(2017) LPELR-42134(CA)

Transcription

1 YELLI v. STATE CITATION: HUSSEIN MUKHTAR In the Court of Appeal In the Sokoto Judicial Division Holden at Sokoto ON TUESDAY, 21ST FEBRUARY, 2017 Suit No: CA/S/94C/2016 MUHAMMED LAWAL SHUAIBU FREDERICK OZIAKPONO OHO Before Their Lordships: Between BELLO YELLI - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

2 1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: Ingredients the prosecution must prove to establish the offence of culpable homicide punishable with death "... 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."?per OHO, J.C.A. (P. 22, Paras. C-F) - read in context 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: When will a person be guilty of offence of culpable homicide punishable with death "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. 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 "?Per OHO, J.C.A. (Pp , Paras. F-C) - read in context 3. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: When will a person be guilty of offence of culpable homicide punishable with death "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."per OHO, J.C.A. (P. 31, Paras. E-F) - read in context

3 4. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof required in an offence of culpable homicide "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 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 ofemeka vs. STATE (2001) 14 NWLR (pt. 734) page 666 at 683, AKINMOJU vs. STATE (1995) NWLR (pt. 406) 24 at 2012."?Per OHO, J.C.A. (Pp , Paras. C-B) - read in context 5. EVIDENCE - CONFESSIONAL STATEMENT: Meaning of confession "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." Per OHO, J.C.A. (P. 25, Paras. B-E) - read in context

4 6. EVIDENCE - CONFESSIONAL STATEMENT: Whether the retraction of a voluntary confessional statement renders it inadmissible; effect when a confession is satisfactorily proved "The settled position of the law, however is that a retraction of a confession does not ipso facto render the confession inadmissible. See 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 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." Per OHO, J.C.A. (Pp , Paras. F-C) - read in context

5 7. EVIDENCE - CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same "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 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." Per OHO, J.C.A. (Pp , Paras. E-E) - read in context 8. EVIDENCE - CROSS-EXAMINATION : Effect of failure to crossexamine a witness on material point "... 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." Per OHO, J.C.A. (P. 30, Paras. A-E) - read in context

6 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 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."Per MUKHTAR, J.C.A. (P. 33, Paras. A-D) - read in context

7 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 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 1

8 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, 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 By an Amended Notice of Appeal filed on the , a total of three (3) Grounds of Appeal were filed, which are reproduced here as follows; 2

9 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. 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. R. 10 in convicting and sentencing the Appellant. PARTICULARS i) Whereas the Supreme Court held in OKPAKO vs. STATE (2013) 11 WRN P. 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 3

10 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 4

11 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 extrajudicial 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 5

12 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, According to learned Counsel in the decision of the case ofutuyorume vs. THE STATE (2010) 43 WRN p. 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 6

13 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) 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 7

14 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 8

15 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 coexist 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 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 9

16 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, 10

17 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 11

18 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 12

19 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 13

20 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 14

21 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. 156 Ratio 6. In addition, Counsel further argued that a confessional statement must be direct and positive, but that in the present 15

22 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 16

23 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 17

24 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 18

25 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) 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 19

26 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 extrajudicial 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 20

27 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, 21

28 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 22

29 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 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 23

30 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 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 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. 24

31 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 25

32 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 26

33 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 27

34 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 28

35 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 29

36 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 30

37 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 31

38 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 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 32

39 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 33

40 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. 34