THE STATE v. ABDULLAHI ILIYA
(2019)LCN/13394(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2019
CA/K/529/C/2014
RATIO
CONFESSIONAL STATEMENT: WHEN A TRIAL WITHIN TRIAL WILL TAKE PLACE
The law is that when an accused person contends that a confessional statement sought to be tendered in evidence was not made by him, voluntarily, it is the duty of the judge to test the confession by conducting a trial within trial, in order to determine whether in fact the statement was voluntarily made. See Busari v State (2015) 5 NWLR Part 1452 Page 343 at 374 Para C-D per Ngwuta JSC; Akpa v State (2008) 14 NWLR Part 1106 Page 72 at 98 Para A-D per Ogbuagu JSC.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
WHETHER THE APPELALTE COURT CAN INTERFERE WITH A CONFESSIONAL STATEMENT WHICH IS A SUBJECT OF A TRIAL WITHIN TRIAL
Once a confessional statement is admitted in evidence following a trial within trial, it becomes very difficult for an appellate Court to intervene on an appeal against the admissibility of the statement. This is because the evaluation of evidence presented at the trial is based on the credibility of the witnesses, which duty is solely that of the trial Court, since the appellate Court is not privileged to have seen the witnesses testify nor watch their demeanour. SeeLasisi v State (2013) 9 NWLR Part 1358 Page 74 at 96-97 Para H-A per Onnoghen JSC (as he then was); Ogedengbe v State (2014) 12 NWLR Part 1421 Page 338 at 358 Para F-H per M.D. Muhammad JSC.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
THE COURT MUST CONSIDER ALL POSSIBLE DEFENCES PRESENTED BY THE ACCUSED
The Supreme Court, in the case of Laoye v State (1985) 2 NWLR Part 10 Page 832 at 840 Para A-B per Nnamani JSC held as follows:
It is trite law that it is the duty of the Court to consider all possible defences open to an accused person on the evidence before the Court or even from his statements to the Police, notwithstanding that such defences were not specifically raised by the accused person or his counsel. It is equally trite that such possible defences ought to be fully considered no matter how stupid they may seem.PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
THE STATE Appellant(s)
AND
ABDULLAHI ILIYA Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): The Respondent in this case was arraigned before the High Court of Katsina State for causing the death, on or about the 20th day of May 2011, of one Masaudu Saidu by stabbing him with a knife in the stomach with the knowledge that death would be a probable consequence of his action, punishable under Section 221 of the Penal Code. At the trial, the Appellant called five (5) witnesses and tendered three exhibits. The Respondent on the other hand testified as a sole witness for the defence.
At the end of the trial, Hon. Justice Abdullahi Yusuf, (Hon. Chief Judge of Katsina State), in a judgment delivered on the 31st day of March, 2015, found the Respondent guilty of culpable homicide under Section 221 of the Penal Code but sentenced him ?to be determined at the pleasure of the Governor in accordance with Section 272(1) of the Criminal Procedure Code?, holding the Respondent to be under the age of 17 years at the commission of the offence.
?Dissatisfied with the sentence, the State appealed, by Notice of Appeal filed on 26/6/14, subsequently amended by
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leave of Court. The amended Notice was filed on 24/9/18 but deemed properly filed on 25/9/18.
Also, with the leave of this Court, the Respondent cross appealed. The Cross Appeal was also amended and the Amended Notice of Cross Appeal filed on 11/1/18 was deemed properly filed on 25/9/18.
Two issues for determination were distilled in the Appellants Brief of Arguments filed by S.B Umar (MRS), Director of Public Prosecutions (DPP) of Katsina State on the 4/4/16. The Brief, filed out of time, was deemed properly filed by this Court on 16/5/16 and further deemed properly filed on 25/9/18.
The issues were:
1. Whether the learned trial Court judge was right when he called for allocutus after convicting the Respondent for culpable homicide punishable with death under Section 221 of the Penal Code.
2. Whether the learned trial judge was right when he believed and relied on the oral submission of the Counsel to the Respondent during allocutus that the Respondent was under 18 years of age at the time of the commission of the offence thereby disregarding the contents of exhibit C & C1, a documentary evidence that stated the actual age
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of the Respondent at the time of the offence.
In the Respondents Brief of Arguments, settled by its Counsel Yakubu Maikasuwa Esq, five issues were distilled for the Courts determination, the first two issues in respect of the main appeal and the last three, in respect of the Cross Appeal, are as follow:
i. Having regard to the circumstances of the case, was the learned trial Judge right when he called for allocutus after convicting the Respondent?
If the answer to the above is in the negative, was any miscarriage of justice occasioned thereby
ii. Whether the learned trial Judge was right when he invoked the provisions of Section 272 of the Criminal Procedure Code after convicting the Respondent.
iii. Whether the learned trial Judge was right when he admitted Exhibit A in Evidence.
iv. Whether the learned trial Judge was right when he admitted Exhibits C and C1 in evidence.
v. Whether the Respondent can be said to have had a fair trial when the defence of private defence raised by him was not considered by the trial Court.
The Appellant filed a Reply Brief on 5/10/18, adopting the three issues formulated by the
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Cross Appellant in respect of the Cross Appeal.
The issues raised by the parties in the main appeal are similar, though couched differently. I shall however adopt the Appellants two issues, slightly amended and take the two issues together, in inverse order.
Main Appeal
ISSUE 1
Whether the learned trial judge was right when he believed and relied on the oral submission of the Counsel to the Respondent during allocutus that the Respondent was under 18 years of age at the time of the commission of the offence, in disregard of the contents of Exhibits C & C1, the confessional statements of the Appellant.
ISSUE 2
Whether the learned trial Court judge was right when he called for allocutus after convicting the Respondent for culpable homicide punishable with death under Section 221 of the Penal Code.
Learned Counsel submitted that the trial judge was wrong when he believed and relied on the oral submission of the Respondents Counsel regarding the issue of age of the Respondent in preference to the contents of Exhibits C & C1, and then calling for allocutus, without giving the Appellant the opportunity to
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respond. This, he submitted is a violation of the principle of fair hearing. Citing Ogudo vs. State (2011) 12 SCNJ 5, P.1 at 16 PARAS 5-15, learned Counsel argued that the trial judge was speculative when he held that the Respondent was below the age of 18 years at the time when he committed the offence. He further submitted that the learned trial judge cannot pick and choose from the content of Exhibit ‘C’, as a document can either be accepted as a whole or rejected as a whole. A Court, he said, in its evaluation and assessment, cannot pick and choose evidence.
On the issue whether the trial judge was right when he called for allocutus after convicting the Respondent for culpable homicide punishable with death under Section 221 of the Penal Code, the learned DPP submitted that the trial judge was wrong, as culpable homicide under Section 221 of the Penal Code is punishable with a mandatory sentence of death, citing ODUNAYO VS. STATE (2014)12 NWLR (pt. 1368) p. 337 at 364 PARAS E-F. Once the offence under Section 221 of the Penal Code had been established, the Court had no discretion when pronouncing sentence, she submitted, also citing USMAN vs. STATE
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(2014) 12 NWLR (pt. 1421) p. 209 at 241-242 Paras G-B.
The learned DPP further submitted that in a similar case of culpable homicide punishable with death determined by the same judge, which judgment was delivered on the same date with the instant case, the said judge stated that he would not call for an allocutus for an offence of this nature, as the mandatory sentence must be passed by the Court. She referred to the case of STATE v MUSA HAMZA CASE No. KTH/32C/2014. The call for allocutus thus occasioned a clear miscarriage of justice on the Appellant.
In response, learned Counsel to the Respondent submitted that the learned trial Judge was right when he invoked the provision of Section 272 of the Criminal Procedure Code and detained the Respondent at the pleasure of the Governor under Section 303 of the said law. He stated that having regard to the entire circumstances of the case, particularly the evidence before the Court, there was evidence that the Respondent was less than 17 years at the time the offence was committed, enough to invoke the provision of Section 272(1). The complaint of the Appellant that the issue of age of the convict was
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never raised at the trial is a non-issue in view of the provision of Section 272(1) of the CPC.
With regard to Exhibit ‘C?, the confessional statement of the Respondent, learned Counsel submitted that it is trite that where the age of the accused person is material for the purpose of conviction or is relevant in the determination of the nature of sentence to be passed on the accused person on his conviction, where the evidence of such age is not conclusive, the trial Court is obliged to make due inquiry as to the accused person?s age. He relied on GUOBADIA vs. STATE (2004)6 NWLR (pt. 869) 360 at 380 PARAS A-E.
He submitted that in MODUPE vs. STATE (Supra), the Supreme Court held that where there is a discrepancy on the age of the accused, between his statement to the police and his evidence in Court, the Court ought to believe his evidence except where it is obvious that he was not telling the truth. He urged the Court to so hold and resolve the issue in favour of the Respondent.
In response to the issue on allocutus Counsel referred to Jauro JCA in the case of ODUNAYO vs. STATE (2014) 12 NWLR (pt. 1420) 1 and the
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provision of Section 197 (1) of the Criminal Procedure Code and agreed that where a trial Court calls for allocutus in capital offences or in convictions with mandatory punishments, the plea for leniency is just a waste of time. He cited THE STATE Vs. JOHN (2013) 12 NWLR (pt. 1368) 337 at 364 PARAS E-G. He further submitted that the mere order for allocutus will not ipso facto vitiate a proceeding. It is only in situations where a judge reduces or imposes a lighter sentence in offences that carry mandatory sentences that an aggrieved party will complain, he submitted, citing ODUNAYO vs. STATE (SUPRA) pg. 26 PARAS E-G. It is thus not enough to submit that the order for allocutus occasioned a miscarriage of justice, without showing what the Appellant suffered. He relied on UMARU v. FRN (2016) ALL FWLR (pt. 475) at 490.
In the instant case, the trial Judge discountenanced the defences of the Respondent, holding the Respondent guilty as charged. He however, subsequently entertained an allocutus, stating:
?It is in view of the above that I hereby discountenance the defense of the accused namely that of self-defence and provocation which is an
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afterthought. This Court believed the statement of the accused exhibit ‘C’ as it is in line with the testimony of PW3 of how the accused stabbed the deceased on the act of stabbing the exhibits ‘A’ (sic) which shows the deceased with his intestine on his stomach confirmed the act of killing the deceased (sic).
Furthermore this Court believed the testimonies of prosecution?s witnesses and hold that the prosecution has proved the offence of culpable homicide punishable with death beyond reasonable doubt. The act of stabbing the deceased on the stomach no doubt has indicated the intention to cause the death of the deceased by the accused. In view of the foregoing I find the accused guilty as charged. I call on Counsel to the accused person to enter an allocutus for the purpose of sentencing.?
The Defence Counsel pleaded:
?We plead with this Court to be lenient and to temper justice with mercy, the convict is a first time offender, being young in age he is a student of SS 2. We therefore called (sic) on this Court to consider this in passing the sentence.?
The Court thence held:
?In view of the
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plea for leniency argued by counsel for accused and the fact that the accused was said to be student of SS2 at the time of the commission of the offence there is the need to determine the age of the accused as at that time. I hereby adjourned (sic) this case to 24th of March, 2014 for this Court to see the evidence of the age of the convict before passing a sentence.?
On the next adjourned date, the Counsel to the Respondent submitted before the lower Court that the eviden
