YA’U v. STATE
(2022)LCN/16624(CA)
In the Court of Appeal
(JOS JUDICIAL DIVISION)
On Friday, February 11, 2022
CA/J/217/C/2021
Before Our Lordships:
James Shehu Abiriyi Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
ILIYA YA’U APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN OF PROOF IN CRIMINAL TRIALS
The law both ancient and modern is that in a criminal trial the burden of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The burden never shifts. Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of the burden. If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue he is entitled to an acquittal. This is because in such circumstances there must be a doubt with regard to his guilt. PER ABIRIYI, JC.A.
THE MEANING OF PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt means that it is not enough to suspect a person of having committed a criminal offence. It means that there must be evidence which identifies the person accused with the offence and that it was his act which caused the offence. See the decisions of the Supreme Court in Igabele v State (2006) NWLR (Pt. 975) 100, Aigbadion v State (2000)4 SC 1 (Pt. 1)1 and the decision of this Court in Okafor v State (2006)4 NWLR (Pt.969)1. PER ABIRIYI, JC.A.
THE POSITION OF LAW ON PROVING THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following:
(a) That the death of a human being took place.
(b) That such death was caused by the accused person.
(c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured. See Adava v The State (2006)9 NWLR(pt. 984) 152 and Isah v The State (2017) LPELR 434728. PER ABIRIYI, JC.A.
THE POSITION OF LAW ON PROVING THE OFFENCE OF CONSPIRACY
Conspiracy is proved when it is established beyond reasonable doubt that the accused agreed with another person to prosecute an unlawful act. Conspiracy can be inferred from certain criminal acts of the accused persons concerned. See the decision of this Court in Lateef v The State (2018) LPELR – 46437 CA page 10 – 11. PER ABIRIYI, JC.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED ON HIS EXTRA-JUDICIAL CONFESSIONAL EVEN WHEN RETRACTED IN HIS EVIDENCE ON OATH
An accused person can be convicted on his extra-judicial confession even though retracted in his evidence on oath. There is no law against it. The law actually allows it. Such confessional statement cannot be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession is true. See Dibie v The State (2007)9 NWLR (pt. 1038) 30 and Nwaebonyi v The State (1994)5 NWLR (Pt. 343) 130. PER ABIRIYI, JC.A.
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 6th May, 2019 in the High Court of Bauchi State sitting at Bauchi.
In the High Court (the Court below), the Appellant and two other accused persons were tried and convicted for conspiracy and culpable homicide punishable under Sections 97 and 221 of the Penal Code.
The case of the Respondent against the Appellant as can be made out from the evidence of the five witnesses called by the Respondent is that sometimes in March, 2017 PW2 was engaged by the 1st accused and the Appellant to convey them and the victim on his commercial motorcycle to a certain destination. He did. When they reached a village called Kofar Maza at a particular place the 1st accused person told the PW2 to drop them as there was no passage from there. The PW2 did. He was given five hundred Naira (N500.00) and he returned home
The following day the PW2 heard over the radio that an old man was missing at Fadan Toro. That was the victim. PW2 said that the man was not missing that he was taken to a medicine man by the children. PW2 was advised to report to the children of the victim. He reported to the children of the victim. The children said they should go to the police station and report. They did. The police stepped into the matter. This led to the arrest of the 1st accused person and the Appellant and the subsequent recovery of the remains of the victim with some parts of the body of the victim including the head, eyes and penis removed and or cut off.
In his defence, the Appellant denied the charge against him. He said he was arrested and taken to Toro Police Station from where he was taken to Criminal Investigation Department Bauchi where he was accused of Culpable Homicide. He told the police that he did not know anything. He told the police that he did not know the other accused persons.
The Court below considered the Respondent’s evidence as well as the defence of the Appellant and addresses of counsel. It found the Appellant and the other accused persons guilty. They were convicted and sentenced to death. The Appellant has proceeded to this Court on appeal by a Notice of Appeal filed on 5th October, 2019. The Notice of Appeal contains six grounds of appeal. From the six grounds of appeal the Appellant in an Appellant’s brief filed on 2nd November, 2021 presented the following four issues for determination:
1. Whether or not the trial Court was right when it refused to consider the existence of another statements (sic) made by the Appellant before Toro Divisional Office and the prosecution (sic) failure to tender same? (distilled from ground 1 of the Notice and Grounds of Appeal).
2. Whether or not MURTALA USMAN and LAWAL MACHANIC are vital witness (sic) and the prosecution (sic) failure to call them is fatal to his case same can justify the setting aside of the trial Court (sic) decision? (Distilled from Grounds 2 of the Notice and Grounds of Appeal).
3. Whether or not the trial Court was right when it shifted the burden of prove (sic) to the appellant? (Distilled from Grounds (sic) 5 of the Notice and Grounds of Appeal).
4. Whether or not the entire trial Court (sic) decision is against the weight of the evidence? (Distilled from Grounds 3, 4 and 6 of the Notice and Grounds of Appeal.
The Respondent in a respondent’s brief of argument filed on 19th January, 2022 and deemed duly filed and served the same date adopted the four issues formulated by the Appellant.
Arguing issue 1, learned counsel for the Appellant contended that the failure of the Respondent to produce the statements of the Appellant made at the Toro Divisional Office was intentional and intended to divert the course of justice. The intention, it was further argued was that the statements would favour the Appellant. The Court was referred to evidence of PW1 and PW4 that statements of the Appellant and the other accused persons were recorded at the Toro Police Station. It was contended that failure to tender the statements made at Toro Police Station was fatal to the case of the Respondent as the Respondent could not pick and choose any aspect of its case in its favour and refuse to tender the one that is expected to be favourable to the Appellant. Failure to tender the statement made at the Police Station Toro was a ploy to ensure the conviction of the Appellant, it was argued.
It was submitted that the law is clear that where there exists more than one statement of the accused person in criminal trials, all must be tendered not for anything but to ensure justice on all the parties.
On issue two, learned counsel for the Appellant contended that Murtala Usman and Lawal Machanic ought to have been called as witnesses since they were said to have seen the Appellant on motorcycle with the deceased. That the PW1 – PW3 mentioned them as the persons who saw the Appellant when he was carrying the deceased to Maza village where he was killed. Evidence of Lawan Machanic, it was argued would have supported the evidence of PW1 who mentioned him as one of the people that saw the Appellant with the deceased.
From nowhere, learned counsel for the Appellant blurted that the PW1 – PW2 were biological children of the deceased. That the entire evidence of PW1 -Pw2 needed to be corroborated, that failure of the Court below to consider that caused a miscarriage of justice. The Court was referred to Victor v The State (2013)12 NWLR (Pt. 1369) 470 – 471.
On issue 3, learned counsel for the Appellant referred the Court to page 231 and not 212 of the record where the Court below stated thus:
“It is the duty of the accused person to give explanation relating to how the deceased met his or her death. In the absence of explanation, a trial Court and even any appellate Court will be justified in drawing the inference that the accused person killed the deceased.”
The above extract, it was contended, vitiates the constitutional provision on presumption of innocence. The above extract of the Court below it was argued, was calling on the Appellant to prove his innocence. This was a total departure from the spirit of the 1999 Constitution, it was contended.
On issue 4, learned counsel for the Appellant contended that the Court below reached its decision in total disregard of the evidence adduced when the Respondent failed to discharge the burden of proof as required by law. The Court was referred to Famakinwa v The state (2013)7 NWLR (Pt. 1354) 597.
On issue 1, learned counsel for the Respondent contended that the Appellant did not make a statement at the Police Station Toro as he was only arrested by the team of policemen two days after the case file had been transferred alongside with the 1st and 3rd accused persons to the C.I.D. Bauchi State Command and it was the team of policemen from Toro Police Station and State C.I.D Bauchi that arrested him and his confessional statement was first recorded at the State C.I.D. Bauchi by PW5. The Court was referred to the evidence of PW5.
Assuming but not conceding that the Appellant had made a statement at the Police Station Toro, it was the submission of learned counsel for the Respondent that it was not compulsory for the prosecution to tender the statements made by the accused before the prosecution could be held to have proved its case as required by law. The Court was referred to Odiaka v The State (2013) LPELR -21977 and Federal Republic of Nigeria v Wabara (2013) LPELR – 2008.
The Respondent, it was contended, did not lead evidence to the effect that the Appellant made a statement to the police at the Police Station Toro. That this piece of evidence was only obtained during cross-examination and the Appellant did not tender or give notice to the Respondent to produce same if any, only to raise the issue at address stage.
The prosecution, it was submitted, has a discretion to call or adduce any particular evidence in proof of its case beyond reasonable doubt. Therefore, the non-production of the said extra judicial statements of the Appellant made at the Police Station Toro is not fatal and has no negative effects on the Appellant.
It was contended that since the Appellant felt that the production of another statement, if any, was vital to his case he ought to have given notice to the prosecution to produce it and lead evidence so as to tender same in evidence. He cannot therefore complain or quarrel with the prosecution for not tendering the statements.
On issue 2, learned counsel for the Respondent submitted that the prosecution is entitled to call only witnesses it considers relevant to its case and it did not matter that a particular witness was not called to give evidence. The Court was referred to Akpa v The State (2008) NWLR (Pt. 106) 72 at 92.
In the instant case, it was contended, the said Murtala Usman, testified as PW2. The Court was referred to page 63 of the record. It was contended that Lawal Mechanic was not a material witness as the motorcyclist who carried the deceased, the Appellant and the 1st accused testified as PW2 and his evidence corroborated the evidence of the PW1.
On issue 3, learned counsel for the Respondent contended that the Court below did not shift the burden of proof to the Appellant to convict him but relied on the entire evidence placed before it as there was evidence which pointed at the appellant and the other accused persons to be the ones that committed the offences for which they were tried and convicted. The Court was referred to Exhibits G and G1 and evidence of PW2.
On issue 4, learned counsel for the Respondent submitted that the onus of proof in a criminal trial is on the prosecution to prove beyond reasonable doubt the guilt of the accused person. That proof beyond reasonable doubt does not mean proof beyond any iota of doubt or proof beyond any shadow of doubt. The Court was referred to Nwaturuocha v The State (2011) 6NWLR (Pt. 1242) 770 at 186 F – G. The burden of proof, it was submitted, was on the Respondent to establish the ingredients of the offences charged. In discharging the burden the Respondent could rely on the confessional statement of the Appellant, circumstantial evidence and evidence of eye witness, if any. The Court referred to Emeka v The State (2001)14 NWLR (Pt. 734) 666.
In the instant case, it was contended, the Appellant voluntarily confessed to the commission of the offences. The Court was referred to The State v Ahmed (2020) LPELR – 49497 SC and Oseni v The State (2012) LPELR 8567 CA.
Apart from the confessional statement of the Appellant, it was contended, the Respondent also led evidence in proof of the alleged offences against the Appellant as required by law. That PW1 to PW5 pointed at the Appellant and the co-accused persons as having committed the offences charged particularly the evidence of PW2 at page 63 to 66 of the record.
Learned counsel for the Appellant complained that the Respondent failed to produce statements of the Appellant made at the Police Station Toro. This he said amounted to suppression of evidence and could not ensure that justice was done.
The presumption of suppression of evidence arises when it is shown that the prosecution or the adverse party has suppressed a document which it has refused to produce after service of a notice to produce or a subpoena to do so. See the decision of this Court in Kwenev v The State (2017) LPELR – 46279 CA and Aremu v The State (1991) 7 NWLR (Pt. 201)1 relied upon by the Court. In the instant case, PW4 said under cross-examination that he recorded the statements of the accused persons at Toro Police Station. It is common ground that no statement of the Appellant made at the Police Station Toro was tendered in Court. There is nothing on the record to show that a subpoena or other notice to produce the statements of the Appellant made at the Police Station Toro was served on the Respondent to produce the statements and they were not produced. The Appellant was entitled to call for the statements. This he did not do. There is therefore no basis for holding that the non-tendering of the statements made at the Police Station Toro amounted to withholding of evidence. See Kwenev v The State (supra) and Aremu v The State (supra). There is also no basis for agreeing with learned counsel for the Appellant that the failure to tender the statements made at the Police Station Toro by the Appellant was intended to divert the cause of justice or that it failed to ensure that justice was done in the Court below.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondent.
The prosecution is not bound to call a host of witnesses. All the prosecution needs to do is to call enough material witnesses to prove its case beyond reasonable doubt. Even one credible witness if believed, is enough. See Theophilus v The State (1996) 1 NWLR (Pt. 423) 138 and Nwaeze v The State (1996) NWLR (Pt. 408) 1. In the instant case, the Respondent was entitled to call only witnesses it considered relevant to prove its case. It called five witnesses including Murtala Usman (PW2) who the Appellant said the Respondent ought to have called. I agree entirely with learned counsel for the Respondent that Lawal Mechanic was not a material witness as the motorcyclist who carried the deceased, the Appellant and the 1st accused testified as PW2.
As I pointed out earlier, learned counsel for the Appellant from nowhere blurted that the PW1 and PW2 were biological children of the deceased person and their evidence needed to be corroborated. This was never an issue in the trial and is not borne out of any ground or issue in the appeal. Be that as it may, it is the law that a relation of the victim of crime can testify for the prosecution. Blood relationship with a deceased person does not make a witness a tainted witness or an accomplice in a case of culpable homicide.
See Hausa v The State (1994)6 NWLR (Pt.350) 281 and Ben v The State (2006)16 NWLR (Pt.1006) 582.
Issue 2 is also resolved against the Appellant and in favour of the Respondent.
On issue 3, learned counsel for the Appellant reproduced a portion of the judgment of the Court below at page 231 and not page 212 as he claimed to contend that the Court below called on the Appellant to prove his innocence contrary to the constitutional presumption of his innocence. Did the Court below shift the burden of proof as contended by the Appellant’s counsel? At page 231 of the record the Court below in its judgment stated thus:
“The law presumes that the person last seen with the deceased bears full responsibility for his or her death.
Thus where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal.
It is the duty of the accused to give explanation relating to how the deceased met his or her death. In the absence of explanation, a trial Court and even any appellate Court will be justified in drawing the inference that the accused person killed the deceased. It is an exception to the constitutional provision that a person is presumed innocent until proved guilty. See Madu v State (2012) 15 NWLR (Pt.1324) 405 SC Igabele v State (2006) 6 NWLR (Pt. 975) 100.
In the instant case, it is the evidence of PW2 that he was the person that conveyed the 1st and 2nd accused persons and the deceased to a forest in Maza village and left them there, which was also admitted by the 1st and 2nd accused persons in their respective extra judicial statements which are before this Court as Exhibits ‘D’ & ‘D’ and ‘G and ‘G.”
There is nothing from the foregoing to show that the Appellant was expected to prove his innocence. Learned counsel for the Appellant was wrong in drawing this inference from just the two sentences in the judgment which he quoted without any regard to the entire judgment of the Court below.
In the circumstances, issue 3 is also resolved against the Appellant and in favour of the Respondent.
The law both ancient and modern is that in a criminal trial the burden of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. The burden never shifts. Even where an accused in his statement to the police admitted committing the offence the prosecution is not relieved of the burden. If an accused person gives an account which is consistent with his innocence and could be true and is not proved to be untrue he is entitled to an acquittal. This is because in such circumstances there must be a doubt with regard to his guilt.
Proof beyond reasonable doubt means that it is not enough to suspect a person of having committed a criminal offence. It means that there must be evidence which identifies the person accused with the offence and that it was his act which caused the offence. See the decisions of the Supreme Court in Igabele v State (2006) NWLR (Pt. 975) 100, Aigbadion v State (2000)4 SC 1 (Pt. 1)1 and the decision of this Court in Okafor v State (2006)4 NWLR (Pt.969)1.
By virtue of Section 221 of the Penal Code to secure a conviction of an accused person for Culpable Homicide punishable with death, the prosecution must prove the following:
(a) That the death of a human being took place.
(b) That such death was caused by the accused person.
(c) That the act of the accused person that caused the death was done with intention of causing death; or that the accused person knew that death would be the probable consequence of his act. All these ingredients must be proved before a conviction will be secured. See Adava v The State (2006)9 NWLR(pt. 984) 152 and Isah v The State (2017) LPELR 434728.
Conspiracy is proved when it is established beyond reasonable doubt that the accused agreed with another person to prosecute an unlawful act. Conspiracy can be inferred from certain criminal acts of the accused persons concerned. See the decision of this Court in Lateef v The State (2018) LPELR – 46437 CA page 10 – 11.
In the instant case, the Appellant in his statement to the police Exhibits G and G1 stated in part as follows:
“I paid the motorcyclist N500.00 – I and Abdullahi Dalhatu dragged the old man – inside the forest. In the forest Abdullahi Dalhatu picked a stick on the ground beat the (victim) on his head. I also beat him of which he felt down.”
An accused person can be convicted on his extra-judicial confession even though retracted in his evidence on oath. There is no law against it. The law actually allows it. Such confessional statement cannot be regarded as unreliable by the mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession is true. See Dibie v The State (2007)9 NWLR (pt. 1038) 30 and Nwaebonyi v The State (1994)5 NWLR (Pt. 343) 130. Apart from the above confession of the Appellant there is the evidence of PW2 that it was the Appellant who led him to the house of the deceased person from where the deceased person was picked to the forest where the PW2 left the deceased person, the Appellant and the 1st accused person. The PW2 confirmed that he was given N500.00 by the Appellant on 1st accused person’s directive. It is clear from the foregoing that there was evidence outside the confessional statement of the Appellant which showed that the confession was true. Conspiracy would rightly be inference on the above pieces of evidence. That is that the Appellant agreed with the 1st accused person that the deceased person be taken from his house. That the Appellant and the 1st accused dragged the deceased person into the forest after both of them had agreed to pay off the PW2 the motorcyclist who conveyed them to the forest.
Issue 4 is also resolved against the Appellant and in favour of the Respondent.
All four issues having been resolved against the Appellant and in favour of the Respondent, this appeal should be dismissed for lacking in merit.
It is accordingly dismissed by me.
The conviction and sentence of the Appellant by the Court below are affirmed by me.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the benefit of reading in draft the lead judgment just delivered by my learned brother JAMES SHEHU ABIRIYI JCA (PJCA).
I agree entirely with his reasoning and conclusion to the effect that the instant appeal is lacking in merit and should be dismissed.
I also dismiss the appeal and affirm the decision of the Court below delivered on 6th day of May, 2019.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have been availed of an advance copy of the lead judgment and also participated in the prejudgment conference. I am in agreement with the decision of Hon. Justice James Shehu Abiriyi, PJCA particularly regarding the resolution of all the issues for determination for the fuller reasons given by His Lordship in the lead judgment, I align with all His Lordship’s reasoning.
I am not left in doubt that the charges against the Appellant has been proven beyond reasonable doubt, consequently, this appeal should and is hereby dismissed for lacking in merit.
The judgment of the lower Court is hereby upheld.
Appearances:
Sadiq Abubakar, Esq. For Appellant(s)
Abubakar Ahmed, Esq. Assistant Chief State Counsel, Ministry of Justice, Bauchi State. For Respondent(s)
