YELLI v. STATE

CITATION: (2017) LPELR-42134(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON TUESDAY, 21ST FEBRUARY, 2017Suit No: CA/S/94C/2016

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealMUHAMMED LAWAL SHUAIBU Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenBELLO YELLI - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLEHOMICIDE PUNISHABLE WITH DEATH: Ingredients theprosecution must prove to establish the offence of culpablehomicide punishable with death"... for the prosecution to succeed in establishing the offence ofculpable homicide punishable with death, all the ingredients of theoffence as contained in Section 221 of the Penal Code must beproved or established to the satisfaction of the Court thus;1. That the deceased had died.2. That the death of the deceased had resulted from the act of theaccused person.3. That the act or omission of the accused which caused the deathof the deceased was intentional or with the knowledge that death orgrievous bodily harm was its probable consequence."?Per OHO, J.C.A. (P. 22, Paras. C-F) - read in context

2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLEHOMICIDE PUNISHABLE WITH DEATH: When will a person beguilty of offence of culpable homicide punishable with death"The position of the law is that a person is clearly guilty underSection 221 (b) of the Penal Code if the act by which death iscaused is done with the intention of causing death, or if the doer ofthe act knew or had reason to know that death would be theprobable and not a likely consequence of the act or of any bodilyinjury which the act was intended to cause. See the cases of MUSAvs. THE STATE (2009) ALL FWLR (PT. 492) 1020 AT 1033; YAKI vs.STATE (2008) 7 SC page 28 at 29; MUKAILA SALAWU vs. STATE(2015) 11 NCC at page 40-41."?Per OHO, J.C.A. (Pp. 22-23, Paras. F-C) - read in context

3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLEHOMICIDE PUNISHABLE WITH DEATH: When will a person beguilty of offence of culpable homicide punishable with death"The position of the law is that a person is clearly guilty underSection 221 (b) of the Penal Code if the act by which death iscaused is done with the intention of causing death, or if the doer ofthe act knew or had reason to know that death would be theprobable and not a likely consequence of the act or of any bodilyinjury which the act was intended to cause."Per OHO, J.C.A. (P. 31,Paras. E-F) - read in context

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4. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF:Burden and standard of proof required in an offence of culpablehomicide"Perhaps, what needs to be said at this point is the fact that theburden to establish the culpability of the accused person standingtrial for the offence of culpable homicide rests squarely on theshoulders of the prosecution who must prove all the materialingredients of the case beyond reasonable doubt. See Section135(1) of the Evidence Act, 2011 as Amended and plethora ofdecided authorities on the subject. What should perhaps, be statedhere as corollary to the above, is the fact and from which theprosecution gets a modicum of succor that in all criminal trials theprosecution has the benefit of relying on any of the following formsof evidence in discharging the burden placed on it by law;a. Confessional statement.b. Circumstantial evidencec. Evidence of an eye witness account.See the cases ofEMEKA vs. STATE (2001) 14 NWLR (pt. 734) page666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at2012."?Per OHO, J.C.A. (Pp. 23-24, Paras. C-B) - read in context

5. EVIDENCE - CONFESSIONAL STATEMENT: Meaning of confession"Section 27 (1) of the Evidence Act (As amended) defines aconfession thus: "A confession is an admission made at any time bya person charged with a crime stating or suggesting the inferencethat he committed that crime." It is further provided in Sub-section2 that: "Confessions, if voluntary, are deemed to be relevant factsas against the persons who make them only." Per OHO, J.C.A. (P. 25,Paras. B-E) - read in context(2

017)

LPELR

-4213

4(CA)

6. EVIDENCE - CONFESSIONAL STATEMENT: Whether theretraction of a voluntary confessional statement renders itinadmissible; effect when a confession is satisfactorily proved"The settled position of the law, however is that a retraction of aconfession does not ipso facto render the confession inadmissible.Seethe old case of R. vs. JOHN AGAGARIGA ITULE (1961) 1 ANLR 402(FSC) where the Supreme Court per BRETT, Ag CJF held thus;"A confession does not become inadmissible merely because theaccused person denies having made it and in this respect aconfession contained in a statement made to the Police by a personunder arrest is not to be treated different from any otherconfession. The fact that the Appellant took the earliest opportunityto deny having made the statement may lend weight to his denial.See R vs. SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself areason for ignoring the statement. It would be further recalled thatthe Appellant took the earliest opportunity when the statement wasoffered in evidence to deny having made it. But the positionremains in law, that a mere denial without more, even at theearliest opportunity, cannot, on the bare facts of the case, lend anyiota of weight to the denial. Apart from the fact that the denial is abare statement bereft of any supporting facts, it is by and large,standing only on the ipsi dexit of the Appellant. To make mattersrather worse and as revealed by the printed records in this case, thesaid statements were not even challenged on grounds ofinvoluntariness or any other at all.Arising from this position, in which the voluntariness or otherwise ofthe statements were neither raised nor challenged at the trial, thisCourt therefore finds and holds that the prosecution provedaffirmatively that Exhibits B and B1 were voluntary confessionalstatements of the Appellant. Regardless of this position, the usualthing in all criminal trials is that the burden of proving affirmativelybeyond doubt that the confession was made voluntarily is always onthe prosecution, which this prosecution succeeded in doing asexpected in this case. See the cases of JOSHUA ADEKANBI vs. AGWESTERN NIGERIA (1961) All NLR 47; R vs. MATON PRIESTLY (1966)50 CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE (1975) NNLR60 at 65 SC on the issue."

Per OHO, J.C.A. (Pp. 25-26, Paras. F-C) - read in context

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7. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determiningthe truth or weight to attach to a confessional statement before acourt can convict on same"On the question of weight to be attached to a confessionalstatement whether retracted or not retracted the tests are as laiddown in the old English case of R vs. SYKES (1913) 8 CR APP. R.233approved by the West African Court of Appeal in KANU vs. THE KING(1952/55) 14 WACA 30 and several other decided cases on thesubject. The tests therefore, as laid down in the case of R. vs. SYKES(Supra) to be applied to a man's confession are; is there anythingoutside it to show that it is true? Is it corroborated? Are thestatements made in it of fact, true as far as can be tested? Was theAppellant, one who had the opportunity of committing the crime? Ishis conviction possible? Is it consistent with other facts which havebeen ascertained and which have been as in this case proved? Inany event, it is within the province of the trial Judge to determinethe admissibility of a confession upon proof by the prosecution thatthe statement was free and voluntary and having admitted thestatements as in the instant case where there has been a retractionby the accused. It is desirable for the trial judge to find somecorroboration in the evidence tending to show that the statement ofthe accused having regard to the circumstances of the case is true.See OKAFOR vs. THE STATE (1965) NMLR 20." Per OHO, J.C.A. (Pp.27-28, Paras. E-E) - read in context

8. EVIDENCE - CROSS-EXAMINATION : Effect of failure to cross-examine a witness on material point"... But the failure to have challenged and confronted materialpoints in an opponent's case at the time it mattered most is a majorsetback to the Appellant's Appeal even at this stage of this case.See the case of OKOSI vs. THE STATE (Supra) where the SupremeCourt per BELGORE, JSC delivering the lead judgment in the case,had this to say; "In all criminal trials the defense must challenge allthe evidence it wishes to dispute by cross examination. This is theonly way to attack any evidence lawfully admitted at the trial. Forwhen evidence is primary opinion and not that of an expert and anaccused person wants to dispute it, the venue for doing so is whenthat witness is giving evidence in the witness box. The witnessshould be cross examined to elucidate facts disputed, for it is late atthe close of the case to attempt to negotiate what was leftunchallenged."Per OHO, J.C.A. (P. 30, Paras. A-E) - read in context

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9. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF:Burden and standard of proof in a charge of murder"The standard of proof required in a murder case as in all criminalcases is proof beyond reasonable doubt. The onus of proof is on theprosecution and not on the defence. In the instant case, theprosecution had produced sufficient evidence to establish its caseand the burden then shifted unto the appellant to adducecontradicting evidence, if any and to call his own witness toestablish his defence. See the case of Sadau v. The State (1968) 1All NLR P.124."Per MUKHTAR, J.C.A. (P. 33, Paras. A-D) - read incontext

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FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the

Leading Judgment): The Appellant was arraigned, tried

unto conviction and sentenced to death by the High Court

of Sokoto State sitting at Sokoto in the Sokoto Judicial

Division on the 28th day of April, 2015 for the offence of

Culpable Homicide Punishable with death for unlawfully

killing of one Abubakar Magaji (hereinafter referred to as

the deceased) on the 15th day of April, 2013 at Wariya

Village, Tangaza Local Government Area within the Sokoto

Judicial Division by hitting the said deceased with a stick

which resulted in his death; an offence punishable under

Section 221 of the Penal Code.

The facts of this case is the deceased, one Abubakar Magaji

on the said 15-4-2014 at night while lying down next to his

father one Magaji Mamman, the Appellant scaled the fence

of the house and entered into the section where the

deceased and his father Magaji were sleeping. He hit the

deceased who was fast asleep with a stick on the forehead

and took to his heels. The deceased father who testified in

this case as the PW1 chased after the Appellant but could

not catch up with him as the Appellant fled into

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the bush. The deceased Father, the said Magaji Maman

reported the matter to the Police who instructed that the

deceased be taken to the Hospital. He was rushed to the

Hospital by the deceased father in company of a Policeman,

where the deceased was examined and certified dead.

Following the grant of leave by the trial Court, a Charge

was preferred against the Appellant for the offence of

culpable homicide punishable with death; contrary to

Section 221 (b) of the Penal Code. The Appellant’s plea was

taken on the 24th June, 2014. The Appellant pleaded not

guilty to the charge and trial began thereafter. The

Respondent called four (4) witnesses whilst the Appellant

testified in his own defense as the DW1 and called no

witnesses. At the conclusion of trial the learned trial Judge

on the 28th April, 2015 found the Appellant guilty and

sentenced him to death.

Dissatisfied with the lower Court’s judgment the Appellant

has appealed to this Court vide his notice of Appeal filed on

the 22-7-2016. By an Amended Notice of Appeal filed on the

6-10-2016, a total of three (3) Grounds of Appeal were filed,

which are reproduced here as follows;

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GROUNDS OF APPEAL;

GROUND 1

The learned trial judge erred in law when he disregarded

already laid down principle of law as laid down in the case

of UTUYORUME V. THE STATE (2010) 43 WRN P. 162

@ 166, Ratio 2 in convicting and sentencing the Appellant.

PARTICULARS

i) The Supreme Court had in plethora of cases held that the

prosecution bears the burden of proving its case against

the accused person, particularly in capital offences beyond

seasonably doubt.

ii) Any iota of doubt must be resolved in favour of the

accused person as held by the Supreme Court in

AIGBANDION V. THE STATE (2000) 4. SCNJ 1

GROUNDS 2

The learned trial judge erred in law when he relied on the

extra-judicial statement of the Appellant which does not

meet the requirement of law as laid down in the case of

UTUYOROME vs. STATE (2010) 43 WRN P. 163

@168-169 R. 10 in convicting and sentencing the

Appellant.

PARTICULARS

i) Whereas the Supreme Court held in OKPAKO vs.

STATE (2013) 11 WRN P. 31 @ 35 R. 3 that it is

desirable to have some evidence outside the confession

which will make it probable that the confession was true.

ii) Confessional

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statement must be direct and positive before a Court can

convict based on same.

iii) The trial Court acted on a confessional statement that

did not satisfy the requirement of the law vis a vis the

totality of evidence as held in the case of ADEROJU vs.

NIGERIAN ARMY (2013) 27 WRN P. 149@ 156 Ratio 6

GROUND 3

The learned trial judge erred in law by convicting the

accused person as charged.

PARTICULARS

i) The trial Court relied on the evidence of PW 1 who

testified to have seen the Appellant scaling through the

fence in the middle of the night when there was no

electricity.

ii) The evidence of PW1 is doubtful and such doubt should

have been resolved in favour of the accused person.

ISSUES FOR DETERMINATION

A total of three (3) issues were nominated for the

determination of this appeal by the Appellant as follows;

(a) Whether the trial Court rightly reached a conviction

against the Appellant for Culpable Homicide based on laid

down Principles of Law? (Ground One).

(b) Whether there was credible confessional statement

warranting the trial Court to convict the Appellant?

(Ground 2).

(c) Whether the trial

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Court's decision against the Appellant resulted in a

miscarriage of justice, without further Proof of the evidence

of PW1? (Ground 3).

On the part of the Respondent, three (3) issues were also

formulated for the determination of the Court as follows;

1. Whether the trial Court was right in holding that the

charge of culpable homicide under Section 221(b) of the

Penal Code against the Appellant has been proved beyond

reasonable doubt by the respondent (Ground 1).

2. Whether the trial Court was right in relying on the extra-

judicial statement of the Appellant in convicting and

sentencing the appellant (Ground 2).

3. Whether the decision of the trial Court was right in

convicting the Appellant as charged, considering the

evidence adduced at the trial (Ground 3).

A careful perusal of the issues raised by the Respondent

shows that they are identical with the issues raised by

Appellant except for reasons of semantics. This situation

notwithstanding, this Appeal shall be heard on the basis of

the issues raised by the Appellant.

LEGAL ARGUMENT OF LEARNED COUNSEL;

ISSUE ONE:

It was the contention of Counsel that the sole

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charge filed against the Appellant by the Respondent, was

an offence of culpable Homicide punishable with death;

contrary to Section 221 (b) of the Penal Code; to which the

trial Court found the Appellant guilty as charged. Counsel

further contended that the burden placed on the

Respondent, was one of Proof beyond reasonable doubt.

Counsel referred Court to Section 134(1) Evidence Act,

2011.

According to learned Counsel in the decision of the case

ofUTUYORUME vs. THE STATE (2010) 43 WRN p. 162

@ 166, Ratio 2, It is now well settled law that the

ingredients for the offence of culpable homicide punishable

with death, which must be proved beyond reasonable doubt

by the prosecution, as variously pronounced by the Court

are:

1) That the death of a human being has actually taken

place.

2) That such death was caused by the accused.

3) That the act was done with the intention of causing

death.

4) That the accused knew or had reason to know that death

would be the probable and not only the likely consequence

of his act....." (See MUSA vs. STATE (2009) ALL FWLR

(Part 492) 1020@ 1033).

Of the four ingredients of the offence of culpable

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homicide punishable with death, Counsel argued that the

third being: "that the act was done with the intention of

causing death", is the most difficult to determine. Counsel

further argued that the objective test and not the subjective

test should be applied, in determining criminal

responsibility or liability. Furthermore, Counsel said that in

considering the stated ingredients, the Court should

carefully examine the totality of the evidence before it and

not the act or evidence of the Appellant in isolation.

It was therefore submitted by Counsel that the trial Court,

did not consider the conduct of the Appellant from the

totality of the evidence before it, before reaching its

decision; that the trial Court's test of the criminal

responsibility of the Appellant was subjective instead of

objective. Counsel cited the case of KAZA vs. THE STATE

(2008) 7 NWLR (Part 1085) 125 @ 177, 178 paras. G-

C.

It was further argued by Counsel that the trial Court relied

solely on the denied confessional statement of D.W.1 (the

Appellant), to prove the ingredients of culpable homicide

punishable with death, contrary to Section 221(b) of the

Penal Code. (Please see

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pages 63 & 69 of the Records of Appeal). Whereas, the

Supreme Court in the case of AIGBANDION vs. THE

STATE (2000) 4 SCNJ 1 held that "any iota of doubt must

be resolved in favour of the accused person".

It was submitted by Counsel that in criminal cases, the guilt

of the accused person must be established beyond

reasonable doubt. Counsel cited the case of ANI vs. THE

STATE (2009) 6 SCNJ 98 at 100 ratio 1 and contended

that any casual link must be established and proved beyond

reasonable doubt in murder cases. Counsel referred to the

case ofALAO vs. THE STATE (2011) 34 WRN 90 at pg.

98. In the instant case, Counsel contended that the

prosecution did not prove its case beyond any reasonable

doubt that mere hitting the head of the deceased with a

stick and in the dark, as stated by P.W.1, was sufficient to

cause the death of the deceased.

It was also submitted by Counsel that there was lack of

mens rea and other vital ingredients to prove culpable

homicide and the trial judge used inadmissible and/or

wrong evidence to establish intent on the part of the

Appellant, to commit the offence. Counsel urged this Court

to answer issue one in favour of

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the Appellant, as the prosecution failed to prove its case

beyond reasonable doubt.

On the part of the Respondent, Counsel contended that in

order for the prosecution to succeed in establishing the

offence of culpable homicide punishable with death, it must

prove all the ingredients of the offence as contained in

Section 221 of the Penal Code and these ingredients co-

exist together, thus:

1. That the deceased had died.

2. That the death of the deceased had resulted from the act

of the accused person.

3. That the act or omission of the accused which caused the

death of the deceased was intentional or with the

knowledge that death or grievous bodily harm was its

probable consequence.

Counsel cited the case of YAKI vs. State (2008) 7 SC

page 28 at 129 line. 30 & 35 and the case of MUKAILA

SALAWU vs. STATE (2015) 11 NCC at page 40-41.

As far as Counsel was concerned all these ingredients were

established by the prosecution at the trial. On account of

the first ingredient that the deceased has died, Counsel

submitted that this ingredient is established through the

evidence of PW1, to PW4, and Exhibits B & B1, the extra

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judicial statement of the Appellant which was tendered

without any objection by the Appellant at the trial, Exhibit

C the medical report and Exhibits D1, D2, and D3 the

photograph of the deceased. Counsel also argued that the

death of Abubakar Magaji was also established through the

evidence of all the prosecution witnesses at pages 25 to 34

of the records and the voluntary, confessional statement of

the Appellant admitted as Exhibits B & B1, C, D1, D2, and

D3, which evidence were consistent with the facts that,

Abubakar Magaji died.

Counsel also told Court that on the first ingredient the trial

Court in a considered judgment held thus:

"In consideration of the eye witness account of PW1,

as well as the various exhibits tendered, it is clear

that death indeed occurred". The first ingredient of

the offence of culpable homicide under Section

221(b) of the Penal Code has been proved by the

prosecution beyond reasonable doubt. I so hold". (See

page 66 of the record).

In respect of the second ingredient of the offence of

culpable homicide punishable under Section 221 (b) of the

Penal Code, that death resulted from the act of the accused

person,

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Counsel contended that the prosecution can rely on the

following forms of evidence to proof a case of Culpable

Homicide or any criminal case thus:

a. Confessional statement.

b. Circumstantial evidence

c. Evidence of an eye witness

Counsel referred Court to the following cases IGABELLE

vs. STATE (2004) 34 WRN 83 AT 98, EMEKA vs.

STATE (2001) 14 NWLR (PT.734) Pg 666 At 683,

AKINMOJU vs. STATE (1995) 7 NWLR (PT. 406) 204

AT 212.

This Court was also told by Counsel that from the records

of proceeding of the trial Court (at page 68 of the records

the Appellant confessed to have fully participated in the

commission of the crime with which he was charged by

giving a graphic picture of the role he played in causing the

death of the deceased (Abubakar Magaji) by hitting him

with stick on the head. He further told Court that in the

same token the evidence of the PW1, Magaji Mamman who

was an eye witness, testified in the Lower Court and fixed

the Appellant on the scene of crime and the commission of

the offence.

It was submitted on behalf of the Respondents that,

conviction can be sustained even on a single witness, which

is

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sufficiently probative of an offence when a trial Court is

satisfied, and that this can validly ground the conviction of

an accused person even where he had denied the

commission of the offence charged. Counsel cited the case

of OSHO vs. STATE (2012) 8 NWLR P. 243, and argued

that in this appeal the Appellant had confessed to have

committed the offence in his extra-judicial statement (see

page 65 of the record) where he gave a graphic explanation

as to how he committed the offence, and that this evidence

was also corroborated by the evidence of PW1 who was an

eye witness (see page 25 of record) to the commission of

the offence.

In respect of the 3rd ingredient of the offence, it was

contended by Counsel that based on the facts and

surrounding circumstances of this case, that, the trial Court

held that the 3rd ingredient of the offence has been proved

beyond reasonable doubt. See page 70 of the printed

records of Appeal. It was further submitted by Counsel

that, the settled position of the Law is that a man is

presumed to intend the natural consequence of his act.

Counsel cited the case of STATE vs. BABANGIDA JOHN

(2004) 10 NCC at page 93. Learned Counsel

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also contended that based on the peculiar facts and

circumstances of this case, that it is clear that the

prosecution has proved beyond reasonable doubt all the

elements required to be proved for the offence of culpable

homicide punishable with death contrary to Section 221 (b)

of the Penal Code.

It was also argued that once all the ingredients of an

offence have been proved by the prosecution to the

satisfaction of the Court, the charge is said to have been

proved beyond reasonable doubt. Indeed Counsel also

argued that Section 138(1) of the Evidence Act requires

crimes to be proved, beyond reasonable doubt. He cited the

case of MILLER vs. MINISTER OF PENSIONS (1947) 2

at 1 ER 372 LORD DENNING said thus:

"Proof beyond reasonable doubt does not mean proof

beyond shadow of doubt. The law would fail to protect

the community if it admitted to fanciful possibilities

to deflect the course of justice. If the evidence is so

strong against a man as leaves only a remote

possibility in his favour, which can be dismissed with

the sentence of course it is possible but not in the

least probable the case is proved beyond reasonable

doubt, but nothing short of

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that will suffice."

From the foregoing facts Counsel urged this Court to

resolve the 1st issue for determination framed herein, in

favour of the Respondent and that, the trial Court was right

in reaching the decision that the charge of culpable

homicide under Section 221(b) of the Penal Code against

the Appellant has been proved beyond reasonable doubt

and dismiss the appeal for lack of merit.

ISSUE TWO.

Under this issue Counsel argued that the records of appeal

show clearly that the Appellant is very literate in Hausa

language; that he took his plea in Hausa language and

testified in same as D.W.1 (Please see page 28 of the

Records of Appeal). It was further argued that the

Appellant was never asked to write his statements even in

the Hausa language that he is well versed in. Counsel said

that the I.P.O. (P.W.3) wrote the "alleged confessional

statements" of the accused person for him in Hausa

language and even translated it to English and went further

to write the "alleged confessional statement" in English

language.

It was further argued that the default of the P.W.3 the

Investigation Police Officer, to ask the Appellant to write

his

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statements, particularly where he is very literate in the

Hausa language, contravenes the golden principle of law in

the Supreme Court decisions as held in the cases of

OKPAKO vs. THE STATE and OLABODE vs. THE

STATE (2007) 2 NCC 711 and UBIERHO vs. THE

STATE (2005) 1 NCC 120 to hold that: "... it is desirable

to have some evidence outside the confession, which will

make it probable that the confession was true".

Learned Counsel also argued that the Appellant was made

to sign a statement he did not write and that it is crystal

clear that if the Appellant were to be an illiterate both in

Hausa and English languages, he would have thumb

printed. Rather, that the Appellant signed by writing his

name! Please see pg. 28 of the Records of Appeal. It was

therefore contended that the trial Court acted on a

confessional statement that did not satisfy the requirement

of the law vis-a-vis the totality of evidence as held in the

case of ADEROJU vs. NIGERIAN ARMY (2013) 27 WRN

p. 149 @ 156 Ratio 6.

In addition, Counsel further argued that a confessional

statement must be direct and positive, but that in the

present

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case my Lords, before the Appellant denied making the

confessional statement and even when the charge was read

and explained to the Appellant, the Appellant stated that

the charge read and explained to him in Court, was not true

and he subsequently pleaded not guilty to the charge.

Counsel urged the Court to resolve issue two in favour of

the Appellant.

On the part of the Respondent, it was contended by

Counsel that a Court can convict and sentence an accused

person on his confessional statement alone without more.

Counsel cited the cases of UBIERHO vs. THE STATE

(2005) 1 NCC 146 at 147, AGBOOLA vs. THE STATE

(2004) 9 NCC 593 AT page 601, SEMU AFOLABI vs.

THE STATE (2014) 9 NCC, page 335 decision 3 at

page 355 ABDULLAHI ADA vs. THE STATE (2008) 3

NCC page 549 & 555, OLABODE vs. THE STATE

(2009) 4 NCC 199 at 203 AMOSHIMA vs. THE STATE

(2009) 4 NCC 280 at ratios 25 & 26.

This Court was told by Counsel that from the records of the

proceeding of the trial Court (at page 68) the Appellant

confessed to have fully participated in the commission of

the crime with which he was charged by giving a graphic

picture of the role he played in causing the

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death of the deceased (Abubakar Magaji) by hitting him

with a stick on the head.

This Court was also told that the said extra-judicial

statement of the Appellant was tendered through the PW3

and was admitted in evidence without any objection by the

Appellant Counsel at the trial; Counsel referred to pages

27, 28 and 29 of the records and that the said confessional

statement was also corroborated by the evidence of the

PW1.

Counsel also submitted that from the foregoing facts,

contained in the evidence of the PW1 who was an eye

witness, it tallied with the extra-judicial statement of

Appellant in Exhibits B & B1 and this is material in all

aspects. Counsel further argued that the mere fact that a

Statement is retracted does not mean that the Court cannot

safely convict upon it. Counsel cited the cases of

FATAI BUSARI vs. STATE (2015) 11 NCC page 77;

OSETOLA vs. STATE (2012) 17 NWLR (Pt. 1329)

p251; EBOGHONOME vs. STATE (1993) 7 NWLR (Pt.

306) at 110 and NWACHUKWU vs. STATE (2007) 11

QCCR, 80 at 110.

Besides, Counsel argued that the proper time to object to a

document is when it is sought to be tendered, otherwise it

will be regarded as an afterthought

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and he urged the Court to so hold. Counsel also drew

attention to the content and substance contained in

Exhibits "B & B1" when read together with the charge

sheet. He contended that Exhibits "B & B1" are not only

relevant to the facts in issue but also confirmed and

supported the facts contained in the charge. Counsel

therefore submitted that the lower Court was right in

admitting and acting upon Exhibits "B & B1" in convicting

and sentencing the Appellant. He urged the Court to affirm

the decision of the lower Court and dismiss the Appeal for

lack of merit.

ISSUE THREE:

Under this issue, it was contended by Counsel that Exhibits

“B & B1” which the trial Court described as confessional

statements of the Appellant, are not confessional

statements. Counsel referred this Court to pages 6 - 9 of

the Records of Appeal.

In addition, Counsel argued that the findings of the trial

Court that the Respondent proved its case against the

Appellant beyond a reasonable doubt, is faulty in law,

because the Appellant from the records, did not confess to

committing the crime; and that without conceding, if he

had confessed to

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committing the crime, the trial Court was still duty bound

to evaluate his evidence before holding that it was a

confessional statement. See ITU vs. STATE (2014) ALL

FWLR (Part 750) 1245 @ 1288 para. E, where the Court

held that: "Confession and testimony of the accused person

shall be evaluated and assessed by the trial judge together

with the totality of the evidence, in order to reach a just

decision."

Learned Counsel argued in addition that to ascertain the

credibility and veracity of the Appellant's statement to the

Police, the trial Court should have tested his statement;

that this was absent as the trial Court reached its decision,

based on unattested and unverified evidence. Counsel

urged the Court to answer issue three in favour of the

Appellant.

In response, learned Counsel submitted that the trial Court

was right in convicting the Appellant as charge,

considering the evidence adduced at the trial. He said that

the Appellant was arraigned before the trial Court and the

prosecution called a total number of four witnesses (PW1,

PW2, PW3 and PW4 and Exhibit A, B & B1, C, & 01, 02, &

03) who testified and were subject to rigorous

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cross examinations. Counsel also argued that in a criminal

trial the prosecution can rely on any of the following forms

of evidence in any criminal case.

a. Confessional statement.

b. Circumstantial evidence

c. Evidence of an eye witness

See the cases of EMEKA vs. STATE (2001) 14 NWLR

(pt. 734) page 666 at 683, AKINMOJU vs. STATE

(1995) NWLR (pt. 406) 24 at 2012

It was also canvassed that the PW1 who was an eye witness

gave a graphic explanation as to how the Appellant met the

deceased while asleep and inflicted injury on his head with

a stick, that this piece of evidence was also corroborated by

the confessional statement of the Appellant in an extra-

judicial statement made by him. Counsel referred Court to

(page 15 of the record). Counsel said that under cross

examination in (page 26 of the record) PW1 stated that; "I

agree that there was no electricity but there was lamp at

that time" also in line 7 to 8, on the same page he further

stated "I saw the accused with my own eyes at the time of

the incident”

Counsel contended that all said and done, no doubt exist in

the evidence of the prosecution, notwithstanding the fact

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that the Appellant wanted to base their arguments on

technicalities while the era of technicalities have gone.

Counsel further contended that considering the facts that

the Appellant has confessed to the commission of the

offence and was also fixed at the scene of the crime by the

evidence of PW1, the trial Court was justified in convicting

the Appellant as charged after being satisfied with proof of

the offences beyond reasonable doubt by the prosecution.

From the foregoing facts, it was submitted by Counsel that

all submissions made by the learned Counsel to the

Appellant before the lower Court had been well considered

and the position of law on those points aptly stated and

applied in the determination of the matter at the lower

Court. Counsel therefore urged this Court to resolve all the

issues in favor of the Respondent and to hold that, the trial

Court was right in convicting and sentencing the Appellant

to death.

RESOLUTION OF APPEAL

The question of the voluntariness and the veracity of the

confessional statements of the Appellant admitted as

Exhibits B and B1 at the Court below was one of the issues

vigorously canvassed in this Appeal,

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alongside the question of the accuracy and/or reliability of

the identification of the Appellant vis-à-vis the eye-witness

account of what transpired on the fateful date in question.

These issues were no doubt subsumed in the much

enlarged question of whether the learned trial Court rightly

reached a conviction against the Appellant based on laid

down principles of law. Learned Appellant’s Counsel who

had rooted for a verdict of an acquittal had contended that

the trial Court’s decision had occasioned a miscarriage of

justice.

To begin with, for the prosecution to succeed in

establishing the offence of culpable homicide punishable

with death, all the ingredients of the offence as contained

in Section 221 of the Penal Code must be proved or

established to the satisfaction of the Court thus;

1. That the deceased had died.

2. That the death of the deceased had resulted from the act

of the accused person.

3. That the act or omission of the accused which caused the

death of the deceased was intentional or with the

knowledge that death or grievous bodily harm was its

probable consequence.

The position of the law is

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that a person is clearly guilty under Section 221 (b) of the

Penal Code if the act by which death is caused is done with

the intention of causing death, or if the doer of the act

knew or had reason to know that death would be the

probable and not a likely consequence of the act or of any

bodily injury which the act was intended to cause. See the

cases of MUSA vs. THE STATE (2009) ALL FWLR (PT.

492) 1020 AT 1033; YAKI vs. STATE (2008) 7 SC page

28 at 29; MUKAILA SALAWU vs. STATE (2015) 11

NCC at page 40-41.

Perhaps, what needs to be said at this point is the fact that

the burden to establish the culpability of the accused

person standing trial for the offence of culpable homicide

rests squarely on the shoulders of the prosecution who

must prove all the material ingredients of the case beyond

reasonable doubt. See Section 135(1) of the Evidence Act,

2011 as Amended and plethora of decided authorities on

the subject. What should perhaps, be stated here as

corollary to the above, is the fact and from which the

prosecution gets a modicum of succor that in all criminal

trials the prosecution has the benefit of relying on any of

the following forms of evidence

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in discharging the burden placed on it by law;

a. Confessional statement.

b. Circumstantial evidence

c. Evidence of an eye witness account.

See the cases of EMEKA vs. STATE (2001) 14 NWLR

(pt. 734) page 666 at 683, AKINMOJU vs. STATE

(1995) NWLR (pt. 406) 24 at 2012.

At page 68 of the printed records of Appeal, a reproduction

of Exhibit B1, the English translation of the Appellant’s

extra Judicial statement to the Police reads as follows;

“I of the above name and address hereby elect to give

my Statements as follows; I was born about 24 years

ago at Bugawa Village of Tangaza Local Government

Area. I neither attended western nor Islamic

Education. My occupation is rearing of domestic

animals. On the 15-4-2013 at about 0103 hours, I

went to Wariya Village and saw one Abubakar Magaji

sleeping. By then I was in possession of a stick. I then

hit Abubakar with the stick on his head once. I then

ran away. The reason why I hit him is that, about two

months ago he Abubakar met me at Ruwa Wuri

market and he hit me to an extent I sustain injury.

Later, I was arrested by the Police with an allegation

that I killed Abubakar.

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Honestly, I hit him with a stick on his head and I

know that, that is the cause of his death. That is all I

have to state”.

Learned Appellant’s Counsel had contended very vigorously

that there was no credible confessional statement

warranting the trial Court to have convicted the Appellant.

It would be recalled however, that Exhibits B and B1 were

in the course of trial admitted as confessional statements of

the Appellant without an objection. Section 27 (1) of the

Evidence Act (As amended) defines a confession thus:

“A confession is an admission made at any time by a

person charged with a crime stating or suggesting the

inference that he committed that crime."

It is further provided in Sub-section 2 that:

"Confessions, if voluntary, are deemed to be relevant

facts as against the persons who make them only."

Against this backdrop, it is important to note that the

Appellant, in the course of his evidence-in-chief before the

lower Court, retracted from the said Exhibits B and B1. The

settled position of the law, however is that a retraction of a

confession does not ipso facto render the confession

inadmissible. See

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the old case of R. vs. JOHN AGAGARIGA ITULE (1961)

1 ANLR 402 (FSC) where the Supreme Court per BRETT,

Ag CJF held thus;

“A confession does not become inadmissible merely

because the accused person denies having made it

and in this respect a confession contained in a

statement made to the Police by a person under

arrest is not to be treated different from any other

confession. The fact that the Appellant took the

earliest opportunity to deny having made the

statement may lend weight to his denial. See R vs.

SAPELE & ANOR (1952) 2 FSC 74 but it is not in itself

a reason for ignoring the statement."

It would be further recalled that the Appellant took the

earliest opportunity when the statement was offered in

evidence to deny having made it. But the position remains

in law, that a mere denial without more, even at the earliest

opportunity, cannot, on the bare facts of the case, lend any

iota of weight to the denial. Apart from the fact that the

denial is a bare statement bereft of any supporting facts, it

is by and large, standing only on the ipsi dexit of the

Appellant. To make matters rather worse and as revealed

by the printed records in

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this case, the said statements were not even challenged on

grounds of involuntariness or any other at all.

Arising from this position, in which the voluntariness or

otherwise of the statements were neither raised nor

challenged at the trial, this Court therefore finds and holds

that the prosecution proved affirmatively that Exhibits B

and B1 were voluntary confessional statements of the

Appellant. Regardless of this position, the usual thing in all

criminal trials is that the burden of proving affirmatively

beyond doubt that the confession was made voluntarily is

always on the prosecution, which this prosecution

succeeded in doing as expected in this case. See the cases

of JOSHUA ADEKANBI vs. AG WESTERN NIGERIA

(1961) All NLR 47; R vs. MATON PRIESTLY (1966) 50

CR APP. R 183 at 188; ISIAKA AUTA vs. THE STATE

(1975) NNLR 60 at 65 SC on the issue.

On the question of weight to be attached to a confessional

statement whether retracted or not retracted the tests are

as laid down in the old English case of R vs. SYKES

(1913) 8 CR APP. R.233 approved by the West African

Court of Appeal in KANU vs. THE KING (1952/55) 14

WACA 30 and several other decided

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cases on the subject. The tests therefore, as laid down in

the case of R. vs. SYKES (Supra) to be applied to a man’s

confession are; is there anything outside it to show that it is

true? Is it corroborated? Are the statements made in it of

fact, true as far as can be tested? Was the Appellant, one

who had the opportunity of committing the crime? Is his

conviction possible? Is it consistent with other facts which

have been ascertained and which have been as in this case

proved?

In any event, it is within the province of the trial Judge to

determine the admissibility of a confession upon proof by

the prosecution that the statement was free and voluntary

and having admitted the statements as in the instant case

where there has been a retraction by the accused. It is

desirable for the trial judge to find some corroboration in

the evidence tending to show that the statement of the

accused having regard to the circumstances of the case is

true. See OKAFOR vs. THE STATE (1965) NMLR 20.

Perhaps, the question to address here is whether there are

any such corroborating circumstances, which makes the

confessions true in this case?

The trial Court, to

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begin with referred to the oral evidence of the PW1, which

he said confirmed the story in the confessional statement.

The Court also said that the PW1’s oral testimony who was

an eye witness was not contradicted. It is instructive to

note that at page 68 of the printed records, the learned

trial Court had this to say at lines 22;

“The said confessional Statement Exhibit B, B1 made

by the Accused and duly admitted through PW3

without any objection by the learned Counsel to the

Accused, has further been corroborated by the

evidence of PW1 who gave an eye witness detail

account on what transpired on the fateful day of the

incident... The piece of evidence had not been

contradicted even under cross examination as the

witness though he agreed that there was no

electricity in the said village at the material time at

night, but maintained that there was lamp and that

he saw the accused hit the deceased with a stick on

his head who was then asleep and was confirmed dead

at the Hospital while accused had escaped into the

bush”.

That the learned Appellant’s Counsel had produced a very

incisive and formidable brief of argument in

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challenging the lower Court’s decision is not in doubt. But

the failure to have challenged and confronted material

points in an opponent’s case at the time it mattered most is

a major setback to the Appellant’s Appeal even at this stage

of this case. See the case of OKOSI vs. THE STATE

(Supra) where the Supreme Court per BELGORE, JSC

delivering the lead judgment in the case, had this to say;

“In all criminal trials the defense must challenge all

the evidence it wishes to dispute by cross

examination. This is the only way to attack any

evidence lawfully admitted at the trial. For when

evidence is primary opinion and not that of an expert

and an accused person wants to dispute it, the venue

for doing so is when that witness is giving evidence in

the witness box. The witness should be cross

examined to elucidate facts disputed, for it is late at

the close of the case to attempt to negotiate what was

left unchallenged”.

In respect of the retracted statements of the Appellant, the

mere fact that he did subsequently retract the Exhibits B

and B1 as the facts and circumstances of this case has

shown, does not necessarily mean

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that the learned trial Court could not have acted on the

statements more so when the Court successfully tested the

truth in the confessions against the guidelines issued by the

Court in the case of R. vs. SYKES (Supra).

In addressing the issue of whether the learned trial Court

rightly found that the ingredients of culpable homicide

punishable with death had been established in this case, it

is rather clear that from the testimonies of the PW1 to PW4

and from the contents of Exhibits B and B1 which are the

statements of the Appellant tendered at the lower Court

without objection, and Exhibit C, the medical report

tendered in the course of trial, I am unable to disagree with

learned Respondent’s Counsel that the prosecution did not

prove its case to the hilt.

The position of the law is that a person is clearly guilty

under Section 221 (b) of the Penal Code if the act by which

death is caused is done with the intention of causing death,

or if the doer of the act knew or had reason to know that

death would be the probable and not a likely consequence

of the act or of any bodily injury which the act was intended

to cause. Appellant cannot in

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the circumstances of this case feign ignorance of the likely

consequences of his action. The Appellant saw the

deceased sleeping when he struck the fatal blow to his

head. The Appellant had hit the deceased right at the head

with a stick even at such a time when the deceased was fast

asleep, not on any other part of the body but the head. His

intention to kill or cause bodily injury was betrayed by the

fact that the deceased was asleep and that all he simply

wanted to do was to kill him once and for all. By hitting the

deceased with a stick on the head while the deceased was

fast asleep and quite vulnerable clearly demonstrated the

intended mission of the Appellant on the fateful day, which

manifested as a clear intention on his part to kill.

To this end, this Appeal is moribund and lacks merit and it

is accordingly dismissed. The judgment of the High Court

of justice sitting at Sokoto and delivered on the 28-4-2015

by BELLO ABBAS, J. is hereby affirmed.

HUSSEIN MUKHTAR, J.C.A.: I had the privilege of a

preview of the lead judgment just delivered by my learned

brother, Frederick O. Oho, JCA. He has meticulously

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discussed and reviewed the three issues formulated and

canvassed in the briefs filed by the parties in this appeal. I

agree with his reasoning and the conclusion that the appeal

is lacking in substance.

The standard of proof required in a murder case as in all

criminal cases is proof beyond reasonable doubt. The onus

of proof is on the prosecution and not on the defence. In

the instant case, the prosecution had produced sufficient

evidence to establish its case and the burden then shifted

unto the appellant to adduce contradicting evidence, if any

and to call his own witness to establish his defence. See the

case of Sadau v. The State (1968) 1 All NLR P.124. The

appellant was unable to discredit the prosecution evidence

and therefore failed to establish any defence.

The appeal clearly lacks merit and is hereby dismissed. I

adopt the consequential orders made in the judgment.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have the

privilege of reading in advance the judgment just delivered

by my learned brother, Frederick O. Oho JCA in this appeal.

I entirely agree with him that the appeal has no merit at all

as the

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appellant’s confessional statements to the police Exhibits

“B” and “B1” were properly admitted in evidence as

voluntary and was fully supported by other evidence on

record which makes the confession true. The appeal lacks

merit and it is dismissed by me.

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