Gidado Adamu V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. 

This appeal is against the decision of the Court of Appeal, Yola Division, delivered on 22/3/2016, which affirmed the judgment of the High Court of Taraba State, Jalingo Judicial Division, delivered on 20/5/2014 convicting the appellant of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code and sentencing him to death.

The appellant was alleged to have stabbed one Shuaibu Ahmed on the ribs with a knife on 30th September, 2011 at about 7pm at Namnai Village in Gassol Local Government Area within Jalingo Judicial Division, which act resulted in his death. The appellant pleaded not guilty to the charge. The prosecution called one witness, Sgt. Danjuma Manga, one of the Investigating police officers. The extra Judicial statement of the appellant was tendered through him and marked Exhibit GA1. The appellant testified on his own behalf and called no other witness.

As stated above, at the conclusion of the trial the appellant was found guilty as charged and sentenced to death. The learned trial Judge relied

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heavily on the appellant’s statement in reaching the guilty verdict. He considered and rejected the defence of provocation allegedly raised in the said statement.

His appeal to the lower Court was unsuccessful, hence the further appeal to this Court. At the hearing of the appeal on 6/12/18, L.O. Fagbemi Esq., adopted and relied on the appellant’s brief, which was deemed filed on 21/6/18 and his reply brief also deemed filed on 21/6/18 in urging the Court to allow the appeal. Y.N. Akirikwen Esq., Hon. Attorney General for Taraba State adopted and relied on the respondent’s brief deemed filed on 21/6/18 in urging the Court to dismiss the appeal.

Learned counsel for the appellant formulated three issues for determination as follows:

1. Whether having regard to the facts and circumstances of the case, the Court of Appeal was right in affirming the trial Court’s judgment admitting and relying on the extra judicial confessional statement of the Appellant (Exhibit GA1) in the absence of an Hausa Language version of Exhibit GA and without the interpreter and recorder of Exhibit GA1 being called as a witness. (Ground 1)

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Whether the respondent proved the case of culpable homicide against the appellant beyond reasonable doubt, as required by law to justify the conviction and sentence of the Appellant to death by hanging, considering the totality of the evidence at the trial (Grounds 2 and 3).

3. Whether the defence of alibi validly raised by the appellant does not avail him in the circumstances of this appeal (Ground 4).Learned counsel for the respondent identified two issues for determination thus:

a. Whether Exhibit GA1 qualifies as a confessional statement and if so, whether the Court below rightly relied on same in affirming the conviction and sentence of the appellant by the trial Court (Grounds 1, 2 and 3)

b. Whether the defence of alibi avails the appellant, regard being had to the evidence led during trial

I shall adopt the issues formulated by the appellant for the resolution of the appeal.Issue 1

In support of this issue, learned counsel for the appellant submitted that it is not in doubt, as can be gleaned from the printed record, that the appellant is illiterate and can neither read nor write in English Language. That the record shows that the only

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language understood by him is Hausa Language and that for the proceedings, an interpreter was provided by the Court to interpret from English to Hausa and vice versa. He referred to the evidence of the sole witness for the prosecution who stated that as part of the investigation, he recorded the statement of the appellant, allegedly confessional, which was tendered and admitted in evidence as Exhibit GA1. He noted that on the face of Exhibit GA1, the recorder was indicated as one Corporal Daniel Gbohive and not PW1. He noted that although it was stated on Exhibit GA1 that the statement was taken in English Language and read over and translated to the appellant in Hausa Language, the transcribed version in Hausa Language was never produced before the Court. He submitted that the evidence of PW1, Danjuma Manga, that he recorded the appellant’s statement cannot be true.

Learned counsel also noted that from the endorsement on Exhibit GA1, it was recorded on 18/10/2011, which is contrary to the evidence of PW1 who said he recorded it on 14/10/2011. He submitted that the person who interpreted Exhibit GA1 was not called to testify.

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He submitted that the position of the law is that when a statement is taken with the aid of an interpreter in any language other than English Language, the original statement and its interpretation must be tendered in evidence and that failure to tender both versions of the statement would render the said confessional statement inadmissible. He referred to the case of: FRN Vs. Usman (2012) 8 NWLR (Pt. 1301) 141 @ 159 D- F; Olanipekun Vs The State (2016) 13 NWLR (Pt. 1528) 100 @ 117 C – G and the much older case of Queen Vs Zakwakwa (1960) Vol. 1 NSCC 8 @ 9. He submitted that in the circumstances of the instant case, the failure to tender the Hausa Language version of Exhibit GA by the prosecution renders the statement inadmissible and that the reliance placed on it by the lower Court should not be allowed to stand. He urged the Court to expunge Exhibit GA1 relying on: Zubairu Vs The State (2015) 16 NWLR (Pt. 1486) 504 @ 525 B – D; Olayinka Vs The State (2007) 9 NWLR (Pt. 1040) 561 @ 577 – 578 H – A.

In support of the contention that Exhibit GA1 amounts to hearsay when the recorder and interpreter were not called to testify, he relied on some recent

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decisions of this Court in Ifaramoye Vs The State (2017) 8 NWLR (Pt. 1568) 457 482- 484 G- G; FRN Vs Usman (Supra ) @ 159 – 160 E – B. He contended that doubt has been created by the contradiction in the evidence of PW1 as to who recorded Exhibit GA1 and the date on which it was recorded, which ought to have been resolved in the appellant’s favour. He referred to: State Vs Azeez & Ors (2008) 14 NWLR (Pt. 1108) 439 @ 482 – 483 H – Di Chukwu Vs The State (1996) 7 NWLR (Pt. 463) 686 @ 701 G H.

He submitted that notwithstanding the fact that Exhibit GA1 was admitted without objection, being hearsay, it is inadmissible and this Court has the power to expunge it, as the decision of a Court can only be based on legally admissible evidence. He referred to Ifaramoye Vs The State (Supra) and Zubairu Vs The State (Supra) at Page 525 B – D.

In response, learned counsel for the respondent submitted, relying on Hassan Vs the State (2001) 15 NWLR (Pt. 735) 184; Gira Vs The State (1996) 4 NWLR (Pt. 443) 375 and Hassan Vs The State (Supra), that where an accused person makes a statement under caution admitting the

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charge or creating the impression that he committed the offence with which he is charged, it amounts to a confession and that a voluntary confession of guilt, which is direct, positive, duly made and satisfactorily proved, is sufficient to ground a conviction. He submitted that in Exhibit GA1, the appellant admitted that he stabbed the deceased in the ribs, which act ultimately led to his death.

On the failure to tender the Hausa version of Exhibit GA1, he submitted that the contention that PW1 was not the recorder of Exhibit GA1 is unfounded. He posited that the statement said to have been recorded by Corporal Daniel Gbohive could not be the same statement as the one recorded by PW1 on 14/10/2011 before he transferred the case file to the State C.I.D. He noted that from the supplementary record at pages 10 and 11, the statement recorded by Cpl. Gbohive was recorded on 18/10/2011. He submitted that, part of the statement recorded by PW1 was reproduced in the judgment of the trial Court at pages 54 and 55 of the record. He also referred to page 21 of the record, lines 17 and 18 thereof. He noted however that the statement from which the learned

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trial Judge produced an extract, does not form part of the record of appeal in this matter.

Learned counsel argued that no attempt has been made to challenge any of the concurrent findings of the two lower Courts. He stated inter alia, at page 8 paragraph 4.17 of his brief:

“The only decipherable conclusion that can be drawn from this scenario, is that the appellant’s confessional statement, Exhibit GA1, was never transmitted to the Court below in which case, the record before the Court below would have been without the said exhibit, probably because the statement of the appellant was not a principal issue before the lower Court and nobody bothered about it.”

He submitted that since the extract of the appellant’s extra judicial statement which the trial Court admitted as Exhibit GA1 was not the statement upon which the appellant’s appeal to the Court below and to this Court were hinged, the implication is that there was no appeal against the judgment of the trial Court ab initio. He submitted further that the statement of the appellant which appears at pages 10 and 11 of the main record, differs in some material particulars from the statement at pages 7 and

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8 of the same record, even though they are supposed to be copies of the same document. He noted that in the statement reproduced at pages 10 and 11 of the main record, is shown to have been taken in English Language and explained to the accused witness in English Language, while the statement at pages 7 and 8 of the additional record states that the statement was taken in English Language and explained to the accused/witness in Hausa Language.

He submitted that this Court cannot pick and choose between the two versions. He however submitted further that the statement admitted by the Court as Exhibit GA1 as shown in the proceedings at page 21 of the record and captured at pages 54 and 55 of the record is direct, positive and unequivocal in establishing all the elements of the offence of culpable homicide punishable with death. He submitted that both lower Courts so found and urged this Court not to disturb these findings.

As stated earlier, the appellant was charged with culpable homicide punishable with death under Section 221 (b) of the Penal Code. In order to secure a conviction, the prosecution must prove the following essential elements of the offence beyond reasonable doubt:

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(i) The death of a human being;

(ii) That the death was caused by the accused;

(iii)The act of the accused which resulted in the death of the human being was done with the intention of causing death or grievous bodily harm; or

(iv)The accused knew that death would be a probable but not just likely consequence of his act.

See: Maiyaki Vs The State (2008) 7 SC 128 @ 129; Usman Vs The State (2013) 12 NWLR (Pt. 1367) 76; Bright Vs The State (2012) 8 NWLR (Pt. 1302) 297 @ 302.

In discharging this burden, the prosecution usually adopts one or a combination of the following methods:

1. By direct eye-witness evidence.
2. By circumstantial evidence.
3. By the confessional statement of the accused.

See:Emeka Vs State (2001) 14 NWLR (Pt. 734) 666 @ 683; Abirifon Vs The State (2013) 13 NWLR (Pt. 1372) 587; Igabele Vs The State (2006) 6 NWLR (Pt. 976) 100 @ 120 – 121 H A.

In the instant case, the two lower Courts placed substantial reliance on the appellant’s alleged confessional statement.

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The trial Court referred to the statement as Exhibit GA while the lower Court referred to it as Exhibit GA1.

Section 28 of the Evidence Act, 2011 defines a confession as “an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.” Section 29 (1) and (2) of the Act provides that a confession is relevant and admissible in evidence, so long as it is voluntarily made and not as a result of threat or inducement. Where a Court is satisfied that a confession was freely and voluntarily made and that it is direct, positive and unequivocal as to the accused person’s participation in the crime alleged, it may rely solely on the confession to ground a conviction. See: Igbinovia Vs The State (1981) LPELR – 1446 (SC) @ 17 B -D, Onyejekwe Vs The State (1992) 4 SCNJ 1 @ 8; Omoju Vs FRN (2008) 2 SCN 164 @ 177; Adeyemi Vs The State (2014) 13 NWLR (Pt. 1423) 132. These authorities illustrate the substantial weight accorded to a confessional statement in the process of evaluating the evidence adduced by the prosecution.

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In the instant case, it is argued on behalf of the appellant, that being illiterate in English Language, for his confessional statement to have been properly before the Court for consideration, both the English and Hausa versions ought to have been tendered.

In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36(6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation. It enables the Court to be satisfied that it is his true statement. For this reason, it was held by this Court that the recorder of the statement as well as the interpreter must be produced in Court as witnesses, otherwise the statement remains hearsay and inadmissible in evidence. See: F.R.N. Vs Usman (2012) 8 NWLR (Pt. 1301) 141 @ 159 – 160 D – B; 161

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C – G; 163 C – H; Nwaeze Vs The State (1996)2 NWLR (Pt. 428) 1 @ 20; Queen Vs Zakwakwa (1960) Vol. 1 NSCC 8 @ 9.

I have carefully examined the record of proceedings in this appeal. There is no indication that the statement of the appellant was recorded in any other language. In the course of his testimony, PW1, Sgt. Danjuma Manga stated inter-alla at page 20 of the record:

.The accused fled the village. But on 14/10/2011 the accused was arrested. I recorded his statement under words of caution. Later on my superior directed that I transfer the case to CID Jalingo. This is all I did in this case. I can identify the statement of the accused by my handwriting and signature.”

The only objection raised by learned counsel for the appellant was that there was nothing in the statement to show that it was recorded by PW1. The learned trial Judge overruled the objection on the ground that it was not contended that the statement was not voluntarily made. It was then admitted into evidence and marked Exhibit GA1. PW1 did not state that he employed the services of an interpreter or that he himself took the appellant’s statement

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in Hausa language and recorded it in English Language. The typed statement of the appellant copied into the record at 10 was recorded on 18/10/2011 at CID Jalingo by one Cpl. Daniel Gbohive. It is stated to have been taken in English Language and read over and translated to the accused/witness in English Language. A copy of a handwritten statement recorded by the same Cpl. Daniel Gbohive on 18/10/2011 is also copied into the Additional Record of Appeal at pages 7 – 8. Therein, on page 8, it is stated that the statement was taken in English Language and read over and translated to the accused witness in Hausa Language. Neither of these two documents is the statement said to have been recorded by PW1 on 14/10/2011 at Mutum Biyu Divisional Police Headquarters.

Now it is pertinent to recall that the statement recorded by PW1 on 14/10/2011 was admitted in evidence and marked Exhibit GA1. The learned trial Judge however referred to the statement throughout the judgment as Exhibit GA.

Learned counsel for the respondent contended at page 8 paragraph 4.17 of his brief that the statement from which the extract relied upon by the learned trial Judge

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emanated, did not form part of the record before the lower Court. It is also noteworthy that only one document was admitted in evidence. Although an additional record was transmitted to this Court on 12/9/2017, the statement recorded by PW1 on 14/10/2011 does not form part of it. Indeed, learned counsel for the respondent admitted as much in paragraph 4.17 of his brief where he stated:

“The only decipherable conclusion that can be drawn from this scenario is that the Appellant’s confessional statement, Exhibit GA1 was never transmitted to the Court below, in which case, the record before the Court below would have been without the said exhibit probably because the statement of the appellant was not a principal issue before the lower Court and nobody bothered about it.”

This is a very damning statement having regard to the fact that the appellant’s conviction was based on the alleged confessional statement. It is evident therefore that Exhibit GA relied upon by the learned trial Judge at pages 54 – 55 and 57 of the record did not form part of the record before him. There was no exhibit marked GA. It was also not shown to have formed part of the record

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before the Court below. In the course of his submissions before the lower Court, learned counsel for the respondent stated at paragraph 4.06 of his brief (page 107 of the record) as follows:

“My Lords, the evidence clearly linked the appellant with the commission of the offence i.e. culpable homicide of which he was charged. The appellant was rightly convicted on the strength of this (sic) confessional statement… Pages 10 – 11 of the record of appeal.”

Although the lower Court in its judgment referred to Exhibit GA1 (as opposed to Exhibit GA admitted in evidence at page 20 and 21 of the record), there is nothing in the record to show that the statement being referred to by the two Courts is the same. At the risk of repetition, the statement at pages 10 -11 of the record is not the statement recorded by PW1. As the discrepancy was not resolved either at the trial Court or the Court below, there is some doubt as to which statement formed the basis of the decision of the trial Court which was affirmed by the Court below. The doubt must be resolved in favour of the appellant.

This issue is therefore resolved in the appellant’s favour.

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Issue 2

In support of the second issue, learned counsel submitted that there were some discrepancies in the testimony of PW1, the sole witness for the prosecution. He submitted that while he stated during his evidence in chief that he received a report from one Benjamin James on 30/9/2011 regarding the stabbing of the deceased and that he visited the scene and recovered the knife used and also conveyed the deceased to the hospital where he eventually died, under cross examination, he stated that he visited the scene of crime on 15/10/2011. He noted that there was no medical evidence as to the cause of death and that Benjamin James, the only eye witness did not testify. He submitted that no reason was given for not calling him.

He submitted that there was no evidence outside Exhibit GA1 that established the guilt of the appellant. Relying on the case of: Adekoya Vs The State (2013) ALL FWLR (Pt. 662) 1632 @ 1651 – 1652 H – F, he submitted that the lower Court failed to subject the alleged confessional statement to the required test to determine if it was true. He also referred to: State Vs Azeez (2008) 14 NWLR (Pt. 1108) 439 @ 477 E – H.

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He submitted that the prosecution has a duty to prove all the elements of the offence charged and that where even one element is missing, the charge is not proved. He referred to: Adava & Anor. Vs The State (2006) 9 NWLR (Pt. 984) 152 @ 167 F – H. He argued that though the prosecution is not bound to call a host of witnesses, it must call material witnesses. He contended that Benjamin James was a material witness and that failure to call him was fatal to the prosecution’s case. See: Ogudo Vs The State (2011) 18 NWLR (Pt. 1278) 1 @ 31 G – H; State Vs Azeez (Supra);, Zubairu Vs The State (2015) 16 NWLR (Pt. 1486) 504 @ 525 E – G. He urged the Court to invoke Section 167 (d) of the Evidence Act against the respondent.

He argued further that failure to tender the knife said to have been recovered from the scene was also fatal to the respondent’s case. He submitted that failure to tender the medical report to establish the cause of death is tantamount to withholding evidence and urged the Court to invoke Section 167(d) of the Evidence Act against the respondent.

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On these two issues, he referred to The People of Lagos State Vs Umar (2014) LPELR – 224666 (SC) @ 56 – 59 G – A and Zubairu Vs The State (Supra) @ 525 526 H F.

In response, learned counsel for the respondent referred to page 51 lines 22 – 24 of the printed record where the learned trial Judge stated inter alia; “I have carefully scrutinized Exhibit GA and subjected same to the standard principles of law in testing a confession as enunciated in the case of Oladipo Vs The State (2013) 1 NWLR (Pt. 1334) 68 @ 72 R. 3,” and submitted that it was not correct to state that the trial Court did not subject the statement to the required test. He submitted that it was after the “fine tooth comb evaluation of the said confessional statement” that the learned trial Judge found that it had passed the test.

On the failure to call Benjamin James as a witness, he submitted that what is required is for the prosecution to adduce evidence credible enough to establish the ingredients of the offence using any of the established methods. He referred to Idiok Vs The State (2008) 13 NWLR (Pt. 1104) 225. He submitted that in the circumstances of this case, the appellant’s confessional statement was direct

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and positive and therefore sufficiently established the guilt of the appellant. He submitted that an accused person may be convicted on his confessional statement alone without corroborative evidence. He cited the case of Edamine Vs The State (1996) 3 NWLR (Pt. 438) 530. He submitted that Section 167 (d) of the Evidence Act does not arise as the record shows that efforts were made to secure the attendance of other witnesses but the prosecution had to close its case after several adjournments yielded no fruit.

On the failure to tender the murder weapon and the medical report, he submitted that the omission is of no moment where there is cogent and reliable evidence which the Court believes, establishing the complicity of the accused in the commission of the offence and where there is other conclusive evidence showing beyond reasonable doubt that it was the act of the accused that caused the death of the deceased. He cited several authorities, including: Azu Vs The State (1993) 6 NWLR (Pt. 299) 303; Essien vs The State (1984) 3 SC 14 @ 18; Adama Vs Kano Native Authority (1956) F.S.C. 25. He submitted that the death of the deceased may be inferred from

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surrounding circumstances. He maintained that the respondent established the guilt of the appellant beyond reasonable doubt.

In resolving issue 1, I held that the lower Court erred in affirming the appellant’s conviction based on Exhibit GA1 because of the discrepancy in the record as to which statement made by the appellant was before the Court. The statement relied upon by the trial Court did not form part of the record before the Court below. Furthermore, while the trial Court admitted in evidence a statement marked Exhibit GA1, said to have been recorded by PW1 on 14/10/2011, in the course of its judgment it referred to Exhibit GA, which has not been shown to be part of the record before this Court or the Court below.

It is also settled law that where a Court relies on a confessional statement in convicting an accused, it ought to subject the statement to some tests to satisfy itself that the alleged confession is true. This test requires the consideration of some other evidence outside the confession, no matter how slight. The Court is enjoined to consider the following:

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Whether there is anything outside the confession which shows that it may be true;

2. Whether the confessional statement is corroborated;
3. Whether the relevant statements of fact made in it are most likely true as far as they can be tested;
4. Whether the accused had the opportunity of committing the offence;
5. Whether the confession is possible; and
6. Whether the alleged confession is consistent with other facts that have been ascertained and established.

See: R. v. Skykes (1913) Cr. App. Rep. 233; Ubierho Vs The State (2002) 5 NWLR (Pt. 819) 644 @ 655; Nwachukwu Vs The State (2007) 17 NWLR (Pt. 1062) 31.Now, the only witness who testified for the prosecution was PW1, Sgt. Danjuma Manga. He testified as follows from page 19 lines 25 – 26 to page 20 lines 1- 11:

“I know the accused in the dock. He was brought before me as a suspect. On the 30/9/2011 at about 1845hrs (6.45pm) one Benjamin James of Namnai Village in Gassol L.G.A. came to the police Hiqtrs Mutum Biyu and reported that Shuabu Ahmad (deceased) and himself went to Gidado Adamu (the accused) to discuss about the ploughing of a portion of land as a result a fight ensured (sic) between them. Gidado Adamu removed his knife from his waste

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(sic) and stabbed Shuabu Ahmad with it. I went to the scene of crime and took the deceased to the Referral Hospital Mutum Biyu while he was receiving treatment, he died in hospital. I recovered a knife at the scene of the crime. The accused fled the village. But on 14/10/2011 the accused was arrested. I recorded his statement under words of caution. Later on my superior directed that I transfer the case to CID Jalingo. This is all I did in this case.”

There was no independent evidence before the Court as to the identity of the person taken to the hospital by PW1 or what caused his death. Benjamin James who supplied information to PW1 did not testify. He was the only eye witness to the incident.

It is correct, as submitted by learned counsel for the respondent that there is no particular number of witnesses required to discharge its burden of proving its case beyond reasonable doubt. What is important is the quality of the evidence adduced. It is for this reason that a conviction may be based on the evidence of a single witness if it is credible. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Adisa Vs The State (2014); LPELR 24221 (SC) at

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28 – 29 F-A; Afolalu Vs The State (2010) 16 NWLR (Pt. 1220) 584.

However, where a vital and material witness is not called, the failure could be fatal to the prosecution’s case. See:Alake Vs The State (1992) LPELR – 403 (SC); Smart Vs The State (2016) LPELR – 40728(SC) @ 17 D – E; State Vs Nnolim (1994) 5 NWLR (Pt. 345) 394.

A material or vital witness is one whose evidence may determine the case one way or another. See: Hassan Vs The State (2016) LPELR – 42554 (SC) @ 18 B – C; Smart Vs The State (Supra); Ochiba Vs The State (2011) 17 NWLR (Pt. 1277) 663.

In the instant case, PW1 did not witness what transpired. He relied on information given to him by Benjamin James. His evidence as regards what transpired between the appellant and the deceased is therefore hearsay. The evidence of Benjamin James, an eye witness, was therefore vital. I am of the considered view that the failure to call him to testify in this case was fatal.

The learned trial Judge stated at page 51 of the record that he had subjected the appellant’s confessional statement to the relevant test.

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Although he listed the factors to be taken into consideration before relying on a confessional statement, he did not demonstrate in the judgment that he had in fact done so. Indeed, immediately after citing relevant authorities, he stated thus:

“Having admitted Exhibit “GA” and scrutinized same as stated above, I find that it has passed the test enunciated above.”

The Court below affirmed the conviction of the appellant based on the contents of the alleged confessional statement without considering whether there was any other evidence outside the statement that made it probable or whether it was consistent with other facts ascertained and proved. There were no other facts before the Court beyond the testimony of PW1 that he took the deceased to the hospital where he later died.

There is no rule that the weapon used in the commission of an offence must be tendered or that a medical report is the only means by which the cause of death can be determined. Whether or not they are material depends on the facts and circumstances of each case. See: Olayinka Vs The State (2007) 9 NWLR (Pt. 1040) 561 @ 514; The State Vs Ajayi (2016) LPELR – 40663 (SC)@ 51- 52 B – G,

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Babarinde Vs The State (2014) 3 NWLR (Pt. 1395) 568. A medical report may not be necessary where there is other evidence upon which the cause of death can be inferred to the satisfaction of the Court. See:Onitilo Vs The State (2017) LPELR – 42576 ISC) @ 19 B – F; Bille Vs The State (2016) LPELR – 40832 (SC); Alarape Vs The State (2001) 5 NWLR (Pt. 705) 79. The tendering of the medical report as to the cause of death of the deceased in this case would have been of immense assistance to the Court in the absence of any eye witness testimony. The alleged confessional statement of the appellant not having been subjected to the required test, the lower Court ought not to have affirmed the conviction based on it. There is some doubt in this case which ought to have been resolved in the appellant’s favour.

This issue is accordingly resolved in favour of the appellant. Having resolved issues 1 and 2 in favour of the appellant, I do not deem it necessary to consider issue 3.

In the final analysis, I find merit in this appeal and it is hereby allowed. The judgment of the lower Court affirming the conviction and sentence imposed on the appellant by the

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trial Court is hereby set aside. I hold that the respondent failed to establish the guilt of the appellant beyond reasonable doubt. His conviction and sentence by the trial Court on 20/5/14 are hereby set aside. He is accordingly acquitted and discharged.

Appeal allowed.

SC.72/2017