TITUS v. STATE (2021)

TITUS v. STATE

(2021)LCN/15638(CA)

In The Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 07, 2021

CA/A/198C/2019

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

GARBA TITUS APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ESSENTIAL INGREDIENTS TO PROVE THE OFFENCE OF MURDER

To secure a conviction against an accused person for murder, the prosecution must of necessity establish that:
i. That the death of a human being has actually taken place.
ii. That such death was caused by the accused person.
iii. That the act of the accused person was done with the intention of causing death or grievous bodily harm or injury, and,
iv. That the accused person knew or had reason to know death would be the probable and not likely consequence of his act.
See Musa vs. The State (2009) LPELR – 1930) (SC), Ahmed vs. The State (2001) 8 NSCQR 273 @ 310.
There are three settled methods or ways by which the prosecution proceeds under in proving an alleged crime such as murder, to include;
i. Eye witness account.
ii. Confessional Statement and
iii. Circumstantial evidence.
See Orisa vs. The State (2018) 11 NWLR (pt. 1831) 435, Ayedatiwor vs. The State (2018) 11 NWLR (pt. 1631) 542. PER BARKA, J.C.A.

WHETHER OR NOT THE DEFENCE OF ALIBI CAN BE RAISED AT ANY STAGE OF A CRIMINAL PROCEEDINGS

I agree with the lower Court that the defense raised at that stage cannot avail the accused person. To be entitled to the beneficent effect of the defense of alibi, an accused person must raise it at the earliest opportunity which would preferably be in his extra judicial statement. This is to offer the police an opportunity to either confirm or confute its availability to the accused person. In raising the defense, it must be unequivocal as to the particulars of his whereabouts and those present with him. It is only where the defense is raised at the earliest opportunity without any ambiguity that qualifies for the prosecution to investigate and to disprove same. But where it is raised at the stage of trial as was the case in the instant case, the defense will not avail him. See Esene vs. The State (2017) 8NWLR (pt. 1568) 337, Dage vs. The State (2019) 12 NWLR (pt. 1686) 204 @ 218, Agu vs. The State (supra).
It’s obvious therefore, that Appellant having failed to raise the defense at the earliest opportunity, the defense cannot avail him and the lower Court was right in that regard. In any case, as rightly deduced by the lower Court, Appellant by the evidence of the PW2 and PW3 having sufficiently fixed him at the scene of the crime, that defense has been demolished and unavailable to the Appellant. See Victor vs. The State (2013) 12 NWLR (pt. 1369) 465, State vs. Ekanem (2017) 4 NWLR (pt. 1554) 85, Ebenehi vs. The State(2009) 6 NWLR (pt. 1138) 431, Yalia vs. The State (2019) 11 NWLR (pt. 1683) 225 @ 250. PER BARKA, J.C.A.

THE POSITION OF THE LAW ON THE RECORDING OF AN ACCUSED PERSON’S CONFESSIONAL STATEMENT
This practice has been assaulted by the Courts, for as held by the Supreme Court the statement of an accused person must where practicable be recorded in the language in which it is made or near as possible to it, and even though it is not an invariable practice, a practice meant to ensure the correctness of the statements made by the Accused person. See Adeyemi vs. The State (2013) 3 NWLR (pt. 1340) 78, Olalekan vs. The State (2001) 18 NWLR (pt. 746) 793 @ 819. PER BARKA, J.C.A.

WHETHER OR NOT THE COURT CAN ACT ON THE WITHDRAWN CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
It is only at the stage of tendering that Appellant now disowned the said statement contending that the statement is not his. In the circumstance, can we say that the statement was inadmissible? My simple answer is that the statement though admissible, the Court should be wary relying solely on it to convict. Ogunwumiju JCA, as he then was in Ali vs. The State (2019) 14 NWLR (pt. 1692) 314 @ 350, relying on Ndidi vs. The State (2007) 13 NWLR (pt. 1052) 633 of the holding that while any irregularity in this regard may mar the case of the prosecution, it does not render such evidence inadmissible. However, where such a statement is the only evidence implicating the accused person, the Court should be wary of convicting solely on such evidence. I totally agree with the reasoning thereat. In other words, Exhibit A does not become inadmissible or offensive to the provisions of the Constitution merely because the statement rendered in Hausa by the accused person was recorded in the English language. What is fairly settled is that the Evidence Act is categorical as to the specie of confessional statements that cannot be admitted, but where resiled from as in the instant case; satisfy certain established conditions before it is acted upon. When the life of an individual is hanging precariously near the gallows, an accused person, who had gallantly owned up to his crime at the initial stage, upon a sober reflection gets into the temptation of disowning the statement earlier made. This however does not mean that the Court cannot act on it. All that the Court needs to do is to test the veracity of that statement with other facts and circumstances outside the statement in order to see whether they support, confirm or correspond with the statement. See State vs. Saidu (2019) 10NWLR (pt. 1680) 308 @ 322, Isong vs. The State (2016) 14NWLR (pt. 1531) 96, Onwumere vs. The State (1991) 4NWLR (pt. 186) 428. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the High Court of Niger State of Nigeria, Minna Judicial Division, presided by the Honorable Justice Abdullahi Mikailu, and delivered on the 21st day of June, 2018. By the said judgment, Appellant was convicted for the offence of culpable homicide punishable of death under Section 221 of the Penal Code Law, Cap. 94 Laws of Niger State and sentenced to death by hanging.

The genesis of the Appellant’s travails started when on the 5th day of December, 2016, he was alleged to have caused the death of one Saidu Gbenche of Jankasa village vis Guni in Munga Local Government Area of Niger State by matcheting him on the head with his cutlass leading to his death on the spot.

When Appellant was arraigned before the High Court on the 20th day of February, 2018, and the charge against him read to his understanding, Appellant pleaded not guilty. The prosecution proceeded to call three witnesses in proof of their case, tendered two Exhibits, and closed their case. On the 12th day of March, 2018, the defense called one witness (Appellant), and thereafter closed its case. Written addresses were ordered, filed and adopted by the respective parties, setting the stage for the vexed judgment delivered on the 21st day of June, 2018.

Dissatisfied with the judgment of the lower Court, wherein he was convicted and sentenced to death, Appellant filed a Notice of Appeal on the 17th of September, 2018 predicated upon a sole ground of appeal to wit, that the Judgment is against the weight of evidence. The extant Notice of Appeal however is the Amended Notice of Appeal filed on the 8th of July, 2019 deemed filed on the 9th of April, 2020 with the leave of Court, now predicated on nine grounds of appeal. The record of Appeal having been duly transmitted to this Court on the 15th of March, 2019, Appellant filed a brief of argument, settled by E. S. Oluwabiyi, Esq. the learned counsel appearing for the Appellant. The appeal having turned up for hearing on the 16th of February, 2021, learned counsel identified and adopted the brief filed, and thereby urged the Court to allow the appeal, set aside the judgment delivered on the 21st of June, 2018, set aside the conviction and sentence, and to discharge and acquit the Appellant.

In opposing the appeal, Moses G. Chiroma, the Learned Director of Public Prosecution, Niger State, leading Abubakar B. Sulaiman, Assistant Chief State Counsel, who settled and argued the brief on behalf of the state, urged the Court to dismiss the appeal for lacking in merit and to affirm the decision of the trial Court.

The Appellant in his brief settled four issues for resolution as follows:-
i. Whether the Respondent proved all the ingredients necessary to convict the Appellant of the offence of Culpable Homicide punishable with death against the Appellant beyond reasonable doubt.
ii. Whether the trial Judge’s admission of and reliance on Exhibit A, the alleged Confessional Statement of the Appellant was not a breach of Sections 36 (6) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as altered), which renders same liable to be expunged from the record of Court.
iii. Whether the reliance by the Learned Trial Judge on the irreconcilable, inconsistent and contradictory testimonies of the Respondent’s witnesses to convict the Appellant for the offence charged did not occasion a miscarriage of justice to the Appellant.
iv. Whether the Learned Trial Judge’s decision that the Appellant did not raise the defense of alibi at the earliest opportunity during investigation when there is evidence on record that he so did, does not occasion a miscarriage of justice to the Appellant.

On the other hand, the learned counsel for the Respondent distilled three issues capable of determining the instant appeal as follows:-
i. Whether from the evidence adduced at the trial the Respondent can be said to have proved its case beyond reasonable doubt.
ii. Whether the Court was right in convicting the Appellant on free and voluntary confession which was tendered and admitted by the Court without objection as to its voluntariness by the Appellant.
iii. Whether besides the evidence of Pw1 who tendered Exhibit A, there are no other evidences proving the case against the Appellant.

A calm but dispassionate examination of the issues crafted by the two parties, shows that the three issues crafted by the parties are indeed the same, all trying to question the conclusion by the trial Judge on whether Appellant was indeed guilty of the offence charged, and that being so, it is my humble view that a single issue disposes of this appeal. Simply, it is whether from the totality of the evidence adduced, the respondent can be said to have proved its case beyond reasonable doubt? I intend therefore to consider the appeal upon the sole issue crafted by self.

Preliminarily, an allegation based on culpable homicide is criminal in nature, and by law that which must be proved beyond reasonable doubt. The case of Attah vs. The State (2010) ALL FWLR (pt. 540) 1224 @ 1245 -1246, cited by the learned counsel for the Appellant is quite apposite. The authority also establishes the fact that in proving the offence alleged beyond reasonable doubt, all that the prosecution needs to do is to prove the ingredients that constitute the offence, and not beyond the shadow of doubt. See Amusa vs. The State INCC 87.

To secure a conviction against an accused person for murder, the prosecution must of necessity establish that:
i. That the death of a human being has actually taken place.
ii. That such death was caused by the accused person.
iii. That the act of the accused person was done with the intention of causing death or grievous bodily harm or injury, and,
iv. That the accused person knew or had reason to know death would be the probable and not likely consequence of his act.
See Musa vs. The State (2009) LPELR – 1930) (SC), Ahmed vs. The State (2001) 8 NSCQR 273 @ 310.
There are three settled methods or ways by which the prosecution proceeds under in proving an alleged crime such as murder, to include;
i. Eye witness account.
ii. Confessional Statement and
iii. Circumstantial evidence.
See Orisa vs. The State (2018) 11 NWLR (pt. 1831) 435, Ayedatiwor vs. The State (2018) 11 NWLR (pt. 1631) 542.

The learned counsel for the Appellant now submits that prosecution failed to establish all the ingredients that constitute the offence of murder against the Appellant before the lower Court. In urging the Court to resolve the issue in its favor, learned counsel submitted that at the time of the attack on the deceased, Appellant was not at the scene of the attack having left the scene with his brother. He argued that identification of the accused at the scene of crime is very important, and having not been established, a necessary ingredient of the offence was lacking, which proves fatal to the prosecution’s case. He cited Danbaba vs. The State (2018) LPELR – 43841 (SC) and Musa vs. The State (supra) in support of his contention. Learned counsel further submitted that the other ingredient of the offence which the prosecution failed to establish was the failure of the prosecution to prove that the act of the accused was done with the intention of causing death or grievous bodily harm. He maintained that Appellant was not a party to the death of the deceased, and relying on Tunde Adava vs. The State (2006) LPELR – 74 (SC) per Kutigi jsc, which held that:
“Failure to prove any one of them (ingredients of the offence) means failure of the charge itself.”

On the other hand, the State referred to Exhibit “A” admitted in evidence unchallenged, as well as the evidence of the PW1, PW2 and PW3, which clearly showed that the death of the deceased was caused by the Appellant. Counsel posited that Exhibit A alone proved all the essential ingredients of the offence relying on Igbinovia vs. The State (1981) 2SC 5 @ 17. He argued that once a confessional statement is admitted without objection, the Court can utilize and rely on same to convict the Appellant. He cited Egharevba vs. State (2016) 8 NWLR (pt. 1515) 433 @ 455 in support of the legal position. On whether a man is presumed to intend the natural consequence of his act, counsel referred to State vs. Babangida John (2014) 10 NCC 96, and argued that Exhibit A, sufficiently proved the leg of the ingredient. He further referred to Lamba Kumbi vs. Bauchi Native Authority (1963) NNLR 49, with regards to the weapon used, contending that Appellant’s contention that he was not at the scene of the crime was an afterthought as he was fixed to the scene by the testimony of the PW2 and PW3 as well as Exhibit A, the confessional statement. He questioned why Appellant failed to timeously raise the defense before the police as stated in Udo Ebere & ors vs. The State (2001) 6 NSCQR 755, maintaining that the identity of the Appellant as the person culpable for the crime committed is not in doubt, and thereby urged the Court to so hold.

In resolving the issue, the lower Court from pages 64 – 66 battled with the 1st issue to be proved by the prosecution, i.e whether the deceased, a human being is dead. The Court referred to the evidence by the police, PW3 and that of PW2 who said they actually buried the deceased, and resolved the fact that the deceased actually died. I agree with the lower Court on that finding. The Appellant does not seem to have any argument to proffer on the issue. Indeed, there was ample evidence especially from the PW2 and PW3 as to the death of the deceased. The deceased was stated to have died from the attack with cutlasses by the Appellant. There was no intervening act, and in such a circumstance, a post mortem or medical report would not be a necessity or requirement. See Bakare vs. The State (1986) NSCC 772, Isa Kassim vs. The State (2017 LPELR – 42586 (SC); Iro Ironsi vs. State (2008) 3 NCC 1 @ 26 – 27. I am equally satisfied that deceased is dead thus satisfying the first ingredient of the offence. With regards to whether the death of the deceased was occasioned by the act of the Appellant, Appellant insists that he was never at the scene of crime, and could not have committed the alleged offence. On the other hand, the State relies on Exhibit A, to maintain that it was the act of the Appellant that resulted to the death of the deceased. Two issues arise for determination. Firstly, Appellant having stated that he was not at the scene of crime, more or less raised the defense of alibi, and secondly Appellant is also heard as contending that the prosecution failed in proving that Appellant had the intention of causing death and/or bodily harm to the deceased. If the learned counsel is maintaining the position that he was not at the scene of crime, and therefore couldn’t have committed the crime, his contention that prosecution failed to prove the Appellant’s intention in causing the death of the deceased seems to defeat his earlier stand that he was not at the scene of the crime. That submission to say the least is inconsistent, and contradictory. While the defense of alibi completely exonerates the accused on the basis that he was not there and could not have committed the offence, contending that the intention of the accused person in causing the death of the deceased was not proved, connotes that accused person did commit the alleged offence, but that his intention of proving the cause of death was lacking. That argument cannot therefore avail the Appellant. The defense of alibi on the other hand, if found to be true is a complete defense which absolves the accused person of the charge. The defense however crumbles where the prosecution adduces sufficient and acceptable evidence fixing the accused person at the scene of crime at the time the offence was committed. See Osuagwu vs. The State (2013) 5 NWLR (pt. 1347) 360, Ozaki vs. The State (1990) 1 NWLR (pt. 124) 92, Gachi vs. The State (1965) NMLR 333, Agu vs. The State (2017) 10 NWLR (pt. 1573) 171 @ 200.

The lower Court on the issue of alibi found that accused person raised the defense at the trial stage and not before. I agree with the lower Court that the defense raised at that stage cannot avail the accused person. To be entitled to the beneficent effect of the defense of alibi, an accused person must raise it at the earliest opportunity which would preferably be in his extra judicial statement. This is to offer the police an opportunity to either confirm or confute its availability to the accused person. In raising the defense, it must be unequivocal as to the particulars of his whereabouts and those present with him. It is only where the defense is raised at the earliest opportunity without any ambiguity that qualifies for the prosecution to investigate and to disprove same. But where it is raised at the stage of trial as was the case in the instant case, the defense will not avail him. See Esene vs. The State (2017) 8NWLR (pt. 1568) 337, Dage vs. The State (2019) 12 NWLR (pt. 1686) 204 @ 218, Agu vs. The State (supra).
It’s obvious therefore, that Appellant having failed to raise the defense at the earliest opportunity, the defense cannot avail him and the lower Court was right in that regard. In any case, as rightly deduced by the lower Court, Appellant by the evidence of the PW2 and PW3 having sufficiently fixed him at the scene of the crime, that defense has been demolished and unavailable to the Appellant. See Victor vs. The State (2013) 12 NWLR (pt. 1369) 465, State vs. Ekanem (2017) 4 NWLR (pt. 1554) 85, Ebenehi vs. The State(2009) 6 NWLR (pt. 1138) 431, Yalia vs. The State (2019) 11 NWLR (pt. 1683) 225 @ 250.

I now proceed to examine whether Exhibit A the alleged confessional statement of the Appellant as accused person, was rightly relied upon by the lower Court in convicting the accused person. The learned counsel for the Appellant with regards to the admission and reliance of the lower Court on the Exhibit, had submitted that the reliance by the lower Court on the said Exhibit occasioned a breach of the Appellant’s right to fair hearing as enshrined under Section 36 (6) (a) of the CFRN 1999 as altered, further submitting that the exhibit ought not to have been admitted, having been recorded in the English language, whereas Appellant spoke the Gbagyi language. He made reference to excerpts from the record, contending that Appellant does not understand the Hausa language and the recording of Exhibit A, in breach of Appellant’s right to fair hearing. Learned counsel also at page 8 of the brief, pinpointed seven areas why the reliance of the lower Court on Exhibit A was in breach, contending as held in Owhoruke vs. COP (2015) ALL FWLR (pt. 801) 1401 @ 1407, that Appellant’s statement ought to have been recorded in the presence of his counsel. Counsel further argued that an extra judicial statement made to the police is not evidence of the truth of its contents, and relied on Suberu vs. The State (2010) 8 NWLR (Pt. 1197) 586. On the whole, it was urged upon the Court to hold that the reliance of the lower Court on Exhibit A in convicting the Appellant occasioned a miscarriage of justice, for which this Court is called upon to so hold, and to thereby set aside the conviction and sentence imposed on the Appellant.

The contrary response to the issue by the Respondent’s counsel is that the lower Court was right in convicting the Appellant on the said Exhibit A, which he termed to be a voluntary confession admitted without objection. He reiterated the legal position that a free and voluntary confession, where direct and positive, is sufficient to sustain a conviction. The case of Yahaya vs. The State (2005) NCC 120 @ 123 was relied upon. He alluded to portions of the Exhibit relied upon by the lower Court, contending that the denial by the Appellant was an afterthought and premised on the authority of Shande vs. The State (2005) 22 NSCQR 756, the reliance by the lower Court on the confessional statement cannot be said to be in breach of Section 36 (6) of the Constitution as argued. He further argued that PW2 never stated that he made two statements, and referred to the evidence of the PW2 who stated that Appellant killed his father in his presence as well as narrating what happened at the scene in Court. Further to that, learned counsel submitted that Niger State is yet to domicile the Administration of Criminal Justice Act (ACJA) and therefore not bound by it. On the authority of Owhoruke vs. Commissioner of Police (2015) ALL FWLR (pt. 801) 1401, cited by Appellant’s counsel, it was contended that the case is not helpful to the Appellant, the Court having held that the provision is not mandatory, and thereby urged the Court to resolve the issue against the Appellant.

It is trite that a Court can convict on the confessional statement of an accused person alone, provided the confessional statement is proved to be voluntary, direct and positive on the offence charged. Where proved as held, the need for further investigation on who committed the offence is obviated. The Appellant now picks holes with regards to Exhibit A, tendered by the Respondent. He contended that Exhibit A was recorded in breach of the provision of Section 36 (6) (a) of the CFRN 1999, that the name appearing on the exhibit is not that of the Appellant, and that the purported statement was not taken in the presence of counsel. Starting with the last complaint, it is evident that Appellant having been charged under Section 221 of the Penal Code Law applicable in Niger State, and the Administration of Criminal Justice Act, not having been domesticated, the submission of the learned counsel founded upon the provisions of the Administration of Criminal Justice Act, cannot avail the Appellant, being that there is no such provision under the Penal Code or the Criminal Procedure Code. In any case, the Apex Court in the case of Oghwure vs. State (supra) had laid the issue to rest having interpreted that provision of the ACJA, as not mandatory.

There is the other contention by the Appellant with regards to the recording in the English language of the Accused statement, whereas Appellant did state that he understands the Igbagi and Hausa Language only. PW2, the Police Officer who recorded the statement did affirm in his evidence, that Appellant narrated his evidence in the Hausa language, while the statement was recorded in the English Language. This practice has been assaulted by the Courts, for as held by the Supreme Court the statement of an accused person must where practicable be recorded in the language in which it is made or near as possible to it, and even though it is not an invariable practice, a practice meant to ensure the correctness of the statements made by the Accused person. See Adeyemi vs. The State (2013) 3 NWLR (pt. 1340) 78, Olalekan vs. The State (2001) 18 NWLR (pt. 746) 793 @ 819.

With regards to Exhibit A, the alleged confessional statement, PW1 Sgt Umar Doma narrated how the statement was recorded. The accused informed him that he understands the Gwari and Hausa Language. That accused volunteered his statement in the Hausa Language which he recorded in English, read the statement and translated the same to his understanding, and at the end of it, they both signed as correct. The witness went further to state that the statement and the accused person were taken before one Supol Hassan Zakari, who also read over the statement allegedly being the statement of the accused person to his understanding, and he also signed as being correct.

It is only at the stage of tendering that Appellant now disowned the said statement contending that the statement is not his. In the circumstance, can we say that the statement was inadmissible? My simple answer is that the statement though admissible, the Court should be wary relying solely on it to convict. Ogunwumiju JCA, as he then was in Ali vs. The State (2019) 14 NWLR (pt. 1692) 314 @ 350, relying on Ndidi vs. The State (2007) 13 NWLR (pt. 1052) 633 of the holding that while any irregularity in this regard may mar the case of the prosecution, it does not render such evidence inadmissible. However, where such a statement is the only evidence implicating the accused person, the Court should be wary of convicting solely on such evidence. I totally agree with the reasoning thereat. In other words, Exhibit A does not become inadmissible or offensive to the provisions of the Constitution merely because the statement rendered in Hausa by the accused person was recorded in the English language. What is fairly settled is that the Evidence Act is categorical as to the specie of confessional statements that cannot be admitted, but where resiled from as in the instant case; satisfy certain established conditions before it is acted upon. When the life of an individual is hanging precariously near the gallows, an accused person, who had gallantly owned up to his crime at the initial stage, upon a sober reflection gets into the temptation of disowning the statement earlier made. This however does not mean that the Court cannot act on it. All that the Court needs to do is to test the veracity of that statement with other facts and circumstances outside the statement in order to see whether they support, confirm or correspond with the statement. See State vs. Saidu (2019) 10NWLR (pt. 1680) 308 @ 322, Isong vs. The State (2016) 14NWLR (pt. 1531) 96, Onwumere vs. The State (1991) 4NWLR (pt. 186) 428.
In the case at hand, Exhibit A, where examined against the six way test, State vs. Musa (2020) 2NWLR (pt. 1709) 499 @ 520, Lasisi vs. State (2013) 9 NWLR (pt. 1358) 74 @ 111 — 112 per Onnoghen JSC, becomes obvious that the said Exhibit was indeed the confessional statement of the accused person and the lower Court rightly relied on it to convict Appellant for the offence of murder. Even then, there was ample evidence outside the confessional statement nipping the accused person with the death of the deceased. PW1 who was an eye witness maintained throughout his evidence that Appellant killed his uncle in his presence. PW3 also witnessed the incident that led to the death of the deceased person. The weapon used and the effect on the body of the deceased, as well as the intention to kill by the Appellant was manifest.

I do not agree with the Appellant that the alleged contradictions were material enough to warrant the lower Court resolving them in favor of the Appellant. Having viewed the alleged contradictions and/or inconsistent statements, I find same to be periphery and not material as to the death of the deceased and the question as to who killed the deceased.

On the whole, my humble but firm resolve is that prosecution proved its case as required by law having proved the guilt of the Appellant to the hilt. This Court in the circumstance fail to see why it should interfere with the well-considered judgment of the lower Court, and accordingly dismiss the same. The conclusive effect of my decision is that the appeal is wanting in merit and it is hereby dismissed by me. The judgment of Abdullah Mikailu J delivered on the 21st day of June, 2018 in charge No. NSHC/MN/4C/2018, the State vs. Garba Titus, wherein Appellant was convicted and sentenced to death is hereby affirmed.
APPEAL DISMISSED.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my brother HAMMA AKAWU BARKA, JCA.
I agree with his reasoning and conclusions.
The appeal is devoid of merit and I dismiss same.

The judgment of the High Court of Niger State of Nigeria, Minna Judicial Division in Charge No. NSHC/MN/4C/2018 delivered on the 21st of June 2018 is hereby affirmed.

EBIOWEI TOBI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my lead brother, H.A. Barka, JCA. I also agree that the appeal lacks merit and it is dismissed. I will just add a few words of mine in dismissing the appeal.

The Appellant was charged for culpable homicide punishable by death under Section 221 of the Penal Code. The lower Court convicted him sentencing him to death having found him guilty. The Lower Court relied heavily on Exhibit A, the confessional statement of the Appellant. My learned brother in the lead judgment passed the confessional statement through the veracity test and came to the conclusion like the lower Court that the Appellant committed the offence.

In criminal matters, the prosecution has the duty to prove its case beyond reasonable doubt. Proof beyond reasonable doubt implies high degree of probability that the Appellant committed the offence. See Afuape vs State (2020) 17 NWLR (pt 1754) 381.
One paramount requirement that the prosecution need to prove is that the Appellant must be connected or linked to the offence otherwise the conviction will be sent aside. This is a very important aspect of criminal liability. Even if the prosecution is able to prove all the ingredient of any offence a person is charged with but if he fails to prove that the person accused actually committed the offence, all the exercise will be in futility. To avoid the wrong person been convicted, it is crucial that there must be enough compelling evidence that the person charged actually committed the offence. The apex Court made this point clear while showing the importance of connecting an accused to the offence in the case of The State vs Ibrahim Yahaya (2019) 13 NWLR (pt 1690) 397 in these words:
“The Court below reversed the conviction and sentence of the respondent, on the ground, inter alia that there was insufficient identification evidence fixing the appellant at the scene of the crime. It is important to note that in order to establish its case against an accused person beyond reasonable doubt as required by Section 139 of the Evidence Act, the prosecution must prove that the accused person was one of those who committed the offence.”
See Maba vs State (2021) 1 NWLR (pt 1757) 352.

On the veracity test, the supreme Court has held that apart from the confessional statement, there must be cogent and compelling evidence suggesting in very high probability that the Appellant committed the offence. See Bio vs State (2020) 7 NWLR (pt 1723) 218. I am in agreement with my learned brother that aside the Exhibit A, there is enough evidence from eye witness account that the Appellant committed the offence.

For the above reasons and for the fuller reasons in the lead judgment of my learned brother, I also dismiss this appeal.