Chungwom Kim V. State (1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C 

In a Jos High Court presided over by Emefo, J., the appellant was charged with an offence of culpable homicide punishable with death. The charge as amended read as follows: “That you CHUNGWOM KIM, on or about the 5th day of July, 1981 at Patikko Village did commit culpable homicide punishable with death in that you caused the death of CHIBI NYANA by beating him and stabbing him with a knife with the knowledge that his death will be the probable consequence of your act and thereby committed an offence punishable under section 221 of the Penal Code.”

He pleaded not guilty to the charge. The prosecution called six witnesses and the appellant testified on his own behalf but called no witness.

There was no eye witness to the incident which led to the death of the deceased. But the prosecution relied heavily on three confessional statements made by the appellant to the police before the trial began and which were tendered as Exhs.A (in Hausa) and A1 (English translation), B (in Hausa) and B1 (English translation), and C (in Hausa) and C1 (English translation). Because of the issues raised on these statements in this appeal, I shall deal with them in greater detail later on. Suffice it to say at this stage that after trial and listening to the addresses of counsel on both sides, the learned trial judge found him guilty as charged and sentenced him to death.

Appellant’s appeal to the Court of Appeal, Jos Division, (Coram Omololu Thomas, Ndoma-Egba and Adio, J.J.C.A) was dismissed. Hence his further appeal to this Court. One original ground of appeal was filed with the notice of appeal; but with the leave of this Court six additional grounds were filed. From these seven grounds of appeal, learned counsel for the appellant, Mr. Ezeobi, formulated the following issues:

“1 (a) Whether the complaint against acts of misdirection by the Court below are valid and substantial.

(b) If so, whether the judgment of the Court below so riddled with fundamental acts of misdirection can be said not to have occasioned a substantial miscarriage of justice.

2. Whether the courts below were right in holding that the alleged confessional statements, Exhibits “A-A1”, “B1- B1” and “C-C1”, on which alone the trial court relied in convicting the appellant were:

(a) recorded in substantial compliance with the law and practice;

(b) properly admitted in evidence; and

(c) properly relied upon by the trial court in convicting the appellant having regard to its decision that all previous statements of the accused (i.e. before trial) are unreliable.

3. Whether the conviction of the appellant for culpable homicide punishable with death as affirmed by the court below can be supported:

(a) in the absence of oral evidence outside Exhibits “A-A1”. “B-B1” and “C-C1″;

(b) in view, in any event of the defences of right of private self-defence and provocation which arise from the said Exhibit.

4. Whether the appellant’s constitutional right to fair hearing was observed in the trial court when:

(a) the legal representation was no more than nominal;

(b) the learned trial Judge patently failed in his judgment to maintain the required balance between the prosecution and the appellant.”

The learned Solicitor-General for Plateau State, Mr. Dakwang, who appeared for the respondent formulated five issues thus:

“1. Whether appeals to the Court of Appeal and indeed the Supreme Court are argued solely on grounds of appeal and not on issues set forth by the parties for determination.

2. (a) Did the appellant make the confessional statements in exhibits A-A1, B-B1 and C-C1 voluntarily

(b) If so, are the said confessional statements admissible in evidence

(c) Can a retraction of the said confessional statements by general and mere denial of the offence without any explanation proffered by the appellant in the course of his defence, wholly discountenance credible and admissible evidence

Alternatively, can general and mere denial of the offence against the appellant without more, wholly render confessional statements; exhibits A-A1, B-B1 and C-C1 unreliable for the court to act on

3. Were the proper procedures adopted in recording exhibits A-A1, B-B1 and C-C1 from the appellant
4. Apart from exhibits A-A1, B-B1 and C-C1 were there other facts or evidence which substantially corroborated the confessional statement in the said exhibits
5. Whether the defences of provocation and self defence were raised and avail the appellant”

I shall consider these issues together wherever possible.

Because of the import of Exhibits A-A1, B-B1 and C-C1 in this appeal, I shall consider issue No.2 as formulated on behalf of the appellant and issues numbered B, and C by the learned counsel for the respondent together. These issues raise the question whether these statements were properly recorded and properly admitted in evidence. They also raise the question whether the learned trial judge was correct in relying on them for the conviction of the appellant and whether the Court of Appeal was right to have dismissed the appellant’s appeal. P.W.2, police corporal O.D. Shaibu testified that after he took part in the recovery of the body of the deceased from Mayjuju river, he cautioned the appellant and he volunteered a statement in Hausa. The witness said that he later translated the statement into English. The original statement in Hausa was tendered as Exhibit A while English translation was tendered as Exhibit A1. These statements were admitted without objection. When corporal Shaibu took the appellant to Ishaya Ki, D.S.P. for confirmation, the accused instead of simply confirming Exhibits A and A1 decided to make another statement to the D.S.P. This was recorded in Hausa after the usual words of caution in Hausa. It was admitted in evidence without objection as Exhibit C. Ishaya Ki, D.S.P. himself translated it into English. The English translation was tendered and admitted without objection as Exhibit C1. It is noteworthy that Exhibits A, A1, C and C1 were all recorded at Birkinadi Police Station. When the appellant was taken to Police State C.I.D. in Jos, he was again cautioned in Hausa and he made a statement in Hausa which was recorded by corporal Samuel Arobo who later translated it into English language. At the trial, this statement in Hausa was tendered and admitted without objection as Exhibit B; its English translation, Exhibit B1.

As there has been no question raised in this appeal about the correctness of the translation of these statements and as the contents of the three sets of statements appeared to be substantially the same and consistent. I consider it enough for purposes of their contents to set out Exhibit B 1. It runs thus:

“I Chungwom Kim agreed to make a statement. I know one Chibi Nyana. We are living in the same village with him. I know him for almost ten years. I am not related with him. I know Jummai Danbaba. I am her uncle, and she is a wife to Chibi Nyana. Jummai a wife to Chibi Nyana came to my house in the month of July, 1981, but I don’t know the date. By the time she came school children never get their holidays. I was away on a journey, when I came back, I then met her in my house. I asked Jummai what brought her here She told me that she had a trouble with her husband and that they are attending court and that she was even from court when she came to my house. Before I came back from my journey, she had already spent two days in my house. I could remember about three years ago I friend a woman called Jummai Azi. At the time I was friending her, Chibi Nyana started friending her too. When I was friending her, she heard that myself and Chibi Nyana were making trouble because of her, she then told me that she was no more going to marry me. It was at that time she married somebody at Zaria. In the month of June, 1981, Chibi Nyana came and met me in a beer parlour, he then told me that this year’s guinea corn that has been sowed one of us will not eat it either me or himself. He further said that if he does not kill me, I will kill him. In the month of July, 1981, it was the first Sunday of the month, I was from a village called Rubun. I went and bought medicine for ants. When I was returning home, I met Chibi Nyana on the road. I was alone likewise himself; he then told me that he was looking for me. I then asked him, what happened that, you are looking for me He did not said anything to me. I then wanted to pass by the side of the road, he then gripped me by my shirt and hold one of my leg and fall me on the ground. While I was on the ground, he slapped me on my check, I felt the pain, I then took a stone and hit him on his fore-head, then Chibi Nyana removed a small knife from his pocket and was about to cut me with it, I then gripped the knife and seized it from him and stabbed him with it on his body, but I don’t know the actual place I used the knife stabbing his body. I stabbed him in order to stop him from stabbing me. After stabbing him, he got up from me and went and fell on the ground. I then got up and stood at the place, when I saw that he was dead, I took him and threw him into a river. I also took the knife and the stone and threw them into the river. I saw the body floating on the water. From there I left for my house, I did not removed any thing from Chibi Nyana’s body. I only removed my trouser and shirt then threw them into the river, because the cloths contained the blood of Chibi Nyana. At the time we did this thing, it was getting to night, because there was darkness. After this thing between me and Chibi Nyana, I went home and did not tell anybody about the matter. On Friday, before this incident happened between me and Chibi Nyana, thieves broke into my house and stole my properties; I was not at home by that time. I had gone to Ginti for farming. The following day being Saturday, I returned to my house from Ginti at about 4 p,m by the time I came back, my wife by name Ayam told me that thieves broke my door and stole my properties. I did not send my son to Chibi Nyana. And I did not suspect Chibi Nyana or anybody in respect of the stealing in my house,”

The first point of attack on these statements is that none of them was received under proper caution. Counsel pointed out that the words of caution at the beginning of each statement have no meaning. I shall deal with these later.

I believe I should begin my consideration of this appeal with the 4th issue that complains about breach of appellant’s right to fair hearing. This is because fair hearing under section 33 of our Constitution of 1979 is an entrenched right, a fundamental right. Human rights in our written Constitution mark a standard of behaviour which we share with all civilized countries of the world. Since the United Nations Universal Declaration of Human Rights in 1948, though it is still left for various member nations to determine which rights from the plethora of rights then declared they would wish to incorporate into their domestic laws, once incorporated, their application lose the character of insular isolationism. Rather they assume a universal character in their standard of interpretation and application. One of those universal characters of their breach is that, in case of a right to fair hearing, once it is duly established that it has been breached in a judicial proceeding, it vitiates the proceeding. If, therefore, I find that it was breached in this case, shall have no alternative but to allow the appeal. See-

Michael Udo Udo v. The State (1988) 3 NWLR (Pt.82) 316;

Galas Hired v. The King (1944) A.C. 149;

Dixon Gokpa v. I.G. of Police (1961) All N.L.R, 423;

R. v. Mary Kingston 32 C.App. R. 183; an

Godwin Josiah v. The State (1985) 1 NWLR, (Pt.1 125

And fair hearing in this respect compendiates not only compliance with the two rules of natural justice- audi alteram partem and nemo judex in sua causa. It entails complying with all the provisions of that section of the Constitution. It also entails doing, during the course of the trial, all things which will make an impartial observer leaving the court room to believe that the trial has been balanced and fair to both sides to the trial.

The question is, therefore, whether the trial of the appellant in this case conformed with the above standards, Learned counsel on his behalf has anchored his complaint on two pages, namely:

(i) that the appellant’s legal representation was no more than nominal; and

(ii) that the learned trial judge patently failed in his judgment to maintain the required balance between the prosecution and the defence.

Elaborating on these points he submitted in his brief as follows;

“(i) The witnesses were either not cross-examined at all or not examined to any purpose.

(ii) The case of the appellant was not put to any of the prosecution witnesses.

(iii) Even the alleged confessional statements, Exhibits A-A 1, B-B 1 and C-C 1, which the accused flatly denied making in his oral testimony in court and do not show to have been taken down after proper caution were allowed to be admitted in evidence without objection (See P.6 lines 5-13; P.7 lines 3-7; lines 19-26 and the opening statement of each exhibit).

(iv) P.W.2, a police officer who took appellant’s statement, Exhibit A-A1, gave, it is contended, hearsay evidence of the same without objection from the defence counsel.

(v) The doctor, P.W4, who saw the body when it “was completely decomposed” was not cross-examined on how he was still able to make the type of finding he made. The doctor was not at all cross-examined (see P.9 line 5 to P.10 line 6).

(vi) In his address, in spite of the obvious contradiction between the alleged confessional statements (Exhibits A-A 1, B-B 1 and C-C 1) and the appellant’s oral testimony in court, leaving nothing to choose between them, and in the absence of other legal evidence connecting the accused with the alleged offence, defence counsel conceded that the prosecution had established:

(a) that there was death of a human being;

(b) that the death was caused by the accused.

(See p.24 lines 14-15). That, it is submitted, must have been nearly enough to hang the accused.

(vii) The crucial point in the appellant’s defence i.e. the question of inconsistency between appellant’s extra-judicial statements and his oral testimony in court was not raised by the defence counsel. Fortunately, it was taken by the learned trial judge suo motu in his judgment and decided that both were “unreliable” (p.28 line 21p. 29 line6).”

If these points could be established, I shall have no alternative but to allow the appeal.

I shall deal first with legal representation. The appellant was represented by counsel all through the trial. But learned counsel has submitted that learned counsel performed so badly that there was no representation in real terms. It is true that the constitutional and statutory provisions requiring that a person charged with a capital offence shall be represented by counsel imply that the counsel shall not only be present all through the trial but also shall render to the accused reasonable professional services all through. It must be a representation in real terms. See; Udo Udo v. The State (supra) at p.332; also The State (Hearly) v. Donoghue (1976) I. R. 325. The first complaint is on failure of learned counsel to cross-examine the witnesses or to cross-examine them to some purpose. This cannot be true of the P.W.1, a relation of the deceased who came to testify only about the discovery of the body of the deceased. Counsel took him up on that and on the source of his information leading to the discovery. The same could be said of P.W.2, a police corporal who came to again testify about the recovery of the body and to tender the appellant’s confessional statement. He was duly cross-examined on material points. P.W. 3, a Police Sergeant came to say how the appellant volunteered Exh. B and to tender it. He was not cross-examined. As it is not known when the appellant abdicated his original position of making a clean breast of his crime and changed his denial in the witness box, it is difficult to read any meaning into his counsel’s failure to cross-examine the witnesses. The same goes for P.W.5. Sergeant Idrisu Umaru. P.W. 4 was a medical doctor who came to testify on what he saw and P.W.6 was a Superintendent of Police to whom Exh. A was taken for confirmation, but when appellant rather opted to volunteer another statement, P.W.6 recorded it. This he tendered as Exh C. It can be seen that from the nature of the evidence of these witnesses there was no basis for putting to them the case for the appellant which was nothing but a bare and absolute denial. Counselled the appellant in-chief in what he wanted to say whereby he turned somersault from his triple confession, and at the close of the case for the defence applied for an adjournment. He then returned on the adjourned date and rendered some two printed pages of substantial submissions. This case was clearly different from that of Udo Udo (supra) in which counsel for the defence failed to challenge in cross-examination most of the witnesses of fact and he did not address the court either at the beginning or at the end of the hearing. Counsel in that case left adcarpicture of disinterestedness and/or incompetence. I cannot say that it is so in this case. Nor can I so use the fact that he conceded that two of the three ingredients of the offence charged had been proved while he dug in on the third. For, going by appellant’s case as borne out by Exhibits A (A1), B(B1), and C(C1), that concession was not only reasonable but also rather compelling. Knowing the impact and import of the appellant’s three separate confessions, vis-a-vis his bare and belated denial in the witness box, learned counsel for the appellant who was an officer of court as well and owed a duty to both the court and society might have felt bound to make the concession. The denial of the triple confessional statement only came when appellant had to testify in his own defence. Counsel could not in the true ethics of the profession, stop him from saying what he wanted to say; but as counsel and officer of court he could not mislead the court. As I shall show later, there is nothing wrong with the recording and tendering of Exhs. A-C or the use the learned judge made of them. With these triple confessions under caution including Exh. B which was confinned before a Superior Police Officer starring learned counsel in the face, it is difficult to see how counsel for the defence could have usefully objected to them. Nor do I agree that Exh.A (A 1) is hearsay. I shall deal with para. (Vii) later on. Suffice it to say it does not avail the appellant.

Considering the issue of fair hearing from the background of the above facts and circumstances, I am of the clear view that a case of breach of any of the rules has not been made out. In saying so, I must bear in mind the famous words of Lord Hewart, L.C.J., in R. v. Bateman (1925) 94 L.J. (K.B) 971 where he said;

“A doctor is not criminally responsible for a patient’s death unless his negligence or incompetence passed beyond a mere matter of compensation and shows disregard for life and safety as to amount to crime against the State.”

The privy Council in the Nigerian case of John Oni Akerele v. The State (1942) 8 W.A.C.A.5 at p.9, added:

“….. it must be remembered that the degree of negligence required is that it should be gross, and that neither a jury nor a Court can transform negligence of a lesser degree into gross negligence by giving it that appellation!” Finally I shall advert to the warning of Pollock, C.B. in R. v. Crick (1859) 1 F. and F.519:

“If the prisoner had been a medical man, I should have recommended to you to take a most favourable view of his conduct. For it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck,”

These were all pronouncements on the medical profession. But in my opinion the underlying principle is the same. There is a rebuttable presumption that a duly qualified legal practitioner rendered his professional services properly and efficiently to his client. In court he has a wide discretion as to how to conduct his client’s case. He has to decide which of the witnesses he may cross-examine and when it is discreet not to put even a single question. One can hold that against him when. In a clear case, every reasonable counsel ought to have cross-examined the witness on some material points. Looking at the whole case and the manner in which the learned counsel for the accused conducted it, I cannot say that counsel performed below standard or that his conduct resulted in an unfair hearing. I must emphasize that the fact that his present counsel is of the opinion that he himself would have done otherwise is quite an irrelevant consideration in such matters. The test is objective. I shall therefore resolve this arm of this issue against the appellant.

The next question is whether the charge that the learned trial Judge did not maintain a balance between the prosecution and the defence was true. Again, if this is made out, it will result in the appeal being allowed. For in our system of administration of justice the judge must be and manifestly be seen to be an impartial umpire. Any act of his that can ground the conclusion that he has taken sides in the conflict vitiates the trial. See on this

Grace Akinfe v. The State (1988) 3 NWLR, (Pt.85) 729;

Sunday Okoduwa & Ors. v. The State (1988) 2 NWLR. (Pt.76) 333, p.334

A trial studded with partiality for one side is not fair hearing. So, if the charge is made out. the learned trial judge should have acted not only contrary to principle. he would have acted unconstitutionally (see section 33 (4) of the 1979 Constitution). After all fair hearing within the contemplation of section 33 of the Constitution is a manifest epitome of even-handed justice. But the crucial question is: was the charge made out Again particularizing the grounds of his charge, learned counsel stated in appellant’s brief as follows:

“(i) The learned trial judge right at the beginning of his judgment adopted and reconstructed the prosecution’s case blended with its own speculations and presented them as “in a nut-shell …. the facts of the case” (See page 18 line 11 top.19 line 12).

(ii) The summary included facts and inferences which were never given let alone proved in evidence with everything tilted against the accused thus:

(a) That there was animosity between accused and deceased.

(b) That there has been no “peace” between the accused and the deceased and both had been meeting on “war-paths” and challenging each other. If at all there is any evidence in this regard, it is the accused’s statements to the police Exhibits A-A 1. B-B 1 and C-C 1 which clearly do not talk of mutual aggression but one-sided aggression from the deceased against the accused.

(c) That the meeting of accused with deceased on the fateful day was like “the cat meeting the dog and they decided to settle their differences there and then and without any eye witness to the fight” the above exhibits indicated that only the deceased harboured any animosity.

(d) That the accused “stabbed the deceased with knife several times on the chest, stomach and eyes and when the accused realised that the deceased had died, he cut off his penis and his middle finger with the knife …. .”But the doctor, P.W.4 observed only a stab wound on the stomach” (p.9 lines 26-27). It is not claimed anywhere by any witness that it was the accused who cut off the penis and middle finger of the deceased.

(iii) In at least four instances the learned trial judge made reference to the accused having “murdered the deceased” before he considered the defence of the appellant:

(a) p.25 line 40:

(b) p.27 line 9;

(c) p.28 lines 3 and 22.

(iv) It will be noted that consideration of the defences of the appellant started on p.28 line 18 and before this the learned trial judge had concluded that “the accused was a sadist” and “that the killing was premeditated- an act of “vendetta” (p.28 lines 3-17)”.

A glance of Exh. B, the translation of which is set out above and Exhs. A and C, F not copied, will clearly show that what are complained of in paragraphs (1). (ii) (a)(d) above are clearly borne out the confessional statements of the appellant. The complaint of the nature of the injuries on the body of the deceased tallied with the unchallenged observations of P.W.1. a relation of the deceased, when they discovered the body and the evidence of the medical doctor. What was contained in these confessional statements or the direct evidence of P.W.l or P.W.4 cannot, in my view. be rightly described as a conjecture.

I agree that in four places in the learned trial judge’s judgment he used the word “murdered” where he could have used a better word – “killed” because he had not considered the defence. For killing could, in view of the nature of the defence, be murder, manslaughter or excusable homicide, depending upon the defence. But in one of the instances, he was referring to evidence which points to the fact that the appellant was the culprit. In the other three he was reacting to the all-blown confession of the guilt by the appellant in his triple confessions in Exhs.A, B, and C. But in none of the four instances was there a clear conclusion that the appellant was guilty of murder I am, therefore, of the view that although the use of the word murder at that stage before considering the defence was in error, it was one that did not occasion a miscarriage of justice. The same goes for the complaint that before considering the defence, the learned trial judge had concluded that the appellant was a sadist and that the killing was pre-meditated and an act of “vendetta”. He should have first considered the defence before reaching those conclusions. But now after viewing the whole case, I am of the view that this is a proper case to invoke the provisions of section 26 of the Supreme Court Act and come to the conclusion that the slip did not occasion a miscarriage of justice.

The attack on the form of recording of the statements by learned counsel on behalf of the appellant appears to me to be absolutely unfounded. It is manifest that the actual statements of the appellant, that is Exhibits A, B, and C are in the usual form. Each carries the usual form of caution followed by the appellant’s thumbprint, each of the words of caution is in Hausa; each of the statements was recorded in Hausa: and each carries the usual statement that it was read over to the maker in Hausa and interpreted to him in Hausa. These are all the formal requirements of such a statement. No wonder then that they were each, when tendered, admitted without any objection from the learned counsel on behalf of the appellant. After all, our rules about the form and conditions for admissibility of extra-judicial statements, which by themselves derive indirectly from the Judges’ Rules in England, were designed for the protection of accused persons from having such statements which were not voluntary or where necessary, not interpreted, or otherwise not of the making of an accused person, or which were otherwise procured by fraud, inducement, threat, promise, intimidation or duress foisted on him and used in evidence against him; see Samuel Ojegele v. The State (1988) 1 NWLR (Pt.71) 414. See also sections 27 and 28 of the Evidence Act. In the Northern States of Nigeria where the Criminal Procedure Code applies, the Chief Justice of the then Northern Region in 1960 made the Criminal Procedure (Statements to Police Officers) Rule, which are essentially similar to the Judges’ Rules in England. These are applicable in this case. In this case, the words of caution which were authenticated by the thumb-print of the appellant himself were as follows:

“I have decided to make a complaint against you before a court. You are not obliged to say anything unless you wish to do so. But whatever you say will be taken down in writing and may be given in evidence.”

It must be borne in mind that, as observed by the West African Court of Appeal in the case of R. v. Anya Ugwuogo & Anor (1943) 9 W.A.C.A. 73, at p.74 that those Rules drawn up by English Judges for the more sophisticated English societies are to be applied and followed in our own less literate societies, mutatis mutandis, and as far as possible. Hearing this principle in mind, I do not see anything wrong with the above words of caution.

I must note that in the case of Exh. B in question, the accused was taken along with the confessional statement to a superior police officer who read over and interpreted the statement to him and he confirmed it as his voluntary statement. Although this practice is not the requirement of any law in force in Nigeria, it has been highly commended as giving extra assurance of fairness to the accused and voluntarines, of his confession; see R. v. Omerewure Sapele (1957); 2 F.S.C. 24; (1957) SCNLR 307 Nwamgbo Aba Nwigboke & Ors. v. R. (1959) SCNLR 248; (1959) 4 F.S.C. 101. Additionally, as the appellant was an illiterate, his statements were read over to him in Hausa, the original language in which it was made. This is the correct procedure: see R. v. Nwangbo Igwe (1960) All N.L.R. 330, at p.333.; (1960) SCNLR 158 In my view, the attacks on Exhs. A, B, and C are entirely without merit. The case of David Obue v. The State (1976) 2 S.C. 141 which was cited in argument is therefore not in point. There the statement was not properly recorded and confirmed; and the contents were doubtful.

Learned counsel’s attacks to Exhs. A1, B1. and C1 are, with respects, misconceived. For, he treated these English translations of the confessional statements of the appellant as though they were only English translations of the statements (Exhs. A, B and C). They became necessary simply because the official language of the court of trial was English. So, the only question that could have been raised about them, but which did not arise, was whether the translation was correct.

As for whether the statements were rightly admitted in evidence, it is true that they were all tendered and admitted without objection. From what I have said above, I have not been persuaded that there was any ground for their exclusion at the trial or their being ignored or expunged by the Court of Appeal.

Before I consider whether the confessions contained in Exhs. A, B, and C were sufficient to support the conviction of (he appellant, I should first deal with o one serious submission made by learned counsel on his behalf. It was submitted that he treated the extra-judicial statements of the appellant as unreliable and in another breath used them to support his finding of guilt.

To be fair to the learned trial judge, it is necessary to put his opinion on the point in its correct perspective. To start with, he had finished his consideration of the confessional statements, applied the necessary tests as to their cogency and sufficiency in proof of the appellant’s guilt and now turned to consider his defences. It was in the course of his consideration of the appellant’s defence of private self-defence and provocation that he stated: “I will now consider the defences raised by the learned defence counsel starting first with the defence of self-defence.

It is true that there was a fight between the accused and the deceased before the accused murdered the deceased; it is also true that there were no eye- witnesses to the fight and that the prosecution’s case is based on the Confessional Statements- Exhibits A-A 1, B-B 1 and C-C 1; it is also true that the accused, in these confessional statements, raised the defence of self-defence. But the accused, in his defence in court, denied knowing the deceased, he also denied fighting with the deceased or even killing him on the 5th of July, 1981, he did not know why he was being charged to court. His evidence in court, materially contradicted his statements to the police – Exhibits A-A 1, B-B 1 and C-C1 and the accused has not explained of the reason or reasons for the deviation and it is trite law, that where a witness is shown to have made a previous statement inconsistent with the evidence by him at the trial (unless the reason of his having done so was satisfactorily accounted for) his evidence at the trial should be regarded as unreliable as well as his previous statement – whether sworn or unsworn- See the following cases:

Agwu and other v.The State (1965) NMLR 18 The Queen v. Ukpong (1961) 1 All N.L.R. 25.

But based on the above authorities and the fact that the accused had not accounted for the inconsistencies between his confessional statements and his evidence at the trial, I hold as unreliable, the previous statements of the accused and his evidence at the trial does not constitute evidence on which this Court can act.

Based on the above premise, I do not believe the accused story in his previous statements, that it was the deceased that first gripped him and threw him down and further slapped him. I believe that it was the accused that started the fight and murdered the deceased in cold-blood, in a lonely lane, as REVENGE against the deceased and for the part the deceased played against the accused, over the woman Jumai. The parts of the deceased body where the accused struck (i.e. vital parts of the body) with the stone and knife, do not depict or show that they were done in self-defence rather they showed or depicted acts done maliciously and intentionally to kill as described by P.W.4″.

A close look at the judgment of the learned trial judge, particularly the portion quoted above, shows that he used the confessional statements, E.xhs. A(A 1), B(B 1) and C(C 1) for the following purposes, that is to say:

(i) to find evidence of the appellant’s guilt;

(ii) to disbelieve or disregard the testimony of the appellant in the witness box on the ground that it is inconsistent with the extra-judicial statements made by the appellant in writing; and

(iii) in particular to disbelieve his defence that the deceased was the aggressor in the incident that ultimately led to his death and that he acted in self defence or was actuated by provocation.

The question is, therefore, whether the learned trial Judge was right to have used the statements the way he did and, if wrong, whether the Court of Appeal was right to have confirmed the conviction in spite of the wrong use of the statement. The gist of the submission of learned counsel on behalf of the appellant is that if the extra-judicial statements were unreliable, then they were unreliable for all purposes arid could not be the basis for the conviction of the appellant. The learned trial judge could not pick from a part of the unreliable statement to support the conviction and then reject the defence on the ground that those deficiencies were unreliable because they were inconsistent with those statements.

Let me pause here to make an observation on what the learned trial judge did, that is: virtually reach his decision on the merit of the case on the evidence called by the prosecution including the confessional statements of the appellant before proceeding to consider the defence. It is a procedure which is not permissible in civil cases, for the simple reason that in civil cases the only way to decide which of the evidence called by the plaintiff and the defendant is more probable is by putting each of them on either side of an imaginary balance and weighing them together: see A.R. Mogaji & Ors. v. Madam Rabia(Odofin & Ors. (1978) 4 S. C. 91, pp..93-96. This derives from the fact not only that in civil cases the onus of proof keeps on shifting, but also that in civil cases it is discharged on a balance of probabilities. In criminal cases, the position is different. Because, except in limited exceptions not relevant in this case, the onus is all through on the prosecution – a very high onus at that- the prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt. This is why I believe that it was permissible for the learned trial judge to virtually conclude his view on the merit of the main case before considering the defences of the appellant. A full advertence to this material difference is necessary if we must appreciate how far some of the submissions made on this aspect of the appeal are misplaced.

Another noteworthy feature of the appeal is that learned counsel for the appellant appeared to have limited his effort, though highly commendable, to pointing out faults in the judgment of the Court of trial which were confirmed or glossed over by the Court of Appeal. He did not go further to show that it affected the merits and justice of the case. This approach appears to me to have ignored the systemic difference between criminal and civil appeals. In civil appeals the role of the appellate court is to see whether, on the case made and brought by the parties, the decision of the court below is correct. On the application of this test, any substantial fault detected by the appellate court will result in the appeal being allowed. But in criminal appeals, the position is different. Quite apart from cases of fundamental faults which are in a category of their own, before an appellate judge in a criminal appeal can rightly allow an appeal, he has to be satisfied not only that there is a substantial fault but also that it led to a miscarriage of justice. This additional obligation is one imposed by statute. For section 26(1) of the Supreme Court Act, 1960, which has no parallel in civil appeals provides as follows:

26-(1) . The Supreme Court on any appeal against conviction under this part shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that on any ground there was miscarriage of justice and in any other case, subject to the provisions of subsection (3) of this section and section 27 dismiss the appeal: Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” (Italics mine).

There is no similar provision for civil appeals.

This is in pari materia with the proviso to section 4(1) of the Criminal Appeal Act of 1907 in England. As Micheal Knight pointed out in his brilliant exposition on Criminal Appeals (1st Edn.) at p.9, between 1907 and 1968, cases reported in the Criminal Appeal Reports show that the power had been invoked 126 times. The result of all cases, either here or in England, is that whereas all successful civil appeals are predicated on the establishment of a substantial error, because of the proviso, successful criminal appeals demand that the appellate court be further satisfied that the mistake or error led to a miscarriage of justice. Cases in which the power under the proviso has been invoked are varied and numerous and include errors which amount to a mistrial such as where undue interruptions by the judge made it impossible for defending counsel to fairly present his case: see- R. v. Brian Edward Clewer (1937) 37 Cr. App. R. 37 – where the Judge or jury considers matters which ought not to have been considered: – See R. v. Newton, 7 Cr. App. R. 214. The underlying principle is that it is not every slip, mistake or irregularity that is a ground for allowing the appeal and quashing the conviction. It may, and not infrequently occur, that something happens in the course of a criminal proceeding or the judge makes a slip in his view of a situation which is not strictly in accordance with the law or recognized procedure. If this happens, the appellate court which is seized of an appeal against the decision must consider whether or not it was an error or an irregularity which went to the root of the case and occasioned a miscarriage of justice. See on this –

R. v. Thomas 41 Cr. App. R. 236;

R. v. Morrison 6 Cr. App 159; and

R. v. Andrews, 27 Cr. App.R. 12,

to mention just a few cases.

Stated briefly, the principle of law is this: if in a civil appeal the appellate court is satisfied that an error has been committed, all it needs to inquire further is whether the error is substantial in the sense that it affected the decision appealed against. If he can answer this question in the affirmative the appeal must be allowed. But if in a criminal appeal, the appellate court must be satisfied not only that an error has been committed and that it affected the decision appealed against but also that if the matter were approached properly, where this is possible, that the decision appealed against would have been different. Where the appellate court can positively come to this conclusion, the appeal is bound to be allowed. If the reverse is certain, the appeal will be dismissed. But where the appellate court is unable to say what conclusion could have been reached by the court of trail if it had approached the matter correctly, the right course is to order a retrial. Dealing with this last leg of the proposition in the case of R. v.Thomas (1958) SCNLR 8; (1958) 3 F.S.C.8, at page 10, the Federal Supreme Court in a case of wrongful admission of evidence held:

“The question which must be posed therefore is, would the learned trial judge have reached the same decision if the inadmissible evidence had not been admitted It is impossible for us to say what effect that evidence may have had on the mind of the learned trial judge and although we think that there was sufficient evidence without the inadmissible evidence to convict the appellant, we cannot say with certainty that the learned trial judge must inevitably have come to the same conclusion. That being so we have no alternative but to allow this appeal quash the conviction and sentence and order a verdict of acquittal to be entered. Normally in an appeal of this nature we would consider ordering a retrial, but in view of the fact that the appellant has been in jeopardy twice and the prosecution have persisted in leading inadmissible evidence which could have no other effect but to prejudice the fair trial of the appellant, we consider that it would not be right to make that order in the present case.”

In the instant case, I am satisfied that if the learned trial judge had approached the issues of the appellant’s triple confession and his defences correctly, he would have reached the same conclusion. His error in the approach did not. Therefore, occasion a miscarriage of justice.

It is from the above premises that I shall now consider the remaining complaints of learned counsel on behalf of the appellant in this appeal.

In the first place, it is not quite correct to say. as learned counsel for the appellant has said, that the Judge found the confessional statements, Exhs. A, B, and C unreliable. He did not find them unreliable. Rather he found them reliable and, after applying the necessary tests, used them to convict the appellant. When it is stated that a judge found something it refers, in forensic language, to a primary finding on the evidence before him. This is different from what he inferred or concluded because inference, whether of law or of fact, is drawn from primary findings. The importance of this distinction in this case is that whereas the law concedes that a Judge of first instance who sees and hears the witnesses is master of primary findings made by him on the evidence, so that an appellate court can only interfere in a limited number of cases, an appellate court is as competent as Judge of trial to draw inferences from primary findings made by the court of trial: see Adaje v. The State (1979) 6-9 S.C. 18; Omisade v. The Queen (1964) 1 All A.L.R.233. But where, as in this case, what is being complained of is an inference drawn by a court of trial. the appellate court cannot only review the inference but also come to its own decision on it. The question will therefore be whether the Courts below were right.

The true position in this case is that the learned trial judge referred to the cases of –

Agwu & Ors. v. The State (1965) N.M.L.R. 18 and

The Queen v. Ukpong (1961) 1 All N.L.R. 25

and stated that they decided that where it is shown that a witness had previous to a trial made a statement in writing which is inconsistent with his evidence on oath at the trial, then unless the inconsistency had satisfactorily been accounted for. His evidence at the trial should be regarded as unreliable and his previous statement, whether sworn or unsworn, regarded as evidence not worthy of being acted upon. Learned counsel further pointed out that in the case of Francis Asanya v. The State (1991) 3 NWLR (Pt.180) 422 at p:451, this Court came to the conclusion that the principle applied to both witnesses called by the prosecution and those called by the defence, including an accused person, where he testified on his own behalf. He therefore submitted that as the same principle applies to witnesses called by both sides, including an accused person, the learned trial judge could not have used the statements to convict the appellant and later used them to discredit his defences. The case of the Queen v. Itule (1961) 1 All N.L.R. 462 was relied upon.

I must pause here to make an observation. My lead judgment in the case of Asanya v. The State (supra) does not support the submissions of counsel in this case. What it decided had clearly nothing to do with inconsistency between the oral and previous written statements of the accused person as such. It rather dealt with the fact that where an accused person testified, his testimony ought to be treated like that of any other witness. I made this clear at pages 450-45 of the report where I stated:

“In my respectful opinion, the decisive point in Itule’s Case (supra) was not the inconsistency between the oral and written statements of the appellant as such. Rather, it was the omission of the learned trial judge to consider the defence of provocation duly raised in the written statement on the ground that the appellant had denied making the statement, even though the learned trial judge found as a fact that the appellant made the statement which turned out to be confessional. Obviously the course taken by the learned trial judge touched on at least two fundamental principles in our administration of criminal justice, namely that the court must consider every defence open to an accused on the evidence and that the whole account which a person gives of a transaction must be taken and considered as a whole. He could not therefore take the unfavorable parts of the appellant’s statement in the case and refuse to consider the defence open to him on the same statement.”

Learned counsel for the appellant was therefore in error when he submitted that the principle on inconsistency between evidence in court and a previous written statement was pronounced upon in Asanya Case.

In my respectful opinion, learned counsel for the appellant missed the point by treating a confession as just any other statement. True a confession is a statement, but it is a statement of a special kind. Sections 27 to 32 of the Evidence Act as well as rationes decidendi of numerous cases have usually treated confessions as being in a different category from ordinary statements in the matter under consideration. It is enough to refer to some of those cases here. In the case of Brownson Etuk Udo v. The Queen (1964) 1 All N.L.R 21, Brett J.S.C. at page 23-24 stated:

“The judge however, decided to ignore the statement as not being legal evidence, and he cited the decision in R.v. Golder (1960) 1 W.L.R. 1169, approved in this Court in R.v. Ukpong (1961) All N.L.R.25. With respect, these cases deal with previous statements inconsistent with witness’s sworn evidence which are put to a witness in cross-examination in order to discredit his evidence. They have no application to a confession made by an accused person. A man’s confession was always admissible in evidence against him at common law, and its admissibility remains unaffected by the fact that he is now competent to give evidence himself.”(Italics mine).

See also Onafowokan v. The State (1986) 2 NWLR, 496

Indeed in The Queen v. Itule (1961) N.S.C.C. 221 which has been heavily relied upon by counsel for the appellant, this court held at page 242:

“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 differently from any other confession: R. v. Phillip Kanu 14 W.A.C.A. 30. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to its denial: R. v. Sapele & Anor 2 F.S.C. 24; but it is not in itelf a reason for ignoring the statement.”

See also Ikemson & Ors. The State (1989) 3 NWLR (Pt.110) 455 at page 476. In other words, the case of Itule (supra) itself did not decide that when such a confessional statement is inconsistent with its subsequent denial or retraction, the confession shall be regarded as unreliable. What it decided was that the denial was a matter (0 be taken into consideration to decide what weight could be attached to it. It also dealt with the admissibility of the statement i.e. that it does not become inadmissible simply because the accused person denied having made it; but emphasized that the weight to be attached to it is quite a different thing. In this case, the statements were made on 24/7/81, 28/7/81, and 28/7/81 but were not denied until 11/4/83, during trial. The learned trial judge was certainly in error when, instead of considering the appellant’s defences on their merits, he simply dismissed them by regarding them as unreliable simply because they conflicted with his previous written confessional statements in writing. Learned counsel for the appellanl was therefore right, though for a different reason, when he complained about the manner the learned trial judge used the confessional statements of the appellant to simply disregard or discredit the defence.

But this is not the end of the problem. For there was a good deal of uncontradicted evidence on record that destroyed the defence of self-defence. According to the evidence of P.W.4, Dr. Garuba Samuel Dandaaura, the medical doctor who performed the autopsy, he observed cuts on both eyes and a stab wound on the stomach. P.W.1 added that both the tongue and the penis were completely cut off. The head was completely smashed. It cannot be doubted that the nature of the wound or other injury can be good evidence of the manner of killing. In this case, the widespread nature, intensity and extent of the wound are evidence not only of the brutality of the killing but also a positive confirmation of the existing animosity between the appellant and the deceased brought about by their old rivalry over the woman called Jumai whom each of them wanted to marry, according to his confessional statement. All these wounds were found on the body of the deceased when the appellant did not sustain even a scratch which he could show the court. But, under section 62 of the Penal Code, for the defence of self-defence to succeed to justify the killing of a human-being. It must be shown that the life or body or property of the accused was in imminent danger from an attack by the deceased and that the accused used no more force than was necessary to repel the attack; and that the force used was proportionate to the attack, and was reasonable and justifiable in the circumstances. The defence, therefore, completely failed on the medical and other evidence before the court.

As for the defence of provocation, I agree with the Court of Appeal that the learned trial judge was right to have rejected it on the ground that even if the deceased offered some provocation. It was not grave enough to have made a reasonable man lose his senses, react in such a manner as to inflict the above wound on the provocator when there was nothing to show that the provocator fought back. I also agree with the courts below that from all available evidence. the act of the appellant appeared to have been pre-meditated and he was not actuated by a heat of passion.

It follows from what I have been saying that if the learned trial judge had directed himself aright, he would have reached the same conclusions about the appellant’s defences without reference to the principle in R. v. Ukpong (supra). This being a criminal, and not a civil appeal, I must invoke the powers of this Court under the proviso to section 26 of the Supreme Court Act. 1960 and conclude that although the learned trial judge slipped on the point, the error did not occasion a miscarriage of justice.

Shorn of the wrong reference to the appellant’s defence, I shall now consider the use made by the courts below of the appellant’s confessional statements – Exhs. A A, B, and C, the translations of which ‘were tendered as Exhs. A1, B 1, and C1 respectively. There can be no doubt from the of Exh.B I set out above which is consistent and identical with Exhs. A and C, that taken by itself, it is a full confession of the offence of which he was charged. It is settled that under the Penal Code, a free and voluntary confession of guilt by an accused person, made before two witnesses (in this case there were three), if direct and positive and satisfactorily proved and supported by the circumstances of the case, is sufficient to warrant his conviction of the offence; see ldi Wonaka v. Sokoto Native Authority (1956) SCNLR 79 (1956) 1 F.S.C. 29. Even where he retracts the confession at the hearing, he could still be convicted on it; for the law is that such a statement does not become inadmissible simply because the accused person has denied having made it. See c R. v. Omerewure Sapele &Anor (1957) SCNLR 307; (1957) 2 F.S.C 24; Ikpasa v. The State (1981) 9 S.C 7; The Queen v Itule (supra).

In considering what weight should be attached to the denial at the trial vis-a-vis the voluntary confession. I cannot overlook the fact that the retraction came up nearly two years after the confession, after the appellant must have had time to consider the dismal consequences of his dastardly act. The confession is more compelling in this case in which, as pointed out by the learned trial judge, confessions were made on three different occasions and were consistent with other facts which have .been proved in evidence by P.W. 1, P.W.2, P.W. 4 and (I would add) P.W. 6: See on this Ntaha v The State (1972) 4 S.C.1.

It is certainly not true that there was no legal evidence against the appellant apart from these confessional statements. To take but two examples, his account in the statement about the nature of the murder weapons and where he used them to inflict injuries on the deceased agrees with the opinion of the medical witness (P.W.6). His account about where he dumped the body of the deceased agrees with the evidence of P.W.1 and P.W.2 as to the consequential discovery of the corpse.

I shall make a short cut of the complaint on behalf of the appellant that the court below did not consider some of the additional grounds of appeal filed by the appellant. With respects, this contention has overlooked the fact which this Court had underscored in many cases: the fact that appeals in the Court of Appeal and, indeed, this Court are argued and decided on issues for determination and not on grounds of appeal. In the appeal in the court below, Ndoma-Egba, J.C.A. who wrote the lead judgment carefully set out in full the issues for determination as formulated on behalf of the appellant from the grounds of appeal.

Those issues are at page 44 of the record and those on behalf of the respondent at page 45. Thereafter he proceeded to consider the appeal on those issues. He did not need to refer to the grounds of appeal after formulating the issues. I would like to emphasize that since the introduction of brief writing in these two courts the only use an appellant can make of the grounds of appeal is to use them to formulate the issues for determination in the appeal.

Once that has been done, as in this case, the argument both in the brief and in oral argument ought to be based on the issues; not grounds. In Udeze & Ors. v. Chidebe & Ors. (1990) 1 NWLR (Pt.l25) 141. at p .161, the Court of Appeal, probably in error, decided to consider the appeal on the grounds of appeal rather than on the issues and in doing so failed to consider at all some grounds of appeal. This is not the position in this case. So the cases cited on misdirection are not in point. This contention is, therefore, misconceived.

As these have disposed of all the issues raised on behalf of the appellant, the appeal fails and is dismissed. I affirm the judgments of the courts below and the sentence of death imposed on the appellant.

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SC.5/1991