Aminu Adamu V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Kaduna State High Court sitting in its Zaria Judicial Division in charge No KDH/Z/3C/2009 delivered by Honourable Justice Dogara Mallam on the 19th of April 2013. The Appellant was charged before the lower court with culpable homicide not punishable with death under section 224 of the Penal code.

The Appellant was alleged to have caused the death of one Ibrahim Abdullahi on the 10th of October, 2007 at Royal Primary School, Tudun Jukun in Zaria Local Government Area of Kaduna State by stabbing the deceased on the chest with a cow horn with knowledge or having reason to know that death was a probable consequence of the act.

The Appellant pleaded not guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called four witnesses while the Appellant called two witnesses. At the conclusion of trial, and after final addresses of counsel, the lower court delivered a considered judgment wherein it found the Appellant guilty as charged and sentenced him twenty-one years imprisonment. The Appellant was dissatisfied with the judgment and he filed a notice of appeal dated the 9th of July, 2013 against it. The notice of appeal contained three grounds of appeal.

In arguing the appeal before this court, counsel to the Appellant filed a brief of arguments dated the 19th of September, 2013. Counsel to the Respondent responded by a brief of arguments dated and filed on the 23rd of October, 2013 and the brief of arguments was deemed properly filed on the 6th of February, 2014. At the hearing of the appeal, counsel to the Appellant was present in court while counsel to the Respondent did not attend Court despite the service of hearing notice on him.

Counsel to the Appellant relied on and adopted the arguments contained in the Appellant’s brief of arguments while the Respondent’s brief of arguments was deemed adopted and argued under the provisions of Order 18 Rule 9 (a) of the court of Appeal Rules 2011.

In his brief of arguments, Counsel to the Appellant recounted the brief facts of the case made out by the Respondent against the Appellant in the lower Court, gave summary of the testimony of each of the prosecution witnesses and of the defence witness and stated the highlights of the judgment of the lower court. Counsel thereafter distilled three issues for determination in this appeal and these were:

i. Whether the trial Court was right to have convicted the Appellant on the basis of a confessional statement which was full of doubt and discrepancies.

ii. Whether the interpretation of the nature of the wound allegedly inflicted by the Appellant on the deceased could be ascertained by a mere viewing of a photograph as opposed to proof by scientific or forensic means.

iii. Whether the prosecution has discharged the standard of proof as required by law to warrant the conviction of the Appellant.

Counsel argued the three issues together and he prefaced his arguments with the restatement of the established principles of law governing burden of proof in criminal matters and he referred to several case law authorities and the provisions of section 138 of the Evidence Act and he quoted from the decision in Miller vs Minister of Pensions (1974) 2 All ER 372 on the meaning of proof beyond reasonable doubt.

Counsel asserted that evidence which would ground a conviction in a criminal matter may either be direct or circumstantial and for circumstantial evidence to be reliable, it must be so cogent and compelling as to lead to only one conclusion and he referred to several case law authorities including the case of Onah Vs State (1985) 3 NWLR (Pt.12) 236.

Counsel also restated the necessary ingredients of the offence of culpable homicide not punishable with death as laid down in a plethora of case law authorities and which must be proved beyond reasonable doubt to sustain a charge against an accused person and he stated that in the instant case, the Respondent failed to discharge the onus of proof on it as the testimonies of the prosecution witnesses were full of material contradictions and that as such a reasonable doubt was cast on the guilt of the Appellant which ought to have resolved in his favour.

Counsel referred to the confessional statement of the Appellant tendered as Exhibits P1 and P1A and stated that it cannot be said to have been made freely and voluntarily and that though the objection to the statement was overruled by the lower court after a trial within trial was conducted, the testimony of the Appellant in the course of his defence on the humiliation and torture he was subjected to and which led to the confessional statement was not challenged or contradicted by the Respondent. Counsel stated that the Superior Police Officer, one ASP Bako Kagoma, who was said to have translated the confessional statement into English language and endorsed same was not called as a prosecution witness and that this amounted to withholding evidence which if produced would have destroyed the case of the Respondent and was thus fatal to the case of the Respondent on the voluntariness of the confessional statement; he referred to the provisions of section 167 of the Evidence Act and several case law authorities on the point.