James Afolabi V The State (2016)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division wherein the Court below upheld the judgment of the Kogi State High Court sitting at Lokoja in which the appellant was convicted and sentenced to death for the offence of culpable homicide punishable under Section 221 (b) of the Penal Code.

The record of appeal shows that the Appellant was arraigned on a single count charge of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code, Laws of Northern Nigeria. The prosecution called a total of three witnesses who gave evidence of the death of one Abubakar Mohammed. In the course of the trial, the prosecution witnesses tendered four negatives and four pictures of the deceased corpse and same were admitted in evidence as Exhibits A1-A4 and B1-B4 respectively. A post mortem examination was conducted on the deceased and the result of the autopsy was admitted in evidence as Exhibit BB.

The appellant made two confessional statements. Exhibits C and D are the said confessional statements the appellant made at B Division Police Station, Lokoja and State

CID Lokoja respectively. Exhibit E is a gun used to commit the offence while Exhibits F and G are a blood stained cap and a pair of scissors respectively.

It is the case of the respondent (Prosecution) that the appellant committed the offence with which he was charged at the trial Court. The appellant admitted in both Exhibits C and D that he shot the deceased with a gun which led to his death. Exhibit D was subjected to trial within trial after which the learned trial judge held that it was voluntarily made. There is no appeal against the aforementioned ruling of the learned trial judge.

On the other hand, the appellant simply denied committing the offence in the course of his evidence before the trial High Court. He narrated that he has a farm land where he planted cassava and yam. He said that a Fulani man came to his farm on 27/2/2009. He further stated that he accosted the Fulani man within the vicinity of his farm. About 6pm of the same date, he became aware of the death of the deceased.

As I stated earlier, the trial Court convicted and sentenced the appellant to death under Section 221(b) of the Penal Code. An appeal to the lower Court was dismissed. The

Court of Appeal held that the Trial Court was right in convicting the Appellant on the strength of his confessional statements and that the respondent had proved the ingredients of the offence of culpable homicide punishable with death contrary to Section 221 of the Penal Code. Against the decision of the Court below, the appellant has further appealed to this Court.

On 24th April, 2012, the appellant filed his notice of appeal containing four grounds of appeal. Three issues have been formulated from the four grounds of appeal. The issues are:

1. Whether the Court of Appeal was correct in holding that the trial Court was right in convicting the Appellant on the strength of his confessional statements.
2. Whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence before the trial Court that the Appellant intentionally killed the deceased.
3. Whether from the totality of evidence proffered in this case, the Appellant ought to have been convicted for a lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code.

Appellants’ brief was settled by J. A. Akubo, Esq.

and filed on the 18th of May, 2012. The said learned counsel adopted the brief on 28th January, 2016 when the appeal was heard.

Also, the learned counsel for the Respondent B. A. Alfa (Mrs.), Director of Public prosecution, Ministry of Justice, Kogi State, adopted the brief of the Respondent which was settled by Badama Kadiri, Chief Legal Officer, Ministry of Justice, Kogi State. Two issues are however distilled by the Respondent as follows:

1. Whether the lower Court was right in upholding the conviction and sentence of the Appellant todeath contrary to Section 221 (b) of the Penal Code on the strength of his confessional statements.
2. Whether the lower Court was right in coming to the conclusion that the Appellant intentionally killed the deceased.

On page 4 of the respondents’ brief, the learned counsel for the respondent has drawn the attention of this Court to the fact that appellants issue 3 does not flow from any of the grounds of appeal and was never decided upon by the Court below Relying on the cases of Oforlete v. State (2000) 7 SC (Pt. 1) 80 at 83, Udor v. State (2011) 11 NWLR (Pt. 1259) 472, learned counsel urged this Court to strike out the said

issue. There is no reply brief and it appears the complaint stands unchallenged.

I have already reproduced appellants issue No 3 above.

It is said to be distilled from ground of appeal number four. For ease of reference, I shall set out ground four as follows:”

Ground Four

The judgment of the Court of Appeal is unreasonable, unwarranted and unsupportable having regard to the evidence on the printed record of Appeal.”

Now placing the 4th ground of appeal side by side appellant’s 3rd issue shows clearly that the issue and the ground of appeal are miles apart. They have nothing in common. And having regard to the judgment of the Court below, no paragraph of the judgment discussed the possibility of the appellant being convicted for a lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code, Thus, issue 3 does not arise from any ground of appeal; neither does it flow from the judgment or decision of the Court below. It is now well settled that an issue or issues for the determination of an appeal must be distilled from, or must arise or flow from a competent ground of appeal. An issue is incompetent if it does not flow from any

competent ground of appeal and is liable to be struck out. Corollary, the argument in respect of the incompetent issues must be discountenanced. See Duwin Pharmaceutical & Chemical Co. Ltd v. Beneks Pharmaceutical & Cosmetics Ltd & Ors. (2008) 4 NWLR (Pt. 1077) 376, (2008) 1-2 S.C. 68, Patrick D. Magit v. University of Agriculture, Makurdi & Ors. (2005) 19 NWLR (Pt. 959) 211, Odeh v. F.R.N. (2008) 13 NWLR (Pt. 1103) 1.

The end result is that issue 3 is incompetent having not derived from any of the four grounds of appeal filed by the appellant. Also, the issue allegedly distilled from ground four is a stranger to the judgment of the lower Court. Had the appellant wanted to legitimately raise the issue, he should have obtained the leave of this Court before doing so. Having not sought for and obtained the leave of this Court before raising the new issue, it is incompetent and is accordingly struck out. The arguments made in respect of the said issue 3 are hereby discountenanced.

This appeal, shall, in the circumstance, be determined based on issues one and two only. The 1st issue relates to whether the Court of Appeal was correct in holding that

the trial Court was right in convicting the Appellant on the strength of his confessional statement.

Learned counsel for the appellant contends that the Court of Appeal was in error in affirming the conviction and sentence of the appellant by the trial Court for the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code based on Exhibits C & D only i.e. the extra judicial statements of the appellant. Learned counsel concedes to the point of law as stated by the Court below that an accused person can be convicted on his confessional statement alone if same is positive, direct and made voluntarily in view of the decisions in Demo Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351, Mohammed v. The State (2007) 11 NWLR (Pt. 1045) 303 amongst others.

It is however his submission that in law, every case is treated according to its peculiar facts and circumstances, relying on the case of Adamu Suleiman & Anor v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298 at 318. According to him, the Court below ought to have treated Exhibits C & D with caution and not rely on them to convict and sentence the appellant to death

because they were infested with illegality which makes them unreliable and lacking in evidential value for the following reasons.

1. That the Exhibits were not subjected to six – way test laid down by this Court in Dawa & Anor v The State (1979) 12 NSCC 334 at 348, Demo Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351 at 374, Ojegele v. The State (198S) 1 NWLR (Pt. 71) 414, Odofin v. The State (1984) 12 SC 139. He opined that having regard to the totality of evidence, Exhibits C & D did not meet the test.
2. That there was no slight evidence of corroboration outside the contents of Exhibits C & D.
3. That Exhibits C & D is a gross violation of criminal procedure (statement to Police Officers) Rule Cap 30 LNN 1963, in that the cautionary words were not signed by the Appellant.
4. That the body or contents of Exhibits C & D was not written by the appellant nor was it written by the PW1 & 2 on the instructions of the Appellant.
5. That Exhibits C & D were admitted in contravention of Section 27 of the Evidence Act in that both statements were not positive, direct and voluntary.

He urged the Court to resolve this issue in favour of the

appellant.

In response, the learned counsel for the respondent submitted that a confessional statement is the highest and most satisfactory evidence if there is independent proof that a crime has indeed been committed by someone and the accused had the opportunity of committing same as in the present case, relying on the cases of Akpan v. The State (2007) 9 NWLR (Pt. 1019) 500 at 524 paras F-C, Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30 at 51, Nwachukwu v. The State (2007) 17 NWLR (Pt. 1062) 31 at 65-66 paras H – A.

According to learned counsel, the respondent has sufficiently established the fact that the confessional statements of the appellant were freely and voluntarily made as confirmed by the ruling of the trial Court. It was further contended that the evidence of PW1, PW2, and PW3, Exhibits A1-A4, B1-B4 and “BB” clearly show that the deceased had died. He opines that this corroborates Exhibits C & D.

Learned counsel submitted that Exhibits C & D can be relied upon to convict the appellant even in the absence of an eye witness because it amounts to enough proof beyond reasonable doubt, relying on the case of Mohammed v. State (2007) 11 NWLR (Pt.

1045) 303 at 320. Learned counsel also submitted that a confessional statement alone is sufficient to sustain a conviction without any corroborative evidence, citing and relying on Mohammed v. State (supra) at 320 para G, Akinmoju v. State (2004) 4 SC (Pt. 1) 64 at 84, Ihuebeka v. State (2000) 4 SC (Pt. 1) 203 at 218, Oche v. State (2007) 5 NWLR (Pt. 1027) 219 and others.

As regards the contention that there are no cautionary words in Exhibits C & D, learned counsel submitted that it cannot invalidate a confessional statement of an accused, citing the case of Akinmoju v. State (supra) at 67. He however stressed that the cautionary words in both Exhibits C & D were signed by the appellant.

Finally, learned counsel submitted that since there is no appeal against the ruling on the trial within trial, the Court should hold Exhibits C & D proper and that the Court below was right to hold that the confessional statements alone were sufficient for the conviction and sentence of the appellant.

As was gallantly conceded by the learned counsel for the appellant, an accused person can be convicted on his confessional statement alone if same is positive, direct

and made voluntarily.

A confession in itself is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Section 28 of the Evidence Act, 2011. Thus, a properly admitted extra judicial confession of an accused is part of the case of the prosecution. See Ikemson & 2 Ors v. The State (1989) 3 NWLR (Pt. 110) 455; Bature v. The State (1994) 2 Kings Law Report (KLR) 16.

It is however not a general rule that a confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. Therefore, for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true. See Joseph Okoro Abasi v. The State (1992) NWLR (Pt. 260) 383.

In Jimoh Yesufu v. The State (1976) 6 SC 167 at 173, this Court, per Obaseki, JSC, held that:

“There is a long line of judicial authorities (on the effect of confessions) and we agree with the statements which establish that in Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination before a magistrate or otherwise, if it is direct and positive and is duly

made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the Court is satisfied of the truth of the confession (Edet Obasi v. The State (1965) NMLR 119). But it is desirable to have outside a defendants confession to the police, some evidence be it slight of the circumstances which made it probable that the confession was true (Paul Onochie & 7 Ors v. The Republic (1966) NMLR 307; R. v. Kanu 14 WACA, 30).”

The learned counsel for the appellant drew the attention of the Court to the case of Shalatu Shazali v. The State (1988) 3 NSCC 234 at 245 wherein this Court reiterated certain questions a Judge must ask himself before relying on the confessional statement to convict an accused person.

The questions are:

1. Is there anything outside the confession to show that it is true
2. Is it corroborated
3. Are the relevant statements made in it of facts, true as they can be tested
4. Was the prisoner one who had the opportunity of committing the offence
5. Is his confession possible
6. Is it consistent with the other facts which have been ascertained and have been proved

See also Musa v. The State (2013) 2-3

S.C. (Pt. 11) 75 at 92-94. Paras 35-15.

At this stage, I must state clearly that although it is desirable to have outside an accused person’s confession to the police some evidence, no matter how slight of the circumstances which make it probable that the confession was true, a voluntary confession of guilt if true, consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the Court can convict. See Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509.

In the instant case, the prosecution, through PW1, PW2 and PW3 succinctly testified before the trial Court that the deceased person was dead. It also tendered Exhibits A1-A4, B1-B4 and BB to confirm the death of the deceased person. Apart from that the prosecution had tendered Exhibits C and D, the confessional statements of the appellant which were adequately tested by the learned trial judge in a trial within trial. There is no appeal against the ruling of the trial Court on the trial within trial. Thus, the appellant had accepted the decision of the trial Court that the confessional statement was freely and

voluntarily made by him. I had earlier stated that a confessional statement tendered in evidence is part of the evidence of the prosecution. See Ikemson v. The State (supra).

In Exhibit D, the appellant states clearly what happened before the deceased died, Hear him:

“I aim him with my dane gun and fired him on the chest. But he still pursued me with the bullet wound until he fell down and could not rise again. I ran to the village and reported to the village Head one Solomon Ballo “M” of Oyo -wa village via Lokoja L.G.A. The Chief attached one Garba Mohammed to go and check the farm with me. And he reported the same thing to him and the Chief ordered that I should be taken to the police station.”

On page 43 of the record of appeal, particularly line 28, the appellant testified in Court that he went back to the farm with Mohammed. This piece of evidence is consistent with his confessional statement in Exhibit D. It is a piece of evidence outside the confessional statement which corroborates same. So, apart from the evidence of PW1, PW2 and PW3 including the exhibits listed earlier in this judgment appellant’s evidence in Court which is consistent with his

confessional statement clearly strengthens and makes the statement most probable, All the issues raised by the learned counsel for the appellant against the statements are issues which were or ought to have been raised during the trial within trial.

Although there was no eye witness when the appellant shot the deceased, the prosecution gave evidence through the PWs which gave vent to the confession of the appellant. And in any case, this Court held in Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303 at 230 paragraph F that where an accused person confesses to a crime, in the absence of an eye witness of killing he can be convicted on his confession alone. See also Oche v. State (2007) 5 NWLR (Pt. 1027) 219.

For all I have said above, I hold a strong view that the Court below was on a strong wicket when it upheld the conviction and sentence of the appellant upon reliance on his confessional statements. Accordingly I resolve this issue against the appellant.

Although the learned counsel for the appellant in paragraph 5.01 of his brief states that he would argue issues 2 and 3 together, he reneged and argued them separately. For, whereas issue two spans pages 11 to

16, at paragraph 5.14, issue 3 starts from paragraph 5.15 on page 16. It will be recalled that issue 3 had earlier been adjudged incompetent not having derived from any of the grounds of appeal. So arguing the incompetent issue with the competent issue 2 would have created problems since the Court would not be in a position to pick, choose and/or decipher which argument is for which issue. It is not the duty of the Court to sift submissions by learned counsel made on issues raised from competent and incompetent/non existent grounds of appeal. See Geo-source Nig. Ltd v. Biaragbara (1997) 5 NWLR (Pt. 506) 607. Since the appellant has in actual fact argued the two issues separately, I shall ignore the statement in paragraph 5.01 of his brief and hold that the issues were argued separately. This is a criminal appeal and I think it deserves the indulgence. I shall now consider issue two separately.

The second issue is whether the learned Justices of the Court of Appeal were right in coming to the conclusion that it is obvious from the evidence before the trial Court that the appellant intentionally killed the deceased. It is the submission of the learned counsel

that the lower Court was in error when it held that the appellant intentionally killed the deceased.

According to the learned counsel for the appellant the prosecution failed to prove the essential ingredients of the offence of murder as enunciated in the cases of Basil Akpa v. The State (2008) 14 NWLR (Pt. ) 72 at 90, Tunde Adera & Anor v. The State (2006) 2 SCNJ 255 at 266-267, Godwin Idebele v. The State (2006) 2 SCNJ 124 at 133-134 and Isah v. The State (2007) 12 NWLR (1049) 582 at 602-604. He opined that the evidence of PW1-PW3 cannot sustain the essential ingredients of the charge against the appellant.

Learned counsel further submitted that contrary to the finding of the two lower Courts, there is no oral or documentary evidence proffered by the prosecution pointing irresistibly, conclusively and compellingly that it was the appellant who intentionally killed the deceased. That there was contradiction in the evidence of PW1 and PW2 in relation to the ownership, recovery and use of the gun i.e. Exhibit E. Therefore, it is unsafe to rely on Exhibits C and D to hold that the appellant used Exhibit E. It was his view that the only evidence against the

appellant is that found in Exhibits C and D which he opines was wrongly relied upon. He urged the Court to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent submitted that from Exhibits C and D, it is obvious that the appellant intentionally killed the deceased. That when the appellant aimed the gun at the chest of the deceased and shot it, he intended the natural consequence of his action, relying on the cases of Garba v. State (2000) 4 SC (Pt. 11) 157 at 163, The State v. Oludamilola (2002) NNLR 582 at 589, Ibikunle v. State (2007) 2 NWLR (Pt. 1019) 555.

On the contention that it was not proved that the appellant used Exhibit E – the gun, learned counsel submitted that the answer is found in Exhibit D the confessional statement of the appellant and the gun subsequently recovered from him. Moreso, in view of the fact that the appellant stated that after he shot the deceased, he fell down and did not wake up again, there was no need for medical evidence, referring to Sunday Ihuebeka v. State (2000) 4 SC (Pt. 1) 203 at 212, Oforlete v. State (2000) 7 SC (Pt. 1) 80 at 96.

As regards issue of contradiction, learned

counsel urged the Court to hold that there was no such thing as none exists. Also, an accused person need not personally own a gun before he can use it to commit a crime. On the whole, learned counsel urged the Court to resolve this issue against the appellant.

It is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act. And, the consequence of an act may be said to be probable, if a reasonable man would consider its occurrence to be the natural and normal effect of the act. See Shazali v. State (1988) 12 SC (Pt. 11) 58, (1988) NWLR (Pt. 93) 164, R v. Dim 14 WACA 154 at 155; Yakubu v. The State (1980) 3-4 SC 84 at 98, Atani v. R (1955) 15 WACA 34.

But, what is intention The Black’s Law Dictionary Ninth Edition by Bryan A Garner, page 883 defines intention as follows:

“The willingness to bring about something planned or foreseen; the state of being set to do something.”

Also, John Salmond, in his book Jurisprudence, 378 [Glanville L. Williams ed, 10th Edition (1947) reproduced in The Law Dictionary first alluded to above, defines intention thus:

“Intention is the purpose or design

with which an act is done. It is the foreknowledge of the act coupled with the desire of it such foreknowledge and desire being the cause of the act, in as much as they law themselves through the operation of the will. An act is intentional if, and in so for as, it exists in idea before it exists in fact, the idea realizing itself in the fact because of the desire by which it is accompanied.”

Another learned author, P. H. Winfield, in his book, A book of the Law of Torts p.19 (5th Edition 1950) also defines intention in the following words.

“This signifies full advertence in the mind of the defendant to his conduct, which is in question, and to its consequences, together with a desire for those consequences.”

From the above definitions, it seems to me that in an offence of murder, intention, which is not tangible, can be inferred from the instrument used to commit the crime, the force used and the part of the body on which the injury was inflicted. Also, the force with which the accused applied with the instrument on the deceased is also to be taken into consideration. See Orisakwe v. The State (2004) 12 NWLR (Pt. 887) 258, Queen v. Moses Onoro (1961) 1 All NLR

(Pt. 1) 33, Ejelikwe v. State (1993) 7 NWLR (Pt. 307) 554, Nwokearu v. State (2013) 4-5 SC (Pt. iv) 95 at 122 paras 25-30.

In the instant case, the appellant states emphatically in Exhibit D adjudged to have been freely and voluntarily made, that he aimed his gun at the chest of the deceased at close range and shot him. It was his further evidence that the deceased fell down and could not move again. At that point, he ran to the village head and reported that he had killed a man. In the circumstance, did he intend to kill the man I had earlier stated in this judgment that a person is taken to intend the natural and probable consequences of his act. So, when the appellant aimed his gun at the chest of the deceased and shot it, did he intend to keep him alive I do not think so. At least he intended to cause him grievous bodily harm. And in view of the force of a gunshot aimed at the heart, the engine room of a man’s life, it can safely be concluded that the appellant intended to kill the deceased by his action, the report he made to the village head notwithstanding. Had the appellant shot the deceased on the leg, maybe, just maybe, one would have thought

otherwise. At the age of the appellant, he ought to have known that the part of the body of the deceased he aimed at (the heart) was the last that could have entered his mind if he had intended the man to stay alive. I agree with the lower Court that the appellant intentionally shot and killed the deceased. All the arguments of the learned counsel for the appellant which had nothing to do with whether or not the killing was intentional are of no moment. They are discountenanced. This issue is accordingly resolved against the appellant.

Having resolved the two issues against the appellant, all that remains to be said is that this appeal is devoid of any scintilla of merit and deserves an order of dismissal. Appeal is accordingly dismissed. The judgment of the Court of Appeal delivered on 22nd day of March, 2012 which upheld the conviction and sentence of the appellant to death, is hereby affirmed.

Appeal dismissed.

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SC.181/2012