SULEIMAN ABUBAKAR v. THE STATE
(2019)LCN/12913(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of March, 2019
CA/YL/101C/2018
RATIO
DEFENCE: THE DEFENCE OF ALIBI
“… Alibi is a form of defence which literallily, means elsewhere. It is a defence where an accused person alleges that at the time when the offence with which he is charged and committed, he was elsewhere. See Ozaki v. State (1990) 1 NWLR (Pt. 124), 109. An alibi, if successfully raised will afford a complete defence to a charge. To succeed on a plea of defence of alibi, the accused must raise it timeously, that is to say at the earliest opportunity presented to him. See Ebenehi v. The State (2008) 5 NWLR (Pt. 1138) 431, 444; Oguagun v. State (2013) 5 NWLR (Pt. 1347) 360. Once a plea of defence of alibi is raised, the Police investigating the offence for which the accused person is charged, is duty bound to investigate it, and put in evidence the result of that investigation at the trial: Ukwunnenyi v. State (1989) 4 NWLR (Pt. 114) 131, it is not for the accused person to lead evidence to establish or prove his defence of alibi. This duty is for the prosecution to confirm or disprove the plea of alibi. Failure of the police to investigate alibi put up could raise reasonable doubt in the mind of the Court and could lead to an order of discharge and acquitted of the accused person. Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576; Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538. The Court, where evidence has been placed at trial has a duty to consider the defence of alibi, whether raised formally or informally.” PER SAIDU TANKO HUSSAINI, J.C.A.
EVIDENCE: WHERE A CONFESSIONAL STATEMENT IS RETRACTED
“…where a confession is retracted at trial. It is thus desirable that before conviction can properly be based on such a retracted confession, there must be some corroborative evidence outside the confession which would make it probable that the confession was true. See Olufabe v. State (1968) N.M.L.R 261, 265.
The Supreme Court in Ejinima v. State (1991) 6 NWLR (Pt. 200) 627, 655 adopted the test laid down in R. v. Sykes (Supra). Where a confessional statement is retracted at trial:
(a) Is there anything outside the confession to show it was true?
(b) Is it Corroborative?
(c) Are the statements made in it in fact true as far as they can be tested?
(d) Was the prisoner the person who had the opportunity of committing the offence?
(e) Is his confession probable?
(f) Is it consistent with other facts which have been ascertained and where have been proved?” PER SAIDU TANKO HUSSAINI, J.C.A.
EVIDENCE: WAYS TO PROVE EVIDENCE
“The Prosecution under S. 135 (1)(2) of Evidence Act has a duty to prove his case beyond reasonable doubts. He is not obliged to prove his case beyond all shadows of doubt. The standard expected of him is to discharge his duty by leading evidence of such a high degree of cogency consistent with an equally high degree of probability. See Bakare v. State (1987) NSCC 267, 273. Per Oputa, JSC. Therefore if the evidence adduced by the prosecution is so strong against the accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of this will do. Per Abiriyi JCA in Pedro v. State (2015) LPELR-24547 (CA).
The prosecution in his quest to prove the guilt of the accused person may lead:
(i) Evidence of Eye witnesses or;
(ii) Circumstantial evidence or;
(iii) Confessional Statement(s) of accused person.
See Tajudeen Iliyasu v. State (2015) LPELR-24403 (SC); Felix Okpako v. State (2012) LPELR-9468 (CA). The guilt of the accused person can also be established by a combination of any of the methods stated in (i), (ii) and (iii) above.” PER SAIDU TANKO HUSSAINI, J.C.A.
HOMICIDE: INGREDIENTS OF HIMICIDE
“…For the prosecution to succeed on a charge of Culpable Homicide punishable with death, he must lead evidence to establish:
(i) The death of a human being has actually taken place;
(ii) The death was caused by the accused;
(iii) The act of the accused caused the death of the deceased; and the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. See Mbang v. State (2010) 7 NWLR (Pt. 494) 431; Usman v. State (2011) 3 NWLR (Pt. 1233); Ismail v. State (2011) 17 NWLR (Pt. 1277) 601. These ingredients of the offence which co-exist must all be proved before a conviction can be secured.”PER SAIDU TANKO HUSSAINI, J.C.A.
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
SULEIMAN ABUBAKAR – Appellant(s)
AND
THE STATE – Respondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
The appellant, Suleiman Abubakar was charged on information before the High Court of Justice of Adamawa State for Culpable Homicide punishable with death under S. 221(b) of the Penal Code Law Cap. 98 Laws of Adamawa State 1997. It is alleged that the appellant caused the death of one Sunday Belmond by stabbing him with knife on his throat with the knowledge that death would be the probable consequence of his act. The offence is said to have taken place on or about the 29th day of March, 2015 at about 19:30 hours in Wuro Jebbe ward, Yola South LGA of Adamawa State, within Yola Judicial Division. When the charge was read and explained, the appellant as the accused person before the trial Court entered a plea of not guilty, hence trial or hearing commenced thereafter at that same Court. The Prosecution called evidence of 5 (Five) witnesses and tendered 3 (three) Exhibits marked A, B and C and closed her case thereafter. The appellant opened his defence case. He testified for himself as the only witness for defence. He closed his case thereafter.
At the close of evidence of witnesses and counsels addresses the trial Court, in a considered Judgment delivered on the 12th Day of April, 2018, found against the appellant, convicted and sentenced him to death by hanging. This judgment and order did not go down well with the convict. He lodged his appeal to this Court on the 6/7/2018 vide the Notice of Appeal of the same date. The Notice of Appeal contains 8 (Eight) Grounds. Record of Appeal was transmitted to this Court on the 4/12/2018 hence parties through them also exchanged briefs of argument.
In the appellants brief filed on the 17/9/18 he distilled 2 (two) issues for determination, namely:
(i) Was the trial Court not wrong when it found that the appellant did not raise timeously his defence of alibi, and thereby refused and failed to consider the appellants alibi, even though same was neither investigated nor disproved by the Respondent? (Distilled from grounds 5 and 6 of the Notice of appeal).
(ii) Was the trial Court correct when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of Culpable Homicide Punishable with death, convicted and sentenced the appellant to death? (distilled from Grounds 1, 2, 3, 4, 7 and 8 of the grounds of Appeal).
There is the Respondents Brief of Argument filed on the 18/10/2018 in response to arguments contained in the appellant’s brief. In it the respondent at page 6 thereof raised 2 (two) issues similar to those raised in the appellants brief of argument. The issues are as follows:
(i) Whether the learned trial judge creditably discharged his judicial duty in considering the defence of alibi raised by the appellant or the first time in his defence as DW1 and His Lordship was justified in Law in reaching the decision/conclusion that the defence did not avail the appellant. (Distilled from grounds 5 and 6 of the Notice of Appeal)
(ii) Whether there was legally admissible evidence before the trial Court to support the decision/conclusion of the Learned trial Judge, that the Respondent proved the guilt of the appellant on the one count charge of Culpable homicide punishable with death beyond reasonable doubt. (Distilled from Grounds 1, 2, 3, 4, 7 and 8 of the Notice of Appeal).
The appellant filed a Reply brief of Argument on the 5/11/2018. Learned counsel on both sides adopted their respective briefs of argument at the hearing on 16/11/18. I will adopt the 2 (two) issues raised by the appellant in his brief of argument in determining this appeal, that is to say:
(i)Was the trial Court not wrong when it found that the appellant did not raise timeously his defence of alibi, and thereby refused and failed to consider the appellants alibi, even though same was neither investigated nor disproved by the Respondent? (Distilled from grounds 5 and 6 of the Notice of appeal).
(ii)Was the trial Court correct when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of Culpable Homicide Punishable with death, convicted and sentenced the appellant to death? (Distilled from Grounds 1, 2, 3, 4, 7 and 8 of the grounds of Appeal).
Learned appellants counsel arguing issue No. 1 contended that the trial Court was wrong when it held that the defence of Alibi was not raised timeously by the appellant. In reference to the record of appeal at Page 47, he argued that the appellant upon his arrest immediately raised his alibi at Kofari police station when he said he (appellant) was not at the scene of crime but was with the tea seller at Jebbe. He argued further stating that the police has a duty to investigate and disprove the plea of alibi immediately the defence was raised but the police in this case neither investigated the alibi nor disproved it. Learned appellants counsel in this regard challenged the finding and holding of the trial Court that the appellant only raised his alibi during his evidence in chief. We were urged to quash this finding of the trial Court and hold that the appellant raised the defence of alibi at the earliest opportunity. He cited and relied on several authorities including Ozaki v. The State (1990) 1 NWLR (Pt 124) 92; Abdullahi v. State (1995) 9 NWLR (Pt. 47) 115, 127. Ede v. FRN (2000) WRN 13, 22; Chemwal v. State (1986) 2 NWLR (Pt. 22) 331, 343.
Learned appellant counsel further argue that the trial Court failed to consider the alibi set up by the appellant as his defence but which the Court had a duty to consider and evaluate his evidence related thereto. He cited the case in Akpabio v. State (1994) 7 NWLR (Pt. 359) 635; Akpan v. State (2016) LPELR-40113 (SC), Ada v. State (2008) 13 NWLR (Pt. 1103) 149; Orisa v. State (2018) LPELR-43896 (SC) 50, 53. He argued further, relying on the decision in Babatunde v. State (2014) LPELR-23802 (CA) that the trial Court still had a duty to consider any or all defences which arise out of evidence even where the accused failed to raise it timeously. He further referred us on this point to Gabriel v. State (1989) 5 NWLR (Pt. 122) 457, 464; Williams v. State (1992) 8 NWLR (Pt. 261) 515; Udofia v. State (1984) 12 SC 139; Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16, 34. It is a breach of right of fair hearing, said the learned appellants counsel, to refuse to consider appellants defence of alibi. He relied on Walter Wagbatsoma v. FRN (2018) LPELR-43722 (SC); ANPP v. INEC (2004) 7 NWLR (Pt. 871) 16. He argued finally on issue No. 1 that the failure of the trial Court to consider the defence of alibi is fatal to the judgment of the trial Court as same is liable to be set aside.
In relation to issue No. 2, that is the question whether the Prosecution/Respondent proved the offence of Culpable Homicide as alleged, beyond reasonable doubt, it is argued that the prosecution did not discharge that duty. He argued further stating that apart, from Prosecution’s failure to prove all the essential ingredients, to succeed in a charge under Section 221 (b) of the Penal Code, the documents tendered as Exhibits A and B, said to be confessional statements of the appellant, were not admissible evidence and same in any case, were not corroborated by any independent evidence.
It is further argued that Exhibit A&B having been retracted, it is for the trial Court to look outside the document for an independent collaboratory evidence, as to confirm that the confessional statement was true: Ore-Ofe Adesina v. The State (2010) 35 WRN 49; Azabada v. State (2014) LPELR -23017 (SC); State v. Mohammed Masiga (Tsolo) (2017) LPELR-43474 (SC). Speaking further on Exhibits A&B it was argued that the same was not the confessional statement made by the appellant rather by the IPO in so far as the statement was not written in the language in which the accused/appellant made it. He relied on Ajidahun v. State (1991) 9 NWLR (Pt. 213) 33, 41. He urged us to resolve this issue of non-compliance with the rules and practice of taking statements of accused person in favour of the appellant. He relied on Azeez v. State (2005) 8 NWLR (Pt. 927) 312, 326. On the testimonies of witnesses called by the prosecution, we were urged to hold that evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 were hearsay evidence and the same lacked corroborative value to Exhibits A&B. He also Igbine v. State (1997) LPELR-8253 (CA). On the evidence of PW4 he argued that the said evidence of PW4 cannot be likened to a dying declaration and that the same lacks corroborative value hence same is hearsay evidence. We were urged to resolve issue No. 2 also in favour of the appellant.
I have indicated before now that the respondent filed a Respondents brief of argument in which they debunked issues and arguments contained in the appellants brief of argument.
Relative to issue No. 1 that is on the issue of alibi, it is argued that the defence of alibi, a defence which the presupposed that the accused person was elsewhere or somewhere other than the place he was alleged to be, can be disproved by evidence of physical presence of the accused person at the scene of crime. Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576, 556; The State v. Ekanem (2017) 4 NWLR (Pt. 1554) 85, 96. It is however argued that a proper alibi as a defence is one which is raised at the earliest opportunity and without any ambiguity as to the accused persons whereabout and those he was together with at that material time. He relied on Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, 645; Adebayo v. State (2014) 12 NWLR (Pt. 1422) 613.
Learned Respondents counsel has argued that the appellant only raised alibi as his defence for the first time in the course of his evidence as DW1. He referred us to page 47-48 of the record of appeal and to Exhibits A&B. It was argued that nothing Ex-facie on Exh. A&B disclose any defence let alone defence of alibi, and this is the realist opportunity the appellant had with the police. He argued that Exhibits A and B were admitted as voluntary confessional statements and by these the accused person was fixed at the scene of the crime.
Contrary to the submission by the appellant through his counsel it was submitted for the respondent that the trial Court painstakingly considered the defence of alibi put up by the appellant. We were referred to page 72 of the record of appeal on the findings made by the trial Court on this issue of alibi based on which counsel to the respondent concluded that this finding was unassailable and by that, it cannot be denied that the trial Court failed to consider the defence of alibi of the appellant. We were urged to resolve Issue No. 1 in favour of the respondent.
It was argued in relation to Issue No. 2 that the prosecution had proved its case beyond reasonable doubt hence the trial Court was in order when it returned a verdict of guilty on the appellant. One method or means, said the learned respondents counsel, available to the prosecution by which to prove its case is evidence by confessional statement. A direct, positive and Voluntary confessional statement of accused person which was not impeached is good enough to establish the guilt of the accused person without corroboration. He relied on Smart v. State (2016) 9 NWLR (Pt. 1518) 447, 478 (SC); Yusuf Saidu v. State (1976) 6 SC 167, 173; James Achabua v. State (1976) 12 SC 63, 68.
He argued that Exhibits A and B were tendered and admitted without objection as to their voluntariness or as not being the statement made by the appellant. To this end, particularly on the latter, any subsequent retraction of the same statement after the same had seen admitted in evidence should not be considered a proper or valid retraction of confessional statement. He relied on Uwa v. State (2015) 4 NWLR (Pt. 1450) 438, 458 (CA); Ikemson v. State (1989) 6 SC (Pt. 11) 114,119-120; Mbara v. The State (2013) 7 NWLR (Pt. 1257) 48, 71. Learned Respondents counsel argued nonetheless, and submitted that by reason of the evidence of PW1 and PW4, Exhibits A and B were indeed corroborated, as those aspects of witnesses, evidence were consistent with the death of Sunday Belmond on 29/3/2015.
Learned respondents counsel further debunked the submission that Exhibits A and B were not the statement made by the appellant. He argued that a confessional statement is not rendered inadmissible simply because it was not written in the language spoken by the accused. He relied on Olalekan v. The State (2001) 18 NWLR (Pt. 746) 799. Adeyemi v. State (2013) 3 NWLR (Pt. 1340) 78, 88-89. In reface to the evidence of PW1 (Sgt. Richard Yila) he argued that the said PW1 was the IPO who did not only interpret or translated the statement of the accused/appellant but at the same time made a record of that statement on the instruction of the appellant. Such statement, it is argued is admissible evidence which can be relied on for conviction. We were urged to resolve issue No. 2 in favour of the respondent and against the appellant and dismiss this appeal, on the whole.
OPINION
I will begin with Issue No. 1 which is on the defence of alibi said to have seen raised by the appellant but which the trial Court failed or refused to consider. Alibi is a form of defence which literallily, means elsewhere. It is a defence where an accused person alleges that at the time when the offence with which he is charged and committed, he was elsewhere. See Ozaki v. State (1990) 1 NWLR (Pt. 124), 109. An alibi, if successfully raised will afford a complete defence to a charge. To succeed on a plea of defence of alibi, the accused must raise it timeously, that is to say at the earliest opportunity presented to him. See Ebenehi v. The State (2008) 5 NWLR (Pt. 1138) 431, 444; Oguagun v. State (2013) 5 NWLR (Pt. 1347) 360. Once a plea of defence of alibi is raised, the Police investigating the offence for which the accused person is charged, is duty bound to investigate it, and put in evidence the result of that investigation at the trial: Ukwunnenyi v. State (1989) 4 NWLR (Pt. 114) 131, it is not for the accused person to lead evidence to establish or prove his defence of alibi. This duty is for the prosecution to confirm or disprove the plea of alibi. Failure of the police to investigate alibi put up could raise reasonable doubt in the mind of the Court and could lead to an order of discharge and acquitted of the accused person. Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576; Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538. The Court, where evidence has been placed at trial has a duty to consider the defence of alibi, whether raised formally or informally.
Indeed the Court has a duty to consider all defences raised or are apparent on the record of evidence led in the Court: Abdullahi Ada v. State (2008) 4 SCNJ 285; Usman Kaza v. The State (2008) 2 SCNJ 373. All said and done, it is the printed record of appeal before us I have to return to, in order to ascertain the truth or otherwise of the claim of the appellant to writ:-
(i) That the appellant promptly raised the defence of alibi.
(ii) That the trial Court failed or refused to consider the defence raised by (i) above.
In the course of hearing at the trial Court, the prosecution tendered Exhibits A and B through PW1, the Investigating Police Officer (IPO). The said Exhibits A-B were admitted in evidence as the confessional statement(s) of the appellant, without objection.
In addition to the evidence of PW1, the prosecution also led evidence through PW2, PW3, PW4 and PW5. At the close of prosecutions case, the appellant, in defence of the case, testified as DW1. This is what he had to say in his evidence in chief at page 47 of the record of appeal thus:
DW1- Suleiman Abubakar, I live at Wuro-Jabbe Jimeta, 28 years old. I am a motor conductor. I was at around Jabbe together with a tea seller and from there I left to my house. And on my way I met a team of vigilante members who told me that there was a fight in our ward in the Indian hemp joint called temple. It was around 8:00pm and I was not told the name of the person killed. I was then arrested and taken to Kofari Divisional Police Headquarters. I was asked by the Police if I knew anything that happened in respect of the killing but I told them I did not know anything. I was detained at the Kofari Police Station for one and half days and later on the SCIID Yola and then later to prison. The police that brought me from Kofari told the SCIID that I was arrested around the scene of the crime where someone was killed. I don’t know of those that were at the Indian hemp joint. It is called temple because the number of people that besieged it. It is true other people were arrested but were released on bail at the SCIID Yola. Four people were arrested but were released on bail to their relations. It is true that the four people were arrested in the like manner I was arrested. I was unable to see them up to the time I was arraigned in Court. It is true that I was not found with anything in respect of the offence I am charge with. I want this Hon. Court to do justice and discharge me.
From that extract in the evidence of DW1 (appellant) it is clear to me that his evidence in chief is a denial of the offence or charge upon which he stood trial. His evidence, more significantly indicate that he was at around Jabbe together with a tea seller and from there I left to my house.
In other words, he (appellant) was not at the scene of the crime at the material time the incident took place. He was elsewhere, a statement akin to defence of alibi. The point however is, at what point in time was this defence raised by him (appellant)? From the printed record, it is obvious that the appellant put up his evidence of alibi at the time he presented his defence case. What the law enjoins in that the defence of alibi must be set up with promptitude. It must be raised at the earliest opportunity. See: Bashaya v. State (1998) 5 NWLR (Pt. 550) 354; Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584; Egwumi v. State (2013) 2 SCNJ 875.
As to what is meant by the term or phraseology! earliest opportunity, Rhodes Vivour, JSC explained thus in Osuagwu v. State (supra) at Page 383:
After a suspect is arrested, police investigation commences with the suspect. He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of alibi. He must state in clear terms, the day and time and address of where he was when police alleged that he committed the offence
In this instant case on appeal Exhibits A and B presented that earliest opportunity to the appellant to raise the defence of alibi when he made statement to the police. Of course he did not. Refer to Exhibits A and B. I repeat the contents thereto. A defence of alibi which was not raised timeously cannot be valid defence where the opportunity to verify the claim through police investigation was absent as in the instant case on appeal. See: Iliyasu v. State (Pt. 1469) 26, 59-60; or Adebayo v. State (2014) 12 NWLR (Pt. 1422)) 613, 637-648; Agboola v. State (2013) 11 NWLR (Pt. 1366) 619, 645.
The Courts, all the same are wont to consider defences such as the defence of alibi raised at trial, for whatever it is worth. See: Akpabio v. State (1994) 7 NWLR (Pt. 359) 635; Akpan v. State (2016) LPELR-40113 (SC); Ada v. State (2008) 13 NWLR (Pt. 1103) 149; Orisa v. State (2018) LPELR-43896 (SC).
A glance through the evidence in chief of DW1 (appellant) and his claim that he was with a tea seller at Jabbe, whose name was not disclosed, is imprecise and vague. A defence of alibi cannot be sustained where the persons raising it failed to supply necessary particulars to assist the Police in the course of investigation.
Despite all the shortcomings surrounding the plea of alibi raised by the appellant in the course of trial, the Court below still devoted time to consider his claim or defence. See the record of Appeal at pages 71-72 where the trial Court held or found that:
The onus to raise the defence of alibi is on the accused, the onus then shifts on the prosecution to investigate the alibi so as to establish its veracity. See the case of Adedeji v. The State (1971) ALL NLR 75. The accused must give a lead as to his alibi and should not put the prosecutor on unknown path. The prosecutor must investigate but will only do so with a lead. The accused is expected to raise the defence of alibi at the earliest opportunity to furnish the police with full details of the alibi to enable the police check the details. Failure to do so weakens the defence. The accused must offer evidence as to where he was at the time of the crime and with who he was at the material time.
In the instant case, the accused person only made mention in his evidence in chief as defence witness No. 1 that he was with the tea seller at the time the alleged offence was committed. He did not furnish the police with the details required to investigate the defence of alibi so raised. In the light of this finding the defence of alibi collapse and same ought to be dismissed as lacking in merit. (Words underlined for emphasis only)
The learned appellants counsel cannot therefore be correct in his submission that the trial Court failed or refused to consider the alibi set-up by the appellant.
My attention has been invited to the decision in Saleh v. The State (2016) 3 NWLR (Pt. 1499) 392, 418-419. I don’t think the decision in Saleh’s case (Supra) says anything different from what earlier authorities on this point have stated. Salehs case, if I understand the submission being made by counsel, is that once there is semblance of the defence of alibi on the statement of the accused person, the person taking the statement should probe further for more information as will assist the Police to investigate the alibi otherwise not sufficiently or clearly made out by him in the statement. In the instant case, the appellant did not even pretend to raise the defence of alibi in his statement, hence Saleh’s case (supra) is of no assistance.
In the light of all these, I resolve Issue No. 1 against the appellant and in favour of the respondent.
On Issue No. 2 the question whether the prosecution has proved his case at all, I should say first of all, that the principle or doctrine of Presumption of innocence inures in all cases of Criminal trials. This is a fundamental constitutional point which the prosecution must seek to displace if he must establish his case by a standard of proof beyond reasonable doubt. The doctrine thus places the burden of proof throughout on the prosecution. In the discharge of this burden the prosecution cannot rely on hearsay evidence, whether oral or documentary except as provided for under the Evidence Act. See Eze v. State (2015) LPELR-24556 (CA). As held by Lord Dyson, the general aim of the doctrine of presumption of innocence as enshrined in Section 36(5) of the Constitution of FRN (as amended) is to protect accused persons against any judicial decisions or other statements by state officers amounting to an assessment of the guilt without him having previously been proved guilty according to law. See: Hammern v. Norway (Application No. 30287/96) (unreported) 11th February, 2003 para 47 to 49.
The Prosecution under S. 135 (1)(2) of Evidence Act has a duty to prove his case beyond reasonable doubts. He is not obliged to prove his case beyond all shadows of doubt. The standard expected of him is to discharge his duty by leading evidence of such a high degree of cogency consistent with an equally high degree of probability. See Bakare v. State (1987) NSCC 267, 273. Per Oputa, JSC. Therefore if the evidence adduced by the prosecution is so strong against the accused person as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of this will do. Per Abiriyi JCA in Pedro v. State (2015) LPELR-24547 (CA).
The prosecution in his quest to prove the guilt of the accused person may lead:
(i) Evidence of Eye witnesses or;
(ii) Circumstantial evidence or;
(iii) Confessional Statement(s) of accused person.
See Tajudeen Iliyasu v. State (2015) LPELR-24403 (SC); Felix Okpako v. State (2012) LPELR-9468 (CA). The guilt of the accused person can also be established by a combination of any of the methods stated in (i), (ii) and (iii) above.
A look through the record of appeal, it is obvious that the prosecution relied on evidence of witnesses and Exhibits A and B and C to establish their case but the appellant through his counsel in his brief of argument has faulted the prosecutions case in many respects.
To begin with are Exhibits A and B, Statement(s) attributed to the appellant by the prosecution/respondent as his confessional statement(s). The contention that the appellant is not the maker of Exhibits A&B came up by way of the submissions made by counsel in his brief of argument at page 12 paragraph 6.12. The mere fact that the statement of the suspect was written down in a language other than the language spoken by the suspect does not make the recorder of the statement, the maker or author of the confessional statement who translated and wrote the statement in English language from vernacular or the language spoken by the suspect. The Investigating Police Officer has confirmed this as much in his evidence as PW1 at pages 38 to 39 of the record of appeal. Exhibits A and B are not inadmissible on this account. See: Olalekan v. the State (2001) LPELR-2561 (SC). I think I should add here that submissions made by counsel on this point in his brief of argument cannot take the place of evidence. See GMBH v. T.D Industries Ltd (2010) 11 NWLR (Pt. 1206) 589, 612. Learned appellants counsel, it will appear to me, did not advert his mind to this aspect of the evidence of PW1 in relation to Exhibits A and B on the issue of the maker of those documents. For all intents and purposes, the appellant is the maker of Exhibits A and B.
Assuming however but without conceding, I should say that the mere fact of a denial of a statement by the appellant that he was the maker of Exhibits A and B does not render the said document inadmissible. The Court can still admit them and proceed to rule on the point by the application of the principle to retracted confessions as demonstrated in R v. Sykes (1913) 8 CAR 233, where a confession is retracted at trial. It is thus desirable that before conviction can properly be based on such a retracted confession, there must be some corroborative evidence outside the confession which would make it probable that the confession was true. See Olufabe v. State (1968) N.M.L.R 261, 265.
The Supreme Court in Ejinima v. State (1991) 6 NWLR (Pt. 200) 627, 655 adopted the test laid down in R. v. Sykes (Supra). Where a confessional statement is retracted at trial:
(a) Is there anything outside the confession to show it was true?
(b) Is it Corroborative?
(c) Are the statements made in it in fact true as far as they can be tested?
(d) Was the prisoner the person who had the opportunity of committing the offence?
(e) Is his confession probable?
(f) Is it consistent with other facts which have been ascertained and where have been proved?
The Court is not bound to consider those questions in tabular form or in any particular order as long as corroborative evidence outside the confession is available which would make it probable that the confession was true, could be found. See R. v. Osakwe (1994) 2 NWLR (Pt. 326) 273, 286; Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt. 751) 400, 416. Where on the other hand the issue before the Court is the voluntariness of a confessional statement sought to be tendered, the usual procedure is to conduct a mini trial or a trial within trial in order to ascertain the voluntariness of the statement in question. See: Nwangbomu v. State (1994) 4 NWLR (Pt. 327) 380; Onyejekwe v. The State (1992) 3 NWLR (Pt. 230) 444. If at the end of the exercise the Court is satisfied that the statement was the voluntary confessional statement of the accused person, it could convict on it alone where the confession is consistent with other ascertained facts which have been proved. See Akpan v. State (1992) NWLR (Pt. 248) 439, 468; Azabada v. The State (2014) LPELR-23017 (SC), even then it is advisable to subject the confessional statement to the test prescribed in R. v. Sykes (Supra) because of the importance attached to confessional Statements. See: Azabada v. State (Supra).
So, looked at from both angles as discussed above, it is advisable that the Courts should scout for some corroborative evidence before conviction can properly be founded on confessional statement of accused persons.
One of the complaints in this appeal is that the trial Court convicted the appellant based solely on Exhibits A and B, i.e the statements attributed to the appellant as his confessional statement even when these statement(s) were not corroborated by independent evidence. It appears to me that the learned counsel for the appellant was overwhelmed by the remarks made by the trial Court at page 74 of the record where the trial Court held that:
There is nothing wrong in law in convicting the accused on his own confession even if there is no corroboration. See the case of Achabua v. The State (1976) 12 SC 63, 68.
He got carried away by that remark without adverting his mind to the entire record of judgment of the trial Court in particular, findings made to the effect that Exhibits A and B were Corroborated by evidence of witnesses called by the prosecution. See in particular page 67 from lines 22 of page 68 lines 1-3. The trial Court found and held thus:
Although it is clear and undisputed fact that there was no direct eye witness account to the said incident as rightly submitted by learned counsel to the accused person. However, there was evidence of the deceased at the Federal Medical Centre Yola.
Apart from this piece of evidence the confessional statements of the accused person admitted in evidence without objection marked as Exhibits A and B go to confirm the admission of the accused person.
Further at page 73 of the record the trial Court found that:
There is overwhelming evidence led by the prosecution and there is admission by the accused person. The prosecutions led evidence was further corroborated and was never shaken on cross-examination.
I am also in tandem with the finding at the trial Court that there was no direct eye witness account to the incident giving rise to this case on appeal but this is not to say that the evidence of PW1, PW2, PW3, PW4 and PW5 were entirely and completely hearsay evidence which must be rejected as urged on us by learned counsel for the appellant. Indeed evidence of PW1 and PW4 to the effect that they saw the corpse of the deceased at the Federal Medical Centre, Yola is not hearsay evidence. Evidence of PW1 that he recorded statement of the appellant on the 30/3/2015 and thereafter proceeded to the scene of crime where Exhibit C was recovered by him is not hearsay evidence. Evidence of PW5 who took delivery of Exhibit C, Jerk Knife and registered same in his capacity as Exhibit Keeper, is not hearsay Evidence.
Hearsay evidence is essentially exclusionary evidence the same being inadmissible. See: Section 38 Evidence Act. It follows therefore that by reason of Section 126 of the Evidence Act, 2011 only direct oral evidence of facts seen, heard or perceived by a witness are admissible evidence, hence evidence of PW1, PW4 and PW5 are admissible relative to what they saw, heard or what they did in this case on appeal. It is for this reason also that I am of the opinion that evidence of PW1 and PW4 who saw the corpse of the deceased, Sunday Belmond where it was deposited at FMC Yola, is corroborative of evidence as evidence given outside that confessional statement, if indeed Exhibits A and B were proved to be so. It is evident on the printed record that the deceased, Sunday Belmond and PW4, Solomon Emmanuel lived in the same area and so the deceased is known to the witness. This aspect of the evidence of PW4 that Sunday Belmond is dead and the same not having been challenged or controverted, the trial Court rightly acted on it, as evidence which corroborated Exh. A and B. This finding at the trial Court at page 74 of the record conveniently displaces the argument of counsel for the appellant that since there was no medical evidence of the death of Sunday Belmond, the prosecution had not proved his case. Medical evidence of death, although desirable is not a sine quo non in all cases such as the case on hand. See: Enewoh v. State (1989) 5 NWLR (Pt. 119) 98; Aiguoreghian v. State (2004) 3 NWLR (Pt.860) 367.
A Confessional Statement is an admission made at any time by a person charged with the commission of a crime, stating or suggesting the inference that he committed the offence in question. It is an extra judicial statement made to the police by the accused person containing an assertion or admission of guilt and showing that he participated in and is culpable for the commission of the offence of which he has been charged. See Bashiru Mohammed v. The State (2010) LPELR-9020 (CA); See further Section 28 of Evidence Act, 2011. See also: Ihuebeka v. The State (2000) FWLR (Pt. 11) 1827, 1854. Exhibits A and B were admitted through PW1 on 5/10/2017 without objection. (Record: pages 38-39). Reading through Exhibits A and B, I cannot but agree with the trial Court that the statement(s) indeed are confessional in nature.
The appellant was arraigned and tried pursuant to a charge framed under Section 221(b) of the Penal Code Law of Adamawa State, Cap 98 of 1997, Which provides:
221. Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death-
(a)If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act, or of any bodily injury which the act was intended to cause.
For the prosecution to succeed on a charge of Culpable Homicide punishable with death, he must lead evidence to establish:
(i) The death of a human being has actually taken place;
(ii) The death was caused by the accused;
(iii) The act of the accused caused the death of the deceased; and the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. See Mbang v. State (2010) 7 NWLR (Pt. 494) 431; Usman v. State (2011) 3 NWLR (Pt. 1233); Ismail v. State (2011) 17 NWLR (Pt. 1277) 601. These ingredients of the offence which co-exist must all be proved before a conviction can be secured.
In the case of a conviction founded on a confessional statement, the law is that a voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed, by some persons is usually accepted as satisfactory evidence on which the Court can convict. See Ogoala v. State (1991) 2 NWLR (Pt. 175) 509; or (1991) 3 SCNJ 61; Phillip Kano & Anor v. R. (1952) 14 (WACA) 30, 32; R. v. Abraham Erumesi (1959) NRNLR 258. In Exhibits A and B taken together, the appellant is on record as saying that:
(a) He went to a joint where he used to go to smoke Indian Hemp;
(b) He was at this joint to assist one Dominic Andel, an Indian Hemp dealer to wrap his product;
(c) At this joint one Sunday Belmond (Deceased) surfaced shouting and chanting political slogans;
(d) He (appellant) attempted to calm down the deceased since the joint was not a political arena;
(e) The deceased rather, attacked him (appellant) and held him painfully by the throat;
(f) He had a Jerk Knife by his side which he had collected for use to wrap Indian Hemp;
(g) By the fact of the attack by the deceased, he was provoked and had to stab the deceased on the neck with the jerk knife;
(h)People around the area including vigilante men got him arrested as a result;
(i)He was whisked away to the police station;
(j)He learnt that the victim died on 30/3/2015 as a result of the wound he inflicted on the deceased;
(k)He knows that he has committed the offence of culpable Homicide.
An offence will not translate to what the accused said it is merely because he said so in his statement to the police, rather whether his statement(s) put together constitute any known or any given offence, in this case/appeal, culpable homicide punishable with death.
Going therefore by the statements in Exhibits A and B, I find no difficulty in arriving at the conclusion that all the ingredients which constitute the offence of culpable homicide under Section 221 of the Penal Code, Laws of Adamawa State were/are present or have been proved or established in the sense that:
(i) Somebody by name Sunday Belmond has died. The appellant was who inflicted injuries on the deceased with the use of a jerk knife on his neck knowing that death would be the probable consequence of his act. The trial Court ultimately arrived at that conclusion.
I cannot find fault with that finding of Court but resolve issue No. 2, also against the appellant and in favour of the respondent. Issue 1 and 2 having been resolved against the appellant, the appeal necessarily fails and same is dismissed. In effect the decision of the trial High Court of Adamawa State delivered on the 12th April 2018 in Suit No. ADSY/24C/2017 is affirmed.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Saidu Tanko Husaini, JCA.
I agree that the appeal is devoid of merit for the reasons well set out in the said leading judgment and also dismiss the appeal. Consequentially, I affirm the impeccable judgment of the trial Court and conviction and sentence of the Appellant accordingly.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance in draft the lead judgment just delivered by my learned brother Saidu Tanko Husaini JCA. He has exhaustively and clearly dealt with the issues for determination. I have nothing more useful to add.
On the available evidence before the Court, it is very clear that the Appellant did not raise the defence of alibi timeously. Therefore the defence was not available to him.
There was evidence outside the confessional statement of the Appellant pointing to his guilt. The Court below therefore was entitled to convict him of the offence charged.
For the reasons more elaborately stated in the lead judgment, I too dismiss the appeal.
The conviction and sentence of the Appellant by the Court below are hereby affirmed.
Appearances:
Fred Onuobia, Esq. For Appellant(s)
S. L. Kyanson, Esq. For Respondent(s)
