Monday Telkwet V. The State (2009)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A. 

This appeal is against the Judgment of High Court of Justice, Plateau State, Jos delivered on the 30th day of October, 2017, wherein Appellant was convicted and sentenced to 10 years imprisonment without option of fine for the offence of Culpable Homicide not punishable with death under S.224 of the Penal Code. Appellant was alleged to have caused the death of one Baba Musa by hitting him with a stick on his stomach, which act resulted to the death of deceased on 17/10/2014. Appellant was arraigned before High Court of Justice Jos. An Amended charge was read over to the accused now Appellant and he pleaded not guilty to the charge. At the trial prosecution called three witnesses and tendered seven (7) Exhibits. The Defence on its part opened and closed its case with only the accused testifying as a witness. Written addresses were adopted and the matter was adjourned for Judgment. The learned trial Judge in his well considered Judgment delivered on the 30th October, 2017, wherein Appellant was convicted and sentenced to ten years imprisonment without option of fine.

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Dissatisfied with the Judgment of the trial Court, the Appellant lodged an appeal vide a Notice of Appeal dated the 26th day of January, 2018 and filed on the same date containing eight grounds of appeal.

In compliance with the rules of Court parties filed and exchanged their respective Briefs of Argument. Appellant?s Brief of Argument settled by S.S. Obende, Esq with M.A Dawawu, Esq., W.L Jencwat Esq., D.G Shut, Esq., K.M Zonglong, Esq. and W.S. Aboki, Esq., was dated 30/07/2018 and filed on 31/07/2018. While the Respondent?s Brief of Argument settled by G.D Fwomyon, Esq. Director of Public Prosecution Ministry of Justice Plateau State with I.M Saleh Esq. Principal State Counsel and I. Mantu Esq. was filed same date 01/11/2018 but deemed properly filed on 05/11/2018.

When the appeal came up for hearing, each counsel adopted their respective briefs of argument and Appellant urged Court to allow the appeal. Respondent on the other hand urged the Court to dismiss the appeal.

In the Appellant?s Brief of Argument two issues are distilled for determination as follows:
1) Whether the lower Court was right in relying on Exhibit

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3, as confessional statement to convict the appellant? Relates to Ground 1 of the Notice and Grounds of Appeal.
2) Whether the prosecution proved the guilt of the appellant beyond reasonable doubt ? Relates to grounds 2-8 of the Notice and grounds of Appeal.

The Respondent on his part did not formulate new issues but adopted that of the Appellant.
In determining this appeal, I will adopt Appellant?s issues but same will be treated together for convenience.

Under Issue 1 learned counsel submitted that there is no evidence extrinsic to Exhibits 3 that link the accused person to the death of deceased. Counsel contended that even the lower Court agreed that there was no eyewitness account, no circumstantial evidence to link the accused to the commission of the offence. Counsel contended that it was erroneous for the lower Court to have proceed to place reliance on Exhibit 3 and ascribe weight to Exhibit 3 without resolving whether the tests set out at page 105 of the record has been established. That Exhibit 3 is incapable of being ascribed any weight by the Court. Counsel contended that Exhibit 3 was recorded in English language

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hence the requirement for translation to the accused was needed. That accused was correct when he said Exhibit 3 (written in English language is not his statement). Reliance placed on Bello v C.O.P (2018) 2 NWLR (Pt.1603) 267 @ 331, Olalekan v State (2001) 18 NWLR (Pt.746) 793 @ 819-820 and FRN v Usman (2012)8 NWLR (Pt.1301) 141. Learned counsel submitted that it is clearly beyond doubt that the lower Court did not rely on any other piece of evidence other than Exhibit 3, even in the face of the absence of the Hausa version. That lower Court ought to have exercised caution in placing any weight on Exhibit 3. Counsel also referred to the case of Mudassiru Suleiman v Kano State (2014) LPELR-23601 (CA) to submit that Appellant clearly denied the making of Exhibit 3 as such the weight to be attached to such statement is very important. That the ascription of weight to Exhibit 3 by lower Court was in error. That Exhibit 3 did not satisfy the requirements for ascription of weight on Exhibit 3. He urged Court to resolve issue in favour of the Appellant.

As regards issue 2 learned counsel submitted that it is not in dispute that the Respondent is obliged to prove the