James Afolabi V The State (2016)

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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