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YAHAYA v. STATE (2021)

YAHAYA v. STATE

(2021)LCN/15882(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/G/32C/2020

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

ALIYU YAHAYA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON BASED ON A RETRACTED CONFESSIONAL STATEMENT

I must however make the point that the fact that an accused retracted a confessional statement does not mean that the Court cannot convict on that statement. Indeed, a Court can convict on the confessional statement of an accused provided the statement was made voluntarily, unequivocal and positive to the effect that the accused admit committing the offence. In Dairo vs State (2017) 9-10 S.C. 119, the apex Court held thus:
“A conviction can be based upon a confessional statement alone where it is found to be voluntarily made, direct and positive and relates to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the offence charged. See: Akpan vs. The State (1992) 6 NWLR (pt. 248) 439 @ 467 E-F. It is however the practice of the Courts, in order to safeguard the accused person’s right to fair hearing, to consider evidence outside the statement, no matter how slight, which makes the confession probable. See: Adeyemi vs. The State (2014) 13 NWLR (pt. 1423) 133; Okashetu vs. The State (2016) LPELR- 40611 (SC).”
Once the statement was voluntarily made whether it is retracted does not matter. In Asuquo vs State (2016) 14 NWLR (pt 1532) 309, the Supreme Court held thus:
“It is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: Uluebeka v. The State ​(2000) 7 NWLR (Pt.565) 41; Okoh v. State (2014) 8 NWLR (Pt.1410) 502.”
PER TOBI, J.C.A.

THE POSITION OF LAW ON THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

I had mentioned above that the law is trite that a Court can convict solely on the confessional statement of an accused person provided the statement was made voluntarily, positive and unequivocal. The retraction of such a statement will be of no moment. A confession is a statement made by the accused person admitting that he committed the offence. This is a powerful piece of evidence against interest and it can form the basis of the conviction of the maker of the confession. I must be quick to add that if confessional statement is admitted as voluntarily made and seen to be cogent, it can be used as the sole ground to convict the accused. See Hassan vs State (2017) 15 NWLR (pt. 1557) 1; State vs Ahmed (2020) 14 NWLR (pt. 1743) 1. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See Kasa vs. State (1994) 5 NWLR (Pt.344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (Pt.III) 114, the Supreme Court per Adekeye, JSC held:
“By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. See Egboghonome vs. State (1993) 7 NWLR (Pt.306) pg. 383, Bature vs. State (1994) 1 NWLR (Pt.320) pg. 267, Solola vs. State (2005) 11 NWLR (Pt. 937) Pg. 460, Edhigere vs. State (1996) 8 NWLR (Pt.464) pg.1, Uluebeka vs. The State (2000) 4 SC (Pt. 1) pg. 303, Idowu vs. State (2000) 7 SC (Pt.11) pg.50, Alarape vs. State (2001) 14 WRN 1.”
PER TOBI, J.C.A.

THE TEST IN DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
One more case in this regard will not be out of place. This is the case of Dairo vs State (2017) 9-12 S.C. 119 where the Supreme Court held thus:
“Now, as already observed in this judgment, even though an accused person can be convicted on his confessional statement alone, it is customary for the Court to look for some other evidence outside the statement to determine whether it is probable. See Egboghonome Vs. The State (1993) 7 NWLR (Pt. 306) 383; Ojegele Vs. The State (1988) 1 NWLR (Pt. 71) 414; Akpa vs State (2007) 2 NWLR (1019) 500. The factors the Court should consider as laid down in the case of R. V. Sykes(1913) 1 Cr.App. Report 233 are:

a) is there anything outside the statement to show that it is true
b) Is it corroborated
c) Are the facts stated in it true as far as can be tested
d) Did the accused have the opportunity of committing the offence
e) Is the confession possible
f) Is the confession with other facts which have been ascertained and proved

See also: Queen Vs. Obiasa (1962) 1 ALL NLR 651.
In this respect making reference to the recent case of the Supreme Court Maba vs the State (2021) 1 NWLR (pt 1757) 352 will no harm anyone. The apex Court in this case held:
“While it is true that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime, it is not in every situation that an identification parade must be held. It depends on the facts and circumstances of each case. An identification parade is only necessary when there is doubt as to the ability of the victim to recognize the suspect or where his identity is in dispute. See Alufohai v. State (2015) All FWLR (Pt. 765) 198, (2015) 3 NWLR (Pt. 1445) 172 at 191 – 192 H.A, (2014) 12 SCM (Pt. 2) 122; Ogoala v The State (supra); Okiemute v. The State (2016) 15 NWLR (Pt. 1535) 297; (2016) LPELR – 40639 (SC).
The Courts are guided by certain factors in determining whether or not an identification parade is necessary. It will not be necessary in the following circumstances where:
(a) There is a clear and un-contradicted eye-witness account and identification of the person who allegedly committed the crime;
(b) The witness knew the accused previously;
(c) The defendant is linked to the offences by convincing, cogent and compelling evidence; and
(d) The accused in his confessional statement identified himself with the crime.
On the other hand, an identification parade would be necessary where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time; or
(c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
See: Okiemute v. The State (supra).”
See also Bio vs State (2020) 7 NWLR (pt 1723) 218.
PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant was charged before the High Court of Gombe State for the murder of Malam Ya’u Isah at Gafchiyari Village. The Charge is found on page 20 of the record. The Appellant pleaded not guilty and after hearing the Prosecution witnesses and the evidence of the accused and his witnesses, the lower Court convicted the accused now Appellant in a considered judgment found on pages 99-116 of the records. The judgment was delivered on 16/4/2019 by Honourable Justice Paul Idi Apollos of the Gombe State High Court. His Lordship in the judgment at page 115-116 of the record held thus:
“In the light of the circumstance of the case, this Court is left with no other option than to conclude that by the evidence before me, the accused person intended the consequence of his action. When person (sic) slay another at the throat, it cannot be said that he intended something else. Consequently I hold that the prosecution has also established the third ingredient as such I hold that the prosecution has proved its case against the accused person as charged. I hereby convict you accordingly….In the circumstance I shall impose the maximum sentence which is death by hanging but I strongly recommend to the Governor to consider a further investigation of the health of the convict where he finds grounds for (sic) for he may grant clemency or at best commute the sentence to some years of prison with attention to his health being given by Government.”

The Appellant dissatisfied with the judgment filed this appeal via Notice of Appeal containing 4 grounds of appeal found on pages 117-123 of the records. The grounds of appeal are as follows:
1. The learned Trial Court erred in law when the Honourable Court failed to consider the mental health condition of the Appellant and held thus: “In view of the time the matter had dragged to obtain the medical report, the Court decided to proceed with the adoption of written addresses by both sides wherein the Prosecution adopted their final address dated 4th June, 2018 after the defense adopted its own final address dated 1st June, 2018… It is my firm believe that if the relations of the accused person had the means they would have go (sic) to some length to establish his medical condition and what might have been responsible for the action he did… I am deeply convinced that the case of this young man presents a pathetic situation because we have a case in which issue bordering on the health of the convict were raised even at the stage of investigation and yet the prosecuting authority did not do anything about confirming things before going ahead to press for trial under Section 221 of the Penal Code. In the circumstance I shall impose the maximum sentence which is death by hanging.
2. The learned Honourable Trial Court erred in law when it held inter alia that: “The Prosecution is relying on the statements made by the accused person at the Police Division in Dukku and at the State CID in Gombe. Those statements Exhibits 1A, 1B,, 3A, 3B, 3C, 4, and 4A were all tendered and admitted in evidence without any objection, although the Court noted the call by the defence to be weary as to the weight to attach to them…. I have given careful thought to the evidence presented by the prosecution and arguments on both sides and I am satisfied that the prosecution has established the second ingredient of the offence
3. The learned Trial Court erred in law when the Honourable Court held that “…I do not hold the view that the failure by the Prosecution to call whom PW3 said are some persons who told him that the accused person confessed committing the act was mandatory upon them to establish that communication… I have weighed the contents of the statements and testimonies of witnesses for the Prosecution and find that the arguments of counsel to the defense to the effect that failure by the Prosecution to call some “vital” witnesses should attract the application of Section 167(d) is without any basis… I do not agree with these arguments because it is the well considered opinion of the Court that these statements were rightly admitted and in absence (of) any further evidence on the story told by the accused to the people who saw him when he got back home three days after the incident.
4. The conviction of the Appellant cannot be supported having regard to the weight of evidence.

The Appellant in this appeal was represented by Bob C.A. Ijioma Esq who also settled the Appellant’s brief filed on 7/1/2021 deemed on 19/1/21. In the brief, the Appellant formulated 4 issues for determination as follows:
a. Whether the Honourable Trial Court was right in disregarding the Consultant Psychiatrist’s medical evaluation on the mental health status of the Appellant by proceeding with the trial, conviction, and sentencing of the Appellant despite making a finding of fact on the deteriorated mental health condition of the Appellant.
b. Whether the Honourable Trial Court was right in relying solely on the extra judicial statements of the Appellant which did not comply with the provisions of Sections 15(4) and 17(2) & (3) of the Administration of Criminal Justice Act, 2015 in convicting and sentencing the Appellant to death by hanging.
c. Whether the Honourable Trial Court was right in holding that “…I do not hold the view that the failure by the Prosecution to call whom PW3 said are some persons who told him that the accused person confessed committing the act was mandatory upon them to establish that communication…” yet the Honourable Trial Court relied on evidence of Respondent’s witnesses that the Appellant confessed to some people in convicting and sentencing the Appellant to death.
d. Whether the Respondent adduced sufficient evidence to warrant judgment of the Honourable Trial Court in its favour.

Addressing issue 1, it is the submission of counsel that the lower Court should not have disregarded the report on the medical condition of the Appellant to proceed with the trial and eventual conviction since insanity is a defence to criminal liability. He made this submission relying on Section 28 of the Criminal Code, Section 51 of the Penal Code and the cases of Queen vs Ogor (1961) ALL NLR 70; R vs Inyang (1964) 12 WACA 5; Ejinima vs State (1991) 6 NWLR (pt 200) 627. It is the further submission of counsel that there was enough evidence to show during the trial of the unsound mental condition of the Appellant. In the light of the evidence before the Court on the mental instability of the Appellant, the Court should have called the Psychiatrist to give evidence to clarify that issue. The failure to do that is fatal to the decision of the Court and occasioned a miscarriage of justice counsel submitted. Relying on the case of State vs John (2013) LPELR-20590 (SC), Counsel submitted that the Appellant had satisfied the requirement for the defence of insanity to succeed and therefore issue 1 should be resolved in favour of the Appellant.

Learned Counsel for the Appellant answered issue 2 in the negative. It is the submission of counsel that the lower Court based the conviction on the confessional statement of the Appellant which statement did not comply with Section 15(4) & 17(2) of the Administration of Criminal Justice ACT (ACJA) 2015 and therefore the statement is not admissible and cannot be the bases for the conviction of the Appellant. He referred to Owhoruke vs C.O.P (2015) NWLR (pt 1483) 557; Charles vs FRN (2018) 13 NWLR (pt 1635) 50 @ 55-56; Zhiya vs People Of Lagos (2016) LPELR 40562 (CA). Again counsel urged Court to resolve this issue in favour of the Appellant.

In addressing issue 3, it is the submission of counsel that the failure of the prosecution to call the witness that PW3 said told him about the confession of the Appellant is fatal to the case of the Respondent. This is because that evidence become hearsay which in law is not admissible, counsel submitted referring to State vs Egede (2017) LPELR-43438; State vs Masiga (2017) LPELR-43474. It is counsel’s final submission on this point that the evidence of PW3 should be discountenanced and therefore this third issue should be resolved in favour of the Appellant.

On the final issue, Counsel submitted that the conviction of the Appellant is based on suspicion which in law cannot be enough evidence to convict the Appellant. The Respondent has not proved the guilt of the Appellant and therefore the conviction should be set aside. Counsel referred toA.G. Adamawa vs A.G. Federation (2005) 18 NWLR (pt 958) 581 SC; Atagbo vs Okpo (2013) LPELR 20207; Onifade vs Oyedemi (1999) 5 NWLR (pt 601) 54 at 56. Counsel finally urged Court to allow the appeal.

The Respondent’s brief was settled by Muhammad Isah Usman Esq., Assistant Director Public Prosecution, Ministry of Justice, Gombe State. In the Respondent’s brief filed on 18/1/21 deemed on 19/1/21, the Respondent raised 4 issues for determination viz:
a. Whether the Appellant has rebutted the presumption of sanity at trial Court to warrant this Court discharge and acquit him of the conviction.
b. Whether in view of Section 2 of the Administration of Criminal Justice Act, 2015 is the applicable rules of Court governing criminal proceedings in prosecuting state offences in Gombe State.
c. Whether failure to establish the communication made between PW3 and some other people who pass the information of the Appellant where about is fatal to this appeal.
d. Whether the conviction and sentence of the Appellant by the trial Court is base on suspicion.

The Learned Counsel to the Respondent while submitting that once an accused raises any defence, the Court is under obligation to consider the defence no matter how flimsy referring toAdelu vs State (2014) 12 SCM (pt 2) 52 @ 65, counsel went on to submit that taking into account the proceedings at the lower Court, there is no evidence that the Appellant had a mental problem at the time of committing the offence. The issue only came up at the end of the proceeding when the counsel of the parties was to address Court and not during the trial. That apart, counsel submitted that there is no cogent evidence to establish the mental health condition of the Appellant. The law is, counsel submitted, insanity of the Appellant must be apparent during the trial and not the way it was mentioned in the trial. Counsel submitted further that it is the duty of the Appellant to establish insanity and the failure of the Appellant to establish same works against the argument of the counsel to the Appellant. Counsel referred to Ajayi vs State (2014) 10 SCM 24 @ 35; Yusuf vs State (2019) 5 SCM 198; Adelu vs State (supra). Learned Counsel submitted that a defence only becomes necessary if the Appellant admitted killing the deceased, a fact that the Appellant denied. This issue counsel submitted should be resolved in favour of the Respondent.

On issue 2, counsel to the Respondent submitted that the cases cited by the Appellant on this issue can be distinguished from this case as those cases relate to offences charged under Federal Acts and not cases where the charge is under a State Law to which it is the Criminal Procedure Code that is applicable. Again counsel urged the Court to resolve this issue in favour of the Respondent.

The Counsel to the Respondent submitted on issue 3 that the evidence of PW3 is not hearsay as it is a product of what he saw and based on his interaction with the Appellant and others which subsequently informed his response to invite the police citing Sama’ila vs State (2012) LPELR-24383 (CA) 18. That apart, counsel submitted that the prosecution is not under obligation to call a number of witnesses to secure conviction referring to Ogun vs State (2012) LPELR-1534 (CA).

Addressing the final issue, which is issue 4, Learned Counsel submitted that the Respondent has by credible evidence established the ingredients of the offence for which the Appellant was charged and therefore the conviction should be upheld. He finally concluded by urging this Court to dismiss this appeal.
The Appellant did not file any reply brief.

The Appellant was charged for the offence of Culpable Homicide punishable with death under Section 221 of the Penal Code. He was charged for causing the death of one Malam Ya’u Isah by slicing his throat with a knife which was tendered as Exhibit. The lower Court convicted the Appellant and sentenced him to the maximum sentence provided for in the law. The lower Court expressed concern about the mental condition of the Appellant and recommended to the Governor to consider a further investigation of the health of the Appellant where he finds grounds for clemency. The lower Court left it for anyone reading the judgment to find out what is the statutory punishment. The sentence is death. The lower Court found it very hard to pronounce the death sentence as his Lordship was so concerned about the mental health condition of the Appellant.

I have read the judgment and it is clear that the conviction of the Appellant was based largely on the confession statements of the Appellant which were retracted by the Appellant in his evidence in Court. I must however make the point that the fact that an accused retracted a confessional statement does not mean that the Court cannot convict on that statement. Indeed, a Court can convict on the confessional statement of an accused provided the statement was made voluntarily, unequivocal and positive to the effect that the accused admit committing the offence. In Dairo vs State (2017) 9-10 S.C. 119, the apex Court held thus:
“A conviction can be based upon a confessional statement alone where it is found to be voluntarily made, direct and positive and relates to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the offence charged. See: Akpan vs. The State (1992) 6 NWLR (pt. 248) 439 @ 467 E-F. It is however the practice of the Courts, in order to safeguard the accused person’s right to fair hearing, to consider evidence outside the statement, no matter how slight, which makes the confession probable. See: Adeyemi vs. The State (2014) 13 NWLR (pt. 1423) 133; Okashetu vs. The State (2016) LPELR- 40611 (SC).”
Once the statement was voluntarily made whether it is retracted does not matter. In Asuquo vs State (2016) 14 NWLR (pt 1532) 309, the Supreme Court held thus:
“It is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: Uluebeka v. The State ​(2000) 7 NWLR (Pt.565) 41; Okoh v. State (2014) 8 NWLR (Pt.1410) 502.”

I will deal with this in greater details when I will be addressing the issues formulated for determination. Talking of the issues formulated for determination, I will adopt the issues formulated by the Appellant in this appeal. The law allows me to do that, after all the case is that of the parties. For clarity I will reproduce the issues for determination formulated by the Appellant which I hereby adopt for the determination of this appeal:
a. Whether the Honourable Trial Court was right in disregarding the Consultant Psychiatrist’s medical evaluation on the mental health status of the Appellant by proceeding with the trial, conviction, and sentencing of the Appellant despite making a finding of fact on the deteriorated mental health condition of the Appellant.
b. Whether the Honourable Trial Court was right in relying solely on the extra judicial statements of the Appellant which did not comply with the provisions of Sections 15(4) and 17(2) & (3) of the Administration of Criminal Justice Act, 2015 in convicting and sentencing the Appellant to death by hanging.
c. Whether the Honourable Trial Court was right in holding that “…I do not hold the view that the failure by the Prosecution to call whom PW3 said are some persons who told him that the accused person confessed committing the act was mandatory upon them to establish that communication…” yet the Honourable Trial Court relied on evidence of Respondent’s witnesses that the Appellant confessed to some people in convicting and sentencing the Appellant to death.
d. Whether the Respondent adduced sufficient evidence to warrant judgment of the Honourable Trial Court in its favour.

In addressing each of the issues, for completeness, I will reproduce the issues and follow same with the consideration and decision. I will start with issue 1 which reads thus:
Whether the Honourable Trial Court was right in disregarding the Consultant Psychiatrist’s medical evaluation on the mental health status of the Appellant by proceeding with the trial, conviction, and sentencing of the Appellant despite making a finding of fact on the deteriorated mental health condition of the Appellant.

The issue here borders on the medical evaluation of the Psychiatrist Appellant by the position of the Appellant’s counsel is that since the issue of the mental health condition of the Appellant was raised, the lower Court should not have continued with the trial of the case against the Appellant without first determining the true status of his mental condition. The position of the law is properly stated by the Appellant’s counsel to the effect that when the issue of the capacity of an accused to stand trial on grounds of mental stability is put in issue, the Court should first consider that before continuing with the trial. The point however must be made that cases stand on their own facts and a case can only be precedent for another if the facts are materially the same. See Bonkolans Investment Ltd & Ors vs Central Securities Clearing System Ltd & Ors (2010) 5 NWLR (pt 1186) 182.
Now, looking at the facts of this case, the question is should the lower Court had stopped trial to determine the mental stability of the Appellant before concluding trial? The Appellant answers that question in the affirmative while the Respondent answers it in the negative. Both of them cannot be right as one will be right and the other wrong. To answer that question, it is important to state that there is no evidence before the lower Court to the effect that as at when the Appellant was alleged to have committed the offence he was mentally unstable. I also do not have evidence that as at when he was standing trial and specifically testifying in Court, he was mentally unstable. In fact, DW2 in his evidence which made reference to the mental condition of the Appellant said it was after the incident that he noticed the mental instability of the Appellant. Looking through the evidence, there is nothing to suggest that while the Appellant was testifying, he showed signs of mental instability. The mental instability came into focus after the case had been adjourned for address. At this stage, should the Court have suspended all the proceeding to determine the mental state of the Appellant? I do not think so as the relevant mental condition of the Appellant which should forestall proceedings is the mental condition of the Appellant as at when the offence was committed or when he is testifying at the trial. See Arum vs State (1979) ANLRP 255. For the lower Court to delve into the mental condition of the Appellant and probably suspend proceedings on that account, the counsel to the Appellant should have raised the matter of the mental condition of the Appellant expressly and not casually. To this extent, I find the case of the Supreme Court in Ideh vs State (2019) LPELR-46899 (SC) instructive where the apex Court held:
“There is nowhere in the two oral applications made by the Learned Counsel for the Appellant at the trial Court that the issue of insanity or natural mental infirmity or even partial delusion was raised….Section 223 and 224 of the same Law enjoin a trial Judge to do the following when the issue of insanity is raised at the trial, viz:-
(a) When he observes that the accused behaves abnormally, or
(b) When the fact of the mental instability of the accused is raised in the course of the trial, or
(c) When the Counsel to the accused request for the inquiry.
The three conditions here can only arise when the issue of insanity is raised. For the Court to deem an accused person to be of unsound mind and consequently incapable of making his defence by reason of some physical or natural condition, the conduct or behavior of such an accused person must be taken into account by the trial Judge, whose opinion only will be relevant.”
The apex Court went further to state thus:
“Since the Learned trial Judge was of the opinion that there was no material upon which the Appellant would be deemed to be of unsound mind, Section 222 of Criminal Procedure Law of Ogun State has been sufficiently complied with. Sections 223 and 224 of the same Law are irrelevant because none of the parties raised the issue of insanity. For a Judge to institute an inquiry into psychiatric disposition of an accused, at the instance of his counsel, the Learned Counsel representing the accused must not be casual in presenting their case of insanity on behalf of his client.”
In Sanusi v the State (1984) 10 SC 166 at 177, this Court, per Aniagolu JSC said:-
“There is a tendency for some Counsel to be casual in presenting their case of insanity on behalf of accused persons. Some tend to treat the matter as if all that was required to establish the defence of insanity was to allude to insanity as the accused’s defence and proceed to show how unreasonable and motiveless the action of the accused had been, leaving it to the Court to infer that anyone guilty of such behavior as the one committed by the accused could not but be insane. Such an approach to the defence of insanity is wrong.”
To buttress the fact that the mental condition must be consciously brought before the lower Court for consideration by the Court and not a situation that is passive raised the apex Court went further to hold:
“To establish a defence of insanity it must be clearly pleaded and proved that at the time of committing the act, the accused was suffering from a defect of reason from disease of the mind so as not to know the nature and quality of his act or that what he was doing was wrong. The Court is concerned only with the state of mind of the accused at the time of the act. Once the issue of insanity is pleaded, the Court must determine whether or not the accused was conscious at the time of doing the act and that the act complained of was one which he ought not to do or which was contrary to the Law….In the instant case, not only that the Learned Counsel for the Appellant did not raise any issue of insanity before the trial Court, he did not bring to the notice of the prosecution that he was going to raise the issue of insanity.
In our system of criminal trial, the Judge as an umpire is not expected to descend into the arena of contest…If the application for psychiatric examination is meant to arrest the trial on the ground that the appellant was not mentally fit to stand trial by reason of insanity, Learned Counsel, as I have alluded to, has not sufficiently provided the materials for the Learned trial Judge to act upon.”
I have gone on this route to show that the Appellant’s counsel did not really raise the issue of the mental condition of the Appellant during the trial to enable the Court go into proper investigation of the mental health of the Appellant. The issue of the mental health of the Appellant was not raised during the trial either about his capacity to testify or when he was alleged to have committed the offence but rather it was only mentioned when the case was adjourned for address. The issue of the mental condition before the lower Court has nothing to do with when he was alleged to have committed the offence or his inability to testify. See David Uche Idah vs The State (2019) LPELR-46899.
In the case cumulating to this appeal, I make bold to say that the defence of insanity was not and is not available to the Appellant as there is no evidence of insanity at the time of committing the alleged offence or insanity preventing the Appellant from defending himself at the trial. I resolve this issue in favour of the Respondent.

Now to issue 2, this is couched thus:
Whether the Honourable Trial Court was right in relying solely on the extra judicial statements of the Appellant which did not comply with the provisions of Sections 15(4) and 17(2) & (3) of the Administration of Criminal Justice Act, 2015 in convicting and sentencing the Appellant to death by hanging.

I had mentioned above that the law is trite that a Court can convict solely on the confessional statement of an accused person provided the statement was made voluntarily, positive and unequivocal. The retraction of such a statement will be of no moment. A confession is a statement made by the accused person admitting that he committed the offence. This is a powerful piece of evidence against interest and it can form the basis of the conviction of the maker of the confession. I must be quick to add that if confessional statement is admitted as voluntarily made and seen to be cogent, it can be used as the sole ground to convict the accused. See Hassan vs State (2017) 15 NWLR (pt. 1557) 1; State vs Ahmed (2020) 14 NWLR (pt. 1743) 1. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See Kasa vs. State (1994) 5 NWLR (Pt.344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (Pt.III) 114, the Supreme Court per Adekeye, JSC held:
“By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. See Egboghonome vs. State (1993) 7 NWLR (Pt.306) pg. 383, Bature vs. State (1994) 1 NWLR (Pt.320) pg. 267, Solola vs. State (2005) 11 NWLR (Pt. 937) Pg. 460, Edhigere vs. State (1996) 8 NWLR (Pt.464) pg.1, Uluebeka vs. The State (2000) 4 SC (Pt. 1) pg. 303, Idowu vs. State (2000) 7 SC (Pt.11) pg.50, Alarape vs. State (2001) 14 WRN 1.”

Before the advent of the Administration of Criminal Justice Act, 2015, there was no mandatory requirement that the statement of an accused person should not be taken alone but under ACJA the statement of an accused must be taken in the presence of the legal practitioner, official of the Legal Aid Counsel or Civil Society Organization, Justice of Peace or any person of his choice. The said statement should be in writing and taken electronically. This requirement is captured in Sections 15(4) and 17(2) of ACJA. ACJA came into force on 13/5/2015 and therefore it is expected that all confessional statement made after that date should comply with those provisions. It is not in dispute that the police witnesses that took the Appellant statement never complied with the above provision. The question therefore is, does that make the statements of the Appellant inadmissible? If I answer that question in the affirmative, this appeal is likely to succeed since the lower Court largely based the conviction of the Appellant on the confessional statement of the Appellant.
The counsel to the parties holds different views. The Appellant’s counsel submitted that the statements of the Appellant should not be admitted and used as bases to convict the Appellant; the Respondent on the other hand holds the position that the statements are admissible. In deciding who is right among them, I must say that the reason the Respondent gave for the submission that argument of the Appellant’s counsel should be jettison with due respect to counsel cannot stand. Counsel in trying to distinguish the cases the Appellant counsel cited submitted that those were based on Federal offences and therefore as regards State offence that provision cannot apply. This cannot be correct for all purpose as it does not represent the position of the law. Though the Act relates to the Federal Capital Territory and other Federal Courts in Nigeria but a State can domesticate it as some States have done. This is a Court of law and justice therefore I will look at what is the position of the law on this issue. In the cases cited by the Appellant’s counsel, that is Charles vs FRN (supra) and Zhiya vs People of Lagos (supra), this Court has held the position that Sections 15(4) and 17(2) of ACJA are mandatory provisions. After those cases reported in 2016 and 2018, this Court in Godwin Elewanna vs State (2019) LPELR-43724(CA), per Owoade, JCA held that the provisions of Sections 15(4), 17(1)(2) of ACJA does not apply to statements made under Sections 28 and 29 of the Evidence Act, 2011 as issues dealing with admissibility of evidence is governed by the Evidence Act, a Federal Act. In clear terms, his Lordship stated that on the admissibility of confessional statement in Nigeria, the Evidence Act and not ACJA is applicable. The position held by Owoade, JCA seem to have gotten inspiration and strength by the Supreme Court case of Dairo vs State (2017) LPELR-43724 (SC) where the apex Court held that failure to comply with ACJL cannot make the confessional statement incompetent if they comply with the Evidence Act. The above decision in my opinion makes it clear that on issue of admissibility of confessional statement, the relevant law is the Evidence Act. The statement once taken in line with the provision of the Evidence Act it will be admissible. Section 28 requires that the statement has to be made voluntarily. Once this is proved, it does not matter whether the provision are ACJA are complied with. Apart from the fact that I am compelled to agree with the above position, it is also good law. The provision of ACJA sets out the procedure on how the confessional statement should be made to meet the requirement of voluntariness. The implication of all this in my view is that once the confessional statement is made in line with the Evidence Act, it is admissible but for the weight to be attached to the statement, the Court will be inclined to look at how it was taken which is whether it complies with ACJA. In my view there is a proper marriage between the Evidence Act and ACJA. After passing the test of admissibility, the statement will have to be considered on the issue of weight as the law is clear, the admissibility of a document is one thing and the weight to be attached to it is another. See Dalek (Nig) Ltd vs Ompadec (2007) 2 FWLR (pt. 372) 3520.
When it comes to the stage of weight to be attached to the confessional statement then the provisions of ACJA can be looked at and put on the front burner for consideration. The point I am laboring to make is that I really do not see the conflict between the Evidence Act and ACJA as ACJA in my opinion complements the Evidence Act.

The Appellant’s confessional statement was used as the basis for the conviction of the Appellant by the lower Court. We can now examine the statement to see whether the statement complied with the Evidence Act. Section 29 of the Evidence Act provides thus:
(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained –
(a) By oppression of the person who made it; or
(b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this Section.
(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless be adopted the said statement by words or conduct.
(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
The main thrust here is that the Statement of the Appellant has to be voluntary and once it is made voluntarily, the statement is admissible. The Respondent’s counsel submitted that the Appellant made the statement voluntarily while the Appellant retracted it saying that it was not made voluntarily. At the trial, the Appellant did not challenge the statement on the grounds of the voluntariness but rather on the ground of weight. At this stage, the appropriate thing to do is to look at the statement to determine whether it complied with the provision of the law as a voluntary statement. The Appellant made several statements and in all the statements he admitted committing the offence he is charged for. The statements are Exhibit 1A (Statement made in Hausa), Exhibit 1B (translation of Exhibit 1A into English). Both were recorded and made on 5/10/16. Exhibit 3B made on 27/9/10 seem to be a confession but with a defence of insanity. This is made in English. Exhibit 4 was made on the same day with Exhibit 3B in Hausa. Exhibit 4A was made on 3/10/16 in Hausa as additional statement. There is also the English version. In all the statements, Appellant admitted liability. For the purpose of the statement, the real statement of the Appellant is not the translated version but rather the original version recorded by the police. For this position, I find support in the Supreme Court case of The State vs Ali Saidu (2019) LPELR-47397 ( SC) where the apex Court held thus:
“The law is very clear that an unsigned document does not have any efficacy in law. Such a document is worthless and commands no legal or judicial value. It is incapable of conferring any legal rights. See Omega Bank Nigeria PLC v O. B. C. Ltd (2005) 1 SC (pt. 1) 49, (2005) 8 NWLR (pt 928) 547, Ogudo v The State (2011) 18 NWLR (pt 1278) 1. The Court below relied on the case of Ogudo v The State (supra) in holding that the retracted confessional statement of the Respondent was worthless because it was not signed. But is it true that the said statement was not signed.
There is no doubt that Exhibit 8A, the main statement made in Hausa by the Respondent was actually thumb printed by him. There is no quarrel about that statement. However, the grouse of the Respondent is that the translated version was not signed by the Respondent though signed by the translator. Learned counsel for the Appellant has argued that the case of Ogudo v The State (supra) relied upon by the Court below is distinguishable with the instant case. I agree with this assertion because in Ogudo’s case (supra) it was the statement recorded in the language understood by the accused/Respondent (English language) that was unsigned by the Respondent and not the translated version which requires the signature of the translator and not that of the accused person. The Respondent’s confessional statement, though retracted, was duly signed by him as made in Hausa which he understands. The translated version, even if it was read over to him in English language would not have made any meaning to him as he would not have understood same. As far as the translator had signed the said translated version, I hold that it does not make any difference that the accused did not sign it. And in any case, it has not been alleged that the content of Exhibit 8B are different from that in Exhibit 8A. The Court below did not consider that the Respondent duly signed the statement he made in Hausa language but concentrated on the translated version. It is my opinion that it is only the signature of the translator that is relevant and not that of the accused in a translated version of the statement. I hold therefore that the statement of the Respondent in Exhibit 8A was duly thumb printed by him and was thus duly authenticated. The translated version was also duly signed by the translator. Thus, the confessional statement of the Respondent was duly signed and not worthless as held by the Court below.”
See alsoNaziru Muhammed vs The State (2020) LPELR-50867 (CA). The police witnesses who took all the relevant exhibits that is PW4 & PW5 in their evidence said they recorded the statement of the Appellant. They signed as the persons that interpreted the statement. I do not see why a document made in the language of the Appellant will be interpreted to him. You only interpret a document made in a language that the maker does not understand. Exhibit 4 and Exhibit 4A were written by the Appellant himself. Apart from these little discrepancies of stating that the police interpreted a document written in the language understood by the Appellant, there is nothing to show that the statements made were induced by the police or gotten from the Appellant by force. I am inclined to hold that the Statement complied with the provision of the Evidence Act. It is therefore admissible.

The Respondent’s counsel believes that in the light of the admissibility of the confessional statement the lower Court was right in convicting the Appellant. Is that really correct in the light of the law vis-a- vis the veracity test required for confessional statements? The law has introduced a test that the statement will have to go through so as to verify its authenticity. This is more so that the Appellant has been convicted for culpable Homicide punishment by death and sentenced to death. The Court must be very certain that the offence was committed by the Appellant who is sane at the time of committing the offence so as to be criminally liable.
The law is settled that the Statement must have to pass the veracity test before it can be used as the bases to convict the Appellant. This test simply means that the Court must see other evidence outside the statement that corroborates the confessional statement. Where the Court cannot find such corroborative evidence, a Court must be wary in convicting an accused especially in capital offences such as this. The Courts has overtime particularly the Supreme Court has held that for a confessional statement to be used to convict the accused, such a statement must pass the veracity test. This test simply put, is for the Court to test the veracity of the statement so that it will be safe to rely on same to convict the accused person. This implies that a Court will look for other evidence outside the confessional statement that points to the fact that the accused committed the offence which he admitted to in his statement. This test is important because many a times accused persons are compelled to admit to crimes they did not commit to escape torture from the police. In Akinrinlola vs The State (2016) 16 NWLR (pt 1537) 73, the apex Court held:
“It is well settled that once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then, it is good evidence and even if later retracted, the retraction will not vitiate its admission as a voluntary statement…..This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.138) 150, the Supreme Court stated:-
That to test the veracity of a confessional statement, the following should be evident:-
1. Is there anything outside the confession which shows that it may be true?
2. Is it corroborated in anyway?
3. Are the relevant statement of facts made in it most likely true as far as they can be tested?
4. Did the accused have the opportunity of committing the offence?
5. Is the confession possible?
6. Is the alleged confession consistent with other facts which have been ascertained and established?
Along the same line of thought, this Court stated in Alarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
One more case in this regard will not be out of place. This is the case of Dairo vs State (2017) 9-12 S.C. 119 where the Supreme Court held thus:
“Now, as already observed in this judgment, even though an accused person can be convicted on his confessional statement alone, it is customary for the Court to look for some other evidence outside the statement to determine whether it is probable. See Egboghonome Vs. The State (1993) 7 NWLR (Pt. 306) 383; Ojegele Vs. The State (1988) 1 NWLR (Pt. 71) 414; Akpa vs State (2007) 2 NWLR (1019) 500. The factors the Court should consider as laid down in the case of R. V. Sykes(1913) 1 Cr.App. Report 233 are:

a) is there anything outside the statement to show that it is true
b) Is it corroborated
c) Are the facts stated in it true as far as can be tested
d) Did the accused have the opportunity of committing the offence
e) Is the confession possible
f) Is the confession with other facts which have been ascertained and proved
See also: Queen Vs. Obiasa (1962) 1 ALL NLR 651.
In this respect making reference to the recent case of the Supreme Court Maba vs the State (2021) 1 NWLR (pt 1757) 352 will no harm anyone. The apex Court in this case held:
“While it is true that an identification parade is a very useful tool in ascertaining the true identity of anyone accused of committing a crime, it is not in every situation that an identification parade must be held. It depends on the facts and circumstances of each case. An identification parade is only necessary when there is doubt as to the ability of the victim to recognize the suspect or where his identity is in dispute. See Alufohai v. State (2015) All FWLR (Pt. 765) 198, (2015) 3 NWLR (Pt. 1445) 172 at 191 – 192 H.A, (2014) 12 SCM (Pt. 2) 122; Ogoala v The State (supra); Okiemute v. The State (2016) 15 NWLR (Pt. 1535) 297; (2016) LPELR – 40639 (SC).
The Courts are guided by certain factors in determining whether or not an identification parade is necessary. It will not be necessary in the following circumstances where:
(a) There is a clear and un-contradicted eye-witness account and identification of the person who allegedly committed the crime;
(b) The witness knew the accused previously;
(c) The defendant is linked to the offences by convincing, cogent and compelling evidence; and
(d) The accused in his confessional statement identified himself with the crime.
On the other hand, an identification parade would be necessary where:
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time; or
(c) The victim, due to time and circumstances, might not have had the opportunity of observing the features of the accused.
See: Okiemute v. The State (supra).”
See also Bio vs State (2020) 7 NWLR (pt 1723) 218.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

For the application of this test, the lower Court ought to find any other evidence before it that verifies the statement as correct or true. In so doing, the lower Court should look at the evidence of the prosecution witnesses. I have looked at the evidence of all the prosecution witnesses, there is no eye witness account of what happened and the circumstantial evidence is very weak in my opinion to be used to convict the accused. None of the witnesses saw what happened and at best their evidence is hearsay which is not admissible. Indeed, I make bold to say that apart from the confessional statement all the evidence before the Court does not connect the Appellant to the offence. There is even contradictory evidence before the Court. The PW3 said the knife used for the offence was found with the Appellant when he came out from hiding while PW4 said the knife was found on the scene of the crime. Though the law is certain that it is not all contradictions in the evidence of the prosecution witnesses that will affect the judgment of the Court, the law is that if such contradiction is material, it will affect the judgment of the Court. The contradiction will be material if it relates to the ingredient of the offence so as to create doubts in the mind of the Court. See Afuape vs State (2020) 17 NWLR (pt 1754) 381. In Galadima vs State (2018) 13 NWLR (pt 1636) 357, the apex Court drove home this point in these words:
“It is settled that witness testimonies can only be said to be contradictory when they give inconsistent accounts of same event, and for such contradictions to vitiate a decision, they must be so material that they cast doubt on the case presented as a whole.
Thus, it is only a contradiction in respect of a material fact that would make a Court doubt the evidence, and what is material will depend on the facts of the particular case – see Eke V. State (2011) 3 NWLR (Pt. 1235) 589, Kalu V. State (1988) 4 NWLR (pt. 90) 503 and Ikemson V. The State (1989) 3 NWLR (Pt 110) 455 at 474/5, where this Court per Karibi-Whyte, JSC, aptly stated as follows-
I think it is right to postulate that material evidence is such evidence, which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. For instance, the evidence  which of the Appellants shot PW1 or PW2 or which leg PW2 was shot is not material to the issue of fact that PW1 or PW2 was shot. That PW1 or PW2 was shot at is material to the crime with which Appellants have been charged.”
The question is what knife was tendered in Court, was it the one found in the scene of crime or the one found on the Appellant. This contradiction on a material aspect of the offence is worth considering as it creates doubt on the case of the Respondent in the lower Court and such doubt will be resolved in favour of the Appellant. See Okashetu vs State (2016) 14 NWLR (pt 1534) 126.
In the light of the above, I have no difficulty in resolving this issue in favour of the Appellant.

Issue 3 I hereby reproduce as follows:
Whether the Honourable Trial Court was right in holding that “…I do not hold the view that the failure by the Prosecution to call whom PW3 said are some persons who told him that the accused person confessed committing the act was mandatory upon them to establish that communication…” yet the Honourable Trial Court relied on evidence of Respondent’s witnesses that the Appellant confessed to some people in convicting and sentencing the Appellant to death.

In my view, the question is whether the lower Court should have allowed itself to be influenced by the evidence of PW3 which amounted to hearsay. The Respondent’s counsel tried so hard to submit that PW3 evidence is not hearsay. I disagree with the Respondent’s counsel as the PW3 referred to the evidence of someone who told him that the Appellant confessed to have committed the offence. This is clearly hearsay evidence which in law is not admissible. The PW3 was not there when the supposed confession was made and he was told and subsequently came to Court to say so. If this is not hearsay evidence, I wonder what it is. That evidence is inadmissible and the lower Court ought not to give it any prominence as the law is settled that hearsay evidence is inadmissible. See Mohammed vs A.G. Federation (2020) LPELR-52526 (SC); Idahosa vs Idahosa (2020) 6 NWLR (pt 1720) 254.

The Appellant has submitted further on this point that the failure of the Prosecution in the lower Court to call the person who told him that the Appellant confessed to him is fatal to the case of the Respondent and therefore the presumption of withholding evidence under Section 167 (d) of the Evidence Act would apply. In response, the Respondent has submitted that it is not under obligation to call a number of witnesses to prove its case. I agree with the Respondent that the prosecution is not under any obligation to call a number of witnesses to establish its case as the prosecution can establish its case by a single witness provided the witness evidence establish all the ingredients of the offence. See Mohammed vs State (supra); Posu vs State (2020) LPELR-52518 (SC); Okorie vs State (2018) 11 NWLR (pt 1629) 1.
However, if the prosecution is to call a material witness and fails to do so, the presumption under the law applies. See Smart vs State (2016) LPELR-40725 (SC).
A material witness is a witness whose evidence will be necessary in establishing the case of the Respondent in the lower Court. The evidence of a witness to whom the Appellant confessed committing the offence to, is a material witness by all standards. I agree with the Appellant that the presumption of withholding evidence will appeal in this case. I resolve this issue in favour of the Appellant.

The final issue is whether the Respondent adduced sufficient evidence to warrant judgment of the Honourable Trial Court in its favour. In answer to this question, I will look at the ingredients of the offence the Appellant was charged with, that is, culpable homicide punishable with death. The Supreme Court in Dahiru vs The State (2018) LPELR- 44497 (SC) in bringing out the ingredient of the offence held thus:
“On the part of this Court, the law is settled that, for the prosecution to secure a conviction for the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code, it must establish the following ingredients beyond reasonable doubt:-
“(a) That there was a death of human being.
(b) That death was caused by the act of the accused person; and
(c) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act. “What is deducible from the above ingredients on the duty of the prosecution to establish the guilt of the accused person must include:-
“(i) That the deceased died;
(ii) That his death was not a natural death;
(iii) That the accused person did something or omitted to do something he had a duty to do by law.
(iv) That the said act or omission resulted in harm to the deceased.
(v) That the deceased died as a result of the said injury or harm.”
The basket is full with authorities established by this Court, on this subject. See:- THE STATE VS COLLINS AIBANGBEE & ANOR (2007) 2 NCC 648 at pages 689 – 690; AYO GABRIEL VS THE STATE (1989) 12 SCNJ 33 at 41; EZEKIEL ADEKUNLE VS THE STATE(1989) 12 SCNJ 184 at 192; GAMBO MUSA VS THE STATE (2009) S.C.N.Q.R. 39; CHUKWU VS THE STATE(2012) 12 SCNJ 208 at 222; OCHIBA VS THE STATE (2011) 12 SCNJ 526 at 537 MBANG VS THE STATE (2012) 6 SCNJ 395.”
The Respondent as prosecution in the lower Court has a duty in law to prove beyond reasonable doubt all the ingredients of the offence as charged. It is when this is done that the lower Court should convict the Appellant after considering any defence raised by the Accused person.


The standard of prove required to discharge the burden is proof beyond reasonable doubt. This does not mean beyond all shadow of doubt or beyond all reasonable doubt, as prove in such a degree within human contemplation is almost an impossibility taking into cognizance human limitations, however, proof beyond reasonable doubt requires that the evidence must be compelling, cogent and credible against the accused person such that any reasonable person will be convinced that the accused person committed the offence. The evidence must amount to a reasonable high degree of probability that the accused committed the offence. This is what proof beyond reasonable doubt entails. See The State vs. Ali Ahmed (2020) LPELR-49497 (SC). In Akeem Afolahan vs. The State (2017) 9-12 S. C 162, the apex Court per Peter-Odili, JSC held:
“A recourse to what is meant by proof beyond reasonable doubt would be helpful and I shall go to the case of Ani v State (2009) 16 NWLR (pt 1168) 443 per Tobi JSC thus:-
The expression beyond reasonable doubt in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubts which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful doubt, is not imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.
The importance of the phrase beyond reasonable doubt cannot be over emphasized and so a long line of judicial authorities have not let off the opportunity to dwell on it in consonance with the Evidence Act section relating thereto.
It is trite that for the prosecution to establish the offences charged, it must prove beyond reasonable doubt that there was a robbery, with offensive weapons and that the accused was involved in the operation.
The Supreme Court has no difficulty in restating the above principles in the case of Ogudo v State (2011) 18 NWLR (Pt. 1278) 1 and held thus:-
All the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge. The above ingredients were not proved in this case. In the case the learned trial judge believed the contents of EXHIBIT 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a judge to rely on his belief or disbelief. The learned trial judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.”
The prosecution in proving beyond reasonable doubt the guilt of the accused must bear in mind that it will have to prove all the ingredients of the offence in a way that is compelling, cogent and credible which points to the guilt of the accused person. The prosecution does not have to call a host of witnesses as even by a single witness, the prosecution can establish the guilt of an accused provided the evidence is cogent, credible, and compelling. In Osuagwu vs. The State (2013) 5 NWLR (Pt. 1347) 360, the Supreme Court held:
“Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. It is the duty of the prosecution in a criminal case to prove the case beyond reasonable doubt and this entails calling material witnesses to establish the essential elements of the crime. The prosecution is not obliged to call a host of witnesses on the same point. Where corroboration is not required, a single witness can easily establish a case beyond reasonable doubt This is a duty that the Respondent should prove at the lower Court by direct evidence, circumstantial evidence and confessional statement.”
For the evidence to amount to proof beyond reasonable doubt, it means that all the ingredients of the offence are proved which leaves no substantial doubt on any of the ingredients that the accused committed the offence he is charged with. The law is settled on the fact that, if there are any doubts arising from the case of the prosecution as to the guilt of the accused, such doubt will be resolved in favour of the accused. The doubt to have such an effect must be material doubt, that is, doubt that relates to the ingredient of the offence the accused is charged with and not fanciful doubt. See Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530; FRN vs. Abubakar (2019) LPELR-46533 (SC). In Abubakar & Ors vs. Yar’adua & Ors (2008) LPELR-51 (SC), the Court held:
“Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable man or woman might entertain and it is not fanciful doubt, is not imagined doubt, and is not doubt that the Court might conjure up to avoid performing unpleasant task or duty. See Black’s Law Dictionary, 6th Edition, page 1265. A reasonable doubt is an honest misgiving generated by the insufficiency of the proof, which reason sanctions as a substantial doubt. It is a doubt which makes the Court hesitate as to the correctness of the conclusion which it arrives at. The principle of proof beyond reasonable doubt is necessary because of the Constitutional presumption of the innocence of the accused, provided in Section 36(5) of the Constitution.”
This legal principle is based on the premise that it is better for ten guilty people to go free than for one innocent person to be convicted and also on the established trite legal principle that suspicion no matter how grave is not evidence and cannot be the basis for the conviction of any person in law. Suspicion remains suspicion and cannot graduate to convincing evidence no matter how grave the suspicion can be. See Engr Kehinde vs. C.O.P. Adamawa State (2014) LPLER-24192; The State vs. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Sopakiriba Igbikis vs. The State (2017) 2-3 S.C (Pt. 1) 78. In Ahmed vs. State (2001) LPELR-262 (SC), the apex Court put it succinctly thus:
“It is now trite that suspicion, however strong, will not amount to proof. In Onyenankeya v. The State (1964) 1 NMLR 34, this Court cited with approval the case of R. v. Oledinma 6 WACA 202 where it was held that: “… to establish a charge of murder or manslaughter it must be proved not merely that the act of the accused person could have caused the death of the deceased, but that it did ”and went further to add: “The fact that the defence did not suggest that death arose from other causes is no confirmation of evidence which falls short of showing that death did arise as a result of the appellant’s act. The onus to establish this is not on the defence, it is on the prosecution.” The principle of these two cases applies to the present case. Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.”
From the evidence before the lower Court, it is not in dispute that the deceased died. The first ingredient of the offence was proved. The main challenge as far as I am concerned with the judgment of the lower Court was whether the lower Court was right in holding that the second and third ingredients have been proved. I make bold to say that having resolved issues 2 & 3 in favour of the Appellant I cannot see my way clear to resolve issue 4 in favour of the Respondent. The Respondent has not been able to prove beyond reasonable doubt that it was the Appellant who killed the deceased as there is no direct evidence. It is the law that the prosecution can establish the criminal liability of an accused by direct evidence of an eye witness, confessional statement and circumstantial evidence. See Befo v State (2012) 8 NWLR (pt…) 213; Osho v State (2012) 8 NWLR (pt.1302) 243.
In this case on appeal, there is no direct evidence and what would have amounted to circumstantial evidence of seeing the knife with the Appellant is not cogent as the evidence is contradictory. While the PW3 said the knife was found with the Appellant, PW4 said the knife was found on the scene of the crime. For circumstantial evidence to be the bases for the conviction of an accused, it must unequivocal, cogent and lead to one conclusion which is that it is the Appellant who committed the offence. InOkoro vs State (2012) 1 S.C. (pt 1) 1, the Supreme Court held:
“The case against the Appellant rests on circumstantial evidence. Before an accused person can be convicted on such evidence, it must be shown that:
1. The circumstances from which an inference of guilt is arrived at must be cogently and firmly established;
2. The circumstances must point towards the guilt of the accused person and no one else.
See: Ukorah v State 1977 4SC P. 167; Adie v State 1980 1 – 2SC P. 116; Gabriel v State 1989 5 NWLR pt. 122 p. 430
That is to say a conviction for murder based on circumstantial evidence would be justified only where the circumstances are such as to lead to no other conclusion, but that the accused killed the deceased. Circumstantial evidence would sustain a conviction where it is consistent with the guilt of the accused person but inconsistent with his innocence.”
I cannot see such cogent circumstantial evidence. The only ground upon which the conviction will have been upheld is the confessional statement but this again did not pass the veracity test. All in law, the Respondent as prosecution in the lower Court was unable to prove beyond reasonable doubt the guilt of the Appellant. I resolve the fourth issue in favour of the Appellant.
The issue of raising a defence only comes on if the prosecution has proved its case so that the defence will be a mitigating factor. I had earlier mentioned that the duty to prove the guilt of the Appellant is squarely on the shoulders of the Respondent and the Appellant has nothing to prove until the Respondent had proved its case against him. In fact, that the Appellant lied is not an issue as the duty to prove the case of the Respondent at the lower Court beyond reasonable doubt is not in doubt.

On the whole, this appeal succeeds and it is allowed. The judgment of the lower Court in Case NO: GM/10C/2017 – The State vs Aliyu Yahaya is hereby set aside. The conviction of the Appellant is set aside and quashed. The Appellant is discharged and acquitted.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage to read in draft the judgment just delivered by my learned brother, Ebiowei Tobi, JCA.I am in agreement with his reasoning and conclusion.

My learned brother has elaborately dealt with all the issues generated in the Appeal. I therefore adopt as mine the comprehensive resolution of the issues raised therein. I will simply add a few words in agreement.

From an in-depth examination of the evidence presented by the prosecution in proof of the charge of culpable homicide punishable with death contrary to Section 221 of the Penal Code, there is no gainsaying that it fell far short of the legal requirement of proof beyond reasonable doubt in criminal cases – State V Ahmed (2020) LPELR-49497(SC); Dahiru V State (2018) LPELR-44497(SC); Afolahan V State (2017) 9-12 162; Chukwu V State (2012) 12 SCNJ 208, 222.
No direct evidence was produced in proof of the charge and such circumstantial evidence as was presented, was patently weak, as well as contradictory. In addition, the confessional statement of the Appellant was not subjected to the veracity test that would have enabled the lower Court see whether there was any evidence outside the statement which corroborates the confession – Okoro V State (2012) 1 SC (Pt. 1) 1; Dairo V State (2017) 9-12 SC 119; Akinrinlola V State (2016) NWLR (Pt. 1537) 73.

It is therefore for these reasons and the fuller reasons in the lead Judgment that I too allow the Appeal. I abide by the consequential orders made in the lead judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: EBIOWEI TOBI, JCA magnimously allowed me to read the draft of the judgment just delivered by him. I fully agree with the judgment and the reasoning therein.

I have nothing more to add. This appeal succeeds and is allowed. The judgment of the lower Court is hereby set aside. Appellant is discharged and acquitted.

Appearances:

Bob C. O. Ijioma, Esq., with him, Ayuba Rabiu For Appellant(s)

Muhammed Isah Usman ADPP Gombe For Respondent(s)