracted confessional statement of an accused person but before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following question- is there anything outside the confession to show that it is true (a) is it corroborated? (b) Are the relevant statements made in it of fact true as far as they can be tested? (c) Did the accused person have the opportunity of committing the offence, charged? (d) Is the confession possible? (e) Is the confession consistent with other facts which have been ascertained and have been proved? R V. SYAKES (1913) CAR PG 113, R V OMOKARO (1941) 7 WACA PG. 146; ACHABUA V. STATE (1976) NSCC PG. 74; YUSUFU V STATE (1976) 6 SC. 167 PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
SANUSI UMARU – Appellant(s)
AND
THE STATE – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the 9th accused in Suit No SS/14C/2013, now the appellant against the decision of High Court of Justice Sokoto (CORAM D. B. SAMBO J.) delivered on 13/3/2014.
The charge against the accused read thus:
That you Sama?ila Umaru, Salihu Sule, Hali Musa, Umaru Sarkin Noma, Haruna Tukur, Buhari Sidi, Abdurra?uf Amadu, Ibrahim Yakubu (Alias alh. Singa), Yusuf Bawa, Umaru Abdullahi, Kabiru Iliyasu, Bello Ahmadu, Sa?ad alh. Garba, Ibrahim Dan maimaili, Sanusi Garba, Ibrahim Umaru, Abubakar Labaran, Dahiru Dan joda, Abu Damo, Ahmadu Garba and Sanusi Umaru All Male of Kwargaba and Arba Village Wurno Local Government Area, Sokoto State on or about the 3rd April, 2012 at 2200hrs in Kwargaba Village, Wurno Local Government Area within Sokoto judicial division did commit the offence of Culpable Homicide punishable with death in that you caused the death of one Ardo Umaru ?M? by inflicting serious bodily injuries with cutlass and sticks on him as a result he died on the spot thereby committed an offence punishable under Section 221 (b) of the Penal
code.?
The charge was read to the accused person. He pleaded not guilty. Parties then called witnesses.
After hearing the parties, the learned trial Judge convicted the accused of the offence of culpable homicide punishable with death.
The reason for the conviction were adduced by the learned trial Judge on page 18 ? 19 of the judgment thus
?9th Accused ? Sanusi Umaru DW8:
This accused made his statement recorded on the 23/8/2012. This is clear demonstration that he could only be arrested after 4 Months. The statement are the Exhibits P14, P14A. He stated in his statement how the people of Kwargaba village went on riot when they discovered that one Madugu was injured by the Fulani and in retaliation, Fulani houses were burned and destroyed by the Hausas. He confessed he joined the rioters with his friends and burned a motor cycle that belongs to one Alh. Mamman. On the other hand, in his evidence on oath before this Court, he testified that on the date the incidence occurred being the 3/4/2012, he was in his house and heard the people shouting. He said after his evening meal he slept off. That he did not
know anything in this case. He said he was arrested after some months. A comparison of the statement earlier made which is evidence before this Court with evidence in Court and even under cross-examination, the accused certainly neither here nor there. Accused situation is further compounded when the PW1 and PW2 respectively testified with all degree of certainty that this accused was among those who attacked the deceased and beat him using all types of weapons on him until he was left dead on the spot.
Dissatisfied with the judgment, the appellant on 6/5/2014 filed a Notice of Appeal challenging the decision of the trial Court on 5 grounds.
The 5 grounds of appeal (excluding the particulars) are reproduced here under
Ground One
The decision of the Court below is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial.
Ground Two
The Court below erred in law and occasioned a miscarriage of justice on the appellant when in convicting and sentence the appellant to death for the offence contrary to Section 221 (b) of the Penal
Code, it failed and or neglected to consider the case or evidence against the appellant separately from that of Abu Damo and Ahmadu Garba with whom the appellant was being tried jointly.
Ground Three
The Court below erred in law when in convicting and sentencing the appellant to death for the offence contrary to Section 221 (b) of the Penal Code, it relied in the evidences of PW1 & 2 to convict the appellant and this has occasioned a miscarriage of justice.
Ground Four
The Court below erred in law in convicting and sentencing the appellant to death for the offence contrary to Section 221 (b) of the Penal Code, it denied the appellant his constitutional right to fair hearing thereby occasioned a miscarriage of justice on the appellant when it failed and or neglected to consider all the defence/s open up to the appellant on the evidence adduced before the Court below butt considered only the case presented by the prosecution against the appellant.
Ground Five
The Court below erred in law and prejudiced the constitutional right of fair hearing of the
appellant an guarantee under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 when in convicting and sentencing the appellant to death for the offence contrary to Section 221 (b) of the Penal Code, the Court refused and or failed to consider the cross ? examination of PW1 & PW2 on record before placing probative value on some and using the same evidence in convicting and sentencing the appellant to death for the offence contrary to Section 221 (b) of the Penal Code Law and this has occasioned a miscarriage of justice.?
The record of this appeal was deemed transmitted on 21/9/2015. Parties thereafter filed and exchanged brief of argument.
The appellant’s brief of argument filed on 30/10/2015 was settled by Ibrahim Abdullahi. Appellant’s counsel formulated 3 issues for determination as follows:-
a) Was the Court below right when it failed and neglected to consider the evidence of the appellant separately from that of his co-accused person before convicting and sentencing the appellant for the offence contrary to Section 221 (b) of the Penal Code?
b) Was the Court below right in
law when it refused to consider all the defences open to the appellant on the evidence adduced before the Court below?
c) Whether a case of culpable homicide punishable with death was made out before the Court below to justify the conviction and sentence of the appellant?
On issue no 1, learned appellant’s counsel relied on MBANK V STATE (2009) 18 NWLR (PT 1172) pages 140 at 159, and submitted that the Court below erred in law to have used Exhibits P10A and P19A along with the evidence of DW6 and DW7 to convict the appellant.
On issue 2, Ibrahim Abdullahi for the appellant submitted that the learned trial Judge failed to consider all the defences in the evidence. He posited that it was fatal to the proceedings. He relied on OFORLETE V STATE (2000) 3NSCQR 243 at 245, He submitted that the defence of alibi raised by the accused was not considered by the trial Court.
On issue no 3, learned appellant?s counsel submitted that a case of culpable homicide was not made out to justify the conviction of the accused. He contended that the burden of proof in criminal cases never shifted. He submitted further that there was doubt as to
what caused the death of the deceased which should have been resolved in favour of the accused. He cited AKPABIO V STATE (1994) 7NWLR (PT 399) 635 at 670; ABDULLAHI V STATE (2010) 8 LRCNCC page 11.
He finally urged the Court to allow the appeal.
The respondent?s brief, prepared by the Abubakar Moyi was filed on 1/3/2016 but deemed filed on 2/3/2016.
Learned Respondent?s counsel formulated 2 issues for determination as follows:-
1. Whether the decision of the lower Court is reasonable and can be supported regard being had to the evidence adduced at trial.
2. Whether in all circumstances of this case, the appellant has been denied fair hearing.
On issue No 1, learned counsel submitted that the decision of the lower Court was reasonable and could be supported with evidence. He added that a Court could convict and sentence the accused person based on his confessional statement alone He relied on UBIERHO V THE STATE (2005) INCC. 146 at 147, AGBOOLA V THE STATE (2004) 9NCC 593 at 601 and other cases.
He further referred to the evidence adduced and finally urged the Court to resolve the issue in
favour of the Respondent.
On issue No 2, learned respondent?s counsel referred to the evidence on record and submitted that the Court below did substantial justice to all the accused persons.
On the defence of alibi, he submitted that where the evidence of eye witness tied an accused to the locus criminis as the one that committed the offence, the defence of alibi would not avail the accused. He cited SOWEMIMO V STATE (2004) ALL FWLR (PT 208) 951.
He argued that the defence of alibi was not raised early. He cited CHRISTOPHER OKOLO V C. O. P. (1977) NNLR I He added that there was another compelling evidence before the Court. He cited NWOSISI V STATE (1976) 6. S. C. 109. He urged the Court to resolve the issue against the appellant.
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.
I have deeply considered the issues as formulated by learned counsel in their respective briefs.
?I consider issue No C as formulated by appellant?s counsel apt and wide enough for the just determination of this appeal. I
therefore adopt it in this appeal.
For clarity?s sake issue No C as formulated by the appellant?s counsel is hereunder reproduced
(c) Whether a case of culpable homicide punishable with death was made out before the Court below to justify the conviction and sentence of appellant.
I have earlier in this judgment referred to the reasons adduced by the learned trial Judge for convicting the accused.
The learned trial Judge rested his decision on
a) Exhibits P14 and P14A ? the statements of the accused and
b) The evidence of PW1 and PW2 who according to the learned trial Judge ?Testified with all degree of certainty that this accused was among those who attacked the deceased and beat him using all types of weapons on him until he was left dead on the spot?
I shall first closely look at the evidence of PW1 and PW2 before examining the statement of the accused.
PW1 positively identified the 9th accused as being among his father?s attackers.
PW2 also identified him as one of those who set fire on the houses of the Hausas.
?Despite the so ? called positive
identification of all the accused persons by PW1 under the same circumstances, his identification of 2nd accused was faulted and the alibi of 2nd accused was sustained.
The learned trial Judge said on page 14 of his judgment
?In his evidence on oath before this Court, he recounted almost word to word and denied having been seen by the PW2 as being one of the attackers of the deceased. Having had the opportunity to hear and see this accused and comparing his evidence on oath with the statements made. I am satisfied his alibi avail him more over – – – – among the attackers (sic), I find myself doubting this particular identification most especially when he pleaded alibi. The demeanor of the accused as DW2 did not in any way show he was not a witness of truth even under cross ? examination.?
The question is why did the learned trial Judge pick one aspect of the positive identification by PW1 to believe and another part to disbelieve when the identification was done under similar circumstance? To my mind, having disbelieved the identification of 2nd accused by PW1 and PW2, the entire identification became affected and
infected and should have been rejected by the trial Court.
This becomes more important when one considers the fact that the identification was done at 9pm in the evening. There is abundant evidence on record that a crowd of people was involved in the incident.
I agree with learned appellant’s counsel that the burden of proof in criminal cases is on the prosecution who has the duty to prove the guilt of the accused beyond reasonable doubt. There is doubt in the identification of the accused by PW1 and PW2 which should be resolved in favour of the accused.
Now to the statement of the appellant. It was tendered through PW8, Constable Haruna Sulaiman. The statement was retracted by the accused although it was admitted as Exhibits P14 and P14A.
The accused/ appellant in his evidence also maintained that he did not make Exhibits P14 and P14A. How should the Court treat such a retracted statement? This question was answered in HARUNA V THE A-G OF FEDERATION (2012) LPELR SC 72/2010 where Adekeye JSC had this to say
A Court can convict on the retracted confessional statement of an accused
person but before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following question- is there anything outside the confession to show that it is true (a) is it corroborated? (b) Are the relevant statements made in it of fact true as far as they can be tested? (c) Did the accused person have the opportunity of committing the offence, charged? (d) Is the confession possible? (e) Is the confession consistent with other facts which have been ascertained and have been proved? R V. SYAKES (1913) CAR PG 113, R V OMOKARO (1941) 7 WACA PG. 146; ACHABUA V. STATE (1976) NSCC PG. 74; YUSUFU V STATE (1976) 6 SC. 167
The learned trial Judge pursuant to the above sought corroboration from the identification of the accused by PW1 and PW2. As aforestated the so – called identifications are doubtful. A doubtful evidence cannot supply weight to another doubtful evidence. The
two pieces of evidence will not stand but collapse.
This is the light in which I view this appeal. I resolve the sole issue in favour of the appellant.
This appeal has merit.
It is hereby allowed.
The conviction and sentence of the accused by Sokoto High Court in Suit No SS/14C/2013 are hereby set aside. I hereby order that the accused be discharged and acquitted.
PAUL ADAMU GALINJE, J.C.A.: I entirely agree.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I entirely agree that this appeal should be allowed for the reasons given in the lead judgment of my learned brother, Awotoye, JCA. I adopt his opinions on the issue for determination in this appeal as my own.
The main issue, which has been ably considered in the lead judgment, is the question of identity of the appellant, as one of those who took part in the alleged killing of the deceased Ardo Umaru.
?The facts of this case cast doubt as to whether PW1 and PW2 could properly identify the appellant as one of the attackers. It is my view that even if identification parade was conducted, PW1 and PW22 could not properly
identify the attackers taking into consideration their numbers and the fact that it took place at night.
?For the above and the fuller reasons given by my learned brother, Awotoye, JCA, in the lead judgment, I allow the appeal.
The appellant is discharged and acquitted.
Appearances
Ibrahim Abdullahi, Esq.For Appellant
AND
Abubakar Moyi, Esq.For Respondent
