Israel Amos V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This appeal arose to challenge the decision of the Court of Appeal, Ilorin Division, delivered on the 1st of August, 2013. The lower Court affirmed the conviction and sentence of the Appellant for the offence of culpable homicide punishable with death and armed robbery which was earlier given by the trial Court. The judgment of the lower Court is contained at pages 132-168 of the Record of Appeal.
Dissatisfied with the judgment of the Court of Appeal, the Appellant lodged the instant appeal through a Notice of Appeal dated and filed on 15th day of August, 2013, which is contained at pages 169-180 of the Record of Appeal. The Appellant’s appeal is premised on thirteen grounds. I’ll provide a quick summary of the whole of thirteen (13) grounds. Ground one contends that the Court of Appeal erred in law and thus occasioned substantial miscarriage of justice to the Appellant when it affirmed the conviction of the Appellant for culpable homicide punishable with death based on the evidence of the prosecution, which evidence is not cogent.
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In his ground two, the Appellant contended that the lower Court erred in law in convicting the Appellant despite failure of the prosecution to call as a witness the medical practitioner that performed post mortem examination on the deceased. Ground three relates to alleged error of law due to reliance of the Court below on the evidence of PW3 which corroborates the confession of the Appellant. Ground four alleged failure to properly evaluate the evidence of the Appellant having retracted Exhibit B, the Appellant’s confessional statement. Ground five alleges error of the lower Court in affirming the conviction of the Appellant despite failure of the prosecution to proof armed robbery. Ground seven alleges error of the lower Court in confirming the Appellant’s sentence and conviction despite failure of the prosecution to prove the essential ingredients of the two offences through credible and/or convincing evidence. Ground eight contends that the lower Court erred in law and same occasioned a miscarriage of justice by treating Exhibit B as a confessional statement.
Ground nine alleges error of law in accepting and acting on the evidence that the Appellant killed the deceased.
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I wish to observe that the Appellant skipped “Ground ten”. No ground ten is provided for in the Notice of Appeal under review. However, ground eleven contends that the lower Court erred in law and that this occasioned substantial miscarriage of justice in relying on the evidence of the PW3. The said ground is hinged on the fact that the Appellant brought the deceased’s motorcycle to him (PW3) as sufficient corroboration of Appellant’s confessional statement. Ground twelve (12) alleges error of law on the part of the lower Court by failing to properly consider or apply independent corroborative evidence before affirming the conviction of the Appellant. The last ground, thirteen, contends error of law on the part of the lower Court when it concluded its finding by relying on the evidence of PW6 and Exhibit B and by ruling that it is not sacrosanct that death must be proved by medical evidence.
SUMMARY OF FACTS:
A brief summary of the facts in this appeal indicate that the Appellant was charged with two count offence of culpable homicide punishable with death under Section 221 of the Penal Code and Armed Robbery pursuant to Section 2 (1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.
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On or about 4th February 2011, the Appellant herein, a member of the Moore Village Vigilante Group in Baruten Local Government Area of Kwara State, took a ride on the Bajaj Motorcycle of one Mohammed Danlami, now deceased. The Appellant had access to the deceased motorcycle having earlier killed him before taking his motorcycle, which he (the Appellant) rode to Yunusa Jimoh (the PW.3) at his Gwaria Village in Kaiama Local Government Area of Kwara State. The Appellant had requested the PW.3 to keep the motorcycle for him on the pre that same belonged to his friend who had travelled to the northern part of the country.
Members of the deceased Mohammed Danlami Okada Riders Association reported their missing colleague to the Police. A search party was deployed and the decomposing body of the deceased was recovered in the bush, with wounds. A medical practitioner was called to conduct a postmortem examination on the deceased and a report of the exercise was filed.
At the trial Court, the PW.6 stated that he saw both the deceased and the Appellant riding on the motorcycle.
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The PW.3 also testified that four days after the motorcycle was brought to him by the Appellant, he discovered that the motorcycle belonged to the deceased contrary to the information the Appellant gave him that same belonged to a friend who traveled to the Northern part of the country, and that he just wanted to keep it with him till his return. On his arrest by the Police, the Appellant confessed to the murder of the deceased in order to steal his motorcycle.
At trial, the prosecution called six (6) witnesses and also tendered Exhibits. The evidence of the Prosecution is contained at pages 31 – 39 of the Record of appeal. The Appellant testified for himself and called two (2) other witnesses to testify on his behalf. Appellant’s evidence is at pages 39-43 of the record. At the close of the trial, the learned trial Judge found the Appellant guilty of the two count charge of culpable homicide punishable with death under Section 221 of the Penal Code and Armed Robbery pursuant to Section 2(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. He was then convicted and sentenced
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accordingly. The judgment of the trial Court is contained at pages 46-86 of the record.
Dissatisfied with the judgment of the trial Court, the Appellant brought an appeal at the lower Court (Court of Appeal, Ilorin Division). The Court below delivered its judgment on 1st August 2013 and affirmed the sentence and conviction of the Appellant as rendered by the trial Court. The judgment of the lower Court is contained at pages 130-159 of the record.
Still being dissatisfied with the decision of the lower Court which affirmed that of the trial Court, the Appellant sought to explore his last and final chance by appealing to this Court vide a Notice of Appeal dated August 15, 2013, based on thirteen (13) grounds which had been summarised above.
However, as stated earlier in the summary of the grounds listed in the Appellant’s Notice of Appeal, no ground ten is listed in the notice, which in effect means the Notice has twelve (12) grounds. I found most of those grounds needless repetitive and inordinately duplicitous.
ISSUES FOR DETERMINATION:
For the purpose of this appeal, the Appellant filed his Brief of Argument dated 27 December,2013 wherein two issues
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were formulated at pages 7-8, thus:
“1. Whether the Court of Appeal is not in substantial error in predicating its affirmation of conviction and sentence of the Appellant on Exhibit B after having regarded Exhibit B as retracted confession and when Exhibit B does not qualified (sic) to be regarded as a confessional statement in the face of pertinent evidence on record.
- Whether apart from Exhibit B, the evidence of the prosecution in totality is enough to support the affirmation of conviction and sentence of the Appellant by the Court of Appeal.”
On its part, the Respondent filed its Respondent’s Brief dated 21st October, 2016. However, Counsel filed a motion dated 6th February and filed 9th February, 2018 to amend its brief. The Amended Respondent’s Brief is dated February 6, 2018, filed 9th of February 2018, and deemed properly filed and served on March 8, 2018. In its Amended Brief, the Respondent also formulated two, short issues at page 4 thus: –
“1. Whether the Lower Court was right in predicating its affirmation of the conviction and sentence of the Appellant on Exhibit B.
- Whether apart from Exhibit B, the evidence of the
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prosecution in totality supports the affirmation and sentence of the Appellant by the Court of Appeal.”
The two issues formulated by the parties revolve around the Exhibit B, and whether the Lower Court was right to have relied on same in confirming the verdict of the trial Court. Therefore, in determining this appeal, I have formulated one issue for determination. This is because, from the briefs filed by the parties, one issue is central, which is:-
“Whether the Court below was right in relying Exhibit ‘B’ to adjudge that the Prosecution has proved its case beyond reasonable doubt in affirming the conviction of the Appellant for the offence of culpable homicide punishable with death and armed robbery.”
CONSIDERATION AND RESOLUTION OF THE ISSUE:
In his argument on the sole issue for determination, the learned Counsel to the Appellant pointed out that the Court of Appeal was in substantial error having affirmed the trial Court’s conviction and sentence of the Appellant for offences of culpable homicide punishable with death and armed robbery based on Exhibit B. According to the Appellant, the lower Court itself had treated Exhibit B
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as retracted confession and the exhibit is not qualified to be regarded as a confessional statement in the face of pertinent relevant evidence on record.
Counsel observed that the lower Court did not thoroughly and comprehensively examine the oral evidence of the Appellant against the backdrop of available evidence, to determine the evidential value and weight of the Appellant’s defence of accident as contained in his oral evidence. This is because, the Appellant contended, the lower Court had proceeded to make recourse to Exhibit B and other pieces of evidence which, in the considered view of the learned counsel to the Appellant, were neither compelling, cogent nor credible enough to establish the guilt of the Appellant.
The learned Counsel to the Appellant virtually recounted the narratives of proceedings at the trial Court in his argument on issue one formulated for the Appellant, and this runs through pages 8-12. However, the learned Counsel submits that even if the lower Court had not treated Exhibit B as retracted confession, it still had a duty to properly, fairly and thoroughly consider and evaluate
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the defence of the Appellant irrespective of whether such would appear foolish, weak or impossible. Counsel relied on the case of NWUZOKE VS. THE STATE (1988) 1 NWLR (Pt.72) 529 OLAYINKA VS. THE STATE (2007) All FWLR (Pt.373) 163; WILLIAMS VS. THE STATE (1992) 8 NWLR (Pt.261) 515; UDOFIA VS THE STATE (1984) 12 S.C 139 and GABRIEL vs. THE STATE (1989) 5 NWLR (Pt. 122) 457 at 464. The learned Appellant’s Counsel also cited and quoted the Court in EDIBO VS THE STATE (2007) All FWLR (Pt.384) 192, at 207.
The Appellant contended that the totality of the evidence by the prosecution did not dispel, diffuse, assail or negate the defence of accidental discharge made by him. This is because, according to the Appellant, none of the prosecution witnesses was an eye witness and the circumstantial evidence proffered by the PW.3 and PW.6 were not enough to negate the defence of accidental discharge or unintended shooting. Counsel submitted that the Court below also failed to advert its attention to the fact that the trial Court failed to consider, evaluate or apprise the defence of accident raised by the Appellant, and that the judgment of the trial Court ought to have
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been upturned by the lower Court. Counsel relied on the case of YAKI VS. THE STATE (2008) 7 S.C 128 at 142-143, where the Appellant quoted extensively to justify his arguments and submissions. The Appellant further relied on OLUDAMILOLA VS. THE STATE (2010) 2-3 SC (Pt. 111) 194 at 210 to 211; IGAGO VS. STATE (1999) 10-12 S.C. 84; ALIU BELLO & ORS VS ATTORNEY-GENERAL OF OYO STATE (1986) 5 NWLR (Pt.45) 828; CHUKWU VS THE STATE (1992) NWLR (Pt.217) 255 at 265 and BRAIDE VS THE STATE (1991) 5 SCNJ 178.
The Appellant submitted that had the Court below properly considered or evaluated the defence of accidental discharge or unintended shooting raised by him, the decision of the lower Court would have been different. The Appellant cited the case of ARCHIBONG VS THE STATE (2006) All FWLR (Pt. 323) 1747 at 1768 to 1769. The Appellant admitted that the lower Court correctly outlined the principle of six ways test of determining the weight to be attached to a confessional statement whether retracted or not, at page 149 of the record. The Appellant nonetheless contended that the lower Court failed to consider and/or properly evaluate pertinent circumstantial
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evidence to determine the weight to be attached to Exhibit B, but rather merely applied the doctrine of “last seen”. The Appellant then argued that the presumption that an accused person last seen with the deceased person is to be held liable for killing the deceased is not conclusive in every case. To buttress his argument, the Appellant cited the case of MBANG VS THE STATE (2009) 12 S.C. (Pt.111) 193 at 211.
Counsel contended further that the conduct or behaviours of the Appellant in taking the deceased motorcycle to the PW.3 after the death of the deceased, even when it may appear stupid, erratic or unreasonable is consistent with the Appellant’s testimony at page 41 of the record where he stated that: “He was afraid and started crying as a result of which he went to hide the motorcycle.”
Counsel then contended that the lower Court ought not to have relied on Exhibit B as a confessional statement without other corroborative or independent available evidence to determine whether Exhibit B can be said to have passed the six way test of a true confession namely:
“i) Whether the confession is the truth;
ii) Whether the confession was corroborated;
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iii) Whether the confession was free as can be tested;
iv) Whether the Appellant had opportunity to commit the crime;
v) Whether the confession was possible; and
vi) Whether the confession was consistent with other proved or ascertained facts.”
The learned Counsel to the Appellant cited the cases of KANU VS THE STATE (1952) 14 WACA 30; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615; STEPHEN VS THE STATE (1986) (Pt 46) 978; and UDO VS THE STATE (1972) 8-9 S.C. 234. Counsel submits further that before a Court can convict on a retracted confessional statement, such a statement must be subjected to detailed scrutiny, citing the case of OGUDO VS THE STATE (2011) 12 S.C. (Pt. 1) 71 at 79.
The Appellant did a recap of essentially same arguments and proceedings of the trial Court and evaluation and review of the lower Court on Exhibit B, confessional statement of the Appellant as earlier made above from pages 19-24 of his brief of argument. In his final submission on issue one formulated by the Appellant, the learned counsel to the Appellant contended that the content of Exhibit B are mutually contradictory or self conflicting
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on material facts and casts doubt as to whether indeed the Appellant volunteered the statement reduced into writing by PW2. Counsel urged this Court to disregard Exhibit B in the interest of justice, citing the case of ASANYA VS THE STATE (1991) 4 S.C. 42 which case also referenced the decisions of this Court (Supreme Court) in YESUFU VS THE STATE (1976) 6 S.C, 109; (1976) 6 S.C. 167; and SAIDU VS THE STATE (1982) 4 S.C. 41. In sum, counsel urged this Court to resolve the sole issue in favour of the Appellant.
On its part, the Respondent observed that the grouse of the Appellant was that Exhibit B, the confessional statement, has since lost its potency having been retracted. The Respondent opposed this line of thought and argued vehemently in respect of its issue one that the fact that an accused person has retracted his confessional statement does not necessarily make it inadmissible. The Respondent cited the case of R. VS ITULE (1961) All NLR 462 at 456. The Respondent admitted that it is nonetheless desirable to have some evidence outside the confession which would make it probable that the confession was true, citing the case of
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GRACE AKINFE vs. THE STATE (1988) 7 SCNJ (Pt. 11) 226 at 237-238.
On the test for determining the veracity or otherwise of confessional statement, the Respondent reproduced the conclusion of the lower Court at page 149 of the record, and cited the cases of UBIERHO VS THE STATE (2004) All FWLR (Pt. 219) 1028 at 1047 and UBIERHO VS THE STATE (Supra) (2005) 2 SC (Pt. 1) SC and the six way applied in determining the weight to be attached to a confessional statement whether or not retracted, in NSOFOR & ANOR VS. THE STATE (2005) All FWLR, (Pt.244).
The Respondent submitted that it was after a careful and clinical analysis of the evidence led before the trial Court that the learned justices of the lower Court arrived at their decision and conclusion on page 153 of the record, to the effect that:
“The learned trial Judge, Yusuf J. in my view properly evaluated the evidence before him, he was also properly guided in treating the partially retracted statement of the Appellant, he satisfied himself that the statement bore consistency with other ascertained facts before him.”
The Respondent further submits that although the evidence of PW.3 and PW.6 were not those of
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eyewitnesses’ account of the shooting of the deceased, they provided solid circumstantial evidence outside the Appellant’s confession upon which the learned trial judge and the lower Court acted. Respondent submits further that the evidence of PW.3 and PW.6 provided two basic elements of criminal adjudicatory procedure by way of the doctrine of “last seen,” and circumstantial evidence. The Respondent cited the case of IGABELE vs THE STATE (2006) 6 NWLR (Pt. 975) 100.
The Respondent submits further that the doctrine of “last seen” is invoked where there is no explanation as to what happened or caused the death of the deceased last seen in company of the accused person. Thus, the Appellant bears the full responsibility for the death of the deceased herein and shifts on himself the burden of proving his innocence, which he failed woefully to prove in this regard. The Respondent placed reliance on the case of NJOKU VS. THE STATE (2013) 2 NWLR (1339) 558 and the decision of this Court inAMUSA POPOOLA ADIO & ORS VS THE STATE (1986) 4 SC 194 at 219-210 where the Court re-emphasized the efficiency of circumstantial evidence and its relevance
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to the admissibility of criminal justice, which counsel quoted extensively.
The Respondent observed that the trial and lower Courts had correctly found Exhibit B to be direct and frontally admissible having passed the six-way test laid down in UDO VS THE STATE (1972) 8-9 SC 234. While debunking the Appellant’s defence of accident, the Respondent further pointed out that the lower Court had correctly observed that “a willed deliberate act negatives defence of accident as in the instant appeal …”.
The Respondent referred to what it termed unassailable facts that negative the defence of accident, at page 9 of the Amended Brief.
The Respondent contended that the Appellant’s defence of accident was duly considered by both the trial and lower Courts, and submits that the defence of accident is an afterthought. The Respondent argued that the cases of EDIBO VS THE STATE, NWUZOKE VS. THE STATE, OLAYINKA VS THE STATE AND GABRIEL VS THE STATE (supra) cited by the Appellant are inapplicable. To justify its opposing submission to that of the Appellant, the Respondent quoted the findings of the trial Court at pages 69-70 and that of the lower Court at page
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153 of the record respectively, and submitted that the lower Court rightly observed that the Appellant intended the death of Mohammed Danlami, the deceased person.
The Respondent amplified on what the prosecution must prove to succeed in respect of the offences for which the Appellant was charged which are that the death of a human being took place, the death was caused by the accused and that the act of the Accused caused the death of the deceased. See HARUNA VS ATTORNEY-GENERAL OF THE FEDERATION (2012) All FWLR (pt. 632) 1617.
The Respondent reproduced the factual narratives of the circumstances of death of the decease as well as the evidence of the PW.3, PW.4 and PW.5 and Exhibit B to reinforce its submissions on the guilt of the Appellant, at pages 13-18 of its brief. The Respondent debunked the relevance of the case of OGUDO VS THE STATE (supra) cited by the Appellant, and submits that same is distinguishable from the instant case, and thus inapplicable. In its concluding submission on issue one, the Respondent urged this Court to resolve the sole issue in favour of the Respondent.
On the part of the Court, the sole issue for determination is: –
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“Whether the Court below was right in relying on Exhibit ‘B’ to adjudge that the prosecution has proved its case beyond reasonable doubt in affirming the conviction of the Appellant for the offence of culpable homicide punishable with death and armed robbery.”
The offences of culpable homicide punishable with death and armed robbery with which the Appellant was charged, sentenced and convicted are offences of severe penal consequences. The severity of the two offences are such that the law provides for what the prosecution must prove to justify conviction on the two different, but severe offences of stiff penal consequences. The essential ingredients of robbery as constituted under Section 2(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004 are that:-
“(i) There was robbery or series of robberies;
(ii) That each robbery was an armed robbery;
(iii) That the Accused person was one of those who took part in the robbery.”
As to the Provisions of Section 221 of the Penal Code on culpable homicide punishable with death, the law requires the prosecution to establish: -<br< p=””
</br<
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“(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused:
(c) That the death was done with the intention of causing death or that the accused knew or had reason to know that death will be the probable and not only likely consequence of his act.”
The necessary question to ask is whether the death of the deceased is a resultant effect of the act of the Appellant. By law, this fact has to be proved by credible evidence, both direct and circumstantial. In our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It is also well settled, that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. See: YONGO VS COMMISSIONER OF POLICE (1992) LPELR – 3528 (SC), (1992) 4 SCNJ 113, OGUNDIYAN VS THE STATE (1991) LPELR – 2333 (SC), (1991) 3 NWLR (Pt.181) 519, AKIGBE VS THE IOG (1959) 4 FSC 203, ONUBOGU VS THE STATE (1974) 9 SC 1 at 20, BABUGA VS THE STATE (1996) LPELR-701 (SC), (1996) 7 NWLR (PT. 460) 279. See also the dictum of Lord Denning in
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the English case of MILLER VS MINISTER OF PENSIONS (1947) 2 ALL ER P.372 cited with approval in NKEBISI VS THE STATE (2010) 5 NWLR 421.
“Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not in the least probable, but nothing short of that will suffice.”
The unassailable evidence before the trial Court was in two folds. Exhibit B, a confessional statement which though voluntary was self-contradictory and retracted by the Appellant, and the evidence of other witnesses, particularly that of PW.3 and PW.6 which may be deemed to serve the essence of corroborating the seemingly retracted confession. Both trial Court and lower Court would appear to have rightly rejected the woolly argument of the Appellant in defence of his act. Leaving aside the issue of retraction of the confessional statement, Exhibit B, which I doubt was even retracted in this circumstance; the
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evidence before the Court was so overwhelming, as rightly observed by the trial Court and affirmed by the Court below.
The Appellant had owned up to his crime, in his words thus, as contained at page 158 of the record which was also quoted in the judgment of the Court below, thus: –
“When my friend Yunusa Jimoh discovered that I have been arrested by the police, he took the Bajaj motorcycle I kept with him to the police station at Moore village. I did not know what came to my mind before I killed him with my gun. I carried the motorcycle for my own uses. I have not in my life robbed or killed anybody. If not the one I am involved now. The name of the Fulani man is Mohammed Danlami…”
The fact that the testimony of the accused person is full of inconsistencies or inherent contradictions did not, and should not tie the hands of the Court in relying on same where the facts therein are obvious and unassailable. Even where subsequently denied or retracted, in full or partially, as arguably done in this case, the Appellant would still have been unable to explicate his crime of robbing and killing the deceased. The test of determining the veracity or
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otherwise of a confession is whether there is any evidence outside the confession to show that the confession was or is true; that is whether it is corroborated. See UBIERHO VS. THE STATE (2005) 2 SC, part 1. See also NSOFOR & ANOR VS THE STATE (2005) All FWLR (pt. 244) on the six-way test to be applied in determining the weight to be attached to a confessional statement.
By virtue of the provision of Section 28 of the Evidence Act, confessional statement is tenable and admissible. The section describes a confessional statement thus: –
“A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.”
Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our
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jurisprudence of criminal justice. See for example PARTICK IKEMSON & 2 ORS VS. THE STATE (1989) 3 NWLR (PT.110) 455 at 416 Paragraph D; JOSEPH IDOWU VS. THE STATE (2000) 7 SC 50 at 62: (2000) 12 NWLR (Pt. 680), at 48 NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt. 438) 530 at 537 Paragraphs D-E; SAMUEL THEOPHILOUS VS THE STATE (1996) 1 NWLR (Pt. 423) page 139 at 155 paragraphs A-B; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151.
This Court, in PETER ILIYA AZABADA VS THE STATE (2014) ALL FWLR (Pt.751) 1620, Paragraph B had made it abundantly clear that the confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is even stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore where an accused person confesses to a crime in the absence of an eye witness to
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the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved.
The law, however warns that, like in the circumstance of the present case, where a confessional statement is retracted (in full or partially at the trial), the Court can convict on a confessional statement retracted at the trial if satisfied that the accused person made the statement and as to the circumstances which give credibility to the contents of the confession. But it is desirable that; before a conviction can properly be based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See: MUFUTAU AREMU VS THE STATE (1991) 7 NWLR (Pt.201) 1 at 15; BASSEY VS THE STATE (1993) 7 NWLR (Pt. 306) 469 at 479, OTUFALO VS THE STATE (1968) NMLR 261 at 265-266, NSOFOR VS. THE STATE (2002) 10 NWLR (Pt. 775) 274 at 293.
In the instant case, the trial Court was properly guided, as rightly observed by the Court below, when further corroboration of the Appellant’s conviction was sought for in other evidence before the Court aside Exhibit B,
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from the evidence of PW.3 and PW.6. A careful analysis of the evidence led before the trial Court shows that the learned Justices of the lower Court arrived at a fair, just and sound decision, particularly given the observation on page 153 of the record, to the effect that:
“The learned trial Judge, Yusuf J. in my view properly evaluated the evidence before him, he was also properly guided in treating the partially retracted statement of the Appellant, he satisfied himself that the statement bore consistency with other ascertained facts before him.”
In view of the foregoing, no one is left in doubt that the lower Court relied on Exhibit B with caution and scepticism by seeking other corroborative or independent available evidence to determine whether Exhibit B can be said to have passed the six-way test of a true confession which are: –
“vi) Whether the confession is the truth;
vii) Whether the confession was corroborated;
viii) Whether the confession was free as can be tested;
ix) Whether the Appellant had opportunity to commit the crime;
x) Whether the confession was possible; and
xi) Whether the confession was consistent with other proved or ascertained facts.”
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See: KANU VS THE STATE (1952) 14 WACA 30; MBENU VS THE STATE (1988) 3 NWLR (pt. 84) 615; STEPHEN VS THE STATE (1986) (pt. 46) 978; and UDO VS THE STATE (1972) 8-9 S.C. 234; GRACE AKINFE VS THE STATE (1988) 7 SCNJ (pt. 11) 226 at 237 – 238.
The evidence of guilt of the Appellant seems overwhelming, regrettably. Appellant’s defence of accident is misplaced in the circumstances of this appeal. The lower Court had correctly observed that “a willed deliberate act negatives defence of accident as in the instant appeal…” In the sound wisdom of the trial Court which was upheld by the lower Court as contained at pages 68-70 of the record, the trial Court observed and the lower Court rightly affirm that: –
“……… It is not in doubt that the death was caused by the accused person. He admitted that the deceased died as a result of shot from his gun which was in his possession at the time. Fact admitted need no further proof …. I am therefore satisfied that the prosecution has established the first and second ingredients of the offence of culpable homicide. I hold that the accused person caused the death of
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Mohammed Danrani, deceased, with a gun in his possession on 4 February 2011 (page 68).”
The trial Court observed further, which findings were also upheld by the lower Court: –
“……. It is curious to note that the accused who claimed that he became afraid or worried about the death of the deceased wasn’t afraid to take his motorcycle to another village to keep for himself. The inference I am able to deduce from the acts of the accused person is that he intended the death of Mohammed Danrani, deceased. I am satisfied that the accused person intentionally killed the deceased with gun in his possession and knew death would be the probable consequence of his act. I reject the defence of unintentional killing set-up by the accused person in Court. I am satisfied that the prosecution has established all the three ingredients of the offence of culpable homicide punishable under Section 221 of the Penal Code against the accused person (page 70).”
The trial Court also justified the basis of finding of guilt for the second charge of armed robbery, see pages 71-78 of the record. The ingredients of the offence of armed
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robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. See: ALABI VS THE STATE (1993) 7 NWLR (pt. 307) 511 at 523, where this Court highlighted and restated the essential ingredients of the offence of armed robbery. Those elements above have to co-exist and established beyond reasonable doubt. See: AWOSIKA VS THE STATE (2010) 9 NWLR (Pt. 1198) 40 at 71-73.” Per Peter-Odili, JSC. (Page. 27, Paragraphs. B-E).
In OSUAGWU vs. THE STATE (2016) LPELR-40836 (SC), this Court, Per Nweze, JSC, (Pages 31-33, Paragraphs. F-E) referenced the exposition of Niki Tobi JSC (Blessed memory) in FATAI OLAYINKA vs. THE STATE, 30 NSCQR 149, 172 – 173, Niki Tobi JSC (supra) observed that: –
“What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may
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be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking.”
See also OTTI VS THE STATE (1991) 8 NWLR (pt.207) 103, 118; NWOMUKORO VS THE STATE (1995) 1 NWLR (pt. 372) 432, 443; AJILOYE VS THE STATE (1983) 6 SC 11; OKOBI VS THE STATE (1990) 6 NWLR (pt. 155) 125.
Now turning to the instant case, the sound and unassailable finding of the trial Court, which the lower Court upheld, is that although the confessional statement of the Appellant had been retracted, the Court could convict irrespective of the retraction citing the case of HARUNA VS ATTORNEY-GENERAL (SUPRA), OGUDO V. STATE (SUPRA) and ISONG VS THE STATE (2012) All FWLR (Pt.628) page 999 at 1008. The fact that the deceased’s motorcycle stolen by the Appellant was not produced in Court was crucial but not fatal to the extent of vitiating conviction and sentence on this ground.
First, Exhibit B was tendered and not objected to by the
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Appellant at trial. Two, it is common ground between the prosecution and defence that the accused took away the motorcycle of the deceased from the scene of crime to the PW.3. The trial Court also refused to be dissuaded or swayed by argument of the Appellant that the Medical Doctor who performed the post-mortem examination on the deceased was not called as a witness. This is because, the Appellant had admitted to shooting the deceased with gun and went away with his motorcycle.
This is pure and simple, armed robbery. The Appellant would have killed the deceased without taking his motorcycle, which would have made it culpable homicide punishable with death. However, the Appellant had chosen to complicate his wicked act, by manifesting his original intention of depriving the deceased of his property. Assuming he did has a gun like he had done but without killing the deceased, he would still have committed the offence of armed robbery, as gun is involved. Whenever way one looks at this issue, the twin offence of culpable homicide punishable with death and armed robbery seem apparent, even to the ‘blind’. These findings were also
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affirmed by the lower Court, which had benefit of a second review of the case before the final appeal lodged before us at the Supreme Court.
In view of the foregoing, it is my considered view that the judgment of the trial Court cannot be faulted at all and the lower Court was right in affirming and endorsing it. The Appellant has also failed woefully to convince us that this is a situation in which this Court should interfere. The law is settled that if there are concurrent findings of fact made by the High Court and Court of Appeal, the Supreme Court will not readily set them aside or substitute its own views unless there is no evidence to support the findings. “See Re: MOGAJI (1986) 1 NWLR (Pt. 19) 759; SALAMI VS THE STATE (1988) 3 NWLR (Pt. 85) 670; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615.” Per Aka’ahs, JSC” (page 18, paragraphs D-F). See also MINI LODGE LTD VS NGEI (2009) 18 NWLR (PT. 1173) 254 Per Musdapher J.S.C (Former CJN Blessed Memory) (page 33, paragraphs B-D).
The Supreme Court will only interfere with concurrent findings of facts made by the trial Court and the Court of Appeal where such findings are perverse; or are not supported by the evidence; or are reached as a
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result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure. None is the case in the instant appeal. SEE ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) 1 Per Onnoghen, JSC. (now CJN) (p. 46, C-E). See also: OCHIBA VS STATE 2011 12 SC (Pt. IV) P.79, Rhodes-Vivour, JSC. (pages 51-52, paragraphs F-B). See also CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.111) page 200; OLOWU VS NIG. NAVY (2011) 12 SC (Pt. 11) Page 1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt. 11) Page 98.
In concluding this judgment, I resolve the sole issue in this appeal against the Appellant. It is in view of the foregoing that I hold that this appeal lacks merit and is accordingly dismissed. The conviction and sentence of the Appellant by the Court below are hereby reconfirmed. There shall be no order as to cost.
SC.645/2013
