(2016) LPELR-41310(CA)

Transcription

1 HALLIRU v. STATE CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna ISAIAH OLUFEMI AKEJU IBRAHIM SHATA BDLIYA ON THURSDAY, 16TH JUNE, 2016 Suit No: CA/K/393/C/2014 Before Their Lordships: HABEEB ADEWALE OLUMUYIWA ABIRU ABDULRASHEED HALLIRU Between And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s)

2 1. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: What the prosecution must prove to establish the offence of culpable homicide punishable with death "It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted - Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298."Per ABIRU, J.C.A. (Pp , Paras. D-D) - read in context

3 2. CRIMINAL LAW AND PROCEDURE - GUILT OF AN ACCUSED PERSON: How to establish/prove the guilt of an accused person "It is settled law that in a criminal trial the prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes - Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Umar Vs State (2014) 13 NWLR (Pt.1425) 497."Per ABIRU, J.C.A. (P. 15, Paras. A-D) - read in context

4 3. CRIMINAL LAW AND PROCEDURE - INTENTION: How an intention to kill can be inferred "It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder - Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Njoku Vs State supra. In order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused - Iden Vs State (1994) 8 NWLR (Pt 365) 719. Thus, in Ejeka Vs State (2003) 7 NWLR (Pt. 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant's intention was to cause grievous injury to the deceased. Similarly, in Nwokearu Vs State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased."per ABIRU, J.C.A. (Pp , Paras. B-B) - read in context

5 4. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: When can it be said that the prosecution has proved his case beyond reasonable doubt "It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt - Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus: "Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave 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 will suffice." This statement has been adopted and has been severally reiterated by Supreme Court in several cases."per ABIRU, J.C.A. (Pp , Paras. D-E) - read in context

6 5. EVIDENCE - CAUSE OF DEATH: Whether the cause of death of a victim must be the act of the accused person "On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant - Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt.1122) 354, Illiyasu vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus: "In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the Person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence."per ABIRU, J.C.A. (Pp , Paras. B-B) - read in context

7 6. EVIDENCE - CONFESSIONAL STATEMENT: What a judge must do where a confession is objected to on the ground that the confession is not made voluntarily "In Okonkwo vs State (1998) 8 NWLR (Pt 561) 210 it was held that where an allegation of involuntariness of a confessional statement is made, the Court is empowered to look through the contents of the confessional statement to determine if the structure and pattern of the contents were consistent with a statement made involuntarily."per ABIRU, J.C.A. (P. 22, Paras. C-D) - read in context

8 7. EVIDENCE - CONFESSIONAL STATEMENT: Test for admissibility of a confessional statement "...it is settled law that where an accused person retracts his confessional statement, as the Appellant sought to do in this case, this does not affect the admissibility of the confessional statement and what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests: i. whether there is anything outside the confession which shows that it may be true; ii. whether it is corroborated in any way; iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested; iv. whether the defendant had the opportunity of committing the offence; v. whether the confession is possible; and vi. whether the alleged confession is consistent with other facts that have been ascertained and established. See the cases of Osuagwu vs State (2009) 1 NWLR (Pt 1123) 523, Kabiru vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1 and Galadima vs State (2012) 18 NWLR (Pt 1333) 610."Per ABIRU, J.C.A. (Pp , Paras. E-D) - read in context

9 8. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: Nature and meaning of corroboration "...corroborative evidence is evidence which is supplementary to that already given and tending to strengthen or confirm it. It is additional evidence of different character on the same point - Stephen Vs State (2013) LPELR-SC.256/2010, Musa Vs State (2013) LPELR-SC.409/2011. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person - Omisade vs The Queen (1964) NSCC 170, Okabichi vs State (1975) 3 SC 96, Ogugu vs State (1994) 9 NWLR (Pt 366) 1, Ogunbayo vs The State (2007) 8 NWLR (Pt.1035) 157."Per ABIRU, J.C.A. (Pp , Paras. D-A) - read in context

10 9. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: Nature of corroborative evidence required to verify the contents of a confessional statement "The corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525."Per ABIRU, J.C.A. (P. 25, Paras. B-D) - read in context 10. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: How to determine what evidence amounts to corroboration; extent of corroboration required "To amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question-ezigbo vs The State (20112) LPELR-7855 (SC)."Per ABIRU, J.C.A. (P. 25, Paras. D- E) - read in context

11 11. EVIDENCE - ORAL/DOCUMENTARY EVIDENCE: The position of the law where there is oral as well as documentary evidence "It is settled law that an oral confession carried no less weight than one made in writing - Jua vs State (2010) 4 NWLR (Pt 1784) 217, Dawai vs State (2013) LPELR-20759(CA) and Adamu vs state (2014) LPELR-CA/K/373/C/2013."Per ABIRU, J.C.A. (P. 28, Paras. D-F) - read in context

12 12. EVIDENCE - DOCTRINE OF LAST SEEN: Application of the doctrine of last seen; and duty on accused to give an explanation as to the death of a deceased where he is the last person seen with same "The doctrine of "last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has turned up dead. Thus, where a defendant was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the defendant in such damnifying circumstances to give an explanation relating to how the deceased met his or her death and in the absence of such an explanation, surely and certainly, a trial Court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased - State Vs Njoku (2010) 1 NWLR (Pt 1175) 243, Oladotun vs State (2010) 15 NWLR (Pt1217) 490, Maigari vs State (2010) 16 NWLR (Pt.1220) 439, Njoku vs State (2013) 2 NWLR (Pt 1339) 548."Per ABIRU, J.C.A. (P. 29, Paras. A-F) - read in context

13 13. EVIDENCE - CORROBORATION/CORROBORATIVE EVIDENCE: Whether a medical report on the nature of injury can serve as corroborative evidence for the contents of a confessional statement "...the lower Court found corroborative evidence for the contents of the confessional statements in the medical report of cause of death, Exhibit C, in the description of the nature of the injury that caused the death, a deep wound at the right side of the chest. The lower Court stated that this was consistent with the nature of injury that the Appellant stated that he inflicted on the deceased in the two confessional statements. In Igri vs State (2012) 16 NWLR (Pt 1327) 522, the Supreme Court opined that a medical report on the nature of injury could serve as corroborative evidence for the contents of a confessional statement."per ABIRU, J.C.A. (P. 30, Paras. B-E) - read in context

14 HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kano State High Court in Charge No K/131C/2011 delivered by Honorable Justice Yusuf Ubale Mohammed on the 26th of June, The Appellant was arraigned before the lower Court on a one count charge of culpable homicide punishable with death under Section 221 of the Penal Code Law of Kano State. The Appellant was alleged to have caused the death of one Hajiya Hauwa on the 15th of June, 2010 in Bachirawa Quarters, Kano by stabbing her with a knife in the stomach with the knowledge that death would be the probable consequence of the act. The Appellant pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called three witnesses and tendered exhibits in proof of its case against the Appellant. The Appellant testified as the sole defence in his defence. At the conclusion of trial and after the final addresses of Counsel, the lower Court found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant was dissatisfied with the judgment of the lower Court and he caused his Counsel to 1

15 file a notice of appeal against it. The notice of appeal is dated the 30th of June 2014 and it contained three grounds of appeal. In canvassing the case of the Appellant in this appeal, his counsel filed a brief of arguments dated the 27th of February, 2015 on the same day and the brief of arguments was deemed properly filed and served by this Court on the 27th of April, In response, Counsel to the Respondent filed a brief of arguments dated the 1st of July, 2015 on the 7th of July, 2015 and the brief of arguments was deemed properly filed by this Court on the 5th of October, At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs as their oral submissions in the appeal. Counsel to the Appellant formulated one single issue for determination in this appeal and this was: Looking at the entire circumstances of this case, ranging from the fact that the Appellant was not arrested at the crime scene, the failure to call the Good Samaritan who arrested the Appellant, the failure of the prosecution to state what informed the belief of the Good Samaritan's account, the retraction of 2

16 Exhibits D, D1, E and E1 and the systemic failure displayed by the prosecution while conducting the investigation of this case, would it be rightly and safely said that the prosecution had led evidence that was positive, direct and cogent enough to secure conviction circumstantially as pronounced by your Lordships learned brothers at the Supreme Court in the case of Akpa Vs State (2008) 4-5 SC (pt II) 1 at lines 27 to 10 which was heavily relied upon by the trial Judge. In arguing the issue for determination, Counsel reiterated the established principles of criminal litigation that conviction of an accused can be secured by (i) a confessional statement; (ii) direct or positive evidence; (iii) circumstantial evidence; or (iv) a combination of all or any of these methods and that to do so the prosecution bears the burden of proving the basic elements of the offence and that failure to do so would be tantamount to the prosecution not discharging its onus of proof, and he referred to the cases of Umar Vs State (2014) 6-7SC (Pt III) 1 and Alabi Vs State (1993) 7 NWLR (Pt 307) 511, amongst others. Counsel also restated the three ingredients of the offence 3

17 of culpable homicide punishable with death and he thereafter carried out an anatomy of the evidence led by the three prosecution witnesses by summarizing and traversing through the testimony of each witness and stated that the evidence of the witnesses showed that the Appellant was not arrested at the scene of the crime and as such none of them gave direct evidence of the commission of the crime by the Appellant. Counsel commented at length on Exhibit A2, the photograph of the Appellant taken by the Police after his arrest while holding the knife allegedly used to stab the deceased, and stated that the inference deducible from the photograph was that force of pressure was used on the Appellant by the police investigators and this was what also birthed the confessional statements of the Appellant, Exhibits D, D1, E and E1. Counsel stated that the prosecution who intends to rely on circumstantial evidence to secure a conviction was obligated to work diligently to show concretely, cogently and directly that it was indeed the accused person who committed the offence as was demonstrated by the police investigators involved in the case of Akpa Vs State supra 4

18 and which led to the conviction of the accused in that matter and that the attitude of the police investigators and the circumstances in the present case were far from those in that case and the lower Court was thus wrong in relying on the decision in that case in coming to its decision in the present case. Counsel stated that the investigation carried out by the policemen, particularly the second and third prosecution witnesses, in the present case were not such as to lead directly, positively, unequivocally and irresistibly to the inference that it was the Appellant that committed the offence charged in the circumstances of this case and he proceeded to condemn the police investigation in the present case and was particularly critical of the failure to subject the knife, the alleged weapon of offence, to finger print analysis and he referred to the cases of Aigbadion vs State (2000) 7 NWLR (pt 666) 686, Bozin vs State (1985) 2 NWLR (Pt.8) 465 wherein the Supreme Court lamented shoody investigation of cases by police officers. Counsel also referred to the comments of the Justices of the Supreme Court in Onah vs State (1985) 3 NWLR (Pt 8) 236 on the usefulness 5

19 of forensic analysis in the investigation of murder cases where there are no eye witness accounts and suggested that the failure of the police investigators to use forensic analysis in the present case amounted to lack of proof of the fact that it was the Appellant that committed the crime alleged and that this negated the finding of guilt made against the Appellant by the lower Court. Counsel concluded his arguments by urging this Court to allow the appeal and to set aside the judgment of the lower Court and the sentence passed therein on the Appellant and to discharge and acquit the Appellant. In his response, Counsel to the Respondent adopted the issue for determination distilled by the Counsel to the Appellant and in arguing the issue, he reiterated the ingredients of the offence of culpable homicide punishable with death and stated that the Respondent adduced direct and positive evidence, including the confessional statements of the Appellant, in proving each of the said ingredients beyond reasonable doubt and that the lower Court was right when it convicted the Appellant for the offence charged on the strength of the evidence. Counsel stated 6

20 that an accused person can be properly convicted on his or her confessional statement alone if it is proved to have been made voluntarily and it is positive and amounts unequivocally to an admission of guilt and that in Exhibits D, D1, E and E1, the confessional statements made to the Police, the Appellant narrated the events and circumstances leading up to his stabbing the deceased with a knife, including the why and how, and thereafter locking her up in the house from outside and counsel referred to the case of Egboghonome Vs State (1993) 7 NWLR (Pt 306) 411, amongst others. Counsel stated that once a confessional statement is admitted in evidence it becomes part of the case of the prosecution which the trial Judge is bound to consider in the evaluation of evidence and that a confessional statement is the best evidence in criminal procedure and must be admitted in evidence at trial unless contested by the accused person and he referred to the case of Nwachukwu Vs The State (2007) MJSC 66. With respect to the comments of the Counsel to the Appellant on the photograph of the Appellant holding the alleged murder weapon, Exhibit A2, Counsel stated that the 7

21 photograph was admitted at trial without any objection by Counsel to the Appellant and that it is settled law that objection to a document sought to be tendered is taken at the point the document is being put into evidence and that where a party so fails to object to the admissibility of a document at trial, he cannot take up the issue on appeal and he referred to the cases of Etim vs Ekpe (1983) 1 SCNLR 120 and Alade vs Olukade (1976) SC 183. Counsel stated that, in the circumstances, the comments of the Counsel to the Appellant on Exhibit A2 were not well founded because a party discharges the burden at trial and not through the dexterous arguments in the brief and that what an appellate Court should look at in determining the strength of a party's case in the arena of proof is the record of proceedings and he referred to the case of Na-Bature Vs Mahuta (1992) 9 NWLR (Pt 263) 85. Counsel stated that the lower Court was right when it relied on the case of Akpa Vs State supra in finding the guilt of the Appellant because the evidence before it, as rightly noted by the lower Court, were not just the oral testimonies of the witnesses, but also the two 8

22 confessional statements made by the Appellant at the two police stations that investigated the crime. Counsel referred to the six-way test laid down by the Courts in testing the veracity of retracted confessional statements and stated that the testimony of the first plaintiff witness that the Appellant was the last person seen with the deceased provided adequate corroboration for the contents of the confessional statements of the Appellant and that the evidence raised the doctrine of last seen which cast the burden of proving how the deceased met her death on the Appellant and he referred to the case of Archibong Vs State (2006) 14 NWLR (Pt.1000) 349. On the failure to carry out forensic laboratory analysis in the course of investigating the offence against the Appellant, Counsel stated that it was not fatal to the case of the Respondent since there was cogent, reliable and authentic evidence which the lower Court accepted and relied in finding the guilt of the Appellant, particularly the confessional statements of the Appellant and he referred to the cases of Abiodun vs Adekoya (2000) LPELR-360 (CA) and Gbadamosi vs State (1991) 6 NWLR (Pt.196) 192. Counsel 9

23 concluded his arguments by urging this Court to resolve the two issues for determination in favour of the Respondent and to dismiss the appeal and affirm the judgment of the lower Court and the sentence passed therein on the Appellant. This Court agrees with Counsel to the parties that there is one issue for determination in this case and it is whether the lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of culpable homicide punishable with death against the Appellant beyond reasonable doubt. The Appellant was alleged to have killed of one Hajia Hauwa by stabbing her with a knife in the stomach with the knowledge that death would be the probable consequence of his act. It is trite that for a prosecution to secure a conviction for culpable homicide punishable with death, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that the deceased died; (ii) that the death of the deceased resulted from the act of the defendant; and (iii) that the defendant caused the death of the deceased intentionally or with 10

24 knowledge that death or grievous bodily harm was its probable consequence. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of culpable homicide punishable with death would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted - Sabi Vs State (2011) 14 NWLR (Pt 1268) 421, Obi Vs State (2013) 5 NWLR (Pt 1346) 68, Babatunde Vs State (2014) 2 NWLR (Pt 1391) 298. It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. Absolute certainty is impossible in any human adventure including the administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the 11

25 prosecution is said to have established its case beyond reasonable doubt - Adeleke Vs State (2013) 16 NWLR (Pt 1381) 556 and Babarinde Vs State (2014) 3 NWLR (Pt 1395) 568. This point was expressed by Denning J (as he then was) in Miller Vs Minister of Pensions (1947) 2 All ER 372 at 373 thus: "Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is as strong against a man as to leave 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 will suffice." This statement has been adopted and has been severally reiterated by Supreme Court in several cases. On the first ingredient of the offence of culpable homicide punishable with death, it was not in contest between the parties that the person referred to in the charge against the Appellant as Hajia Hauwa is dead. All the witnesses, both the prosecution and the defence witnesses, testified to the 12

26 death of the deceased and the Respondent tendered a post mortem report dated the 16th of June, 2010 issued by a Medical Doctor confirming the death of the deceased as Exhibit C3. Further, the finding of the lower Court on the issue in the judgment has not been appealed against by the Appellant. On the second ingredient of the offence of whether it was the act of the Appellant that caused the death of the deceased person, the law is that to establish this ingredient beyond reasonable doubt, the Respondent must establish the cause of death unequivocally and then there must be cogent evidence linking the cause of death to the act of the Appellant - Udosen Vs State (2007) 4 NWLR (Pt 1023) 125, Oche Vs State (2007) 5 NWLR (Pt 1027) 214, Ekpoisong Vs State (2009) 1 NWLR (Pt.1122) 354, Illiyasu vs State (2014) 15 NWLR (Pt 1430) 245. This point was made by the Supreme Court in Oforlete Vs State (2000) 12 NWLR (Pt 631) 415 thus: In every case where it is alleged that death has resulted from the act of a person, a causal link between the death and the act must be established and proved in a criminal proceeding, beyond reasonable doubt. The first and 13

27 logical step in the process of such proof is to prove the cause of death. Where there is no certainty as to the cause of death, the enquiry should not proceed no further. Where the cause of death is ascertained, the next step in the enquiry is to link that cause of death with the act or omission of the Person alleged to have caused it. These are factual questions to be answered by a consideration of the evidence" On the cause of death, the Respondent tendered the post mortem report of the medical examiner as Exhibits C and C1 as well as the medical report, Exhibit C3, which put the cause of death as deep stab wound on the chest which led to cardiopulmonary arrest due to hypovolaemic shock. The cause of death as stated in the autopsy report was consistent with the testimonies of first and third prosecution witnesses that the deceased had a stab wound on her chest. The Appellant did not contest at the trial that deceased died from a deep stab wound to the chest. The Respondent thus led cogent evidence proving the cause of death of the deceased beyond reasonable doubt. This takes us to the second limb of the second ingredient of the offence of culpable 14

28 homicide punishable with death; whether it was the act of the Appellant that caused the death of the deceased. It is settled law that in a criminal trial the prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes - Emeka Vs State (2001) 14 NWLR (Pt.734) 666, Nigerian Navy Vs Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe Vs State (2012) 18 NWLR (Pt 1331) 1, Umar Vs State (2014) 13 NWLR (Pt.1425) 497. It is obvious from the records of appeal that the Respondent relied on both confessional statement and circumstantial evidence in proving the guilt of the Appellant and that it was on these bases that the lower Court convicted and sentenced the Appellant. The Respondent tendered two confessional statements. The first confessional statement said to have been made by the Appellant was at Bachirawa Police Division upon his arrest and it was tendered by the third prosecution witness, one Corporal Aminu Sani, and he 15

29 testified thus: On 16/6/2010 I was at Bachirawa Police Division as an Investigating Police Officer, and a case of culpable homicide was reported by one Sabuwa Yusuf... I recorded her statement, and myself and a photographer together with Sabuwa Yusuf went to the scene of crime, and we opened the door to the room, and we found the deceased in a pool of blood, with a stab wound on her chest. We took snap shots of the corpse. The name of the deceased is Hajiya Hauwa. I then removed the corpse to Murtala Mohammed Specialist Hospital for medical examination. After two days, a good Samaritan, also a resident of Bachirawa, arrested and brought to the station one AbdilRashid Halliru who was alleged to have committed the offence. I cautioned the accused about the offence he was alleged to have committed in Hausa language and the accused voluntarily gave his statement, which I recorded in Hausa language, after which I translated same into English language. I read over the statement to the accused to his understanding and he put his thumb print on both the Hausa and English versions of his statement.... I took the accused person before 16

30 the Divisional Police Officer, SP Salisu Mohammed where the statement of the accused was endorsed. The accused person was also present when the endorsement was done and the Divisional Police Officer read over the statement to the accused person and he confirmed to him that he voluntarily made the statement, not under duress or promise. The accused person signed and the Superior Officer counter signed..." When the witness made to tender the statement, Counsel to the Appellant objected on the ground of involuntariness and consequent on which the trial Court conducted a trial within trial. In his evidence in course of the trial within trial, the Appellant testified that though he was beaten, he did not make any statement at Bachirawa police Station. In view of this testimony, the lower Court opined that the contest of the Appellant with the confessional statement was not one of involuntariness but of probative value to be attached and it overruled the objection to the admissibility of the confessional statement and the Hausa and English versions of the confessional statement were admitted as Exhibits E and E1. The English version of the confessional 17

31 statement, Exhibit E1, carried the words of caution with a thumbprint, a thumbprint at the end of the statement, the endorsement of SP Salisu Mohammed and his signature and a thumbprint after the endorsement; exactly as stated by the third prosecution witness. Exhibit E1 read thus:... I of the above mentioned name and address voluntarily wish to state as follows:- I was born at Itas Gadau in Bauchi State with my father Mallam Halliru and mother Saadatu Halliru. I have attend Gwanmaja Bola Primary School, I then moved to Islamic School in Gwanmaja. I could remember on 15 / 6 / 2010 at about 0700hrs, my father junior brother wife left home, leaving me with my grandmother Hajiya Hauwa. I was at my room, my grandmother came in abusing me and even called me bastard, simply because she saw me at home this time that I refuse to go work. She said I should not ask her for money if I am in need of money, She then went back to her room. I follow her inside her room and I used a knife to stab her on her stomach, she felled down unconscious. I then went to my father junior brother wife room, checked and found some money, the sum of N7,000, I took it. I also 18

32 used padlock and locked the room of my grandmother who was already inside. I took to my heels, I hide myself almost... days at Sharada at the room of my friend by name Kabiru. This night I brought myself to Bachirawa assuming my grandmother is still alive. Unfortunately I was arrested by a youth of this area and brought to Bachirawa Division." The second confessional statement was the one that the Appellant made at the State Criminal Investigation Department after the case file was transferred from Bachirawa Police Division. The statement was tendered by one Sergeant Ahmed Hussaini and he testified as the second prosecution witness. The witness stated thus: "... On 30/6/2010, I was on duty at the State CID, Kano as an IPO at the Homicide Section when a case of culpable homicide and theft was referred from Bachirawa Police Division for discreet investigation and our team headed by Inspector Musa Abdullahi was detailed to investigate. The case was transferred along with AbdulRashid, the suspect, and a case diary containing the exhibits... On receipt of the case, I was detailed to record the statement of a witness and the suspect. I took the 19

33 suspect to the investigation room, where I administered the words of caution to him in Hausa... and the accused signed. The accused then volunteered to give a statement which I recorded in which he confessed to the commission of the crimes by stabbing his grandmother Hajiya Hauwa Yusuf 90 years old. After recording the statement, I read over the statement in Hausa to the accused and he signed, while I also signed. I also translated the statement from Hausa to English language and I took the accused and the statement before a Superior Police Officer. I read over the statement and the accused agreed it was his statement and he put his thumbprint, I signed and the Superior Police Officer endorsed..." When the confessional statement was sought to be tendered, Counsel to the Appellant raised an objection that the Appellant did not make the statement. The lower Court overruled the objection again on the ground that the contest of the Appellant with the confessional statement was not one of involuntariness but of probative value to be attached and it admitted the Hausa and English versions of the confessional statement as Exhibits D and D1. The English 20

34 version of the confessional statement, Exhibit D1, carried the words of caution with a thumbprint, a thumbprint at the end of the statement, the endorsement of the ASP and his signature and a thumbprint after the endorsement; exactly as stated by the second prosecution witness. Exhibit D1 read thus: "I was born at Itasgadau LGA of Bauchi State twenty years ago. I attended Gwammaja Primary School but I did not attend secondary school. I am now doing Achaba to earn my living. I lost my father when I was at tender age before I was brought to Kano by my uncle, Mallam Yusuf, where I have been staying with him in his house together with my grandmother Hajiya Hauwa. I could remember on 15 / 6 / 2010 at about 0900hrs I was sleeping in my bedroom (shop) my grandmother, Hajiya, peeped into the room and started abusing me, advising me to wake up and look for my daily bread but I pleaded with her that I am... sick but she insisted and she went to her bedroom. After a while, I was highly provoked with her advise. Eventually, I woke up, took a knife and met her in her bedroom and stabbed on her stomach and inflicted injuries on her body then I... the door. I now 21

35 proceed to the bedroom of my uncle's wife, open the room and stole her money in the sum of Eight thousand Naira I leave the house until on 19/6/2010 In his evidence in his defence, the Appellant suggested that he did not make either of the confessional statements and that they were written by the policemen at the two police stations and he stated that he was beaten by the policemen only at Bachirawa police Division. In Okonkwo vs State (1998) 8 NWLR (Pt 561) 210 it was held that where an allegation of involuntariness of a confessional statement is made, the Court is empowered to look through the contents of the confessional statement to determine if the structure and pattern of the contents were consistent with a statement made involuntarily. Looking at the contents of Exhibit E1, the first confessional statement made at Bachirawa police Division, it started with the first and educational background of the Appellant and from there proceeded to the narrate the occurrence of the incident on the day of the commission of the crime. The story was properly sequenced, well structured and patterned and it was a continuous narrative which 22

36 told a flowing and consistent story. The Appellant did not deny the family and educational history contained in the statement and he did not explain how the policemen in Bachirawa Police Division came to know his family and educational history. Again, looking at the contents of Exhibit E1 which was made on the 19th of June, 2010 and of Exhibit D1 made on the 30th of June, 2010, at two different Police Stations and recorded by two different policemen, it is obvious that they were similar and consistent on the facts material to this case and they corroborated each other. It stands to reason that they must have been made by the same person. The assertion of the Appellant that he did not make the confessional statements and his retraction of them was thus clearly an afterthought. Further, it is settled law that where an accused person retracts his confessional statement, as the Appellant sought to do in this case, this does not affect the admissibility of the confessional statement and what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests: i. whether 23

37 there is anything outside the confession which shows that it may be true; ii. whether it is corroborated in any way; iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested; iv. whether the defendant had the opportunity of committing the offence; v. whether the confession is possible; and vi. whether the alleged confession is consistent with other facts that have been ascertained and established. See the cases of Osuagwu vs State (2009) 1 NWLR (Pt 1123) 523, Kabiru vs Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1 and Galadima vs State (2012) 18 NWLR (Pt 1333) 610. Now, corroborative evidence is evidence which is supplementary to that already given and tending to strengthen or confirm it. It is additional evidence of different character on the same point - Stephen Vs State (2013) LPELR-SC.256/2010, Musa Vs State (2013) LPELR-SC.409/2011. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the 24

38 accused person - Omisade vs The Queen (1964) NSCC 170, Okabichi vs State (1975) 3 SC 96, Ogugu vs State (1994) 9 NWLR (Pt 366) 1, Ogunbayo vs The State (2007) 8 NWLR (Pt.1035) 157. The corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525. To amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question-ezigbo vs The State (20112) LPELR-7855 (SC). Looking through the judgment of the lower Court, it found corroborative evidence for the contents of Exhibits E1 and D1 in the testimonies of the first prosecution witness. The first prosecution witness was the wife of the uncle of the Appellant. She testified that:... 25

39 I know the accused person in this case as he is the son of my late husband's senior brother by name Mallam Halliru. I knew Hauwa who is now deceased. She is the mother to my late husband and also the grandmother to the accused person. Before the death of Hajiya Hauwa we lived in the same house and the accused was also staying in the same house with us. On 15/6/2010 in the morning I greeted the old lady around Seven O'clock in the morning and she sent my daughter to buy pap (koko) for her. The name of my daughter is Hafsat. On her return from the errand, I sent Hafsat and Amina to school at Dawanau while Hafsat attends a school at Bachirawa Yan'Katako. Amina is 13 years old and Hafsat 9 years. Amina is also my daughter. After sending my two daughters to school, I went to my place of work, the house of Alhaji Auwalu Danchanji and I normally return at about 11.00am. When I left the accused Person and the late Hajiya Hauwa remained in the house. On my return at about 11.00am, I noticed that the lock to my room was broken, and my belongings scattered. We noticed that the money kept by Amina in the room was missing. Amina came back from school at 26

40 around 2.00pm while Hafsat returned around 1.00pm, I noticed that the room belonging to Hajiya Hauwa was locked from outside, and I thought she had gone somewhere. We checked where she normally goes but they said they have not seen her. The following day we started searching for her where about. We looked for Hajiya Hauwa at Malam Garba's house and they told us she was in the house a day before the incident and she stayed up till time for Maghrib prayer. We then decided to check for her in her room, and on pushing the window to her room, we saw her on the floor with her head under the bed and her legs outside. We went and called Malam Garba who is a friend of my late husband and when they saw what happened they went and called the police... Four days after the death of Hajiya Hauwa, the accused person re-appeared. At the time the corpse was found up to its burial, we did not see the accused person... The friends to the accused arrested him and took him to Gama Gaku Police Station at Bachirawa. The police later invited me and asked me questions and I told them all that I know. I saw the accused at the police station, I was also present when the 27

41 police interrogated the accused and he told them that he committed the offence but did not expect the old woman to die. The testimony of this witness was not challenged, disparaged or diminished under cross-examination. She stated under cross-examination that she saw the Appellant behind the counter at the Police Station and that she did not see the Police beat the Appellant. A read through the evidence shows that it corroborates the contents of the two confessional statements in material particulars such as the locking of the deceased room with a padlock, meeting her room scattered with money missing, the manner of arrest of the Appellant, etc. Of particular importance was the evidence of the oral confession that the witness said she heard the Appellant make to the Police in the course of his interrogation at the Police Station. It is settled law that an oral confession carries no less weight than one made in writing - Jua vs State (2010) 4 NWLR (Pt 1784) 217, Dawai vs State (2013) LPELR-20759(CA) and Adamu vs state (2014) LPELR-CA/K/373/C/2013. The oral confession supported the contents of the written confessional statements. The 28

42 unchallenged evidence of the first prosecution witness also raised the doctrine of last seen - that the Appellant was the only person left in the house with the deceased when she left the house in the morning of the day of the incident. The doctrine of last seen" means that the law presumes that the person last seen with a deceased bears full responsibility for his death if it turns out that the person last seen with him has turned up dead. Thus, where a defendant was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other safe conclusion, then there is no room for acquittal. It is the duty of the defendant in such damnifying circumstances to give an explanation relating to how the deceased met his or her death and in the absence of such an explanation, surely and certainly, a trial Court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased - State Vs Njoku (2010) 1 NWLR (Pt 1175) 243, Oladotun vs State (2010) 15 NWLR (Pt1217) 490, Maigari vs State (2010) 16 NWLR (Pt.1220) 439, Njoku vs State (2013) 2 NWLR (Pt 1339) 548. The 29

43 Appellant offered no explanation of what happened to the deceased or of his movements after the first prosecution witness left him and the deceased at home. This also corroborated the contents of the confessional statement. Further, the lower Court found corroborative evidence for the contents of the confessional statements in the medical report of cause of death, Exhibit C, in the description of the nature of the injury that caused the death, a deep wound at the right side of the chest. The lower Court stated that this was consistent with the nature of injury that the Appellant stated that he inflicted on the deceased in the two confessional statements. In Igri vs State (2012) 16 NWLR (Pt 1327) 522, the Supreme Court opined that a medical report on the nature of injury could serve as corroborative evidence for the contents of a confessional statement. There were cogent, credible and compelling facts in the evidence led by the Respondent before the lower Court to justify and sustain the finding of the lower Court that it was the act of the Appellant that caused the death of the deceased. This Court cannot fault the findings of the lower Court on the 30

44 point. The third requirement of the offence of culpable homicide punishable with death is whether the Appellant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. This is what is known as "specific intention" necessary for sustaining a murder charge. It is the law that a person intends the natural consequences of his action and if there was an intention to cause grievous bodily harm and death results, then the defendant must be held culpable for the offence of murder - Nwokearu Vs State (2010) 15 NWLR (Pt 1215) 1, Njoku Vs State supra. In order to determine whether a defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon, that is a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of proximity of the victim with the lethal weapon used by the accused - Iden Vs State (1994) 8 NWLR (Pt 365) 719. Thus, in Ejeka Vs State (2003) 7 NWLR (Pt. 819) 31

45 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant's intention was to cause grievous injury to the deceased. Similarly, in Nwokearu Vs State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the Appellant confessed in Exhibits E1 and D1 that he stabbed the deceased with a knife on the stomach and he thereafter left her on the floor of her room and locked the door from outside. The evidence led was that the deceased was an elderly woman of ninety years old and that the Appellant locked the door from outside with a padlock. So, not only did the Appellant injure the deceased in a fatal part of her body, he also ensured that he blocked the avenue by which the deceased might have sought help. This was an exhibition of a clear intention on the part of the Appellant to cause the death of the deceased. This Court finds that the Respondent led cogent, credible and sufficient 32