TAJUDEEN ILIYASU V. THE STATE
(2013)LCN/6055(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2013
CA/K/280/C/2011
RATIO
“As it is well-known, this court will not disturb concurrent findings of fact of lower courts unless the appellant is able to fulfil the following pre-conditions: establish a substantial error apparent on the face of the record of proceedings; show that such findings of fact were perverse; the said findings were unsupported by the evidence before the trial court; that the findings and conclusion were arrived at as a result of a wrong approach to the evidence or a wrong application of the principles of substantive law or procedure, Enang v Adu (1981) 11-12 SC 25, 42; Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718; Igwego v Ezeugo (1992) 6 NWLR (pt. 249) 561, 576; Lamai v Orbih (1980) 5-7 SC 28; Woluchem v. Gudi (1981) SC 291, 326; Ike v Ugboaja (1993) 6 NWLR (pt.301) 539, 569; Chinwendu v Mbamali (1980) 3-4 SC 31 and so on.” Per NWEZE, J.S.C.
“Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm, These ingredients, which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English courts, R v Hopwood (1913) 8 Cr. App. R. 143; Hyam v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian courts, Madu v State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v State (2000) 15 NWLR (pt 691) 467; Idemudia v State (2001) FWLR (pt 55) 549, 564; (1999) 7 NWLR (pt 610) 202; Akpan v State (2001) FWLR (pt 56) 735; (2000) 12 NWLR (pt 682) 607 and by courts in other Commonwealth jurisdictions, see, for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).” Per NWEZE, J.S.C.
“…to be entitled to its beneficent effect, such an accused person must raise it at the earliest opportunity, Hassan v The State (2001) 6 NWLR (pt 709) 286, 305, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person, Ibrahim v The State (1991) 4 NWLR (pt 186) 399; Nwabueze v The State (1988) 3 NWLR (pt 86); Ikemson v The State (1989) 3 NWLR (pt 110) 455. Above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him, Onyegbu v The State (1995) 4 SCNJ 275, 285-286; Ibrahim v State (supra); Balogun v AG, Ogun State (2002) 6 NWLR (pt 763) 512, 535-536; Eke v The State (2011) LPELR – 1133 (SC) 16. It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v State (2000) 4 NSCQR 60 and to disprove same, Eke v The State (supra). Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v The State (1965) ANLR (Reprint) 199; Bello v. Police (1956) SCNLR 113; Odu and Anor v The State (2001) 5 SCNJ 115, 120; (2001) 10 NWLR (pt.772) 668.” Per NWEZE, J.S.C.
“In situations, such as was the case at the court of trial, where the accused person raised the defence of alibi during the trial, it would be unavailing. Such a strategy would simply be viewed as a ploy, deliberately, contrived to deny the Prosecution its right and duty to investigate the defence, Hassan v State (2001) 6 NWLR (pt 709) 305. Worse still, where an accused person was fixed at the scene of crime, any plea of alibi would be valueless, Obokpolo v The State (1991) 1 SCNJ 91, 107, 108.” Per NWEZE, J.S.C.
”With regard to this appeal, I take the view that the lower court, correctly, mapped the nexus of the criminality of the accused person in the circumstances. In the first place, the appellant’s retraction of his confessional statements, as shown above, could not have vitiated the proceedings, Obidiozo and Ors. v. The State (1987) 1 NWLR (pt. 67) 748; (1987) 11-12 SCNJ 103; Okaroh v The State (1988) 3 NWLR (pt 81) 220; (1988) 1 SCNJ 124; Ikemson and Ors v The State (1989) 3 NWLR (pt 110) 455, 467-468; (1989) 6 SCNJ 54; Ejinima v The State (1991) 6 NWLR (pt. 200) 637; (1991) 7 SCNJ 318; Durugo v The State (1992) 7 NWLR (pt. 255) 525; (1992) 9 SCNJ 46; Egboghonome v The State (1993) 7 NWLR (pt.306) 382; (1993) 9 SCNJ (pt.1) 1, 29, 32, 48.” Per NWEZE, J.S.C.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
CFR Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE O. ABIRU Justice of The Court of Appeal of Nigeria
Between
TAJUDEEN ILIYASU Appellant(s)
AND
THE STATE Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A: (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/1C/2004 delivered by Honorable Justice A. A. Othman on the 18th of July, 2011. The Appellant, along with one Kabiru Muhammad, were charged with two counts of having an agreement to commit an illegal act contrary to the provisions of section 97 of the Penal Code and for culpable homicide punishable with death contrary to the provisions of section 221 of the Penal Code. They were alleged to have conspired to kill and to have caused the death of one Abdullahi Bala Getso on or about the 30th of September, 2003 at Rigasa in Kaduna State by hitting him with an iron rod on his head and stomach with the intention of causing his death. The Appellant and the said Kabiru Muhammad pleaded “Not Guilty” and the matter went to trial.
The prosecution called eleven witnesses and tendered nine exhibits in proof of its case while the Appellant testified and recalled two of the prosecution witnesses in his defence. At the conclusion of trial and of the final addresses of Counsel, the lower Court discharged Kabiru Muhammad and found the Appellant guilty on the second count of culpable homicide punishable with death and sentenced him to death by hanging. The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated the 10th of October, 2011 to be filed against it. The notice of appeal contained three grounds of appeal.
In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 9th of March, 2012. The Appellant’s brief of arguments consisted of twelve pages and it was deemed properly filed by this Court on the 13th of November, 2012. The Respondent filed a brief of arguments consisting of fifteen pages and dated the 15th of November 2012 and it was filed on the 22nd of November, 2012. At the hearing of the appeal on the 7th of February, 2013, Counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.
In the brief of arguments, Counsel to the Appellant distilled two issues for determination and these were:
i. Whether the Prosecution had adduced such evidence as to ground a conviction of the Appellant for the offence of culpable homicide.
ii. Whether the learned trial Judge was right in convicting the Appellant solely on the basis of circumstantial evidence.
The two issues for determination were adopted by the Counsel to the Respondent in his brief of arguments as sufficient to determine this appeal. This Court shall consider the two issues together.
On the first issue for determination, Counsel to the Appellant stated that the burden of proof in a criminal case was on the prosecution and that the onus on the prosecution was to prove the elements which go to make up the offence with which the accused is charged. Counsel referred to the provisions of section 135 of the Evidence Act and the case of Ani Vs State (2009) 16 NWLR (Pt 1168) 443. Counsel traversed through the evidence led by the eleven prosecution witnesses and denounced the testimony of the first prosecution witness as hearsay evidence and submitted that the testimonies of the second, fourth, fifth, sixth, eighth and ninth prosecution witnesses did not in any way connect the Appellant with the death of the said Abdullahi Bala Getso. Counsel stated that the testimony of the third prosecution witness was suspicious and ought to be taken with a pinch of salt as it left many questions begging for answers.
Counsel stated that the testimony of the seventh prosecution witness was also useless in establishing the guilt of the Appellant as it contradicted the testimonies of the third and fourth prosecution witnesses on the issue of the report of the incident at the Police Station and further that the witness who stated that he investigated the complaint against the Appellant, did not state the outcome of his investigation. Counsel also attacked the testimonies of the tenth and eleventh prosecution witnesses who allegedly took confessional statements from the Appellant and submitted that the lower Court ought not to have relied on the confessional statements tendered through the two witnesses.
Counsel stated that none of the witnesses gave an eye witness account of the Appellant committing the offence and that this much was admitted by the learned trial Judge in the judgment. Counsel submitted that if this Court discountenances the alleged confessional statements of the Appellant, as has been urged, then there is no scintilla of evidence upon which the conviction of the Appellant can be upheld. Counsel submitted further that even assuming that the alleged confessional statements were in order, it was unsafe to convict an accused person solely on his confessional statement without some independent evidence which shows that the accused person committed the offence. Counsel referred to the cases of Obiasa Vs Queen (1962) 2 SCNLR 402 and Yusufu Vs State (1976) 6 SC 167. Counsel concluded arguments on the issue by submitting that the Prosecution did not adduce sufficient evidence to warrant the conviction of the Appellant for the offence of culpable homicide.
On the second issue for determination, Counsel to the Appellant stated that circumstantial evidence was proof by inference from facts proved and submitted that for circumstantial evidence to be sufficient to sustain a charge of murder, it must be cogent, complete and unequivocal. Counsel submitted that such circumstantial evidence must be compelling and must lead to the irresistible conclusion that the accused and no one else is the murderer and that once the evidence leads to the possibility that other persons apart from the accused could have committed the offence, the accused person cannot be convicted on the basis thereof’ Counsel referred to the cases Osuoha Vs State (2010) 16 NWLR (Pt 1219) 364, Shehu Vs State (2010) 8 NWLR (Pt 1195) 112 and Omogodo Vs State (1981) 5 SC 5. Counsel stated that the learned trial Judge convicted the Appellant on the basis of circumstantial evidence and Counsel submitted that looking at the testimonies of the prosecution witnesses there was no compelling circumstantial evidence to sustain the charge against the Appellant. Counsel urged this Court to allow the appeal and discharge and acquit the Appellant.
In the response arguments, Counsel to the Respondent conceded that in every criminal proceeding, the prosecution was saddled with the responsibility of proving its case and that this it must do so beyond reasonable doubt. Counsel, however, pointed out that what was required of the prosecution was not prove beyond all doubt but proof that will automatically exclude fanciful doubt, imaginary doubt and speculative doubt not borne out by the facts and surrounding circumstances of the case. Counsel referred to the case of Bakare vs The State (1987) 1 NWLR (Pt 52) 579. Counsel submitted that the Prosecution in the instant case discharged the onus on it and adduced credible evidence to sustain the charge against the Appellant. Counsel also traversed through the testimonies of the prosecution witnesses and stated that the essence of the testimonies of the first, second and seventh prosecution witnesses were to establish the death of a human being. Counsel disagreed with the summation of the Counsel to the Appellant that the testimony of the third prosecution witness was suspicious and that the testimonies of the fourth and sixth prosecution witnesses did not connect the Appellant with the death of the deceased person. Counsel submitted that the testimonies of the three witnesses add up to prove the guilt of the Appellant.
With regard to the testimonies of the tenth and eleventh prosecution witnesses and the confessional statements tendered by the two witnesses, Counsel stated that there was no basis for this court to reject them. Counsel stated that the confessional statements were admitted, after the conduct of a trial within trial and during which the Appellant did not call any evidence to rebut the testimonies of the three witness called by the prosecution to prove their voluntariness. Counsel referred to the cases of Bature vs State (1994) 1 NWLR (Pt 320) 267 and Nwangbomu vs State (1994) 2 NWLR (Pt 327) 380. Counsel submitted that the two confessional statements couple with the testimonies of other key prosecution witnesses were sufficient to ground the conviction of the Appellant and he referred to the case of Egboghonome vs State
(1993) 7 NWLR (Pt 306) 383. Counsel urged this Court to resolve the first issue for determination in favour of the Respondent.
On the second issue for determination, counsel conceded that there was no eye witness account of the incident but submitted that there was sufficient, cogent and compelling circumstantial evidence before the lower Court which pointed to the Appellant alone, and to no one else, as the person responsible for the death of the deceased. Counsel referred to portions of the testimonies of the prosecutor witnesses to buttress his submission. Counsel referred to the doctrine of “last seen” as supporting the conviction of the Appellant and he referred to the case of Oladejo vs The State (1987) 3 NWLR (Pt 61) 419. Counsel finally urged the court to dismiss the appeal and uphold the conviction of the Appellant.
The core issue for determination in this appeal is whether the Prosecution led credible, cogent and sufficient evidence before the trial court to sustain the charge against the Appellant.
It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of section 135(1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. This is because the law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man 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 will be said to have been proved beyond reasonable doubt. Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not a fanciful doubt. It is not an imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves – Uzoka vs Federal Republic of Nigeria (2010) 2 NWLR (Pt 1177) 118, Jua vs State (2010) 4 NWLR (Pt 1184) 277, Ike vs State (2010) 5 NWLR (Pt 1186) 41 and Gabriel vs State (2010) 6 NWLR (Pt 1190) 280, Garba vs State (2011) 14 NWLR (Pt.1266) 98 and Sabi vs State (2011) 14 NWLR (Pt 1268) 421, Njoku Vs State (2013) 2 NWLR (Pt.1339) 548.
A charge of culpable homicide punishable with death is the same as a charge of murder and it has been held in a plethora of cases that the essential ingredients that the prosecution must prove in order to secure a conviction are (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence – see, for example, Sule vs State (2009) 19 NWLR (Pt 1169) 33,Nkebisi Vs State (2010) 5 NWLR (Pt.1188) 471, Mbang Vs State (2010) 7 NWLR (Pt 1194) 431.,Usman vs State (2011) 3 NWLR (Pt. 1233) 1, Uluebeka Vs State (2011) 4 NWLR (Pt 1237) 358. The Prosecution must meet the above ingredients through credible evidence. The three ingredients must co-exist and where one of them is either absent or tainted with any doubt, then the charge is said not to be proved – Sabi vs State supra.It is not in contest in this matter that a human being called Abdullahi Bala Getso is dead. The first, second, third, fourth and seventh prosecution witnesses gave unchallenged evidence of this fact and the corpse of the deceased was photographed and the photographs were part of those tendered as Exhibits C1 – C5 before the lower Court. The first ingredient of the offence of culpable homicide was thus established without much ado.
On the second ingredient of the offence, it is trite that Prosecution can prove this either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Emeka vs State (2001) 14 NWLR (Pt. 734) 666, Nigerian Navy vs Lambert (2007) 18 NWLR (Pt 1066) 300, Jua vs State supra, Mbang vs State supra, Dele vs State (2011) 1 NWLR (Pt 1229) 508. In the instant case, the prosecution tendered two confessional statements which it said were made voluntarily by the Appellant – the first was dated the 6th of October, 2003 and it was recorded in Hausa and translated into English language and both versions were admitted as Exhibits F1 and F2 in the lower court through the tenth prosecution witness and the second was an additional statement dated 20th of October, 2003 and it was also recorded in Hausa and translated into English language and both versions were admitted as Exhibit G in the lower Court through the eleventh prosecution witness.
The records of the appeal show that when Exhibits F1 and F2 were being tendered, the Counsel to the Appellant objected to their admissibility on the ground that the Appellant said that he was not aware of the statements. The objection was overruled and the statements were admitted and read out in open court (see page 105 of the records). When the prosecution sought to tender Exhibit G, the counsel to the Appellant again objected to the admissibility of the statement but this time on the ground of involuntariness. The lower Court conducted a trial-within-trial and during which the prosecution called two witnesses and the Appellant called no evidence in rebuttal. At the conclusion of the trial-within-trial, the lower Court ruled that the Prosecution showed that the additional statement was made voluntarily and admitted them (see pages 107 to 113 of the records). The Appellant did not appeal against these two Rulings admitting the confessional statements and he has not challenged their admissibility on this appeal.
In finding the Appellant guilty, the lower Court stated thus:
“On the other hand although there is no direct evidence linking the 1st accused with the murder of the deceased. There is however abundant circumstantial evidence to link him up with the commission of the alleged offences, evidence that the 1st accused was last seen with the deceased up to 9.30pm when PW3 told the court that 1st accused and his guests came to the room and he vacated the room for them including the deceased for his friend’s room and on coming back in the morning the deceased was found dead and buried in a hip (sic) of sand in the compound where the 1st accused was left with the deceased. I have no reason not to believe that the 1st accused has a hand in killing the deceased. Most especially considering the 2 statement which were all tendered in court where he clearly admitted participated (sic) killing the deceased. The circumstances and his confession gives proof of the offence of culpable homicide because if he has no hand why did he buried in his premises and there is evidence that splash of blood where seen in the room he slept or why did he not report to the police who even killed the deceased in his premises. I believe the prosecution has successfully proved the charge of culpable homicide…” (see Page 147 of the records)
From the above, it is clear that the lower Court relied on the confessional statements and other pieces of evidence in convicting the Appellant. Counsel to the Appellant has urged this Court to discountenance the confessional statements on the ground that the signature of the Appellant was not on the English versions of the two statements and that there was no evidence that the witnesses who translated the Hausa versions into English were certified translators. The first set of statements, Exhibit F1 and F2, were tendered by one Sunday Acheje, a police officer who gave evidence as the tenth prosecution witness. The witness testified thus:
“I was detailed to record the statement of the 1st accused. I cautioned the 1st accused explained the nature of the allegation in Hausa language. He signed the cautionary words and he volunteered a statement which I recorded in Hausa language. The 1st accused gave his statement in Hausa language. I read over the statement to the accused in Hausa language and he confirmed to be his correct statement and he signed and I countersigned the same statement. I later transferred the statement and took the 1st accused before my superior officer Supol Hassain Usman. I can identify the Hausa and English version of the statement of the 1st accused through my handwriting and signature. These are the statement of the 1st accused.” (See page 104 of the records)
The testimony of the witness was not discredited or disparaged under cross-examination. The original version of the statement, the Hausa version, confirmed on its face the steps that the witness said he took in recording the statement – the signature of the Appellant after the cautionary words, the signature of the Appellant and of the witness at the conclusion of the statement and the attestation by the senior police officer. It is on record that both the Hausa and the English versions of the statements were read out in open Court upon being admitted as Exhibits F1 and F2 (see page 105 of the records).
The second set of statements, the additional statement tendered as Exhibit G, were tendered by one Momoh Umaru, also a police officer and he testified as the eleventh prosecution witness. He stated thus:
“On 20/10/03 while in the office at Anti Homicide Section the 1st accused volunteered to make additional statement. I cautioned him read over the cautionary words to him which he said he understood and signed. It was in Hausa Language. I cautioned him. He volunteered a statement which I recorded in Hausa Language read same over to him and said it was his true statement. I took him before Supol Surajo Fana my superior officer who attested the confessional statement. I translated the Hausa version of the statement into English. I can recognize the 2 versions of the statement through my handwriting and signature. These are the statements.”
The statements were admitted after a conduct of a trial-within-trial. The witness was not cross-examined by the Counsel to the Appellant in the course of mal; he was only cross-examined during the tria-within-trial. The testimony of the witness was thus not discredited or disparaged under cross-examination. Again, the original version of the statement, the Hausa version, confirmed on its face the steps that the witness said he took in recording the statement – the signature of the Appellant after the cautionary words, the signature of the Appellant and of the witness at the conclusion of the statement and the attestation by the senior police officer.
There is nothing on record to show that either the Appellant or his Counsel protested the English versions of the two statements, Exhibits F2 and G and/or they contested that the English versions were not the true reflection or translations of the Hausa versions when the two statements were tendered or when Exhibits F1 and F2 were read out in open Court and neither did they do so in the course of trial or even in the written address of Counsel at the close of trial. The Appellant did not also furnish the lower Court with what he believed was the correct English translations of the statements. There is also nothing on record to show that the Appellant or his Counsel complained about the competence of the two witnesses to translate the statements. These issues were not raised before the lower Court and it is the view of this Court that they cannot now be raised by the Appellant on this appeal. A party must be consistent with the case he presents in Court – Suberu Vs State (2010) 8 NWLR (Pt.1197) 586 and Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303. Moreover, the Courts have always accepted the English translations of statements of accused defendants made by the recording police officers without questioning whether the police officers were certified translators or not – Olalekan Vs State (2001) 18 NWLR (Pt.746) 793, Adeyemi Vs State (2013) 3 NWLR (Pt 1340) 78.
The Appellant denied making either of the confessional statements when he testified in his defence. It is trite that a Court is empowered to compare the handwriting and signature on documents under the provisions of section 101(1) of the Evidence Act – Daniel-Katio Vs Daniel-Kalio (2005) 4 NWLR (Pt 915) 305 and Gboko Vs State (2007) 17 NWLR (Pt 1063) 272. Looking at the three signatures said to belong to the Appellant on Exhibit F1, they are substantially similar to the three signatures said to belong to the Appellant on the Hausa version of Exhibit G. The Appellant did not present the lower Court with any contrary signature to show that the six signatures on the two documents did not belong to him.
Further, it is settled law that confession does not become inadmissible merely because a defendant denies having made it. The denial of a statement made by a defendant to the police is only an issue of fact to be decided in the judgment and it is not an issue which affects admissibility of the statement – Akpa Vs. State (2008) 14 NWLR (Pt 1106) 72, Sule Vs State (2009) 17 NWLR (Pt 1169) 33, Mbang Vs State supra, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1 and Dele Vs State supra. What is required is that before the court would believe and act on such a retracted confession it should subject the confessional statement to the following tests:
i. whether there is anything outside the confession which shows that it may be true;
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu Vs State (2009) 1, NWLR (Pt 1123) 523, Kabiru Vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State supra and Dele Vs State supra.The account of the killing of the deceased given in the two sets of statements, Exhibits F1 and F2 and Exhibit G, were the same. The Appellant stated in the two statements that he and one Kabiru Mohammed, aka Two Hours, killed the deceased in the Appellant’s room in the Appellant’s house and that while Kabiru hit the deceased with an iron rod on his head, he beat the deceased with his bare hands and that they killed the deceased because of a dispute over the sum of N4,000.00. The Appellant stated that the deceased came to his house with a Vespa motorcycle and that after they killed the deceased, they buried the corpse in a heap of sand in front of his room and within the compound and that he took the Vespa motorcycle to a friend of his junior brother called Haruna to keep. The Appellant said in the statements that he asked his younger brother to leave the room and go and sleep in the house of neighbor called Haruna before they committed the act of killing the deceased and that he caused his junior brother to repaint the room because of the blood that was splashed on the wall of the room.
There was ample corroboration of these facts in the testimonies of the prosecution witnesses. The third prosecution witness, Aminu Iliyasu, the junior brother of the Appellant, testified that on the day in question’ he was in the room when the Appellant came in with some guests around 9.30pm and that the Appellant directed him to leave the room and he did and he went to sleep it the house of a friend called Haruna Awwal and that when he came back the following day he saw blood splashed all over the room and on the door step and that when he went outside the room he saw the leg of a corpse buried in the heap of sand in the compound. The fourth prosecution witness, Abdullahi Iliyasu, the senior brother of the Appellant and of the third prosecution witness, confirmed that he also saw the room splashed with blood
and the corpse buried in the heap of sand in the compound and this was what prompted him to go and find the Appellant and to take the Appellant to the Police Station.
The sixth prosecution witness testified that sometime in September, 2003 he heard the Appellant the deceased and one Kabiru Mohammed quarrelling over the sum of N4,000.00 and that he witnessed the Appellant purchase two gallons of paint and a brush at Panteka market in the morning of the day after the incident’ The seventh prosecution witness, a police man, testified that upon the report of the incident at the Police Station, he was detailed to investigate same and that he visited the scene of the crime with a photographer and they took photographs including the photograph of the deceased buried under the heap of sand in the compound. The photographs were Exhibits C1 to C5 and a look at the photographs show a heap of sand in a compound with a dead body buried there under. These were evidence of facts outside the confessional statements that point to the truth of the facts contained in the confessional statements. They corroborate the facts in the confessional statements. It is trite that a conviction can be sustained on a free and voluntary confession of a defendant notwithstanding that he retracted the confession – Solola vs State (2005) 11 NWLR (Pt 937) 460, Osuagwu vs State (2009) 1 NWLR (Pt 1123) 523, Arogundade vs State (2009) 6 NWLR (Pt 1136) 165, Oseni vs State (2011) 6 NWLR (Pt. 1242) 138.
Additionally, the lower court referred to the doctrine of “last seen” in its deliberations on this matter. The doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has turned up dead’ Thus, where a defendant was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the defendant in such damnifying circumstances to give an explanation relating to how the deceased met his or her death and in the absence of such an explanation, surely and certainly , a trial court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased – State Vs Njoku (2010) 1 NWLR (Pt 1175) 243, Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490, Maigari vs State (2010) 16 NWLR (Pt. 1220) 439, Njoku Vs State (2013) 2 NWLR (Pt. 1339) 548.There was unchallenged evidence in the testimony of the second prosecution witness, the wife of the deceased, that the deceased was last seen leaving the house in the company of the Appellant in the night of the day before the corpse of the deceased was discovered and the third prosecution witness said he last saw the Appellant with the deceased in the room of the Appellant in the compound where the corpse was discovered under a heap of sand. This was the room where splashes of blood were found everywhere on the very next day shortly before the corpse was discovered in the heap of sand in the compound. These were compelling facts requiring explanation from the Appellant and the Appellant offered no explanation.
There were thus cogent, credible and compelling facts in the evidence led by the Prosecution before the lower Court to justify and, sustain the finding of the lower Court that the Appellant participated in the killing of the deceased’ This Court cannot fault the finding, of the lower Court on the guilt of the Appellant.
The third requirement of the offence of culpable homicide punishable with death is whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as “specific intention” necessary for sustaining a murder charge. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then he defendant must be held culpable for the offence of murder – Nwokearu Vs State (2010) 15 NWLR (Pt.1215) 1, Njoku Vs State supra. In order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused – Iden vs State (1994) 8 NWLR (Pt 365) 719.
Thus, in Ejeka vs State (2003) 7 NWLR (Pt 819) 408, where the appellant stabbed the deceased with a jack knife at a, fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. Similarly, in Nwokearu vs State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the Appellant confessed in Exhibits F1 and F2 that the Appellant was hit on the head several times with an iron rod until he died. This was an exhibition of a clear intention on the part of the Appellant and his alleged cohorts to cause the death of the deceased.
The prosecution led cogent and credible evidence before the lower Court to sustain the charge against the Appellant. The Appellant has not presented this Court with any reason to tamper with the decision of the lower court. This appeal lacks merit and it is hereby dismissed. The judgment of the High Court of Kaduna State in Suit No KDH/KAD /IC/2004 delivered by Honorable Justice A. A. Othman on the 18th of July, 2011 and the sentenced passed on the Appellant are hereby affirmed. These shall be the orders of this Court.
DALHATU ADAMU, J.C.A: I have gone through the draft of the lead judgment of my learned brother H.A.O. Abiru JCA. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed I too hereby dismiss the appeal and affirm the conviction and sentence passed on the appellant by the lower court.
THERESA NGOLIKA ORJI-ABADUA, J.C.A: I had the opportunity of reading before now the judgment of my learned brother, Abiru, J.C.A. He clearly dissected the issues raised by the Appellant herein, and, I wholly agree with him that there is no merit in this appeal, filed by the Appellant who was charged along with one Kabiru Mohammed for the offences of conspiracy to kill one Abdullahi Bala Getso, and, culpable Homicide punishable with death by causing the death of the said Abdullahi Bala Getso. He appealed against the judgment of the Kaduna State High Court presided over by A.A. Othman, J., on 18/7/2011. The circumstantial evidence proffered by the prosecution through P.W.1, the father of the deceased, P.W.2; the wife of the deceased, P.W.3 and P.W.4 the brothers of the Appellant and P.W.7, the Investigating Police Officer at Rigasa Police Station, who was present when the lifeless body of the deceased was recovered from the hip of sand in the compound of the Appellant, is overwhelming. .
P.W.1, the father of the deceased said when he received the news on 1/10/03 that his son Abdullahi left home with the Appellant since I pm of 30/9/03 and had not returned, he went straight to the Police Headquarters to report about his missing. He searched through the hospitals and later went to the working place of the Appellant. There, he learned that Abdullahi was in Rigasa Police Station. He went to the Station only to learn that his son had been killed. They went to the Appellant’s house and the hip of sand where his son was buried and then brought his body out. They, then moved back to the Police Headquarters where he obtained permission to go and bury his son according to Muslim rites. P.W.1 identified the corpse of his son, Abdullahi. The pungent evidence of P.W.2 points irresistibly to the fact that the Appellant was the person last seen with the Appellant on 30/9/03. Even the evidence of D.W.2 under cross-examination confirmed that he, D.W.2, met the deceased, i.e. Abdullahi Bala Getso on 30/9/03, the same thing with the Appellant, although, he said 30/9/10 with regard to the Appellant, but, it is clear that it was the same 30/9/03, he had intended to say. Whether it was a typographical error, or a deliberate distortion of date or facts I cannot say, but whatever be the case, the 2nd Accused acknowledged seeing or meeting with the deceased on 30/9/03.
The deceased was last seen alive by his wife in the company of the Appellant. The Appellant and the deceased and another unnamed person left together in the Appellant’s Vespa motorcycle.
The Appellant’s brother, P.W.3, testified that at about 9.30pm, the same Appellant came back with some guests and ordered him to go and sleep in another place. He left and slept in his friend’s, Haruna Awwal’s room and came back in the morning of 1/10/03 at about 8.30 am. Then, to his chagrin and disbelief, he saw blood that splashed all over the room, he was terrified. Later, he saw sand that scattered where the blood splashed at the door step. He then tried to pack the sand with a shovel, only for him to discover a human leg. He quickly rushed and called P.W.4, their senior brother, who, also, confirmed the incident.
P.W.4 confirmed how P.W.3 came to him reporting the human leg he noticed at their house when he wanted to arrange the sand in the compound. He, P.W.4 in the company of P.W.3 went and collected the Appellant from where he was working and took him to the Rigasa Police Station where the Appellant gave to the Police the names of five boys. He later went back to his house, and much later, the Police came and took pictures of the premises. He took the Police round and showed them the hip of sand and the human leg seen underneath it. They took pictures and then removed the corpse from the’ sand and took it to the hospital.
It is well established that the evidence of “last seen” may be relied upon or may form the basis for conviction which, however, would depend upon the facts and circumstances of each case.
In Mbang vs. The State (2009) 18 NWLR Part 1172 page 140, Oguntade JSC, also relied on Nwaeze vs. State (1996) 2 SCNJ page 42, where Adio, JSC, said:
“Circumstantial evidence may ground a conviction where it is unequivocal, positive and points irresistibly to the guilt of the accused person. See Oladejo vs. The State (1987) 3 NWLR (Part 61) 419. The position then is that Mr. A was last seen alive with or in company of Mr. B. And the next thing that happened was the discovery of the corpse of Mr. A. The inevitable inference is that Mr. A was killed by Mr. B. The onus will then be on Mr. B to offer explanation for the purpose of showing that he was not the one who killed Mr. A. In Igho v. The State (1978) 3 SC. 87, the deceased was last seen alive with the appellant who gave her a ride in the back of his bicycle. The corpse of the deceased was later found that night. The conviction of the appellant was upheld by the court. The same conclusion was reached in Amusan v. State (1987) 4 SC 199; (1986) 3 NWLR (Pt. 30) 536 in which on 10/1/78 the appellant went out with the deceased and from that day no one saw the deceased alive until the corpse was discovered on the 21/1/78. The inference that was drawn was that the appellant killed the deceased. The foregoing is the legal implication of the appellant being the person with whom the deceased was last with or seen alive with…”
Further, in Haruna vs. A.G, Federation (2012) LPELR – SC.72/10 it was stated by the Supreme Court that the doctrine of “last seen” means that the law presumes that the person last seen with a deceased bears full responsibility for his death. The onus is on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased. Thus, where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.
The questions are what sort of magic do we need or facts do we need to be convinced that the Appellant knew what happened to the said Abdullahi Bala Getso? I do not think we need the spirit to descend to say emphatically that the death of Abdullahi Bala Getso is traceable to the Appellant and his cohorts. I see no reason why the findings of the trial Court on this vital point should be doubted or interfered with. The circumstantial evidence placed before the trial Court is so overwhelming and is a definite pointer to the guilt of the Appellant. No matter how one tries to bend the circumstances of this case they still stand firm and point unchangeably towards the Appellant. Circumstances do not lie, that is why bending or twisting them is absolutely impossible.
The, Appellant can afford to twist all the facts, even as he probably manipulated and managed to get P.W.3 and P.W.4 recalled on the application of his Counsel on 3/6/10 for further cross-examination, and they, who, previously, on 17/3/05 said they knew the duty of telling the truth in Islam and the consequences of telling lies, then, prevaricated. What an afterthought!, but he cannot upturn or change the circumstances depicting the fact that he came to the deceased’s house on 30/9/03 and picked him in the company of some other person with his Vespa motorcycle. Also, he cannot upturn the circumstances of the human blood that splashed on the wall of his room which P.W.3, his brother perceived in the morning of 1/10/03. Further, he cannot change the circumstances of the fact that human leg(s) was/were seen by P.W.3 and P.W.4 underneath the hip of sand in his premises and that the body of the deceased was recovered by the Police from underneath the said sand in his premises on the same 1/10/03 in the presence of the father of the deceased, who apparently, identified the deceased. As I earlier opined, one does not need God Almighty to descend from His Heavenly throne to tell this Court that the Appellant is indeed the person to explain what happened to Abdullahi Bala Getso or how his death occurred. Those who believe in clairvoyance and magic, equally do not need the services of a clairvoyant or a magician or sorcerer to tell them that the Appellant played some roles in the wicked and atrocious killing of Abdullahi Bala Getso. What explanation did he give in his evidence about the human blood his own brother saw that splashed on the wall of his room, or about the lifeless body of the human being last seen with him that was recovered from underneath the hip of sand in front of his room? Absolutely none, except some illogical denials.
The prosecution proved beyond reasonable doubt, via the testimonies of P.W.1, P.W.2, P.W.3, P.W.4, and P.W.7 that the Appellant had a hand in the killing of the said Abdullahi Bala Getso. P.W.7., gave a detailed account of how the lifeless body of the deceased was recovered from underneath the hip of sand in the Appellant’s compound and was then taken to a Nursing Home Mortuary. Every step made by them in the recovery of the body of the said Abdullahi Bala Getso was snapped by the photographer they went along with. The bunch of the negatives was admitted in evidence as Exhibit B while the pictures were admitted as Exhibits C1 – 5.
It is incumbent on the Appellant as a matter of common sense to give a satisfactory explanation of what the lifeless body of the human being he was last seen with, was doing, underneath the hip of sand in his compound. The Appellant utterly failed to discharge the onus placed on him as the person last seen with the deceased, Abdullahi Bala Getso on 30/9/03. Since he failed to do so, the trial Court was justified in inferring the existence of the requisite guilty intent. Therefore, based on the foregoing and the reasons articulated in the leading judgment, I too, find no iota of merit in this appeal, and it is bound to fail. Accordingly, I dismiss this appeal and affirm the conviction and sentence of the Appellant as stated by the trial Court in the judgment delivered on the 18th July, 2011 in Criminal Charge No. KDH/KAD/IC/2004.
Appearances
Mrs. A Akeredolu with Monsurat Abdul RasheedFor Appellant
AND
Mr. A.T. Kehinde with B. AmawuFor Respondent
