VICTOR ILIYA v. THE STATE
(2019)LCN/13412(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/IL/C.20/2019
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
VICTOR ILIYA Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE DOCTRINE OF LAST SEEN
The doctrine is to the effect that in the absence of an explanation as to what happened or caused the death of the deceased who was last seen in the company of an accused person, such an accused person bears full responsibility to prove that he was not responsibility for the death of the deceased. This doctrine creates a rebuttable presumption that an accused that was last seen with the deceased person was responsible for his death, and the accused has a duty to provide an explanation on how the deceased died. In the absence of such explanation, both the trial Court and this Court as an appellate Court will be justified to infer that the accused killed the deceased person. See Amos V. State (2019) 1 NWLR (pt. 1653) 206 at 233 (SC), Olude V. State (2018) LPELR-44070(SC), Esseyin V. State (2018) LPELR-44476 (SC) and Haruna V. A.G. Federation (2012) 9 NWLR (pt. 1306) 419 (CA). PER ALIYU, J.C.A.
WHETHER OR NOT THE INCONSISTENCY RULE APPLIES TO THE TESTIMONY OF AN ACCUSED PERSON AGAINST HIS CO-ACCUSED
In any event, the law is clear that the inconsistency rule does not apply to the testimony of an accused against his co-accused because the law does not regard a co-accused as an accomplice. See Section 199 of the Evidence Act, which provides that:
?Where defendants are tried jointly and any of them gives evidence on his own behalf which incriminates a co-defendant, the defendant who gives such evidence shall not be considered to be an accomplice.?
See also Uzoma V. State (2018) LPELR-44765 (CA) to the effect that the inconsistency rule does not apply to an accused person. But more importantly, the statement of an accused person to the police is different and distinguishable from the accused?s testimony before the Court. The Apex Court clearly put the position of the law in this regard to rest in its recent decision in the case of Nwodo V. State (2019) 3 NWLR (pt. 1659) 228 at 240 para. F-G where the learned Jurist Augie, J.S.C. held thus:
?The position of the law is that the statement of the co-accused to the police is different and distinguishable from his evidence in Court. The statement remains his statement and not his evidence and it is binding on him only- Suberu V. State (2010) 8 NWLR (pt. 1197) 586 SC. However, where the evidence incriminating an accused comes from the co-accused, the Court is at liberty to rely on it, provided the co-accused, who gave such incriminating evidence, was tried along with that accused person?. The fact that the evidence was that of a co-accused does not prevent it from being a credible and reliable evidence once he was jointly tried with the other accused persons.?
See also the Apex Court?s decision in the cases of Michael V. State (2008) LPELR- 1874 (SC), Asimi V. State (2016) LPELR- 40436 (SC) and Adeleke V. State (2013) LPELR- 20971 (SC). PER ALIYU, J.C.A.
BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kwara State High Court sitting at Ilorin delivered on the 30th June 2014 by Hon. Justice M. O. Adewara, by which the Appellant, along with one Friday Sumaila were both convicted of the offences of conspiracy and culpable homicide punishable with death, contrary to Sections 97 and 221 of the Penal Code.
The Respondent?s case against the Appellant who was the 1st accused before the trial Court was that he and his co-accused conspired and killed one Isaiya Jale (deceased), the husband of the 3rd accused person who was also charged with conspiracy along with the Appellant.
?The background facts of the case are that the Appellant, his co-accused, the deceased and his wife (3rd accused person) all lived in Osa village in Kaima Local Government Area of Kwara State, but they are all indigenes of Kaduna State and came to settle in the village to work. On the 20th July 2010, the Appellant, the 2nd accused person and the deceased went to the farm to work, but in the evening of the same date, only the Appellant and the 2nd accused
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person returned without the deceased. The village vigilante later arrested the Appellant and his co-accused and they eventually led the vigilante members to the bush where the lifeless body of the deceased was discovered, after which the Appellant along with his co-accused were handed over to the police.
At the trial, the Respondent called four witnesses and tendered exhibits including the extra-judicial statements of the Appellant in support of their case. The Appellant also testified in his defence but did not call any other witness. At the conclusion of the trial, the learned trial Judge held at page 137 of the record of appeal thus:
?All said and done, I hold that all the ingredients of the offence of culpable homicide punishable with death contrary to S. 221 of the Penal Code have been proved against 1st and 2nd accused by the prosecution beyond reasonable doubt.?
?Accordingly, the Appellant and the 2nd accused person were convicted and sentenced to death. The Appellant was aggrieved by his conviction and sentence and appealed to this Court vide his notice of appeal filed on the 5th November 2018 with the leave of this Court, by which
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the Appellant relied on seven grounds of appeal. The record of appeal was transmitted on the 5th February 2019 and the Appellant ?s brief of argument settled by S. O. I. Nkem Esq. was filed on the 11th March 2019. The reply brief was filed on 29th March 2019. At pages 2 to 3, paragraphs 3.1, of the Appellant?s brief of argument, the learned counsel formulated and submitted five issues for determination from the seven grounds of appeal, namely:
1. ?Whether the learned trial Court was right when he relied and acted upon the medical report prepared by a medical doctor without calling the medical doctor that prepared same to be cross-examined as to the cause of death of late Isaiah Jale before convicting the Appellant? (Ground one of Notice of Appeal).
2. Whether the learned trial Court was right when he admitted the written statement of the Appellant in evidence as a confessional statement without the Respondent producing or tendering the Hausa version of statement of the Appellant before it was translated into English language) before convicting the Appellant? (Ground Two of Notice of Appeal).
3. Whether the learned trial Court
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was right when he admitted in evidence and acted upon answers and interrogations made by the police to the Appellant. (Grounds Three and Seven of Notice of Appeal)
4. Whether the learned trial Court was right when he convicted the Appellant by relying and acting on the oral testimony of the 3rd Accused person which is different the three extra-judicial statements the 3rd accused person made to the police? (Ground four of the Notice of appeal).
5. Whether the learned trial Court was right in law when he admitted in evidence Exhibits I and J (two cutlasses) allegedly used in killing late Isaiah Jale when there is no evidence or forensic Investigation Report before the Court irresistibly pointing to the fact that Exhibit I and J were the cutlasses used in killing late Isaiah Jale. (Grounds five of the Notice of Appeal).”
?The Respondent?s brief of argument settled by J. O. Mumini Esq., the Director of Public Prosecution, (DPP) Kwara State Ministry of Justice, was filed on the 18th March 2019, in which the five issues formulated by the Appellant were adopted for and on behalf of the Respondent for the determination of the appeal.
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On the 2nd April, 2019, when the appeal was called for hearing, S. O. I. Nkem Esq. leading I. E. Onwa Esq. and M. I. Akobi Esq. adopted the Appellant?s two briefs in urging the Court to allow the appeal and to set aside the judgment of the trial Court. J. O. Mumini Esq. (DPP), leading M. T. Danzaki Esq. (S.S.C.) and M. Abdulhameed Esq. (S. C. 1) all of the Ministry of Justice Kwara State equally adopted the Respondent?s brief in urging the Court to dismiss the appeal in its entirety and to affirm the judgment of the trial Court.
APPELLANT?S SUBMISSIONS
?In arguing the Appellant?s issue number one, the learned counsel referred to the testimony of PW2, the police officer through whom the autopsy report performed on the deceased was admitted in evidence, and submitted that the medical doctor who performed the autopsy was not called to testify and be cross-examined on the report he wrote. It was argued that the deceased died in the bush and anything could have led to his death, and the trial Court was wrong to have admitted the medical report through PW2 a police officer and to act on same in convicting the Appellant. Further
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submitted that this case being a murder trial, the justice of the case entails the calling of the medical officer who performed the autopsy examination to testify and to be cross-examined by the defence. The trial court therefore needed not to wait for the accused person or his counsel to apply before it could order the summoning of the medical doctor. The decisions in the cases of Ahmed Vs. State (2001) 18 NWLR (pt. 746) 622 and Chioke Vs. State (2003) 3 ACLR 28 as well as the provisions of Section 55 of the Evidence Act and Section 250 of the Criminal Procedure Code were referred to in support. The Court is urged to hold that the failure of the Respondent to call the medical officer who performed the autopsy on the deceased to testify and be cross-examined is fatal to its case; and to thereby resolve issue one in favour of the Appellant.
With regards to the Appellant?s issue number two, the learned counsel submitted that the learned trial Judge was wrong when he admitted and relied on the English version of the confessional statement of the Appellant in view of the fact that both PW1 and PW2 had admitted that the Appellant gave his statement in
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Hausa language, and the Hausa version was not tendered along with the English translation. It was argued that the essence of producing the statement in the language it was given by the accused person along with the translated version is to determine the veracity of the English version produced in Court. See the cases of R Vs. Zakwakwa (1960) FSC 12, Nwali Vs. The State (1991) LPELR-2098 (SC), Rex Vs. Gidado (1940) 6 WACA 60 and Nwaeze Vs. State (1996) 2 NWLR (pt. 428) 1, where the Supreme Court and WACA stressed the importance of producing the accused person?s statement in the language it was given along with its English translation before the court for comparison and testing its veracity. The court is therefore urged to resolve issue two in favour of the Appellant.
?In arguing the Appellant?s issue three, it was submitted that the learned trial Judge was wrong to rely on the confessional statement of the Appellant that was obtained through a question and answer session, which fact was indeed admitted by PW2 under cross-examination in the course of the trial within trial conducted to determine the voluntariness of the said statement.
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Learned counsel relied on the cases of Manshep Namsoh Vs. The State (1993) 5 NWLR (pt. 292) 129 at 144 and Salawu Vs. The State (2009) LPELR-8867 (CA), to the effect that a statement obtained through a question and answer cannot be said to be voluntary. The Court is urged to so hold and resolve issue three in favor of the Appellant.
On the Appellant?s issue four, the learned counsel quoted the oral testimony of the 3rd accused person (wife of the deceased) which she gave in her defence and her extra judicial statement given to the police three days after the incidence, to submit that the learned trial Judge was wrong when he ?dwelt heavily? on the oral testimony of the 3rd accused person which contradicted her earlier statement, and relied on same to convict the Appellant. He further argued that the trial Court ought to have disregarded the evidence of the 3rd accused person as being unreliable, more so that the 3rd accused person being a co-accused with the Appellant, her statement ought not to be used to corroborate the case of the prosecution against the Appellant who was her co accused. The decisions in the cases of Aruna Vs. State
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(1990) 6 NWLR (pt. 155) 125, Ogoala Vs. The State (1991) 2 NWLR (pt. 175) 509 Ani Vs. State (2003) 11 NWLR (pt. 830) 142, Maiyaki Vs. State (2008) 3 NWLR (pt. 1075) 429 and Patrick Vs. State (2013) 18 NWLR (pt. 1385) 163 at 179-180 were referred to in support of the submission and in urging upon the Court to resolve issue four in favour of the Appellant.
On issue number five, it was argued that the trial Court was wrong when it admitted the two cutlasses in evidence through PW4 (a police officer) as Exhibits ?I? and ?J? as the murder weapon when the two cutlasses were not sent for forensic examination, as part of the police duty of investigation of the case. See Dele Vs. State (2011) 1 NWLR (pt. 1229) 508. The Court is urged to resolve issue five in favour of the Appellant, allow this appeal and set aside the judgment of the lower Court.
RESPONDENT?S SUBMISSIONS
On Issue one, the learned DPP submitted that all the argument of the Appellant?s learned counsel under this issue was misconceived and misleading in view of the fact that even without the medical report, the Respondent had established beyond doubt
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the death of one Isaiah Jale, the deceased in this case, and that he died as a result of matched cuts as shown by the testimonies of PW1 and PW2 on record. Therefore the medical report was merely complimentary to the cause of death. See Mohammed Vs. The State (2015) ALL FWLR (pt. 806) 204 at 226, Paul Vs. The State (2015) ALL FWLR (pt. 778) 893 at 915; both to the effect that where the cause of death is obvious, medical evidence ceases to be of legal practical necessity. It was further argued that it is not mandatory that a medical officer who performed an autopsy on the deceased must testify in Court in order for his report to be admissible in evidence. See Edoho Vs. The State (2010) ALL FWLR (pt. 530) 1262, where the provisions of Section 42 (1) (now 55(1)) of the Evidence Act was interpreted. It was further submitted that the medical report admitted as Exhibit ?B? by the lower Court in this case enjoys the regularity provided for under Section 250(1) of the Criminal Procedure Code (CPC), and there is no evidence on record which supports the Appellant?s learned counsel contention that the medical doctor who performed and issued the autopsy
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report was not a pathologist. The Court was therefore urged to so hold and resolve issue one in favour of the Respondent.
In response to the Appellant?s argument on issue number two, the learned DPP submitted, on the authority of the decision in Eyop Vs. State (2012) LPELR-20210 (CA), that the fact that a statement of an accused person was recorded in a language different from the one spoken by him does not make the statement inadmissible in evidence. He relied on the testimony of the recorder of the statement, PW2 at page 91 of the record of appeal, which showed that the officer took the statement in Hausa language but recorded it in English language. The Court is therefore urged to disregard the argument of the Appellant?s learned counsel and to resolve issue two in favour of the Respondent.
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On issue number three, the learned DPP referred to the provisions of Section 31 of the Evidence Act and submitted that the confessional statement of an accused that was obtained through a questions and answer session is admissible in evidence. He referred to the provisions of the Criminal Procedure (Statement to Police Officers) Rule 1960 (Judges
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Rule), which was the basis of the decisions in Manshep Namsoh Vs. The State (supra) and Salawu Vs. The State (supra) relied upon by the learned Appellant?s counsel, to submit that the two decisions are is no longer applicable in view of the provisions of Section 31 of the Evidence Act 2011. He urged the Court to resolve this issue in favour of the Respondent.
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On issue 4, it was the submission of the learned DPP that the testimony of the 3rd accused person before the Court and her statement to the police are fundamentally the same in substance, form and purpose, because both established the fact that the deceased and the Appellant went out together to the bush and therefore he was last seen with the Appellant, and that the Appellant confessed to the killing of the deceased after interrogation. Whatever differences are there between the testimony of the 3rd accused and her statement to the police should therefore be regarded as a normal human differences in narration of event, which are synonymous to normal human behavioral pattern associated with the truth. For this reason, the Court is urged to resolve issue four (4) in favor of the Respondent.<br< p=””
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On issue five, it was the submitted that relevancy governs admissibility of exhibits in Court and therefore the two cutlasses recovered in the course of investigation of this case by the police officer (PW2) were relevant to the case. See Joseph Agbahomovo Vs. Apata Eduyegbe (1999) 3 NWLR (pt. 594) 170 at 183). Further argued that the testimonies of all the witnesses before the trial Court showed that the death of the deceased was caused by use of cutlasses. In the circumstance, he urged the Court to disregard the argument of the Appellant?s learned counsel and to resolve this issue in favour of the Respondent.
In the Appellant?s reply brief, the learned counsel reiterated his earlier arguments in support of the five issues and urged the Court to discountenance the submissions of the Respondent?s learned counsel and to allow this appeal.
DETERMINATION OF THE APPEAL
The parties in this case are in agreement on the issues formulated by the Appellant for determination. I have no reason to disagree with them and therefore this appeal will be determined on the Appellant?s crafted five (5) issues.
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ISSUE ONE
?Issue one raises the question whether the medical doctor who performed autopsy on the deceased must attend the trial Court as a witness and be crossed examined before the autopsy report, showing the cause of death of the deceased can be used in convicting the Appellant. This issue is distilled from ground one of appeal.
This case being a murder trial before the lower court, one of the crucial ingredients of the offence, which must be established by the prosecution, is that the death of the deceased occurred. SeeNdike V. State (1994) LPELR-1971 (SC) and Onitilo V. State (2017) LPELR- 42576.
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However it is the nature and the circumstances of the death of the deceased that determines the necessity of the post mortem examination report confirming the cause of death of deceased and the necessity of the examining medical practitioner who issued the report to be present as a witness at the trial. Where the medical evidence is essential in order to establish the actual cause of death, it would be essential for a medical doctor who examined the corpse of the deceased and issue the report to be called to testify and be cross-examined upon the report. However, where
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the cause of death is obvious or can easily be inferred, or there is direct evidence of what led to the death of the deceased, then the Court can even dispense with the post mortem examination report on the cause of death. See Dajo V. State (2019) 2 NWLR (pt. 1656) 281 (SC), Okorie V. State (2018) 11 NWLR (pt. 1629) 1, Shaibu V. State (2017) LPELR-42100 (SC), Edoho V. State (supra) and Mohammed V. The State (supra).
The Appellant?s learned counsel had argued in paragraph 4.2 of the Appellant?s brief of argument that:
?It is clear from the facts of this case that the Appellant was not fixed at the scene of the crime and the body of the deceased was not seen immediately after the commission of the offence and the medical doctor that conducted the post mortem examination of the deceased was not called to testified (sic) and be cross-examined as to the content of his report. The fact remained that the deceased died in the bush and anything could have led to his death.?
The learned trial Judge on this point regarding the death of the deceased, held at page 132 of the record of appeal thus:
?Evidence abound in this
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case that there was the death of one Isaiah Jale. The lifeless body of the said Isaiah Jale was found/recovered in a bush at Osa Village, Kaiam Logal (sic) Government Area of Kwara State on 21/7/2010. Aside the evidence of PW1, PW2, PW3 and PW4 in this regard, the prosecution also tendered the photograph and its negative of the deceased body as Exhibit 1A and 1B. Also tendered in evidence is the post mortem examination report of the medical doctor on the deceased (Exhibit B)?. I entirely agree with the learned DPP?s response that it is not in all cases that the maker of medical report is required to tender same as there are numerous circumstances that can warrant tendering of a document by a person other than the maker.?
The testimony of PW1 regarding the death of the deceased is contained at pages 87 to 88 of the record of appeal, and he stated thus:
?My names are Abubakar Umar. I live at Kaima. I am a vigilante and a farmer. I know the 3 accused persons. On 22/7/2010, I was on my way to a place called Bani to attend a meeting when I saw the 1st accused, 2nd accused and the deceased, Isaya Jali. I saw the three going to the
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river while I was going to the meeting. On the following morning, Friday 2nd accused told me that they did not see the deceased again. I then went to the wife of the deceased, i.e. 2nd accused (sic) and she told me that she has not seen her husband. When it was clear that the 1st accused would not speak the truth as to the whereabouts of the deceased, then the village head ordered that the accused persons be arrested. The village head still asked the 1st accused to take him to where the incident happened. He did and we saw the dead body of the deceased. The dead body was in the bush at Kaima? At the place of incident, 1st accused alleged that it was the 2nd accused that stabbed the deceased to death. But the 2nd accused said both of them did it.?
See also the testimony of PW2 at page 88 of the record of appeal where he stated that:
?The case was therefore referred to me for investigation. And I immediately visited the scene of crime together with a photographer. The photograph of the deceased was taken. Thereafter, the corpse was removed to the general hospital, Kaima for autopsy. Thereafter, the corpse was released to the
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relations for burial.?
In view of the testimony of the PW1 who saw the corpse of the deceased person in the bush, and the PW2 the IPO, through whom the photograph of the deceased was admitted in evidence, there was no any doubt as to the death of the deceased. It is further noteworthy that in his evidence before the Court (quoted supra) the PW1 stated that at the scene where the Appellant led them and they saw the corpse of deceased, the Appellant claimed his co-accused killed the deceased while the co-accused said the two of them killed the deceased. See also the testimony of the PW2 at page 89 of the record of appeal to the effect that the doctor who conducted the post mortem examination on the deceased was out of the country which was the reason why he was not in Court to tender his report.
It is therefore clear that there was sufficient evidence showing the death of the deceased had occurred and the post mortem examination certificate only re-enforces the fact that the deceased died.
?In the circumstances, the Court can dispense with the presence of the medical doctor in view of the admission of the appellant that he killed the
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deceased, and the fact that the medical doctor was not in the country to tender the medical report. More importantly, the cause of death of the deceased was not in issue in the circumstances that will require the presence of the doctor to be cross-examined on the post mortem examination report. Indeed it is the law that a conviction for murder can be made even without the recovery of the dead body of the deceased, where there is positive evidence that the deceased has been killed by the accused person. See Shaibu V. State (supra)
The learned Appellant argued further that the medical doctor who signed the post mortem examination certificate was not a pathologist. I am unable to fathom what the learned counsel aimed to achieve by this argument. On one hand, the learned counsel complained that the medical doctor who conducted the post mortem examination on the deceased was not called as a witness to tender his report; on the other hand he argued that the doctor was not a pathologist. How the learned counsel reached the conclusion that the doctor was not a pathologist remains a mystery since the doctor was not before the Court to state his qualifications as
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a medical doctor. In any event the Supreme Court in the case of Amusa V. State (2003) LPELR- 474 held Per ONU, J.S.C at Page 14, paras. B-C, thus:
“It has been held by this Court in the case of Ehot v. The State (1993) 4 NWLR (Pt.290) 644 at 658 that: Medical Officer in the service of a state for the purpose of undertaking a post mortem examination is a pathologist and his report is the certificate envisaged by S.42 (1)(a) of the Evidence Act. The certificate has the effect of being sufficient evidence of the facts therein.”
See also Oladapo V. State (2013) LPELR-22092 (CA) where this Court, per Denton-West, J.C.A. held at page 21 to 22 para. F-B that:
“In the case of State V. Ajie (2000) 11 NWLR (Pt. 678) 434 at 446 E-F, the Court held that a medical officer in the service of a State for the purpose of undertaking a post mortem examination is a pathologist and his report is therefore a certificate as contemplated by the Subsection Section 55(1) (a) of the Evidence Act 2011. The certificate when admitted is sufficient evidence of the facts stated therein. It is a trite law that a documentary evidence speaks for itself.”
The argument of the
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learned counsel is therefore of no moment and it is discountenanced.
Also the Appellant?s learned counsel, in paragraphs 4.4 to 4.7 of the Appellant?s brief of argument referred the Court to the provisions of Section 55 (3) of the Evidence Act, 2011 and 250 of the Criminal Procedure Code, to argue that the learned trial Judge failed to avert his mind to these provision in relying on the medical report admitted as Exhibit ?B? (post mortem examination certificate) to convict the Appellant. He submitted that the trial Court ought to have ordered that the medical doctor who issued the report to be present as witness before the Court for the purpose of cross-examination. For this proposition, he referred to the case of Ahmed V. State (supra).
When dealing with this issue raised before the lower Court, the learned trial Judge held at page 132-133 thus:
?It is to be noted that S. 42 of the Evidence Act postulates a situation for tendering the report without calling the maker to Court although the Court under the proviso to the section has the power on application of a party to the proceedings or its own motion to direct
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that any such officer shall be summoned to give evidence before it.
PW2, Cpl. Yinusa Bashiru, Force No. 385416 of Nigeria Police Station Kaima it must be remembered had testified in this case that the doctor who performed the autopsy on the deceased had travelled outside the country. In addition, neither the Court nor the accused or their counsel had applied to Court to summon him.
In the circumstance, the medical report i.e. Exhibit B is to me perfectly admissible and admitted in evidence?. On the basis of the foregoings (sic) therefore, I hold that the first ingredient of the offence viz: ?that the death of a human being has actually taken place? has been proved by the prosecution.?
?From the evidence before the Court, it was clear that there was no way to secure the attendance of the medical doctor who signed Exhibit ?B? to be present in Court within time even if there was indeed an application from the counsel before the lower Court because the doctor was not in the country. There was also no contrary evidence to the evidence given by the police officer with regards to the absence of the doctor. It is
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therefore unreasonable in the circumstances to reject the medical report simply because the maker was not called as a witness. Moreover, I have held above that in view of the testimonies of PW1 who has seen the corpse of the decease and heard the Appellant and 2nd accused person trading blame for the killing of the deceased, and PW2 who took the corpse of the deceased to the hospital and received the post mortem examination certificate, it is not necessary for the medical doctor to testify in order for the trial Court to infer that the death of the deceased had occurred and it was caused by the Appellant and the 2nd accused person. I am in absolute agreement with the learned trial Judge in his findings on this point. Therefore, issue one deserves to be resolved against the Appellant and it is so resolved against him.
ISSUES TWO AND THREE
Issues two and three distilled from grounds two and three of the grounds of appeal are interrelated. The two issues raised the question whether the trial Court was right when it admitted in evidence and relied on the statement of the Appellant, which was taken in English language as a confessional statement without
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the Hausa version in which the Appellant made it, and which was also obtained from answers to the questions/interrogatories put to the Appellant by the police.
The argument of the learned Appellant?s counsel on the two issues is to the effect that the record of appeal showed that in the course of the trial within trial, PW2 (TWT) admitted that the Appellant did not understand English and he made his statement in Hausa language. But the learned trial Judge still admitted the statement in evidence and relied ?heavily? on it in convicting the appellant. Thus, the Appellant?s complain in the main is the absence of the Hausa version of the said confessional statement given by the Appellant, and that the two versions should be tendered together with its English translation for the purpose of verifying the latter from the former. In respect of issue two, the complaint is also against the manner the same confessional statement was obtained from the Appellant through questions and answer manner.
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There is no doubt that in criminal trial, a confession of the commission of crime by the accused person is not only relevant but is the best
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evidence for the purpose of conviction for the offence charged. However, in order for such a confessional statement to be relevant or even to ground a conviction, the Court must be satisfied beyond reasonable doubt that the confession was made freely and voluntarily by the accused person. See the provisions of Section 29(2) of the Evidence Act, 2011, and decisions in the cases of Jua V. State (2010) 4 NWLR (pt. 1184) 217 (SC), Bello V. C.O.P. (2018) 2 NWLR (pt. 1603) 267, Onitilo V. State (2018) 2 NWLR (pt. 1603) 239 and Lasisi V. State (2013) 9 NWLR (pt. 1358) 74.
?In this case, the record of appeal shows that the Appellant made two statements, one at Kaima Police station immediately after his arrest, which was recorded by PW2 Cpl. Yinusa Bashiru of the Nigerian Police Station Kaima, in which the Appellant denied committing the offence. This statement was admitted in evidence without any objection as Exhibit ?C?. The second statement the Appellant made which he retracted was the one tendered through PW3, Inspector Jibril Mahmud of the State C.I.D. Ilorin, where the Appellant and his co-accused were transferred to from Kaima Police station.
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PW3?s evidence in chief regarding the second statement of the Appellant contained at pages 99 to 100 of the record of appeal is reproduced below:
?Later I obtained the statement of the 1st accused person under the word of caution. The word of caution was read and interpreted to him by PC Solomon Ikom, in Hausa language and vice versa. He understood it and thumb-printed. The 1st accused volunteered to make a confessional statement. The confessional statement was recorded by Cpl. Alao Olajide under my supervision as the Team leader. The statement was read and interpreted to him by PC Solomon Ikom in Hausa Language. He understood it and thumb printed…. Right now, Cpl. Alao Olajide and Cpl. Banjo Dare who recorded the statement (sic) of the 1st and 2nd accused persons are on the peacekeeping mission in Liberia. All efforts to get them to this Court to give evidence proved abortive. They are not likely to be chanced to be home until after the peace keeping assignment.”
The prosecuting counsel applied to the Court to tender the statements in evidence to which his counsel objected on the ground that the statements were obtained under
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duress and he applied for a trial within trial to be conducted as shown at pages 101 to 108 of the record of appeal. Cpl. Solomon Nkom (not Ikom as stated by PW3 in his evidence) whom the PW3 in his evidence in chief had stated was on peacekeeping mission, apparently had returned and he testified as PW2 in the trial within trial (see pages1 101 to 102 of the record of appeal), to the effect that he was detailed to act as interpreter from English to Hausa and vice versa. He said in respect of the statement of the Appellant that:
?The 1st accused confessed that he was the first person to matchet (sic) the deceased. After the accused had made his statement, I read it over to him in English and interpreted to him in Hausa language. He said he understood and he thumb printed while the IPO signed as the recorder.
After I have recorded Friday?s statement, I moved on to Victor Iliya. I interpreted his statement to Cpl. Alao Olajide who recorded same. Victor Iliya confessed that he assisted Sunmaila matchetted (sic) the deceased. I later read over the statement to him, he understood it and thumb printed, while I counter signed. Cpl. Alao Olajide
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also counter signed it.?
Under cross-examination, still in the trial within trial, Cpl. Solomon Nkom stated that:
?I did not record the statement of the accused. I only interpreted. I did not record the Hausa version of the accused statements. I only interpreted. I am a Hausa man from Kaduna State.?
In his ruling on the trial within trial, the learned trial Judge found that the Appellant made the confessional statement voluntarily and admitted them in evidence, and proceeded with the main trial, where the PW3 concluded his evidence. He (PW3) stated that the officers who did the interpretation and the recording of the statements of the Appellant and his co-accused persons did not record the statements in Hausa language. See page 110 of the record of appeal.
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But most unfortunately, neither Cpl. Nkom, the interpreter of the statement, nor Cpl. Olajide who recorded the statement of the Appellant interpreted to him by Nkom were called to testify in the main trial and to identify and confirm the statements they recorded from the Appellant and his co-accused Persons. The statements were therefore tendered and admitted through
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PW3 the team leader who admitted that he neither recorded nor interpreted the statements from the Appellant and his co-accused persons.
The learned trial Judge in his judgment at page 135 of the record of appeal held in respect of the confessional statements of the Appellant as follows:
?Learned counsel to the 2nd accused persons has urged me to expunge the confessional statements of the accused submitting that they were wrongly admitted in law. According to him those who recorded the statements were not called as witnesses and as such, what they recorded are hearsay; relying on the case of Olalekan vs. State (2002) 4 WRN 146. The above submission by the learned counsel to the accused persons is, with due respect, highly misconceived.
The accused persons, in this case made two statements each. They made one statement at Kaima police station, immediately after their arrest; while they made the second statement at Ilorin, State C.I.D. office.
PW1 CPL Yinusa Bashir recorded the accused?s statement at Kaima police station on 23/7/2010. The said PW1 in his examination in chief in the trial within trial said that the 2nd accused
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spoke in Hausa and that since himself (sic) understands the language, he was able to put down all that he said correctly. The same thing he said he did in respect of the 1st accused. The Statements were therefore admitted as Exhibits C & E respectively.
With regards to the accused?s statements made at the state C.I.D. Ilorin PW2 CPL. Solomon Nkom, Force No. 256508 served as the interpreter. He testified that on that day, he interpreted the statements of 1st and 2nd accused to Cpl. Banjo Dare and Cpl. Alao Olajide. He said he?s from Kaduna State and so he understands Hausa language very well. He said the statements were recorded by Cpl. Alao Olajide whom he said was then at international peacekeeping in Liberia?. In the case at hand, Cpl. Yinusa Bashir, who recorded Exhibits C and E at Kaima Police Station understood and speaks Hausa language just like the 1st and 2nd accused persons. So he does not need an interpreter. Then Cpl. Solomon Nkom who served as the interpreter to CPL. Banjo Dare and CPL. Alao Olajide with regards to the statements of the accused persons recorded at S.C.I.D. Ilorin testified before this Court as PW2 in
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the trial within trial on 15/11/2013. The statements where (sic) later admitted and marked as Exhibit G and H respectively?.
It is to be noted that the Confessional Statements under reference have been proved to be free and voluntary through the conduct of a trial within trial by this Court. I hold therefore that the said statements are admissible and admitted.? (Underlining supplied for emphasis).
From the evidence of the PW3 and the findings made in the judgment of the learned trial Judge on the confessional statements of the Appellant purportedly made at the C.I.D. Ilorin, the following facts emerged as established:
1. That the PW3 did not record nor participate in the recording of the statements of the Appellant. He was the team leader and only supervised the taking of the statement.
2. Cpl. Solomon Nkom and Cpl. Alao Olajide were the officers who actually took the statement of the Appellant. Cpl. Nkom acted as interpreter between the Appellant and the Cpl. Olajide who was the recorder and the IPO.
3. Neither Cpl. Nkom nor Cpl. Olajide testified at the trial or identified the statements of the Appellant as the one
31
they took. However, Cpl. Nkom testified in the trial within trial conducted for the determination of the voluntariness of the statement of the Appellant, which he interpreted.
4. The trial Court took into consideration the testimony of Cpl. Nkom, which he gave in the trial within trial to rely and attach weight/value to the confessional statement of the Appellant in the determination of his guilt to the offence charged.
It must be pointed out that a trial within trial taken at an interlocutory stage in a criminal proceeding is separate and distinct from the main trial. Its purpose is only for the determining of the voluntariness or otherwise of the confessional statement of an accused person and no more. See Idagu V. State (2018) 15 NWLR (pt. 1641) 127 at 143, where the learned Jurist Augi J.S.C. aptly put the position of the law thus:
?Most importantly, it is also settled law that trial within trial is only used to test the voluntariness of a confessional statement; not what value or weight to attach to the evidence. In essence, the issue of voluntariness is kept distinct from the issue of guilt, and this is done by insulating the enquiry
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into voluntariness in a compartment that is separate from the main trial?. However, the question of its value and what weight to attach to the confessional statement admitted in evidence after a trial within trial is a different matter all together, as admissibility and weight are not the same. In other words, the fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein and must be accepted by the trial court?. It is not automatic.?
See also Ifaramoye V. State (2017) LPELR-42031 (SC).
The learned trial Judge therefore was obviously in grave error when he relied on the testimony of the interpreter Cpl. Nkom, given in the course of the trial within trial, in the determination of the guilt of the Appellant. It was also wrong for the learned trial Judge to hold that the purported confessional statement of the Appellant was admissible in evidence, even though it was tendered by PW3 who did not record it from the interpreter as shown on the record of appeal. Though being a police officer, PW3 could be presumed
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to have knowledge of the fact that the Appellant made the statement because he supervised it?s recording. See Ekpo V. State (2018) 12 N.W.L.R. (pt. 1634); However since it was recorded through an interpreter, the position of the law is settled that both the interpreter and the recorder of the statements must testify, otherwise the statement remains a hearsay evidence and therefore inadmissible. In the circumstance, the decision in the case of Olalekan V. The State (supra), which the learned trial Judge was referred to by the Appellant?s learned counsel was/is most definitely applicable to this case as far as the confessional statement of the Appellant made at the State CID Ilorin is concerned. See also Bello V. C. O. P. (supra) page 320 para. D, where the Apex Court per Muhammad J.S.C., held thus:
?The general requirement of the law is that where a confessional statement is interpreted from the ipex dixit of the accused, the interpreter should be called for cross-examination as to what transpired in the process of the interpretation/translation
See further Popoola V. State (2018) LPELR -43853 (SC), Bako V. State
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(2018) LPELR-44479 (CA) and F.R.N. V. Usman (2012) 8 NWLR (pt. 1308) 141 at 159; which effectively and firmly settled the law, that where an interpreter has been used in taking down the statement of an accused person, the statement is hearsay evidence and inadmissible, unless the interpreter and the recorder are both called as witnesses in the case.
With regards to the recording of the statement of the Appellant in the Hausa language he spoke, which is the central complain of the Appellant under issue two; the Apex Court in Bello V. COP (supra) at page 331 para. F held thus:
?Fair hearing always arises if the appellant does not understand English at all and his statement has to be recorded in the language he speaks and understands and is later translated into English. This Court in Olalekan V. State (2001) 18 N.W.L.R. (pt. 746) 793 advised that statements should whenever practicable, be recorded in the language in which they are made to avoid technical arguments, which could be raised. It also ensured the correctness and accuracy of the statement made by the accused.?
?In this case, aside from the fact that neither the interpreter
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nor the recorder of the statement of the Appellant made at CID Ilorin was called as a witness, the statement was not recorded in the Hausa language understood and spoken by the Appellant. Though it is desirable that the statement of an accused person should be recorded in the language he understands and in which he makes it before being translated into English language, however not doing so does not make the statement inadmissible where it was admitted through the person who recorded and who indeed spoke and understood the language spoken by the accused person. See Akpan V. State (1992) LPELR- 381 (SC), Nwede V. State (2018) LPELR-43787 (CA) and Eyop V. State (supra).
Consequently, while the statement of the Appellant purportedly recorded by Cpl. Olajide and Cpl. Nkom at State C.I.D. Ilorin is clearly inadmissible in evidence, the Appellant?s statement which was recorded after his arrest at Kaima Police station by PW2 Cpl. Yinusa Bashiru was admissible, regardless of the fact that it was recorded in English not in the Hausa language in which it was given. The reason being that the police officer who recorded it understood Hausa and spoke to the
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Appellant in Hausa language before he recorded the statement in English. I however note that the complaint of the Appellant is only as regard his statement recorded at the State CID Ilorin that was confessional. His statement recorded at Kaima police station that was admitted as Exhibit ?C? was not confessional statement and it was admitted without any objection.
The resultant effect of all I have stated supra is that the statement of the Appellant admitted as Exhibit ?D? is hereby expunged from the record being a hearsay and inadmissible evidence. This statement is the subject of the complaint of the Appellant in his issue two. With regards to the Appellant?s complaint in his issue three that his statement made at the State CID Ilorin was obtained through a question and answer session, having expunged the said statement admitted by the trial Court in its entirety for being inadmissible evidence, this issue has become redundant. Consequently, having expunged the confessional statement of the Appellant recorded at CID Ilorin, it means that issues two and three are resolved in favour of the Appellant.
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That however is not
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the end of the matter, because the expunged confessional statement of the Appellant was not the only evidence before the trial Court. The record of appeal showed that there are other pieces of evidence proffered by the prosecution, which I will consider later in this judgment.
ISSUE FOUR
This issue questioned the learned trial Judge?s reliance on the evidence of the 3rd accused person, which allegedly contradicted her earlier extra-judicial statement made to the police, in convicting the Appellant. The learned counsel to the Appellant had quoted both the statement of the 3rd accused person to the police and her oral evidence before the trial Court in order to show the said conflict between the two. The Respondent on the other hand insisted that there was no material difference or inconsistency between the oral evidence of 3rd accused person and her earlier extra-judicial statement that she made to the police.
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It is important to note that the 3rd accused person Agnes Isaiah was the wife of the deceased Isaiah Jale and she was tried along with the Appellant for her husband?s murder. As a suspect, she made two statements to the police
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both at Kaima Police station and at State CID office Ilorin. Her two extra-judicial statements were admitted in evidence and marked as Exhibit ?F? and ?F1? (see page 100 of the record of appeal) and both are contained at pages 11 to 12 (Exhibit F) and at page 17 (F1) of the record of appeal. In Exhibit ?F?, the 3rd accused person narrated inter alia that:
. Am not the one that killed my husband, on the dated (sic) the (sic) came back but they said they will be going back late evening to get a HERBS (sic) from the bush and they all went while I was at home. When Friday and Victor came back, I asked of my husband and they told that he had been to town, then I questioned them that if my husband as (sic) truly been to town while (sic) should his dog come back with them instead of my husband dog to follow him. At night, I still questioned Friday and Victor of my husband, they told me that he went to town to secure debt (sic, debt?). Then I slept alone that night. On the second day 22/7/10 I informed our boss named Abubakar ?m? of what is happening, then he took action before they confessed that
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they killed my husband?.?
Then in Exhibit ?F1? the 3rd accused also narrated the following story regarding her husband?s death:
. On 20/7/2010 at about 0700hrs my husband Isiah Jale, Friday Sumaila and Victor Ilia all of them went to the farm and all of them returne (sic) that day. The after (sic) at about 1500hrs Sumaila Friday told me to give him nylon that the three of them want to go the bush to look for medicine. Went (sic) they are going I saw Victor Ilia in the front, my husband Isiah Jale was in the middle while Friday Sumaila was at the back. Friday Sumaila and Victor Ilia holding cutlass in the(sic) hand, went they are going, later when they returne (sic) I did not see my husband returned with them. I reported the matter to our land lord Abubakar Umaru (who?) ask them, they denied, when we received information from passer by people that the body of my husband was found in the bush before the Friday Sumaila and Victor Ilia confessed that the one (sic) that matchetted (sic) him to death. That Friday Sumaila matchetted on his neck while Victor Ilia matchtted (sic) on his head before he died. That
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is all I have to say.?
In her oral evidence before the lower Court in defence of the charge against her, the 3rd accused person as DW3 testified at pages 115 to 116 of the record of appeal thus:
?My names are Agnes Isaih. I live at Kaima. I know the 1st and 2nd accused persons. I also know Isai Jale (deceased). He was my husband. He is dead. The 1st and 2nd accused persons are friends with the deceased. It was the 2nd accused that brought my deceased husband and I from Kaduna to live at Kaima. On the day of the incident, my late husband and 1st and 2nd accused persons went to the farm and came back around 5:00 p.m. The 1st accused sat with me and my deceased husband searched for a bag with which to go to bush to look for herbal medicine. They could not get the sack bag and the three of them went with cutlasses in their hands. But on their return, only two of them, i.e. 1st and 2nd accused showed up. It was around 6:00 p.m. I asked for the whereabouts of my husband and they told me he has gone to collect herbal medicine from somebody.
Not quite long, some vigilante men arrived and asked the 1st and 2nd accused to take them to where
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they have just returned. They went and took them to a place different from where they killed my husband.
But on the following day, 1st accused led the vigilante men to where Isaiah Jale was killed. At the place they met the deceased in a pool of blood dead.
My husband had a dog; and the dog followed the three of them to where they said they were going to look for herbs. But when the two returned the dog still come back with them but without my late husband.
I did not follow the vigilante to the spot where the body of my late husband was discovered. Only the 1st and 2nd accused were arrested in connection of this offence. Friday and my husband are friends while Victor i.e. 1st accused is their younger brother. It is likely to suspect the accused fro the death of my husband because they are (sic) close. It was Friday that killed my husband. I was not present when the incident happened.?
Only the prosecution?s counsel cross-examined the 3rd accused on her evidence. She further stated under cross-examination, that the last time she saw her husband alive was when he went to the bush together with the 1st and 2nd accused persons, and
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that it was the 2nd accused person that first mooted the idea to go to the bush to look for herbs. She also said that when the 1st and 2nd accused persons returned without her husband, they did not come back with any herbal medicine, but they returned with only their cutlasses. She denied having an affair with the 2nd accused person.
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I deliberately quoted in details from both the extra-judicial statements of the 3rd accused person and her oral evidence before the trial Court in order to determine whether there was any material inconsistencies in the two as contended by the Appellant?s learned counsel on this issue. I note that the central issue of the statements of the 3rd accused and her oral evidence is that the 1st and 2nd accused persons went to the bush together with her husband and they returned shortly after without him. He was later discovered dead with machete wounds on his body. That she last saw her husband alive when the trio went to the bush holding cutlasses in the evening of 20/7/2010 and they returned without him. These facts are clearly stated in the two statements she made to the police and also clearly in her oral evidence before
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the trio Court on which she was not discredited. As noted earlier, counsel of the 1st and 2nd accused persons did not asked her any questions on her testimony which was clearly damning against 1st and 2nd accused persons. I have given due consideration to the statements and the oral evidence of the 3rd accused person and I have not seen any material inconsistency in the two.
In any event, the law is clear that the inconsistency rule does not apply to the testimony of an accused against his co-accused because the law does not regard a co-accused as an accomplice. See Section 199 of the Evidence Act, which provides that:
?Where defendants are tried jointly and any of them gives evidence on his own behalf which incriminates a co-defendant, the defendant who gives such evidence shall not be considered to be an accomplice.?
See also Uzoma V. State (2018) LPELR-44765 (CA) to the effect that the inconsistency rule does not apply to an accused person. But more importantly, the statement of an accused person to the police is different and distinguishable from the accused?s testimony before the Court. The Apex Court clearly put the
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position of the law in this regard to rest in its recent decision in the case of Nwodo V. State (2019) 3 NWLR (pt. 1659) 228 at 240 para. F-G where the learned Jurist Augie, J.S.C. held thus:
?The position of the law is that the statement of the co-accused to the police is different and distinguishable from his evidence in Court. The statement remains his statement and not his evidence and it is binding on him only- Suberu V. State (2010) 8 NWLR (pt. 1197) 586 SC. However, where the evidence incriminating an accused comes from the co-accused, the Court is at liberty to rely on it, provided the co-accused, who gave such incriminating evidence, was tried along with that accused person?. The fact that the evidence was that of a co-accused does not prevent it from being a credible and reliable evidence once he was jointly tried with the other accused persons.?
See also the Apex Court?s decision in the cases of Michael V. State (2008) LPELR- 1874 (SC), Asimi V. State (2016) LPELR- 40436 (SC) and Adeleke V. State (2013) LPELR- 20971 (SC).
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In view of the above stated position of the law, the learned trial judge was entitled to
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accept and rely on the evidence of the 3rd accused person in convicting the Appellant. Consequently, issue four must be resolved against the Appellant and it is so resolved against him.
ISSUE FIVE
This issue distilled from ground five of the Appellant?s grounds of appeal, raises the question whether the learned trial Judge was right in law, when he admitted in evidence the two cutlasses (Exhibits ?I? and ?J?) as the weapons allegedly used to kill the deceased without any forensic investigation report supporting the fact that the two cutlasses were the actual weapons of the murder.
The learned Appellant?s counsel argued that there was no forensic investigation?s report linking the two cutlasses to the Appellant or the deceased, especially since there was no eyewitness who saw the Appellant committing the offence. He further submitted that this case being a murder trial any weapon recovered from the accused (not at the scene of crime) ?and there is no direct evidence in respect of the alleged offence?, the police ought to send the object, i.e. the cutlasses for forensic examination. See
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paragraph 4.35 of the Appellant?s brief of argument.
In contrast, the Respondent posited that the two cutlasses were relevant to the fact in issue, which was the death of the deceased via use of cutlasses and in view of the medical report, and the testimony of the 3rd accused person.
Upon a close examination of the record of appeal, it clearly shows that there are several pieces of evidence in this case showing that cutlasses were used in the commission of the crime in issue. Firstly, there is the evidence showing that the Appellant and the 2nd accused went to the bush together with the deceased and each of them was holding a cutlass supposedly to get some herbs medicine from the bush. Secondly, the deceased was later discovered in the bush dead, with machete wounds on his body as shown in the photograph of his corpse (Exhibits 1A and 1B). Thirdly, there is the post mortem examination report (Exhibit B), in which medical examiner stated that there was ?a deep machete wounds to an anterior part of the neck? and ?there were also machete wound to the left side of the head.? See also the testimony of PW2 at page 88 of
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the record of appeal.
The learned trial Judge was therefore right to admit the two cutlasses in evidence and to infer from the evidence before him that they were the weapons used by the Appellant and the 2nd accused person in the killing of the deceased. Also in view of the other pieces of evidence before the trial Court, a forensic examination of the cutlasses was not necessary because the cause of death has already been established. Issue five is therefore resolved against the Appellant.
In conclusion, I have to state that there are strong circumstantial evidence (even without the confessional statement of the Appellant which I have expunged from the record) against the Appellant that strongly linked him and the 2nd accused person to the death of the Appellant. Indeed the learned trial Judge took the circumstances of this case into consideration in convicting the Appellant and 2nd accused person for the offences of conspiracy and killing of the deceased person Isaiah Jale, when held at page 134 of the record of appeal thus:
?I entirely agree with the DPP in his submission that the law presumes that the person ?last seen? with
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the deceased bears full responsibility for his death if it turns out that the person last see with him is dead. See Moses Jua V. The state (2010) 4 NWLR (pt. 1184) 217 X 228.”
Most definitely, the doctrine of last seen is applicable and can be properly applied to this case. The doctrine is to the effect that in the absence of an explanation as to what happened or caused the death of the deceased who was last seen in the company of an accused person, such an accused person bears full responsibility to prove that he was not responsibility for the death of the deceased. This doctrine creates a rebuttable presumption that an accused that was last seen with the deceased person was responsible for his death, and the accused has a duty to provide an explanation on how the deceased died. In the absence of such explanation, both the trial Court and this Court as an appellate Court will be justified to infer that the accused killed the deceased person. See Amos V. State (2019) 1 NWLR (pt. 1653) 206 at 233 (SC), Olude V. State (2018) LPELR-44070(SC), Esseyin V. State (2018) LPELR-44476 (SC) and Haruna V. A.G. Federation (2012) 9 NWLR (pt. 1306) 419 (CA).<br< p=””</br<
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The evidence of PW1, the landlord/boss of both the Appellant and the deceased who testified that he saw the trio going to the farm, the evidence of 3rd accused person, the wife of the deceased to the effect that the last time she saw the deceased alive was when he went along with the Appellant to the bush on the evening of 20/7/2010, and that the Appellant was carrying cutlass; the testimony of PW2, who went to the scene of crime, recovered the body of the deceased and took it to the hospital; the post mortem examination report together with the police report of the recovery of the corpse attached to the post mortem examination report (Exhibit ?B?), have all shown without any shadow of doubt that the deceased was last seen with the Appellant before he died of machete wounds as shown on the photographs of his corpse.
?The record of appeal shows the Appellant?s oral evidence in defence of the charge, contained at pages 112 to 113. It was a total denial of the offence. He stated that they went to work at the farm with the deceased and on returning they all went to their separate ways and that was all. There was no explanation offered to
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rebut the doctrine of last seen, and the evidence of the Appellant to the effect that they worked together in the farm before it was discovered that the deceased died only reinforced the application of the doctrine of last seen in this case against him.
Therefore, even though issues two and three, both in respect of the Appellant confessional statement were resolved in his favour, the appeal totally fails in view of the other pieces of evidence against him. This appeal is therefore dismissed by me, with the resultant effect that the Judgment of the Kwara State High Court in charge No: KWS/219C/2011 delivered on the 30th June, 2014 by Hon. Justice M. O. Adewara, by which the Appellant was convicted and sentenced is hereby affirmed.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the advantage of reading before now, the leading judgment delivered by my learned brother Balkisu Bello Aliyu, JCA. I am in full agreement with the reasoning leading to the dismissal of the appeal. All the issues for determination in the appeal have been considered and resolved creditably, requiring no further illucitation from me. I can only adopt My Lord?s
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reasons and the decision arrived at contained in the lead judgment as mine, and consequently, dismissed the appeal. Appeal is dismissed by me. The judgment of the lower Court delivered on the 30th of June, 2014 by Justice M.O Adewara is hereby affirmed.
HAMMA AKAWU BARKA, J.C.A.: My learned brother Balkisu Bello Aliyu JCA. had permitted me to read the judgment just delivered in draft.
?I wholly agree with the way and manner the issues in controversy were treated and resolved. In a case of murder under Section 221 of the Penal Code, certain established ingredients, where proved, binds the accused person to the commission of the crime. Not only in the legal principle of the doctrine of last seen applicable in the instant case, but also evidence showed that accused person actually led the PW1 and the village head to where the incident happened and admitted as to how the deceased was murdered. All other contentions made by the appellant having been treated to my satisfaction, I concur with the lead judgment that the appeal is bereft of merit and therefore dismissed.
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Appearances:
S. O. I. Nkem, Esq. with him, I. A. Onwa, Esq. and M. I. Akobi, Esq.For Appellant(s)
J. O. Mumini, Esq. (DPP, MOJ, Kwara State) with him, M. T. Danzaki, Esq. (S.S.C.) and M. Abdulhameed Esq. (S.C.1)For Respondent(s)
Appearances
S. O. I. Nkem, Esq. with him, I. A. Onwa, Esq. and M. I. Akobi, Esq.For Appellant
AND
J. O. Mumini, Esq. (DPP, MOJ, Kwara State) with him, M. T. Danzaki, Esq. (S.S.C.) and M. Abdulhameed Esq. (S.C.1)For Respondent