THE STATE V ABDU MUSA (2019)

THE STATE V ABDU MUSA

(2019) LCN/4633(SC)

In the Supreme Court of Nigeria

Thursday, January 31, 2019


Case Number: SC.625/2016

 

JUSTICES:

KUMAI BAYANG AKAAHS

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI PLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

EJEMBI EKO

 

APPELLANTS

THE STATE

 

RESPONDENTS

ABDU MUSA

 

WAYS OF PROVING THE OFFENCE OF CULPABLE HOMICIDE

“In the quest to get the proof of the offence effected three recognised and different ways are known and each can be used to get the assignment carried out and they are as follows: – a.By direct evidence; b.By circumstantial evidence; and c.By confessional statement. See Emeka v State (2001) 14 NWLR (Pt.734) 666 at 683”.

 

CONFESSIONAL STATEMENT

“There is no gainsaying that a confessional statement is properly regarded as the strongest evidence of guilt of an accused person charged with the offence and so when as in this instance, the confession has been obtained free and positive, it is enough to secure a conviction by the prosecution. I rely on Ogudo v State (2011) 18 NWLR (Pt.1278) 1 at 45; Maigari v State (2013) 7 NWLR (PL 1384) 425; Igri v State (2012) 16 NWLR (Pt.1327) 522 at 547; State v Isah (2012) 16 NWLR (Pt.1372) 613

 

ADMISSIBILITY OF A CONFESSIONAL STATEMENT

“It is to be noted that a confessional statement does not become inadmissible merely because the accused denied making it even though when such a retraction takes place the court is cautioned to seek evidence no matter how sight outside that confessional statement to show that the confession is probable. I shall cite a few decided cases of this court on these principles. See Olalekan v State (2001) 18 NWLR (Pt.746) 794 at 811.

 

CONDITIONS FOR CONVICTION ON AN UNCORROBORATED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

“A reiteration of the principle of law already over flogged that a court can convict an accused on his uncorroborated confessional statement so long as certain conditions are satisfied which are thus: –

a)There is something outside the confession which shows that it may be true;

b)The statement contained therein are likely to be true;

c)The accused has the opportunity to have committed the offence; and

d) The facts stated by the accused are consistent with other facts which have been ascertained and established at the trial”

 

DUTY OF PROSECUTION IN PROVING ITS CASE

“It is now well settled that the prosecution has a duty to prove its case beyond reasonable doubt as provided for by Section 135 (1) of the Evidence Act 2011 as amended”.

 

INGREDIENTS OF ATTEMPTED ROBBERY

“The ingredients of the offence of culpable homicide punishable with death, have been set out earlier in this judgment. For the offence of attempted robbery, Section 2(1) and (2) (b) of the Robbery and Firearms (Special Provisions) Act provides as follows: “2(1). Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of such assault, uses or threatens to use actual violence to any other person or any property, in order to obtain the thing intended to be stolen shall, upon conviction under this Act, be sentences to imprisonment for not less than fourteen years but not more than twenty years. (2) If (b) at or immediately before or immediately after the time of the assault, the offender wounds or uses any other personal violence to any person, the offender shall, upon conviction under this Act, be sentenced to imprisonment for life.”-

 

DEFINITION OF A CONFESSION

“Section 28 of the Evidence Act, 2011, defines “a confession” as “an admission made at any time by a person charged with a crime, stating or suggesting the interference that he committed the crime.”

 

 

OBJECTION TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

“The law is that the proper time to object to the admissibility of a confessional statement is at the stage when it is sought to be tendered and not after it has been admitted in evidence. See: Godsgift Vs The State (2016) LPELR -40540 (SC) @ 31 B-C; Olalekan Vs the State (2002) 2 SCN 3 104: Muha mmad Vs The State (2017) LPELR – 42098 (SC) @ 17-18 C-B”

 

INSTANCES WHERE THE COURT WILL RELY ON A RETRACTED CONFESSIONAL STATEMENT

“Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the court is satisfied that it was voluntarily made, the court can rely on it to ground a conviction even though retracted at the trial. See: Igbinovia Vs The State (1981) LPELR – 1446 (SC)@ 17 B-D: (1981) 2 SC 5; Yesufu Vs The State (1976) 6 SC 163; Adebayo Vs The State (2014) LPELR – 22988 (SC) @ 55-56 F-A”

 

FACTORS THE COURT WILL CONSIDER WHEN RELYING ON A RETRACTED CONFESSIONAL STATEMENT

“Before relying on a retracted confessional statement to convict an accused person, the factors the court would consider are as follows:

1.Whether there is anything outside the confession which shows that it may be true;

2.Whether the confessional statement is in fact corroborated;

3.Whether the relevant statements of fact made in it are most likely true as far as they can be tested;

4.Whether the accused had the opportunity of committing the offence;

5.Whether the confession is possible; and

6. Whether the alleged confession is consistent with other facts that have been ascertained and established.

See: R Vs Sykes (1913) 8 Cr.App. Report 233; Ubierho Vs The State (2002) 5 NWLR (Pt. 819) 644 @ 655; Nwachukwu Vs The State (supra); Fabiyi Vs The State (2015) LPELR -24834 (SC) @ 33-34 E-D

 

STATUS OF A REJECTED EXHIBIT THAT WAS TENDERED 

“With due respect to their Lordships, once an exhibit has been tendered and marked rejected, it ceases to form part of the material for consideration in the case and is of no evidential value. See: Agboola Vs The State (2013) 11 NWLR (Pt. 1366) 619: Nigerian Ports Plc. Vs Beecham Pharmaceutical PTE Ltd. & Anor (2012) 18 NWLR (Pt. 1333) 454”

 

WHETHER A MEDICAL REPORT CONSTITUTES SUFFICIENT EVIDENCE WITHOUT THE TESTIMONY OF THE MEDICAL DOCTOR

“First of all, it must be stated, that it is not in every case that the medical doctor must be called to testify. By virtue of Section 55(1) of the Evidence Act, 2011, the report of the medical officer who performed the autopsy may be taken as sufficient evidence of its contents. See: Edoho Vs The State (2010) 14 NWLR (Pt. 1214) 651: Istekwe Vs The State (1999) 6 NWLR (Pt. 617) 43; Popoola Vs The State (2013) 17 NWLR (Pt. 1382) 96”

 

NUMBER OF WITNESSES CALLED

“It is for the prosecution to determine the number of witnesses to call in order to discharge the burden of proving its case beyond reasonable doubt. It has been held that what is material is not the quantity of witnesses but the quality of the evidence adduced. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Smart Vs The State (2016) LPFIR -40728 (SC): Nwaturocha Vs The State (2011) 6 NWLR (Pt. 1242) 170”

 

STANDARD OF PROOF

“The onus on the prosecution is to establish its case beyond reasonable doubt but not beyond the shadow of a doubt. See: Galadima Vs The State (2012) 18 NWLR (Pt. 1333) 60: Stephen Vs The State (2013) 8 NWLR (Pt. 1355) 153: Nwaturocha (2011) 2-3 SC (Pt. 1) 11: Igabele Vs The State (2006) 6 NWLR (Pt. 975) 100”

 

 

INGREDIENTS TO PROVE IN CASES OF CULPABLE HOMICIDE

1.The death of a human being actually occurred;

2.That the death was caused by the accused;

3.The accused person’s act which resulted in the death of the human being was done with the intention of causing death or grievous bodily harm; and

4.That the accused knew that death would be a probable but not just likely consequence of his act.

See Bright v State (2012) 8 NWLR (Pt.1302) 297 at 302

(DELIVERED BY KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC)
The respondent in this appeal was the 3rd among five persons arraigned before the High Court of Katsina State, Katsina Judicial Division on a two-count charge of conspiracy to commit culpable homicide punishable with death punishable under Section 22 (1) of the Penal Code read with Section 79 thereof and armed robbery contrary to Section 2(1) and punishable under Section 2 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap: 398 Laws of the Federation of Nigeria, 1999, as amended.
It was alleged that on or about the 23rd day of July 2003 at Mazado Timber Factory along Yahaya Madawaki way, Katsina within Katsina Judicial Division, the appellant and his co-accused conspired to kill and did in fact kill one Usman Dan-Iyau (Mai-gadi) by beating him and slaughtering him with a knife. It was also alleged that in furtherance of a common intention to steal, they broke into the aforesaid Timber Factory and used violence on Usman Dan-Iyau (Mai-gadi), who subsequently died.
All the accused persons pleaded not guilty to each of the counts. At the trial, the prosecution called 7 witnesses and tendered several exhibits, including the extra judicial statements of the accused persons, photographs of the corpse of the deceased and a medical report, Exhibit L, as to the cause of death. The accused persons testified in their own defence and did not call any other witnesses.
On 6th May, 2009, in a considered judgment, the learned trial Judge found all the accused persons guilty on each of the two counts and convicted them accordingly. In respect of the first count they were sentenced to death by hanging while on the second count they were sentenced to life imprisonment.
Being dissatisfied with the judgment they filed an appeal before the Court of Appeal, Kaduna Division. The court, on 12/6/15 found their appeal to be meritorious and allowed it. They were all acquitted and discharged;
The state is now the party aggrieved and has appealed to this court vide its amended notice of appeal, which was deemed filed on 23/5/18. It contains four grounds of appeal.
At the hearing of the appeal on 15/11/2018, EMEKA OBEGOLU ESQ., adopted and relied on the appellant’s Amended Brief of Argument, which was deemed filed on 23/5/18 in urging the court to allow the appeal. CHUKWUKA IKWUAZOM ESQ., adopted and relied on the respondent’s brief, also deemed filed on 23/5/18, in urging the court to dismiss the appeal.
Learned counsel for the appellant identified two issues for determination in his brief thus:
i. Whether the learned Justices of the Court of Appeal were right when they held that the retracted confessional statements of the appellants did not pass the test laid down for conviction solely on the confession which created doubt in the mind of the court and therefore was resolved in favour of the appellants. (Grounds 1 and 3)
ii. Whether the failure on the part of the prosecution to present the medical doctor as a witness, to be cross-examined and to tender the alleged knife which was tendered but marked rejected, was sufficient to lead to the reversal of the conviction of the respondent by the trial court, considering the gravity of evidence already tendered by the prosecution (Grounds 2 and 4).

In the opinion of learned counsel for the respondent, the only issue that arises for determination in this appeal is:
Whether the inconsistencies in the evidence adduced by the prosecution were such that created reasonable doubt as to the guilt of the respondent.
In my considered view, the sole issue for determination in this appeal, which encompasses the issues raised by both parties is:
Whether the lower court was right when being set aside the conviction and sentence of the appellant having regard to the evidence on record.
I shall determine the appeal on this sole issue.
On behalf of the appellant, learned counsel submitted that in order to secure a conviction for culpable homicide punishable with death, the prosecution must prove the following beyond reasonable
doubt, that:
a.The death of a human being actually occurred;
b.Such death was caused by the accused;

c.The accused person’s act which resulted in the death of the human being was done with the intention of causing death or grievous bodily harm; or
d.The accused knew that death would be a probable but not just likely consequence of his act.
He referred to Bright Vs The State (2012) 8 NWLR (Pt. 1302) 297 @ 302.
He submitted that from the evidence of PW1 and PW2 and Exhibit L, there was no doubt that the death of a human being occurred and that the said human being was Usman Dan Iyau (Mai-gadi). He referred to the case of Eweka Vs The State (2001) 14 NWLR (Pt. 734) 666 @ 683. where it was held that the prosecution can rely on direct evidence, circumstantial evidence and/or the confessional statement of the accused in proving its case. He submitted that in the instant case, the learned trial Judge placed reliance on the appellant’s confessional statement wherein he stated vividly the role he played in the death of the deceased. Citing several authorities, he submitted that a confession is regarded as the strongest evidence of guilt of an accused person.
He submitted further that a free and positive confession if believed, is sufficient to secure a conviction. Some of the cases referred to are: Ogudo Vs The State (2011) 18 NWLR (Pt.1278) 1 @ 45; Maigari Vs The State (2013) 17 NWLR (Pt.1384) 425; Isah Vs The State (2012) 16 NWLR (Pt.1372) 613. He noted that the appellant’s statement was admitted in evidence without any objection to its admissibility. He submitted that, as long as the court is satisfied of the truth of the confession it is sufficient to support a conviction. He referred to Bright Vs The State (supra). He submitted that the belated contention of the appellant that he was forced to thumbprint the statement was an afterthought.
He submitted further that the mere fact that the respondent denied making the statement would not render it inadmissible. He referred to Olalekan Vs The State (2001) 18 NWLR (Pt. 746) 794 @ 811: Udo Vs The State (2016) 12 NWLR (Pt. 1525) 33-34 H-A.
Relying on the case of Okoh Vs The State (2014) 8 NWLR (Pt.1410) 520 @ 526. he submitted that where an accused person retracts his confessional statement, the court is cautioned to look for evidence, no matter how slight, outside the confessional statement, that makes the confession probable. He submitted that the evidence of the prosecution witnesses was uncontroverted and unchallenged and ought to have been accepted by the court. He referred to: Ada Vs The State (2008) 12 NWLR (Pt. 1103) 149 @ 166 F-G.
He submitted that the lower court erred in holding that the appellant’s confessional statement did not meet the required test. He submitted that the statement of all the accused persons, including the appellant, corroborated the evidence given by the prosecution’s witnesses and also corroborated each other in that they all contained the aspect of slaughtering the deceased with a knife. In other words, that the respondent’s confessional statement was consistent with other facts which had been ascertained and established at the trial. He referred to Akpan Vs The State (1986) 3 NWLR (Pt. 27) 258. He referred to the evidence of PW3, wherein he stated that it was while being interrogated in respect of a different offence that the respondent and his co-accused admitted committing the crime, which is the subject of this appeal.
Learned counsel submitted that although the prosecution has the burden of proving its case beyond reasonable doubt, see: Section 135 (1) of the Evidence Act, 2011: Nwankwo Vs The State (1990) 2 NWLR (Pt. 130) 627, there is no stipulation as to the number of witnesses required to discharge the burden. He submitted that what is material is the quality of the evidence adduced. He referred to: Bright Vs The State (supra). He submitted that in the instant case, the cause of death was known and it was therefore not necessary to call the maker of Exhibit L to testify. Also relying on Bright Vs The State (supra), he submitted that the rejection of the knife alleged to have been used to commit the offence as an exhibit by the learned trial Judge did not dent the weight of evidence adduced by the prosecution.
He submitted that the unequivocal confessional statement of the respondent was sufficient to ground his conviction and that failure to call the medical doctor or to tender the knife was not sufficient to warrant the judgment of the trial court being set aside.
In response to the above submissions, learned counsel for the respondent reiterated the settled principle that the standard of proof in a criminal trial is beyond reasonable doubt and that the onus of proof remains on the prosecution throughout. He also set out the essential elements of the offence of culpable homicide punishable with death and the ingredients of the offence of armed robbery. He submitted that although the court can predicate a conviction on the retracted confessional statement of an accused person it is required that there must be some evidence outside the statement that makes it probable that the confession is true. He referred to Ubierho Vs The State (2005) 5 NWLR (Pt.343) 138 @ 157 F-G.
He submitted that in the instant case, the court below found material inconsistencies in the evidence of the prosecution witnesses and also found contradictions between the evidence of these witnesses and the respondent’s retracted confessional statement.
He noted that the lower court found, (a) that the statements of the accused persons, including the respondent’s raised some doubt as to their truthfulness because they did not contain their personal information; (b) that the cause of death in Exhibit L is contrary to the cause of death as contained in the respondent’s statement; (c) the weapon used to commit the offence was described by PW3 as being blood stained, which was doubtful since it was recovered more than 20 days after the incident; (d) the evidence of PW6 as to where and how he arrested the respondent and his co-accused was contrary to the respondent’s account of how and where he was arrested.
He noted that Exhibit L stated the cause of death as a blow to the head, while in his statement, the respondent stated that the deceased was slaughtered with a knife. He referred to the finding of the Court of Appeal on this issue at page 179 of the record. He submitted that the medical doctor who prepared Exhibit L failed to attend court to be cross-examined in spite of a summons issued to him by the court. He submitted that the lower court was right when it held that failure to call the medical doctor was fatal to the prosecution’s case.
He submitted that all the contradictions highlighted are material and the doubts raised thereby were rightly resolved in the respondent’s favour by the lower court. He referred to: State Vs Emine (1992) NWLR (Pt.256) 658 @ 667; Ahmed Vs Nigerian Army (2016) 17 NWLR (Pt. 1540) 34 @ 57.
On the evaluation of evidence, he submitted that even where the evidence adduced by the prosecution is unchallenged, the court still has a duty to evaluate the evidence and assess its probative value. He urged the court to dismiss the appeal.
The ingredients of the offence of culpable homicide punishable with death, have been set out earlier in this judgment. For the offence of attempted robbery, Section 2(1) and (2) (b) of the Robbery and Firearms (Special Provisions) Act provides as follows:
“2(1). Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of such assault, uses or threatens to use actual violence to any other person or any property, in order to obtain the thing intended to be stolen shall, upon conviction under this Act, be sentences to imprisonment for not less than fourteen years but not more than twenty years.
(2) If
(b) at or immediately before or immediately after the time of the assault, the offender wounds or uses any other personal violence to any person, the offender shall, upon conviction under this Act, be sentenced to imprisonment for life.”
Section 28 of the Evidence Act, 2011, defines “a confession” as “an admission made at any time by a person charged with a crime, stating or suggesting the interference that he committed the crime.”
Exhibit A in Hausa language and Exhibit Al, its English translation, constitute a direct, positive and unequivocal admission of the part the respondent played in the commission of the crime. He however retracted the statement at the trial and alleged that he was beaten by the Police and forced to thumbprint the document. It is important to note that when the Hausa and English versions of the respondent’s statement were being tendered through PW2, there was no objection raised. The law is that the proper time to object to the admissibility of a confessional statement is at the stage when it is sought to be tendered and not after it has been admitted in evidence. See: Godsgift Vs The State (2016) LPELR – 40540 (SC) @ 31 B-C; Olalekan Vs the State (2002) 2 SCN J 104: Muhammad Vs The State (2017) LPELR – 42098 (SC) @ 17-18 C-B.
I agree entirely with the learned trial Judge when he held at page 89 of the record as follows:
“………… all the statements of the accused persons, except that of the &h accused were tendered and admitted in evidence. It is only that of the 5th accused that a trial within trial was ordered. The right time to object to the admissibility or otherwise of a statement is at the time of tendering and not when the accused is to give his testimony as in the present case. Such retraction does not make the confessional statement inadmissible. The said statement cannot also be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it.”

This is a correct statement of the law. See: Egboghonome Vs The State (1993) 7 NWLR (Pt.306) 383; Dibie Vs The State (2007) 9 NWLR (Pt. 1038) 30: Nwaebanyi Vs The State (1994) 5 NWLR (Pt. 343) 138. Interestingly, the lower court echoed this statement of the law at Pages 173-174 of the record. Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the court is satisfied that it was voluntarily made, the court can rely on it to ground a conviction even though retracted at the trial. See: Igbinovia Vs The State (1981) LPELR – 1446 (SC) @ 17 B-D: (1981) 2 SC 5; Yesufu Vs The State (1976) 6 SC 163; Adebayo Vs The State (2014) LPELR – 22988 (SC) @ 55-56 F-A.
In the instant case, the learned trial Judge properly examined the confessional statement alongside other evidence before the court and found it consistent with such evidence.
It is pertinent to state at this juncture, that this appeal is a sister appeal to Appeal No SC. 1097/2016: The State Vs Sani Ibrahim, in which judgment was delivered on 18/1/2019. The respondent in that appeal was the 1st accused at the trial court, while the respondent in this appeal was the 3rd accused. The same judgment is the subject of this appeal.
Now, one of the grounds upon which the lower court allowed the respondent’s appeal was that the confessional statements of the accused persons were bereft of personal information known only to them, which would have made the statement more probable. I adopt my reasoning in the sister appeal here. I am inclined to agree with learned counsel for the appellant, that the lower court erred in holding that Exhibit A translated in Exhibit Al could not be relied upon because did not contain the respondent’s personal information. No such objection was raised when the statement was tendered in evidence. It was never contended that the statement was not made voluntarily. It must also be reiterated that the learned trial Judge found it to be consistent with other evidence duly established before placing reliance on it. There was therefore no basis for the finding of the lower court in this regard.

I return to the elements of the offence of culpable homicide punishable with death. Both sides agree that the prosecution proved beyond reasonable doubt not only that the death of a human being occurred but that the human being was Usman Dan Iyau (Mai-gadi). The bone of contention is whether the respondent was one of those whose act resulted in the death of the deceased.
Apart from the confessional statement of the respondent, Exhibit A and Al, there was the testimony of PW1, the owner of the timber factory who testified as to how his driver, who had just returned with goods from Lagos around 6 am on 23/7/2003, came and informed him that he found the deceased in his room in a pool of blood. He accompanied him to the factory and found that the deceased was already dead. He also testified that his office was ransacked although nothing was taken.
PW3, one of Investigating Police officers testified that the respondent and his co-accused were arrested for a different offence and it was while undergoing interrogation that they confessed to participating in the attempted robbery at the Mazado Timber Factory, which led to the death of the deceased. PW3 and his team visited the scene of crime and found blood stains in the deceased’s room. He stated that they also found that the door to PW1’s office was broken, the locker therein forced open with documents scattered on the floor.
PW2, who was also one of Investigating Police officers was the one who recorded the respondent’s statement. He also visited the scene of crime and made the same observations as PW3. He also stated that the respondent and his-co- accused confessed to committing the crime.
PW4. Sgt. Yusuf Sanda was attached to Sabon Gari Police Station where the incident was first reported. He took a photographer with him. Being one of the first on the scene, he saw the corpse of the deceased, which he said was covered with blood, with a deep cut on the head, He noticed that a sharp objected had “tampered with his throat.” He stated that he also noticed some blood stains about 100 meters from where the body was found. Photographs of the corpse along with the negatives were admitted in evidence as Exhibits G and G1, H and H1 and J and J1 respectively. The medical report was also tendered through him and marked Exhibit L. There was an attempt to tender the knife said to have been recovered
from the 1st accused but an objection as to its admissibility was raised by his counsel and sustained by the court. It was therefore marked rejected.
Before relying on a retracted confessional statement to convict an accused person, the factors the court would consider are as follows:
1.Whether there is anything outside the confession which shows that it may be true;
2.Whether the confessional statement is in fact corroborated;
3.Whether the relevant statements of fact made in it are most likely true as far as they can be tested;
4.Whether the accused had the opportunity of committing the offence;
5.Whether the confession is possible; and

6. Whether the alleged confession is consistent with other facts that have been ascertained and established.
See: R Vs Svkes (1913) 8 Cr.App. Report 233; Ubierho Vs The State (2002) 5 NWLR (Pt. 819) 644 @ 655; Nwachukwu Vs The State (supra); Fabiyi Vs The State (2015) LPELR -24834 (SC) @ 33-34 E-D.
The learned trial Judge painstakingly applied the test to the evidence before him and found that there was evidence outside the statement that was consistent with the facts stated therein. He also found that all the accused person gave similar accounts of what transpired on the fateful day including the fact that they broke into PW1’s office but did not find any money. Their statements were also found to be consistent regarding the fact that they beat the deceased and dragged his body into the bush before taking him back to the factory premises. The fact of dragging the deceased to the bush before returning him to the factory is consistent with the evidence of PW4 who stated that he saw blood stains about 100 meters from the factory.

Having subjected Exhibit, A and Al to the required test, the learned trial Judge was entitled to rely on them in convicting the appellant.
One of the reasons given by the lower court for setting aside the judgement of the trial court was that it was inconceivable that the knife sought to be tendered, which was allegedly recovered from the 1st accused almost three weeks after the incident, would still be blood-stained, as stated by PW4 in the course of his testimony. With due respect to their Lordships, once an exhibit has been tendered and marked rejected, it ceases to form part of the material for consideration in the case and is of no evidential value. See: Agboola Vs The State (2013) 11 NWLR (Pt. 1366) 619: Nigerian Ports Plc. Vs Beecham Pharmaceutical PTE Ltd. & Anor (2012) 18 NWLR (Pt. 1333) 454. Therefore, all the comments made by the lower court on the rejected knife were made obiter. They are accordingly discountenanced.
A lot of heavy weather has been made about the failure of the prosecution to call the medical doctor to testify in this case. First of all, it must be stated, that it is not in every case that the medical doctor must be called to testify. By virtue of Section 55(1) of the Evidence Act, 2011, the report of the medical officer who performed the autopsy may be taken as sufficient evidence of its contents. See: Edoho Vs The State (2010) 14 NWLR (Pt. 1214) 651: Isiekwe Vs The State (1999) 6 NWLR (Pt. 617) 43; Popoola Vs The State (2013) 17 NWLR (Pt. 1382) 96. The facts and circumstances of each case will determine whether the attendance of the maker of the medical report is essential.
Secondly, it is for the prosecution to determine the number of witnesses to call in order to discharge the burden of proving its case beyond reasonable doubt. It has been held that what is material is not the quantity of witnesses but the quality of the evidence adduced. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Smart Vs The State (2016) LPFIR -40728 (SO: Nwaturocha Vs The State (2011) 6 NWLR (Pt. 1 242) 170.

In the instant case, the respondent made a confessional statement admitting the role he played in the death of the deceased. The learned trial judge considered the statement against the backdrop of other evidence adduced by the prosecution. He found the confession to be credible. It was established beyond reasonable doubt that the act of the respondent and his co-accused caused the death of the deceased. The failure to call the medical doctor to testify was not fatal in the circumstances of this case.
On the second count of the charge, i.e. attempted robbery, the learned trial judge held at page 92 of the record:
“On the submission of counsel to the accused that the prosecution did not prove its case beyond reasonable doubt on the allegation of attempt to commit robbery contrary to Section 2(1) and 2(b) of the Robbery and Firearms (Special Provisions) Act (Supra), the explanation of counsel on this issue is not acceptable to the court. The accused in their statements stated that they broke the door to the office but did not get any money but they said they saw the security man and they beat him up and subsequently slaughtered him”

The finding of the learned trial judge is supported by the record, particularly the evidence of PW3 and PW4, who found the door to PW1’s office broken, the locker forced open and documents scattered on the floor.
From all that I have said above, learned counsel for the appellant has satisfied me that the judgment of the lower court must be interfered with.
The onus on the prosecution is to establish its case beyond reasonable doubt but not beyond the shadow of a doubt. See: Galadima Vs The State (2012) 18 NWLR (Pt. 1333) 60: Stephen Vs The State (2013) 8 NWLR (Pt. 1355) 153: Nwaturocha (2011) 2-3 SC (Pt. 1) 11: Igabele Vs The State (2006) 6 NWLR (Pt. 975) 100. I hold that the prosecution satisfactorily discharged the onus of proving the guilt of the respondent beyond reasonable doubt.
In conclusion, I resolve the sole issue in this appeal in the appellant’s favour. The appeal succeeds and is hereby allowed. The judgment of the Court of Appeal, Kaduna Division delivered on 12/6/2005 acquitting and discharging the appellant is hereby set aside. The judgment of the High Court of Katsina State delivered on 6/5/2009 convicting the appellant for culpable homicide punishable with death under Section 221(b) of the Penal Code and for common intention to steal punishable under Section 2(2) (b) of the Robbery and Firearms (Special Provisions) Act, and the sentences of death and life imprisonment respectively imposed on him, are hereby restored.
MARY UKAEGO PETER-ODILI, JSC: I agree with the judgment just delivered by my learned brother, Kudirat Motonmori O. Kekere-Ekun JSC and to underscore the support I have in the reasoning’s from which the decision emanated, I shall make some remarks.

The respondent alongside another were tried by the Katsina State High Court presided over by Abdullahi Yusuf J. sitting in Katsina over the offences of culpable homicide punishable with death under Section 221 (b) and Section 79 of the Penal Code and Robbery punishable under Section 2 (2) (b) and Section 2 (1) of the Robbery and Firearms (Special Provisions) Act, 2004.
The accused/respondent with his co-accused were found guilty of the two offences charged, convicted and sentenced to death by hanging for the first offence of culpable homicide and to life imprisonment for the second offence of common intention to steal. Aggrieved, the respondent approached the Court of Appeal or Court below or Lower court, Kaduna Division, Coram: Uwani Abba-Aji, JCA (as he then was) Abdu Aboki and Amina Audi Wambai JJCA.
The detailed facts leading to this appeal are well captured in the leading judgment and I shall not repeat them except circumstances warrant a recourse to any part thereof.
On the 15th day of November, 2018 date of hearing, teamed counsel for the appellant, Emeka Obegolu Esq. adopted the amended brief of argument filed on 20/11/17 and deemed filed on 23/5/18 and in it distilled two issues for determination which are thus: –
i)Whether the learned Honourable Justices of the Court of Appeal were right when they held that the retracted, confessional statement of the appellants did not pass the test laid down for conviction solely on the confession which created doubt in the mind of the court and therefore was resolved in favour of the appellants. (Grounds one and three).
ii)Whether the failure on the part of the prosecution to present the medical doctor as a witness, to be cross-examined and to tender the alleged knife which was tendered but marked rejected was sufficient to lead to the reversal of the conviction of the respondent by the trial court, considering the gravity of evidence already tendered by the prosecution. (Grounds two and four).
Learned counsel for the respondent, Chukwuka Ikwuazom adopted the brief of argument filed on 25/10/2016 and deemed filed on 15/11/18 and he drafted a sole issue, viz:-
Whether the inconsistencies in the evidence adduced by the prosecution were such that created reasonable doubt as to the guilt of the respondent.
I shall take the two issues of the appellant together in the determination of the appeal.
ISSUES 1 & 2:
1. Whether the Court below was right when they held that the retracted confessional statement of the appellant did not pass the test laid down for conviction solely on the confession which created doubt in the mind of the court and should be resolved in favour of the appellant.
2. Whether the failure of the part of the prosecution to present the medical doctor as a witness to be cross-examined and to tender the alleged knife which was tendered but marked rejected was sufficient to lead to the reversal of the conviction of the respondent by the trial court, considering the gravity of evidence already tendered by the prosecution.
Learned counsel for the appellant contended that since the respondent did not object to the tendering of his confessional statement, the statements were voluntarily made and the later allegation that he was forced to thumb print was only an afterthought and so goes to no issue and the statement therefore admissible. He cited Olalekan v State (2001) 18 NWLR (Pt.746) 794 at 811; Udo v State (2016) 12 NWLR (Pt.1525) 33-34; Okoh v State (2014) 8 NWLR (Pt.1410) 502 at 526 etc.

That the confessional statements of the respondent corroborated one another and that is what the trial judge relied upon to find the respondent guilty of the offences charged. He relied on Otufale v The State (1968) NMLR 261 at 265-266; Uluebeka v State (2000) 7 NWLR (Pt.665) 404.
For the appellant, it was further submitted that a conviction in a criminal trial is not based on the number of witnesses called by the prosecution and what is material is the quality of evidence adduced and so the evidence of the medical doctor is dispensable where the cause of death is known. He cited John Nwankwo v State (1990) 2 NWLR (Pt.130) 627-639; Bright v State (2012) 8 NWLR (Pt.1302) 297 at 301-302.
Responding, learned counsel for the respondent stated that the Court of Appeal was right in its decision as there were material contradictions in the evidence presented by the appellant at the trial court and also that the evidence of the prosecution witnesses directly contradicted the retracted confessional statements. Also that the confessional statement is inconsistent with the medical report which it was supposed to corroborate. He cited State v Emine (1992) NWLR (Pt.256) 658 at 667; Ahmed v Nigerian Army (2016) 17 NWLR (Pt.1540) 34 at 57.
In a nutshell the appellant’s point of view is that the trial court’s findings are supported by credible evidence and did not result in a miscarriage of justice on the respondent and so the decision of the Court of Appeal should be upturned.
The respondent took a contrary position standing with what the Court below had done, excerpts from that standpoint are stated hereunder, viz:-
“Furthermore, two among the other factors to be considered whether to convict solely on the retracted confession of an accused person are whether the confessional statement is consistent with other facts which have been proved and if there is anything outside the confession to show that it is true.

In the instant case, the prosecution’s case based on the confessional statements is that the appellants slaughtered the deceased with a knife. The knife was tendered but rejected because the number with which it had been registered was not written on it. Let me draw a distinction between the effect of failure to tender in evidence the weapon used in committing the alleged offence, like robbery from a situation in the present case where a weapon tendered cannot be identified as the used in the commission of the offence. Whereas in the case of the former, so long as the prosecution proves its case beyond reasonable doubt, the absence of the weapon per se would not result in an acquittal….in the case of the latter, it may affect the proof as to whether the weapon was recovered from or used by the accused person.

Further, the medical report of the post-mortem examination of the corpse admitted through the IPO, PW4, is Exhibit L. Exhibit L states:
“Beaten on the head with multiple laceration on the head and possible fracture mandible”.
The Court of Appeal held that the confessional statement is inconsistent with the medical report which it was supposed to corroborate and Amina Wambai JCA who delivered the lead judgment shown at page 180 of the Record stated thus; –
“This medical report putting the cause of death as laceration on the head and possible fracture of the mandible does not seem consistent with the confessional statement that the accused was slaughtered”.
Again, in the words of Justice Amina Wambai who stated as shown at page 181 of the Record of Appeal thus: “It seems incredible how the knife would have been or allowed to remain blood stained by the 14/8/2003 more than 20 days’ after the alleged killing of the deceased on 23/7/2003 in Katsina”.
Again, in the words of Justice Amina Wambai copied at pages 181-182 of the Record of Appeal: “The evidence in cross-examination for instance is that the 1st appellant was arrested in his house, the 2nd appellant arrested at his sister’s house when he went to greet the sister, the 3rd appellant arrested on Wednesday when he brought out his goods for sale and the 5th appellant from his house in the presence of his mother”.
In this case, the respondent was charged for the offence of culpable homicide contrary to Section 221 of the Penal Code along with some others and the standard of proof in this criminal allegation is one beyond reasonable doubt with the necessity for the prosecution to prove the following essential ingredients of the charge thus: –

1.The death of a human being actually occurred;
2.That the death was caused by the accused;
3.The accused person’s act which resulted in the death of the human being was done with the intention of causing death or grievous bodily harm; and
4.That the accused knew that death would be a probable but not just likely consequence of his act.
See Bright v State (2012) 8 NWLR (Pt.1302) 297 at 302.
In the quest to get the proof of the offence effected three recognised and different ways are known and each can be used to get the assignment carried out and they are as follows: –
a.By direct evidence;
b.By circumstantial evidence; and
c.By confessional statement.
See Emeka v State (2001) 14 NWLR (Pt.734) 666 at 683.

In the case at hand, the respondent by his confessional statement tendered without objection admitted being one of those who killed the deceased. By virtue of Section 28 of the Evidence Act 2011, a confession is an admission made at anything by a person charged with an offence suggesting that he committed the crime. There is no gainsaying that a confessional statement is properly regarded as the strongest evidence of guilt of an accused person charged with the offence and so when as in this instance, the confession has been obtained free and positive, it is enough to secure a conviction by the prosecution. I rely on Ogudo v State (2011) 18 NWLR (Pt.1278) 1 at 45; Maigari v State (2013) 7 NWLR (Pt 1384) 425; Igri v State (2012) 16 NWLR (Pt.1327) 522 at 547; State v Isah (2012) 16 NWLR (Pt.1372) 613.
It is to be noted that a confessional statement does not become inadmissible merely because the accused denied making it even though when such a retraction takes place the court is cautioned to seek evidence no matter how slight outside that confessional statement to show that the confession is probable. I shall cite a few decided cases of this court on these principles. See Olalekan v State (2001) 18 NWLR (Pt.746) 794 at 811.
In the case of Udo v State (2016) 12 NWLR (Pt.1525) pp.33-34, paras. H-A, this court held that:
“Free and voluntary confessional statement of an accused alone is sufficient to sustain his conviction, provided the court is satisfied that it was made in a free atmosphere and is direct, unequivocal and positively proved. In this case, the two statements made by the appellant as Exhibits 4 and 5 were confessional. They were sufficient to convict the appellant thereon. Consequently, the defence of alibi raised by the accused during his testimony was too late in the day and only an afterthought”.
My learned brother, Kekere-Ekun, JSC stated in Okoh v State (2014) 8 NWLR (Pt.1410) 502 at page 526;
“The question the court must be able to answer before it can rely on a confessional statement to convict an accused person were set out in the case of R. v Sykes (1913) 8 CR. APP. Rep 233 at 236-237 as follows: –
a)Is there anything outside it to show that it is true?
b)Is it corroborated?
c)Are the statements stated in it true as far as can be tested?
d)Was the accused the man who had the opportunity of committing the offence?
e)Is the confession possible?
f)Is it consistent with other facts which have been ascertained and proved?
See also Ada v The State (2008) 12 NWLR (Pt.1103) 149 at 166, 167; Olude v State (2014) 7 NWLR (Pt.1405) 89 at 116.
On its own part the learned trial judge stated as can be seen at page 91 of the Record thus: –
“It is part of the requirements for accepting a confessional statement to have something outside the confessional statement On this I refer to the testimony of PW1 the owner of the Timber Factory who stated among other things:
“On the 23rd of July, 2003 my driver came back from Lagos with goods at 6:00am in the morning he was the first person to see the deceased in his room in a pool of blood at the Saw Mill Factory. He then met me at home and informed me what happened”.
A reiteration of the principle, of law already over flogged that a court can convict an accused on his uncorroborated confessional statement so long as certain conditions are satisfied which are thus: –
a)There is something outside the confession which shows that it may be true;
b)The statement contained therein are likely to be true;
c)The accused has the opportunity to have committed the offence; and

d) The facts stated by the accused are consistent with other facts which have been ascertained and established at the trial.
In the case at hand, the evidence on ground showed that the accused/respondent during interrogation for another offence stated that he and another committed the robbery after the deceased was slaughtered by them at the Timber Factory and so the conditions for the utilisation of the confessional statement as sufficient to ground the conviction were met. See Akpan v State (1986) 3 NWLR (Pt.27) 258.
As to the matter of the failure of the prosecution to present the medical doctor as a witness to be cross-examined and the absence of the alleged knife, the weapon used, and whether the outcome would be a reversal of the conviction by the trial court as the Court of Appeal did. It is now well settled that the prosecution has a duty to prove its case beyond reasonable doubt as provided for by Section 135 (1) of the Evidence Act 2011 as amended.

In carrying out this duty of proof it is not affected by the number of witnesses called by the prosecution but in the quality of the evidence proffered and so that the medical doctor as not called would not fatally dent the proof once other pieces of evidence advance not only that a human being died but that the death was linked to the act of the accused. In other words, since the cause of death is known the presence of the medical doctor in the same wise as the absence of the weapon of choice in the killing of the said human being do not count and so is the situation in this case. See John Nwankwo v State (1990) 2 NWLR (Pt.130) 627-639; Bright v State (2012) 8 NWLR (Pt.1302) 297 at 301-302.
In the final analysis from the totality of the evidence placed by the prosecution before the trial court including the confessional statements was sufficient to convict the respondent for the offence of culpable homicide punishable with death and so the Court of Appeal erred in reversing the findings and conviction of the respondent.

From the foregoing and the better reasoned lead judgment this appeal is meritorious and I allow it as I set aside the judgment of the Court of Appeal and restore the decision, conviction and sentence of the respondent.
Appeal allowed.
EJEMBI EKO, JSC: The Respondent was the 3rd Accused at the trial High Court of Katsina State. He was tried jointly with others on a two count charge of conspiracy to commit culpable homicide punishable with death under Section 221 (b) of the Penal Code Law of Katsina State read together with Section 79 of the same Penal Code, and armed robbery contrary to Section 2 (1) and punishable under Section 2 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of LFN, 1999. The High Court, finding him guilty as charged, convicted him and sentenced him to death. On his appeal to the Court of Appeal (the Lower Court) the conviction and sentence were ail set aside; hence this appeal by the prosecutor.
Other salient facts of this appeal having been adroitly summarised in the lead judgment just delivered by my learned brother, K. M. O. KEKERE-EKUN, JSC, which I hereby endorse; I no longer intend to repeat them.
Exhibit A, an extra-judicial statement made by the Respondent, is confessional. It was admitted in evidence through the PW.2 without any objection. The appropriate time to object to admissibility of any statement intended to be used by the prosecution against the accused person is when the statement is being tendered and not after, particularly on appeal: IWEKA v. FRN (2011) LPELR – 9350 (SC); OGUDO v. THE STATE (2011) NWLR (pt. 1278) 1 at 45.
The Respondent subsequently retracted Exhibit A. A retracted confessional statement is nonetheless admissible in evidence. The practice however is to look for some corroborative evidence outside the confession which makes the fact of the making of the confession credible and reliable before the court relies on it to convict the accused, the maker. This practice which has come to be known as the “SYKE’S RULE”, following R. v. SYKES (1913) 8 Cr. App Report 233, has since become part of our criminal law jurisprudence, it having been cited with approval in several cases including UBIERHO v. THE STATE (2002) 5 NWLR (pt. 819) 644; FABIYI v. THE STATE (2015) LPELR – 24834 (SC). The Rule ensures that ~the trial court must properly satisfy “itself that the retracted confession was in fact made truly and voluntarily by the accused person.
The PW.2 testified that the Respondent freely and voluntarily made the statement, Exhibit A; which he recorded from the Respondent upon words of caution administered to him. His evidence remains unscathed. He was not shaken under cross-examination. Other pieces of evidence at pages 14, 15, 16, 26 and 30 of the Record to the effect that the Respondent confessed to his slaughtering or participating in the slaughtering of the deceased night watch-man remain unscathed. In particular, the PW.3, also testified, un-discredited, that all the accused persons (including the Respondent) confessed on 23rd July, 2003 that they slaughtered the deceased. These pieces of evidence are consistent with the substance of Exhibit A. The evidence of the PW.4 at page 26 of the Record that a sharp object tampered with the throat of the deceased is consistent with the admission that the deceased was slaughtered.

The pieces of evidence extrinsic to or outside Exhibit A overwhelmingly corroborated Exhibit A in material particular. They make it most probably true that the Respondent made the statement. I neither think nor agree with the defence that the mere fact of Exhibit A not containing the personal information or biodata of the Respondent, the confessor, renders the confession unreliable. Once the confession, from other surrounding or extrinsic evidence, was satisfactorily established or proved to have in fact been made voluntarily it becomes reliable or a credible evidence against the accused person, the maker. The important thing, for a confession to be credible and reliable, is the fact that it was voluntarily made. That is all. For the purpose of this case the evidence of the PW.2, PW.3 and PW.4 amply corroborate the confession of the Respondent that he actively participated in the slaughtering of the deceased.
The fact that the PW.6 testified that all the accused persons were arrested while sleeping together is in my view a mere trifling inconsistency which does no material harm to the substance of the preceding act of causing the death of the deceased by slaughtering him. The Respondent confessed to his participating in that material actus reus. The evidence of the PW.6 does not offer any other material version of the slaughtering of the deceased inconsistent with the allegation of the prosecutor. It cannot therefore offer itself as any material contradiction that casts reasonable doubt of the guilt of the Appellant for the offences charged, as to bring the case within the principles in CHRISTOPHER ONUBOGU v. STATE (1974) 4 U. I. L R 538; PAUL AMEH v. THE STATE (1978) 6 – 7 SC 27, BOY MUKA v. THE STATE (1976) 10 SC305.
I agree with my learned brother, K. M. O. KEKERE-EKUN, JSC, that there is substance in this appeal. The decision of the Lower Court delivered on 12th June, 2005 acquitting and discharging the Respondent, clearly unwarranted having regard to the totality of the evidence in the printed Record, is hereby set aside. Consequently, the conviction and sentence of the Respondent by the trial High Court of Katsina State are hereby restored.
SIDI DAUDA BAGE, JSC: I have had the benefit of reading in draft the lead Judgment of my learned brother Kudirat M. O Kekere-Ekun, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal is meritorious and it is accordingly allowed. The decision of the trial Court delivered on 6th May, 2009 is hereby restored.

COUNSELS

Emeka Obegoiu Esq, for the Appellant with Olanipekun Roseji Esq.|Chukwuka Ikwuazom Esq, for the Respondent with Kehinde Olona Esq.|

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