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UMORU v. STATE (2021)

UMORU v. STATE

(2021)LCN/15796(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, December 17, 2021

CA/A/112C/2020

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

ISAH UMORU APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

INGREDIENTS TO PROVE THE OFFENCE OF MURDER

The ingredients to prove to sustain a conviction in relation to the first charge are:
1) That the death of a human being occurred.
2) That the death was caused by the act or omission of the defendant
3) That the defendant, by his act or omission intended to cause death or know that death was the probable consequence of his act. See; Durwode v. State (2000) 15 NWLR (Pt. 691) 467 at 487-488; Ogbu & Anor v. The State (2007) 4 SCM 169 at 185.
PER AMADI, J.C.A.

WHETHER OR NOT IT IS COMPULSORY FOR A MEDICAL DOCTOR TO TESTIFY IN CASES WHERE EVIDENCE OF MEDICAL REPORT IS REQUIRED

The law is settled that it is not compulsory that a medical doctor or maker of medical report must testify in all cases where evidence of medical report is required. See Section 55(1) and (3) of Evidence Act, 2011 (formerly Section 42(1)(a) and the case ofJohn Mamudu Buba v The State (1992) NWLR Pt 215, 1; Ozoernena vs. State (1998) 10 NWLR (Pt. 571) 632 @ 648; Chewmoh vs. State (1986) 2 NWLR (Pt. 22) 331. Section 55(1) of the Evidence Act, 2011 provides: “Either party to the proceedings in any criminal case may produce a certificate signed by a Government pathologist and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.” PER AMADI, J.C.A.

DEFINITION OF THE TERM “CORROBORATE”

The verb ‘corroborate’ is defined as: “To strengthen or confirm; to make more certain.” See Bryan A Garner, Black’s Law Dictionary 10th edition, page 421. In the case of Onyegbu v. The State (1994) 1 NWLR (Pt.320) 328 at 340, it was held that corroborative evidence must be evidence which confirms in some material particulars not only that the crime has been committed but also that it was the Appellant who committed it. The Supreme Court in the case of Dagayya v The State (2006) 7 NWLR (Pt 980) 637 held thus: “Corroboration” entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. Corroboration does not mean that the witness corroborating must use the exact or very like words, unless the matter involves some arithmetics.” Per Tobi, J.S.C. PER AMADI, J.C.A.

WHETHER OR NOT IT IS EVERY OMISSION IN A JUDGEMENT THAT CAN LEAD TO ITS REVERSAL

The law is settled and clear that not every omission to make a pronouncement or consider an issue will affect the judgment of a trial Court. In Sule v State (2009) 6 SCNJ 65 @ 89, It was held that not every error or omission by a trial Court would lead to a reversal of its judgment, see also Cookey v Fombo (2005) 22 NSCQR 411 and Olubode v Salami (1985) 2 NWLR (Pt. 7) 282. This is a good example where an omission to pronounce or consider an issue will not negatively affect the judgment of the lower Court. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ankpa, Kogi State; coram: A. N Awulu J, delivered on 20/11/2019 in Charge no. AHC/10C/2018, (The State v. Isah Umoru).

The Appellant was arraigned before the trial Court on two counts of Culpable Homicide punishable with death contrary to Section 221(a) of the Penal Code, and Section 3(1) of the Robbery and Firearms Act, CAP R11 Laws of the Federation of Nigeria, 2004. Upon arraignment, the Appellant pleaded not guilty to the said counts. The information containing the said two counts together with list of prosecution witnesses, evidence led, list of Exhibits and the Statements obtained by the Police are contained in pages 2-13 of the Record of Appeal (referred to as the ‘record’ in this judgment).

The prosecution in proof of its case called four witnesses who testified as PW1-PW4 and tendered five Exhibits (P1-P5). The Appellant on his part testified as DW1, and did not call any other witness.

​A summary of the prosecution’s case is that the Defendant, without justification killed one Odejoh Moses Usman by shooting him with a single barrel gun. The deceased was married to the sister of the defendant. The deceased and his wife had a misunderstanding resulting in a quarrel. His wife packed out of the deceased’s house. On 27/10/2017, the deceased was preparing a meal for his children when the defendant who was living nearby came visiting. He spoke to the deceased in a sarcastic manner and a quarrel ensued after which the defendant picked his gun from his room and shot the deceased in the stomach leading to his death (see pages 98-101 of the records). The defendant now Appellant testified as DW1 and stated that he was in his house on 27/10/2017 when the deceased came knocking on his door. He asked the deceased to come back the following day as it was late but later opened his door and the deceased entered. After admonishing the deceased, the deceased said he was taking sides with his sister and began to slap him which caused a fight between them. The deceased took a gun and threatened to kill him and both of them started to drag the gun which suddenly exploded and the pellets hit the deceased in the stomach which also hit him on the thigh.

​At the conclusion of hearing, the trial Court found the appellant guilty of the charge, convicted him and sentenced him to death but failed to state the mode or method of execution of the death sentence. It is against these orders of conviction and sentence that the appellant has appealed against.

In his Notice of Appeal, the appellant raised seven grounds of appeal which are hereunder reproduced. See pages124-134 of the record.

GROUND ONE:
The trial Court erred in law in view of the unambiguous provisions of Section 28 (1) and (2) of the Kogi State Administration of Criminal Justice Law 2017 when it admitted and relied heavily on the inadmissible exhibits P3 and P5 (the purported extra-judicial statements of the Appellant) in convicting the appellant.
GROUND TWO:
The Court erred in law in relying on the confessional statements (i.e. exhibits P3 and P5) of the appellant to convict him hence a miscarriage of justice.
GROUND THREE:
The lower Court erred in law in admitting the two statements of the appellant as confessional statements (exhibits P3 and P5) and relied on same as direct and positive to convict the appellant and thereby occasioned a miscarriage of justice.
GROUND FOUR:
The trial Court erred in law when it held that the Prosecution/Respondent has proved its case against the appellant beyond reasonable doubt.
GROUND FIVE:
The right of fair hearing cum fair trial of the appellant as subsumed by the provisions of Section 36 of the 1999 Constitution of Nigeria (as amended) was grossly breached thereby occasioned miscarriage of justice to the appellant
GROUND SIX:
The trial Court erred in law when it failed to properly evaluate and attach probative value to the evidence and testimony of the appellant.
GROUND SEVEN:
The judgment of the trial Court is unreasonable and cannot be supported having regard to the evidence on the printed Record.

The appeal was heard on the 21st day of September 2021. In his Brief of Argument dated and filed 3/9/2020, settled by Joshua Enemali Usman, Esq., counsel for the appellant raised two issues for determination to wit:
Issue 1: whether the trial Court was not wrong when it relied majorly on Exhibits P3 and P5 without any further admissible corroborative evidence to hold that the prosecution proved its case beyond reasonable doubt against the Appellant (Distilled from grounds 1, 2, 3, 4 & 7 of the Notice of Appeal).
ISSUE 2: whether the Appellant can be said to have had a fair trial before the trial Court (Distilled from grounds 5 & 6 of the Notice of Appeal).

In respect of issue 1, counsel argued that the evidence of PW1 and PW2 who were presented as star witnesses for the prosecution were rejected by the trial Court and that the only available evidence left for the prosecution was the purported confessional statements of the Appellant (i.e. Exhibits P3 and P5) which the trial Court wrongly relied upon to convict and sentence the appellant to death. Counsel submitted that in view of the trial Court’s rejection of the evidence of PW1 and PW2 on one hand, and the uncontradicted evidence of the Appellant on record on the other hand, a reasonable doubt was created in the case of the prosecution which ought to have made the trial Court not to convict and sentence the Appellant to death based on exhibits P3 and P5 solely.

​Furthermore, counsel argued that exhibits P3 and P5 as confessional statements were not recorded in the presence of the Appellant’s legal practitioner as stipulated under Section 28(1) and (2) of the Administration of Criminal Justice Law, 2017 of Kogi State while citing the case of Nnajiofor v. FRN (2019) 2 NWLR (Pt. 1483) 557 at 576. That while conceding that an accused person can be convicted based on his confessional statement alone if it is positive, direct and unequivocal, counsel contended that however, where an accused person resiled from, and/or retracted his confessional statement in the course of his trial, the Court must look out for other corroborative evidence to support the retracted confessional statement in convicting the accused person and in support, counsel cited the case of Ogunleye Tobi v. The State (2019) LRCN 4635.

Apart from the foregoing, counsel argued that retraction, as is the case with the Appellant in the instant case, does not affect the admissibility of a confessional statement and that in such circumstance, the Court must nevertheless test the truthfulness of the confessional statement by determining the weight to be attached thereto based on the laid down principles like finding an independent evidence to corroborate the retracted confessional statement with any extraneous material or evidence and this would not have grounded the conviction of the Appellant based on Exhibits P3 and P5.

Counsel argued further that, reliance on exhibit P2 (Post Mortem Report) as corroborating exhibits P3 and P5 as to the fact that the deceased died as a result of hemorrhage arising from gunshot was wrong as exhibit P2 is a documentary hearsay since its maker was not called as a witness and as a result, can only state the cause of the deceased’s death and not who caused the death of the deceased and how it was caused.

​Continuing, counsel submitted that a reasonable doubt ought to have arisen in the mind of the trial Court in favour of the Appellant when exhibit P3 is compared to exhibit P5 because exhibit P3 was purportedly thumb printed by the Appellant whereas exhibit P5 was purportedly signed by him. Counsel also stated that exhibit P3 does not even disclose the name of the person or Police Officer that recorded the purported confessional statement of the Appellant and that despite these obvious points and discrepancies which cast doubt on the case of the prosecution, the trial Court gave judgment in favour of the Respondent based on exhibits P3 and P5 even when the Appellant maintained consistently that exhibits P3 and P5 were not his statements.

In concluding issue one, counsel argued that having knocked out the two remaining ingredients of the said offence of culpable homicide, that there is nothing left to sustain the case of the Prosecution as it has been held that for the offence of culpable homicide punishable with death to succeed, the three ingredients; that a human being died, that the death of the deceased resulted from the act of the Appellant, and that the Appellant caused the death of the deceased intentionally with the knowledge that death or grievous bodily harm was its probable consequence must be clearly and satisfactorily proved against the accused person. Counsel cited the case of Reuben v. State (2018) LPELR- 46698 (CA) at 12-14 in support.

​On the second count of unlawful possession of firearms based on exhibits P3 and P5, counsel argued that it cannot be sustained as these exhibits were manifestly unreliable and that the Appellant cannot be said to be in unlawful possession of firearms since it was the deceased that brought a gun and threatened to kill the Appellant in his own house. Counsel submitted that the prosecution also failed to establish that the Appellant was in unlawful possession of firearms.

In respect of issue 2, counsel argued that the Appellant by implication raised the defence of “accident” to the allegation of culpable homicide punishable with death. Counsel referred to page 93 lines 4-9 of the record where the Appellant testified to the fact that he was slapped by the deceased, after which he began to fight with the deceased. The deceased took a gun and threatened to kill him which occasioned dragging of the gun with the deceased, during which the gun exploded and hit the deceased while some pellets also hit the Appellant on his thigh. Counsel argued that the Appellant was not cross-examined by the Prosecution on these vital points before the trial Court, and the trial Court failed, neglected and/or refused to consider and or evaluate the evidence of the Appellant which constituted his valid defence to the allegations against him by the Prosecution. Counsel submitted that if the trial Court had evaluated and/or considered the evidence of the Appellant in its judgment, the trial Court would have come to a different conclusion in favour of the Appellant.

​Furthermore, counsel argued that what is in issue aside the death of the deceased is whether the gunshot was a product of intentional shooting as alleged by the prosecution or accidental explosion in the process of dragging same as narrated by the Appellant in his evidence before the trial Court, and that the trial Court did not consider the Appellant’s side of the story of how the said gunshot happened which has occasioned a miscarriage of justice to the Appellant whose constitutional right to fair hearing was breached in that regard.

In summary, counsel while relying on Section 400(1) of the Administration of Criminal Justice Law, 2017 of Kogi State argued that the trial Court in its judgment and sentencing the Appellant did not comply with the mandatory statutory requirement of how the death sentence would be carried out, that is, either by hanging or by lethal injection having regards to the word “shall” in the Section and that failure to specify this by the trial Court leaves the manner of execution at the discretion of the executioner and urged this Court to so hold. Counsel referred to the case of Rufus Femi Amokeodo v. Inspector General of Police & Ors. (1999) LPELR-SC.168/96, at pages 24 – 25, paras. E-A.

Counsel finally urged this Court to resolve the two issues in the Appellant’s favour and allow the appeal by setting aside the judgment of the trial Court and to also discharge and acquit the Appellant of both offences.

The learned counsel for the Respondent in his own Brief of argument adopted the two issues for determination as raised by the Appellant’s counsel in his Brief of Argument.

In respect of issue 1, counsel submitted that what caused the death of the deceased was clear as seen in Exhibits P3 and P5 as they provide in graphic details how the Appellant confessed to shooting the deceased with his single barrel gun and that the Appellant is presumed to intend the probable consequence of his act. Counsel referred to the case of Garba v. The State (2001) 2 ACLR P. 213 at 220-221 in support. Counsel further argued that by the provision of Section 29 of the Evidence Act, 2011 as amended, an accused can be convicted solely on his confessional statement even without corroboration and that the offence of culpable homicide punishable with death is not one of the genres of offences under the Penal Code that requires corroboration for a conviction to be had. Counsel referred to the case of Ali v. The State (2012) 7 NWLR (Pt. 1299) 209 at 234 F-G.

Furthermore, counsel argued that the requirement of seeking to find if there are other facts outside a confessional statement tending to show that the statement was truly made is a simple one and that any fact no matter how slight, outside the confessional statement creating a link to suggest that the statement was made is enough and cited Ismail v. State (2014) 15 NWLR (Pt. 1111) 593 at 621. Counsel further stated that the trial Court’s finding that Exhibit P2 corroborates Exhibit P3 and P5 is well rooted in the law in that Exhibit P2 shows that it was the stomach of the deceased that was shot at and that the deceased bled from his interior abdominal walls, the gut protruding outside.

​In response to the Appellant’s contention that Exhibit P 2 is a documentary hearsay and ought not to be relied upon as its maker was not called to give evidence in Court, counsel submitted that the law regarding any medical document, of which a post mortem report is one, is admissible in Court even in the absence of the maker and in support, cited Section 55 of the Evidence Act, 2011 and the case of SPDC v. Ikontia & Ors. (2010) LPELR 4910 C.A.

On the issue of exhibit P3 being thumb printed and exhibit P5 being signed; counsel argued that the Appellant’s belief to the fact that Appellant is an illiterate and therefore could not have signed both documents is speculative. That the Appellant never denied thumb printing or signing the documents and that such speculation by the Appellant’s counsel that the Appellant is an illiterate is not backed by evidence and should be ignored by this Court.

​Continuing, in reply to the defence of accident raised by the Appellant at the trial Court, counsel submits that the evidence of accident led in the Courtroom by the Appellant is totally against his confessional statements which the Court believed and stated that there was nothing in evidence that the prosecution would have cross-examined the Appellant on as the evidence given by the Appellant that he dragged the gun with the deceased which led to an explosion was an afterthought.

On the issue raised by the Appellant that exhibits P3 and P5 were not taken in the presence of a legal practitioner, counsel submitted that the provision is non-mandatory as failure to have a legal practitioner or any other person of the accused’s choice does not render his statement inadmissible and that Section 28(1) and (2) of the Administration of Criminal Justice Law, 2017 of Kogi State was not applicable to the said statements because they (exhibits P3 and P5) were made some two or three months before the State’s Administration of Criminal Justice Law, 2017 of Kogi State was signed into law and did not have retrospective effect to an act already concluded before it became law. In support, counsel cited the case of Oguntoyinbo v. FRN (2018) LPELR 45218 (CA).

​In respect of issue 2, counsel submitted that the failure of the trial Court to specify the manner in which the Appellant would die, whether by being hanged by the neck until he dies or by lethal injection, as an omission which did not infringe on the right of the Appellant since it is a mere irregularity that did not in any remote sense affect the merit of the case or amount to a miscarriage of justice, and as a result, does not vitiate the sentence. Counsel urged the Court to overrule the submission and resolve issue two against the Appellant.

In conclusion, counsel urged this Court to dismiss this appeal and uphold the verdict of the trial Court.

COURT’S DECISION
The Appellant was charged with culpable homicide at the trial Court which is punishable with a death sentence and unlawful possession of firearms. The ingredients to prove to sustain a conviction in relation to the first charge are:
1) That the death of a human being occurred.
2) That the death was caused by the act or omission of the defendant
3) That the defendant, by his act or omission intended to cause death or know that death was the probable consequence of his act. See; Durwode v. State (2000) 15 NWLR (Pt. 691) 467 at 487-488; Ogbu & Anor v. The State (2007) 4 SCM 169 at 185.

​The parties agreed that a death occurred-Odejoh Moses Usman- in the course of what gave rise to this matter thus fulfilling the first requirement. Both the Appellant and Respondent joined issues in that respect.

The quarrel of the Appellant however; concerns the conviction of the Appellant solely on exhibits P3 and P5. The said exhibits P3 and P5 are extra-judicial confessional statements of the Appellant. In summary; it is the case of the Appellant that exhibits P3 and P5 are incapable of meeting the second requirement to ground a conviction as stated above, coupled with the fact, that the Appellant retracted them during trial.

​The first quarrel thereof is that there was no other corroborative evidence in support of the said exhibits P3 and P5 which statements were retracted. The trial Court in its judgment at page 111 of the record held that exhibit P2 (Post mortem report) corroborated “the confessional statements in every aspect”. The said exhibit P2 traced the cause of death to hemorrhage arising from gunshot. The learned counsel for the Appellant referred to that exhibit P2 as documentary hearsay on the ground that it was not tendered by the doctor that personally conducted the autopsy examination on the deceased body who in fact authored that exhibit. Counsel further submitted that contrary to the holding of the trial Court exhibit P2 cannot corroborate the fact of who was responsible for the death of the deceased.

It is important to note that the said exhibit P2 was tendered by the PW3 (Sgt Uteno Okpanachi), who took the deceased corpse for autopsy, the said exhibit P2 was the result he obtained after the said autopsy. The law is settled that it is not compulsory that a medical doctor or maker of medical report must testify in all cases where evidence of medical report is required. See Section 55(1) and (3) of Evidence Act, 2011 (formerly Section 42(1)(a) and the case ofJohn Mamudu Buba v The State (1992) NWLR Pt 215, 1; Ozoernena vs. State (1998) 10 NWLR (Pt. 571) 632 @ 648; Chewmoh vs. State (1986) 2 NWLR (Pt. 22) 331. Section 55(1) of the Evidence Act, 2011 provides: “Either party to the proceedings in any criminal case may produce a certificate signed by a Government pathologist and the production of any such certificate may be taken as sufficient evidence of the facts stated in it.”

​The verb ‘corroborate’ is defined as: “To strengthen or confirm; to make more certain.” See Bryan A Garner, Black’s Law Dictionary 10th edition, page 421. In the case of Onyegbu v. The State (1994) 1 NWLR (Pt.320) 328 at 340, it was held that corroborative evidence must be evidence which confirms in some material particulars not only that the crime has been committed but also that it was the Appellant who committed it. The Supreme Court in the case of Dagayya v The State (2006) 7 NWLR (Pt 980) 637 held thus: “Corroboration” entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. Corroboration does not mean that the witness corroborating must use the exact or very like words, unless the matter involves some arithmetics.” Per Tobi, J.S.C.

The act which gave rise to this charge happened in the evening/night of 27/10/2018. The Appellant made exhibit P3 on 28/10/2018. He claimed that the deceased fought him. He ran into his room, and took his local single barrel loaded with life cartilage, shot the deceased on his stomach and he died on the spot.

​In exhibit P5 the Appellant also gave evidence of how he saw the deceased coming with anger to fight him and he moved to his room, “and removed my single barrel gun and shot him at the stomach, he fell down and I ran away” See page 122 of the record.

From the foregoing, the holding of the lower Court that exhibit P2 (Post mortem report), which traced the cause of death of the deceased “to hemorrhage arising from gunshot” corroborated “the confessional statements in every aspect”, cannot be faulted. That is reinforced by the fact that both the Appellant and Respondent agreed that the deceased was killed by gunshot. I therefore resolve this sub-issue against the Appellant.

The second sub-issue is the contention of the Appellant that the trial Court failed to consider the evidence of the Appellant that “the deceased brought out a gun and threatened to kill the Appellant in his house and when fight ensued between them, they both dragged the gun which in the process exploded and hit the deceased”. The foregoing is a direct reference to the evidence of the Appellant at page 93 lines 5-8 which is hereunder reproduced:
“We began to fight. We fought right from my room and came outside still fighting. He took a gun and threatened to kill me. We began to drag the gun. The gun exploded and hit him. I was also hit on my thigh by pellets”.

It is an essential principle of a criminal trial, that a defence however fanciful, stupid or doubtful is deserving of consideration, see R. V Barimah 11 WACA 19, per Karibe-Whyte, JSC in Bozin v The State (1985) 7 SC 450 at 471.

This brings to the fore, the issue as to the time when a defence to a criminal allegation can be said to have been properly raised for investigation.

In my view, any defence to a criminal allegation should be raised at the pretrial stage; that is during the investigation stage. During the making of the extra-judicial statement to the police. This will enable the police to investigate any defence raised by the accused. But where the accused fails to disclose any line of defence at the investigation stage but introduces such a defence at the trial stage in open Court which in fact is completely new and contradicts his former line of sequence or occurrence of the incident, a trial Court will be at liberty to treat such recent introduction as coram non judice and a judgment reached by considering the evidence as contained in the previous extra-judicial statements of the accused will not be invalidated by an omission by the trial Court to consider the contradictory introduction in Court during trial.

The Appellant made 2 (two) extra-judicial statements to the police. The first was made on 28/10/2018, when the incident was very fresh with little time for reconstruction that is exhibit P3. In that exhibit, there was nothing like the deceased ‘bringing out a gun’ and, ‘threatening to kill’ the Appellant. There was also nothing like ‘dragging’ between them and nothing like an ‘explosion’ of any gun through which a pellet did hit the deceased. The Appellant simply took his gun and shut the Appellant in his stomach and he fell down and died.

Also, the Appellant made his second extra-judicial statement on 28/10/2018 about a month after the incident, in exhibit P5, wherein he equally confessed to taking his gun and shooting the deceased in his stomach. There was nothing like the deceased bringing his gun threatening to kill him, dragging of the gun, explosion of the gun and pellet hitting the deceased.

The evidence of the Appellant about “dragging” and “explosion” of the gun was given on 15/10/2019 about a year after the incident. From exhibits P3 and P5 and the oral testimonies of the witness it is very clear that this evidence of the Appellant given on 15/10/2020 is a false reconstruct of the incident of 27/10/2018 which led to the death of the deceased. The law is settled and clear that not every omission to make a pronouncement or consider an issue will affect the judgment of a trial Court. In Sule v State (2009) 6 SCNJ 65 @ 89, It was held that not every error or omission by a trial Court would lead to a reversal of its judgment, see also Cookey v Fombo (2005) 22 NSCQR 411 and Olubode v Salami (1985) 2 NWLR (Pt. 7) 282. This is a good example where an omission to pronounce or consider an issue will not negatively affect the judgment of the lower Court. This sub-issue is also resolved against the Appellant.

Another sub-issue raised by the Appellant is about the perceived discrepancies in the case of the prosecution, the first is that the Appellant thumb printed exhibit P3 but signed exhibit P5. The PW3 under cross-examination gave evidence that the Appellant told him that he has no formal education. See page 74 of the record. The Appellant in his evidence said that “l was asked if I attended school, I answered in the negative.” See page 84 of the record. Counsel for the Respondent submitted that the Appellant did not deny specifically thumb printing exhibit P3 nor signing exhibit P5. That the conclusion of counsel for the Appellant that because the Appellant was an illiterate he could not have signed that exhibit was mere speculation without evidence. I agree that the counsel for the Appellant speculated and made assumptions not backed by evidence. It is settled that a Court of law is not guided by speculations. This sub-issue is also resolved against the Appellant.

​A further sub-issue raised by the Appellant is on the exact date of the incident. Counsel argued that the lower Court made a finding of fact that the deceased died on the 27th of October, 2017 while exhibit P5, has the 26th October 2016, as the death of the incident. The particulars of the offence of the charge against the Appellant showed that it was ‘on or about’ the 27th day of October 2017″ that the incident was said to have occurred. The use of the phrase ‘on or about’ means that it could have happened any of the days before, on or after the 27th day of October 2017. See Akpa v. The State (2007) 2 NWLR (Pt 1019) 500 at 522 para H.

Therefore, the fact that the deceased was killed on 27/10/2017 while exhibit P5, has the date of 26/10/2017 did not diminish the established fact that the Appellant actually killed the deceased, this sub-issue is also resolved against the Appellant.

Furthermore, the Appellant raised the sub-issue that the said exhibits P3 and P5 which the lower Court relied upon to convict him were not recorded in the presence of the Appellant’s Legal Practitioner as stipulated under Section 28(1) and (2) of the Kogi State Administration of Criminal Justice Law 2017. The learned counsel for the Respondent submitted that exhibits P3 and P5 were made on 28/10/2017 and 30/10/2017 some two to three months before the ACJA Kogi State Administration of Criminal Justice Law 2017 was signed into law and the law is of no retrospective effect. Counsel for the Appellant did not refute that assertion and also did not supply the date of signing into law of the Kogi State Administration of Criminal Justice Law 2017. Be that as it may, the Appellant was charged under the Penal Code and there is no evidence that Kogi State Administration of Criminal Justice Law 2017 was applicable as at the time the exhibits were recorded. This sub-issue is equally resolved against the Appellant.

Finally, it is the contention of the counsel for the Appellant that failure of the lower Court to state the method of execution of the sentence of death violated the Appellant’s right to fair hearing. The Appellant no doubt was given a fair hearing at the trial stage. He was properly convicted and sentenced accordingly. In Ejelikwu v The State (1993) 7 NWLR (Pt.307) 554 @ 583 the Supreme Court held that the omission to pronounce the sentence after conviction cannot affect the validity of a properly conducted proceeding. Also in Onyejiekwe v The State (1992) 3 NWLR (Pt. 230) 444, the omission was treated as an irregularity/slip and not an illegality. In this case, failure of the trial Court to state the mode of execution of the death sentence imposed on the Appellant is a mere irregularity, an omission which cannot affect the validity of this case. This Court has the jurisdiction to supply the omitted mode of execution of the sentence imposed under Section 15 of the Court of Appeal Act. On count two, that is unlawful possession of firearms, having found and held that the accused actually killed the deceased, in exhibits P3 and 5, the Appellant confessed to the killing of the deceased using his own gun. The conviction and sentence of the Appellant for unlawful possession of firearms cannot be disturbed.
In all, this appeal is lacking in merit and it is hereby dismissed.

The judgment of the trial Court delivered in this matter, on the 20th day of November 2019, is hereby confirmed, the death sentence imposed on the Appellant shall be carried out by hanging the Appellant on the neck until he dies.
Judgment is entered accordingly.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in advance, the leading judgment just delivered by my learned brother Amadi, JCA and I agree with his reasoning and conclusion. This appeal has no merit and I too dismiss it. I affirm the judgment of the trial Court delivered on 20th November 2019 in Charge No. AHC/10C/2018. I invoke Section 15 of the Court of Appeal Act to specify the manner of execution of the Appellant. The Appellant shall be hanged by the neck until he is dead.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

Joshua Enemali Usman, Esq., with him, A.S. Akaah, Esq. For Appellant(s)

Ibrahim Sanni Mohammed (SAN), with him, Habib Abduallhi (DPP) and Maryann Otaru (PSC) For Respondent(s)