Stephen Haruna V. The Attorney General Of Federation (2012)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C
This is an appeal against the decision of the court of Appeal, Abuja dated 22nd January, 2010 affirming the decision dated 6th October, 2008 of the High Court of Abuja FCT, wherein the Appellant was convicted and sentenced to death for the offence of culpable homicide contrary to section 221 of the penal code.
The background facts of this case have a remarkably very sad antecedent. The Appellant as has been stated was charged for the offence of culpable homicide contrary to section 221 of the Penal Code and punishable with death.
The case against the Appellant was that on or about 31st of December, 2003, he caused the death of one Miss E. N. Igwe. The appellant was a security guard working with POWER HOLDING COMPANY OF NIGERIA PLC (PHCN) and was attached to the deceased who was at the material time Assistant General Manager, Legal. On the date the body of the deceased was found on the floor of her house, the appellant was the only person who was in the compound with her. The Appellant made 3 different statements. In two of the statements, especially, the 3rd statement, the Appellant clearly, directly and unequivocally confessed to the killing of the deceased.
On 20th day of April, 2005, the prosecution counsel opened his case and called 6 witnesses. PW1 testified that a case of culpable homicide was referred from Garki Police Division, involving the appellant. PW1 testified that on getting to the scene of crime he recovered a number of Exhibits which incriminated the appellant. PW1 took Exhibits ‘M1 – M3″, all statements of the accused, under word of caution and Exhibit “N”, statement of the Appellant’s girlfriend (one Mary Jimoh) where he kept the money. The appellant testified before the trial court. After the prosecution and defence closed their case the trial court on 6th October, 2008 delivered its judgment wherein it convicted the appellant of the offence of culpable homicide punishable with death.
Being dissatisfied with the decision of the court below, the appellant herein further appealed to this Court filing his Notice of Appeal on 9th March, 2010 containing 5 grounds. The Appellant, in his brief of argument dated 4th but filed on 5th May, 2010, formulated 4 issues for determination as follows:
- Whether the court below is right to hold that it is now too late in the day for the Appellant/Accused to seek to impugn the value or weight to be placed on those exhibits when at the trial the defence opposed their admissibility and later withdrew its objection.
- Whether the court below are right to hold that what the Appellant counsel calls incongruous pieces of contradictions ore realty of no moment and did not affect the substance of what was intended to be conveyed in exhibit M3.
- Whether the court below is right to hold that the trial Judge did not misdirect himself when he held that there were many questions which the accused/appellant threw open that needed his explanation and he failed to deliver as the Appellant is only required to offer a minimum of explanation.
- Whether the court below is right to follow the decision of the Judge and rely on Exhibit M3 (3rd statement of accused) to the exclusion of M1 (1st statement of accused) and Exhibit (2nd statement of accused).
It is instructive to note that Appellant’s issue No. 1 flows from Ground 1 of the Notice of Appeal, issue No. 1 from Ground I issue No. 3 from Ground 3 and issue No. 4 from Ground 4 respectively.
The issues as formulated by the Appellant can be condensed into sole issue for the purpose of the appeal. The ultimate issue is the determination vel no of the guilt of the appellant. Clearly, the argument of the Respondent is that his guilt has been established beyond all reasonable doubt.
I have observed that this appeal is against concurrent findings of facts of the two courts below. The firmly rooted principle of law is that this court does not make a practice of interfering with such concurrent findings of fact unless the findings are perverse or there are special circumstances to warrant same.
The arguments canvassed by the appellant in his brief could be summariseld thus. That the Exhibits tendered by the prosecution leading to the conviction of the appellant were not from proper custody and as such the trial court ought not to have admitted them in evidence; and that the court below ought to have reversed the decision of the trial court. I have carefully gone through the records of proceedings at the trial court pertaining to how the various exhibits namely – Exhibits ‘A’- G4 were admitted.
These are:
(a) A grey NEPA Uniform – Exhibit ‘A’
(b) A black Pair of trousers – Exhibit ‘B’
(c) A broken ceramic Plate – Exhibit ‘C’
(d) A black baton – Exhibit ‘D’
(e) A multi coloured boxer pant – Exhibit ‘E’
(f) A flake (sic) – Exhibit ‘F’
(e) A bundle of N200 notes (N22, 000) – Exhibit ‘G1’
(h) A bundle of N100 note (N10, 000) – Exhibit ‘G2’
(i) ‘bd a bundle of N100 note ’97 Exhibit ’91G3’91
(j) Four Pieces of N500 notes (N2, 000) – Exhibit ‘G4’
(k) Head tie – Exhibit ‘H’
(l) A white pant recovered from the scene of crime – Exhibit ‘I’
(m) 11 printed copies of the deceased’s picture that were taken at the scene of crime – Exhibits ‘J1-J11’ etc-
All 3 statements of the Appellant obtained under words of caution, were admitted as Exhibits, ‘M1 – M3′.
These Exhibits were admitted without objection. The learned defense/Counsel repeatedly maintained that he was not objecting to the admissibility of the Exhibits. Generally admissibility is based on relevance. Once evidence is probative of the fact in issue, it is considered to be relevant and therefore admissible, because relevance determines admissibility. Therefore, once evidence is relevant for the proper determination of any fact in issue, the court is bound to admit it.
The fact that the PW1, through whom the Exhibits were tendered was an IPO, one of the members of the team that first visited the scene of the crime, and thereon collected the exhibits in question, it is not contestable that the Exhibits, collected are irrelevant in proving the offence of murder. The record of appeal also shows that proper foundations were laid by the prosecution counsel, through the questions put to PW1 and the answers he supplied.
Considering the fact that the appellant retracted ever making the third confessional statement (Exhibit “M3”), it is relevant to address the issue on whether the court can convict on such evidence. It is settled law that the court can still admit and convict on a retracted confession, if satisfied that the accused person made the statement and as to the circumstances which give credibility to the contents of the confession, Yet it is desirable that, before conviction can be properly based on such a retracted confession there ought to be some corroborative evidence outside the confession which would make it probable that the confession was true. See OLUSEGUN OTUPALE & OROS V. THE STATE (1968) NMLR 261 at 265-266. ANTHONY EJINIMA V. THE STATE (1991) 6 NWLR (pt.200) 627 at 555.
The situation that has arisen in this case is that the Appellant’s confessional statement was corroborated by the discovery of stolen money he took to his girlfriend at Kubwa, suburb of Abuja city to keep for him. It was on the strength of the confessional statement that the police went to Kubwa where he discovered the money. Also the testimonies of the driver, the PHCN’S Senior Security Officers and the forensic reports corroborated the Appellant’s confessional statement.
There was other issue requiring my emphasis. Whether there was evaluation of evidence by the trial court. It is instructive to note that evaluation of evidence and ascription of relevant probative value thereto is the primary duty of the trial court, who had the opportunity to see and hear the parties and assessed the witnesses. The trial Judge has the advantage of seeing the witnesses, watching their demeanour and hearing them give evidence. The portion of the appellant’s Brief of argument in the court below relating to the evaluation of evidence is issue No. 3. It reads as follows:-
“Whether the conclusion of the trial judge would have been different if the trial judge had not improperly evaluated the evidence adduced before the trial and mode findings of fact not supported by evidence.”
This issue raised by the Appellant at the Court below complained of the evaluation of evidence generally without specific reference to Exhibit A – N.
In reply to the above issue the Respondent stated:
“The prosecution through the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 have proved beyond ressonable doubt all the ingredients of the offence of culpable homicide punishable with death which evidence was cogent and had linked the accused with the death of the deceased. The prosecution has proved positive act of the accused causing serious injuries to the deceased. In the instance case, the facts proved in evidence by the prosecution leads to the irresistible conclusion that it is the accused and no other person had the same opportunity to murder the deceased and that he was infact the person who murdered her.”
Further, the Appellant has argued at paragraph 5.14 p.16 of his Brief of argument before this court that:
“It is further submitted that the trial court did not make any finding as to whether Exhibit A – N have probative value throughout its judgment.”
It is instructive to note that the trial court is not bound, as a matter of law; to make a finding as to the probative value of all the Exhibits (A – N) before a conviction could be grounded in the circumstance of the present case.
The fact that evidence, oral or documentary is admissible does not mean that it has weight. It may not have any probative value or any weight at all, though admissible.
I do not agree with the learned counsel that no probative value was ascribed to the Exhibits admitted in evidence. Indeed, a part from reliance on the Appellant’s confessional statement, nonetheless pp.143 – 177 of the record of Appeal show that the trial court did rightly and effectively examine and evaluate the relevant evidence relating to the murder of the deceased. The trial court considered in details the testimonies of the witnesses the exhibits tendered and -all the supporting circumstantial evidence validating the confessional statements of the Appellant to the crime of murder. Particularly, the court used Exhibit M3 (the third confessional statement of the appellant) as an anchor to link and evaluate the other relevant and corroborative evidence in establishing the guilt of the appeal.
It is trite principle of law that an appellate court should loathe to interfere with or reverse findings of fact made by a court of trial unless such findings are perverse. It is only when the, issue at stake is narrowed down to only the inference to be drawn from proved facts without going into the rigour of determine credibility that the appellate court could rightly intervene to re-evaluate evidence. The Appellants argument is that the court ought to have reevaluated the evidence without restricting itself to inference that could be drawn to already established facts. He also queried the credibility of witnesses called and evidence tendered. All these are clearly outside the allowed purview within which the court below could re-evaluate the evidence already evaluated by a trial court.
It must be therefore pointed out that the court below rightly held that the trial court correctly admitted the Exhibits which are considered relevant to the crime of murder and also gave them due probative value. Apart from the fact that the trial court rightly admitted the exhibits, the appellant withdrew his objection to the admissibility of the exhibits. He cannot now be expected to question the weight or probative value ascribed to the exhibits admitted in evidence.
For Appellant to suggest that the evidence given at the trial court and in particular Exhibit M3 (the confessional statement of the appellant) are incongruous-pieces is to hold the established legal principles upon which the decisions of the two courts below are predicted with levity, disdain and lack of appreciation of the issue involved. The learned counsel is doubtful about the established legal propositions. Exhibit M3 is the core evidence supported or strengthened by other corroborative evidence. I have said that a court can convict on confessional statement even when retracted, provided it is corroborated by other circumstantial evidence. In answer to the so called contradictions listed by the Appellant before the lower court, the court of Appeal stated at page 259 of the Record thus:
“From all one can glean from the findings and conclusions of the learned trial judge, there was enough upon which we could reach the same conclusion he mode even though there were a few areas the learned trial judge went off, course that did not affect the substance of what was before him, and his conclusion was without fault.”
The court below pointed out that though the trial court went off the course in few instances, these were minor slips which did not affect the substance of the decision rendered because the same conclusion would have been reached by the Court of Appeal based on evidence available.
In paragraphs 6.02 – 6.04, of the Appellants brief, he argues that the trial court ought not to have attached any weight to the testimony of PW3, one IMRAN ATIKU IBRAHIM who was a Principal Security Manager with PHCN, on the ground that his recollections must have been wiped out of memory because of effluxion of time (according to him a period of one and half years) at the time of his testimony, and also the fact that the two other so-called witnesses did not corroborate the testimony of PW3 that the accused had blood stains on his body and with some wounds on his face and hand at the time PW3 saw him (the Appellant). The implication of the Appellant’s argument is that a time frame must be set within which he must give his testimony. In other words any witness called within or after one year and six months cannot be relied upon because such witness will not be able to recollect what happened. This argument is not tenable. The onus lies on the Appellant to prove that the PW3 lack the capacity to remember events and therefore his evidence cannot be relied on when he testified.
Appellants’ line of argument is that the testimony of PW3 was not corroborated by one MUBARAK EL-NAFATY and IKARA BASSEY. But they must not be called if the prosecution did not require their evidence. The prosecution is not bound to call all his listed witnesses. He would call enough witnesses that could help him establish his case beyond reasonable doubt. He is not required to call a large team of witnesses whose evidence are not helpful in resolving the issue before the trial court: See SAID JAMMAL V. THE STATE (1999) 12 NWLR (pt.632) 582 at 597, R v. KUREE 7 WACA 175 AT 177, R V. THOMPSON UDO 4 WACA 112. See NAF v. SQD. LEADER OBIOSA, (2003) 4 NWLR (pt.810) 233 of 277.
There is the last issue framed in Appellants’ issue No.3. It is understood within the con of the doctrine of “last seen” and the primary duty of a trial court to evaluate evidence and ascribe probative value thereto in the determination of the phrase “minimum explanation” required of a person last seen with the deceased. This doctrine is captured at p.261 of the Record by the trial court.
The law requires a person last seen with the deceased, whose cause and nature of death is in contention, to offer an explanation of what he knows about the death of the deceased. Onus is on the person last seen with the deceased to offer a minimum explanation of what he knows about the death of the deceased. See IGABELE v. THE STATE (2006) 6 NWLR (pt.975) 100 at 127 -128. See also OKOKO & ANOR v. THE STATE (1964) 1 ALL NLR. 423.
At page 155 of the Record the trial court stated that it was established that the appellant was the only person in the house of the deceased at the time of her death. It stated:
“From the evidence of PW3, and PW5 and the testimony of the accused during the cross-examination it is clearly established that the deceased was alone in the house on to faithful (sic) day she met her death. And that the accused was with her in the house as the security man. There is no evidence of any forceful entry or breakage to gain entry into the deceased and the accused were the only person in the compound and nobody else.”
After the trial court reproduced the testimonies of the Appellant when examined in chief, the court went to evaluate the said testimony and in the process, and in the face of other circumstantial, evidence he was found to have lied and therefore failed to meet the “minimum explanation” required. In this regard this court in IGABELE v. THE STATE (supra) held.
“We can find no other reasonable inference from the circumstances of the case. The facts which were accepted by the learned trial Judge, amply supported by evidence before him, called for an explanation and beyond untrue denials of the Appellant…”
In the face of overwhelming evidence against the Appellant, I cannot upturn the concurrent findings of the trial court and the court below (the court of Appeal) when the Appellant has failed to demonstrate that the said concurrent findings were perverse and could not be supported having regard to the evidence adduced by the Prosecutor.
In sum, this appeal fails, it is dismissed. The decision of the court below is affirmed.
SC.72/2010