Tajudeen Iliyasu V The State (2015)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the High Court of Kaduna State, the appellant in this appeal (as second accused person) and one Kabiru Muhammad (as first accused person) were charged with the offences of conspiracy under section 97 and Culpable Homicide punishable with death under 221 of the Penal Code. At the said High Court (hereinafter referred to as the “trial court”), they pleaded not guilty to the two counts.
In proof of its case, the Prosecution called eleven witnesses and tendered nine exhibits. On his part, the appellant (as second accused person) testified in his defence. He did not call any other witness. At the conclusion of the trial, the trial court (Coram Othman J), in its judgement of July 18, 2011, first, discharged and acquitted both accused persons on the count of conspiracy; it, equally, discharged and acquitted the first accused person (Kabiru Mohammad) on the second count of Culpable Homicide punishable with death. The appellant was unlucky as the trial court found him guilty, convicted and sentenced him to death by hanging.
He was, naturally, aggrieved by the outcome of the criminal trial against him, hence, his appeal to the Court of Appeal, Kaduna Division, (hereinafter, simply, referred to as “the lower court). In its judgement of March 22, 2013, the lower court, (as per the leading judgement of Abiru JCA), dismissed the appellant’s appeal. This further appeal is the appellant’s persistent quest for justice. He formulated two issues from his three grounds of appeal. They were framed thus:
(1) Whether the Court of Appeal was right when at dismissed the appellant’s appeal on the ground that the prosecution had proved its case against the appellant beyond reasonable doubt to sustain the charge of Culpable Homicide against the appellant
(2) Whether the Court of Appeal was right to have sustained the conviction of the appellant on circumstantial evidence
On its part, the respondent formulated a lone issue couched in these terms:
Whether or not the lower court’s decision to affirm the trial court’s conviction of the appellant for culpable homicide was right having regard to the circumstantial evidence available and the appellant’s confessional statement
On our part, we are enamoured of the respondent’s sole issue. It is not only appealing due to its concision, it is, actually, more pungent apropos the appellant’s complaint in his three grounds of appeal. We shall, therefore, adopt this sole issue in the determination of this appeal.
For the avoidance of doubt, therefore, the issue for the determination of this appeal is:
Whether or not the lower court’s decision to affirm the trial court’s conviction of the appellant for culpable homicide was right having regard to the circumstantial evidence available and the appellant’s confessional statement
ARGUMENTS OF COUNSEL
APPELLANT’S CONTENTION
At the hearing of this appeal on December 4, 2014, J. M. M. Majiyagbe for the appellant, with C. C. Okonkwo, adopted the appellant’s brief of argument filed on October 14, 2013, although deemed, properly and served on February 26, 2014. Counsel contended that exhibits F1, F2 and G, the appellant confessional statements, were fraught with many irregularities. Citing page 123 of the record, he pointed out that the appellant’s evidence was consistent with his denial and retraction of the exhibits. He noted that the prosecution did not cross examine him on these facts and, in his view, must be deemed to have admitted their truth. He cited the Court of Appeal decision in FBN PLC v. Onkuga (2005) 16 NWLR (pt 950) 120 and this court’s decisions in Oforlete v State (2000) 12 NWLR (pt 681) 415, 436; Abadom v. State (1997) I NWLR (pt 479) 1, 20. He maintained that the prosecution failed to cross examine the appellant on his evidence that he did not commit the offence.
He, further, observed that the appellant raised a defence of alibi.
According to him, this defence was supported and corroborated by the testimonies of PW3 and PW4, citing pages 118 -119 of the record. He turned to what he referred to as “serious conflict” between the testimonies of PW3 and PW4 and the appellant’s confessional statements. He urged the court to resolve the conflicts in favour of the appellant, Bozin v State (1985) 2 NWLR (pt 8) 465; Okonji v State (1987) 1 NWLR (pt 52) 659.
Counsel canvassed the view that the lower court should have discountenanced the testimonies of PW3 and PW4 for being inconsistent. He drew attention to pages 64 and 118 for the alleged inconsistent testimonies. He observed that the trial court placed reliance on the inconsistent testimony of PW3, (page 147 of the record) and the lower court adopted that the trial court’s position, (page 200 of the record). He maintained that the doubt created by the inconsistencies in the testimonies of PW1; PW2; PW3 and PW4 should be resolved in favour of the appellant, The State v. Sadu (2001) 15 NWLR (pt 735) 102, 112; Oluma v Onyuna (1996) 4 NWLR (pt 443) 449, 457.
Emboldened by the above submissions, he maintained that the trial court erred when it failed to consider the defence of alibi. The lower court, in his view, fell into the same error. For his proposition that a court has a duty to consider all the defences available to an accused person, he cited Oforlete v State (supra) at pages 429-430; Attah v. State (2010) 10 NWLR (pt 1201) 190, 221; Edoho v State (2010) 14 NWLR (pt 1214) 651, 681-682; 698. In his view, both the trial court (page 123 of the record) and the lower court failed to consider all the evidence favourable to the appellant, Adamu and Ors v State (1991) 4 NWLR (pt 187) 530, 538-539; Opayemi v State (1995) 2 NWLR (pt 5) 101; Bassil v Fajebe (2001) 11 NWLR (pt 725) 592, 617.
Citing Mohammedv State (2007) 11 NWLR (pt 1045) 303, he took the view that the circumstantial evidence used in convicting the appellant does not meet the requirements of the law. He divided the pieces of circumstantial evidence into three categories. For the first category, he re-iterated the inconsistent evidence of PW2 and PW3 who saw the deceased last in the company of the appellant, (pages 64 and 118-118 of the record); and the concurrent findings of the lower court at page 200 of the record, C and C Construction Co Ltd v Okhai (2003) 18 NWLR (pt 851) 79, 100. He classified the confessional statements under the second category and adopted his earlier submissions on them. In the third category, he listed the blood stain; the corpse and non-existent evidence, with regard to the brood stain, he referred to page 147 of the record, pointing out what, in his view, was the error of the trial court by setting out the pieces of evidence of PW3 on pages 64; 118-119 of the record.
He attempted a juxtaposition of the evidence of PW3 with the conclusion of the trial court, (paragraph 8.05, pages 19-20 of the brief),
He urged the court to reverse the concurrent findings of the trial – and lower – courts on the ground that they faired to narrowly examine with utmost care, the circumstantial evidence used in convicting the appellant, Shehu v State (2010) 8 NWLR (pt 1195) 143, 144. He, further, pointed out that the trial court and the lower court were wrong in law or in the application of the law to the admitted facts, Long-John v Blakk (2005) 17 NWLR (pt 953) 1, 14-15; Adeyemi v State (1991) 6 NWLR (pt 195) 1, 22. He urged the court to allow the appeal and discharge and acquit the appellant, Adamu v State (1991) 4 NWLR (pt 187) 530, 538-539.
RESPONDENTS SUBMISSION
On his part, Kehinde Ogunwumiju, counsel for the respondent, appearing with Ademola Abimbola and Bridget Emengo (Mrs), adopted the brief filed on November 4, 2014, although deemed properly filed and served on November 6, 2014. In his well-articulated brief, he broached the settled position that, where a confessional statement contains a direct and unambiguous admission of all ingredients of the offence charged, an accused person can be convicted on it (such a confessional statement) atone, citing Akpa v State (2008) 14 NWLR (pt 1106) 72; Milla v State (1985) 3 NWLR (pt 11) 190; Achabua v State (1976) 12 SC 63 and Onuoha v. State (1987) 4 NWLR (pt 65) 331.
He re-iterated the ingredients of the offence of Culpable Homicide Punishable with death, as adumbrated in Haruna v A. G., Federation (2012) 9 NWLR (pt 1306) 419 and Ali v State (2012) 7 NWLR (pt 1299) 209. Drawing attention to pages 105 and 113 of the record, where exhibits F1; F2 and G were admitted as confessional statements, he submitted that these confessional statements were direct, cogent and positive enough to ground the appellant’s conviction as he, clearly, admitted the existence of the said ingredients of the offence charged.
He, also, referred to the findings of the lower court on this issue, pages 199-200 of the record. He maintained that these statements scaled the threshold tests which case law outlined for the admission of confessions, Akpan v State (1992) 6 NWLR (pt 248) 438; Alarape v State (2001) 5 NWLR (pt 705) 79. He pitch-forked these requirements into the testimonies of the eleven witnesses whom the Prosecution marshalled and invited the court to sustain the concurrent findings of the lower courts.
Against the background of the conspectus of facts which he set out on paragraphs 4.15-4.16, pages 7-8 of the brief, he, further, contended that the circumstantial evidence on record, being cogent and compelling, pointed conclusively to the fact that the appellant killed the deceased person, Akinbisade v State (2006) 17 NWLR (pt 1007) 184; Ahmed v State (2001) 18 NWLR (pt 746) 622. He urged the court to invoke the presumption inherent in the “last seen doctrine” and hold that the appellant could not absolve himself from the implication of the said doctrine, citing pages 63; 123 of the record; Igabele v State (2006) 6 NWLR (pt 975) 100; Madu v State (2012) 15 NWLR (pt 1324) 405, 456-457.
He urged the court to discountenance the appellant’s defence of Alibi for two main reasons. He pointed out that the said defence was not raised at the earliest opportunity, Akpan v State (2002) 12 NWLR (pt 780) 189; Ndukwe v. State (2009) 7 NWLR (pt 1139) 43, 89. He, equally, pointed out that, at least, three witnesses gave evidence fixing him to Rigasa, Kaduna, on September 30, 2003, when the death of the deceased person occurred, Peter v State (1997) 3 NWLR (pt 496) 625, 642. He, even, contended that the arguments of the so-called defence are unrelated to the grounds of appeal, citing pages 212-213 of the record, Madumere v Okafor (1996) 4 NWLR (pt 445) 637, 644.
He turned to the appellant’s contention relating to the inconsistencies in the testimonies of PW3 and PW4. He relied on Madumere v Okafor (supra) as authority for the view that, since the said argument does not flow from his grounds of appeal, they ought to be discountenanced. What is more, he (the appellant), not having complied with sections 199 and 209 of the Evidence Act (in force at the material time), cannot be heard to complain that pW3 and pW4 contradicted themselves, Madumere v Okafor (supra) 648-649; Kwaghshir v State (1995) 3 NWLR (pt 386) 651, 661-662; Sambo v State (1993) 6 NWLR (pt 300) 399,417.In all, he urged the court to dismiss the appeal and affirm the judgement of the lower court.
RESOLUTION OF THE ISSUE
As indicated at the outset, the appellant was tried; found guilty; convicted and sentenced to death by hanging for the offence of culpable Homicide punishable with death by the trial court. The charge was laid under section 221 of the penal code. The three constitutive elements or ingredients of the offence which must be proved in order to secure a conviction under this section have been, generously, outlined in case law, Maigari v State (2013) 6-7 MJSC (pt 11) 109, 125, citing Ochemeje v The State (2008) SCNJ 143; Daniel v The State (1991) 8 NWLR (pt 443) 715; Obudu v State (1999) 6 NWLR (pt 1980 433; Gira v State (1996) 4 NWLR (pt 428) 1, 125.
Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm, These ingredients, which are the same with the ingredients of the offence of murder under the Criminal Code, have witnessed consistent espousal in many jurisdictions, for example, by English courts, R v Hopwood (1913) 8 Cr. App. R. 143; Hyam v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian courts, Madu v State (2012) 15 NWLR (pt 1324) 405, 443, citing Durwode v State (2000) 15 NWLR (pt 691) 467; Idemudia v State (2001) FWLR (pt 55) 549, 564; (1999) 7 NWLR (pt 610) 202; Akpan v State (2001) FWLR (pt 56) 735; (2000) 12 NWLR (pt 682) 607 and by courts in other Commonwealth jurisdictions, see, for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).
Scholars have seldom disagreed with judicial authorities on this question, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 2009) 209 et seq; A. G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and Practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passim; K. S. Chukkol, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); P, Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq.
Both the trial court (page 89 of the record) and the lower court (pages 10-13 of the record), concurrently, found in favour of the proof of these ingredients. As such, in this further appeal, the appellant has an onerous duty to discharge. As it is well-known, this court will not disturb concurrent findings of fact of lower courts unless the appellant is able to fulfil the following pre-conditions: establish a substantial error apparent on the face of the record of proceedings; show that such findings of fact were perverse; the said findings were unsupported by the evidence before the trial court; that the findings and conclusion were arrived at as a result of a wrong approach to the evidence or a wrong application of the principles of substantive law or procedure, Enang v Adu (1981) 11-12 SC 25, 42; Nwadike v Ibekwe (1987) 4 NWLR (pt. 67) 718; Igwego v Ezeugo (1992) 6 NWLR (pt. 249) 561, 576; Lamai v Orbih (1980) 5-7 SC 28; Woluchem v. Gudi (1981) SC 291, 326; Ike v Ugboaja (1993) 6 NWLR (pt.301) 539, 569; Chinwendu v Mbamali (1980) 3-4 SC 31 and so on.
The question now is whether the appellant has shown sufficient reasons why this court should interfere with the said concurrent findings of the lower court and the trial court In the first place, counsel for the appellant cited page 123 of the record. There, the appellant, testifying in his evidence-in-chief, for the first time purported to raise the defence of alibi. Counsel, then, contended that the said testimony is “cogent and consistent with the denial of the alleged confessional statement.” In the course of this judgement, I shall return to the probative value (if any) of the said defence of alibi which the appellant raised for the first time during his defence at the trial court.
Suffice to observe for now that a retraction or denial of a confessional statement (as the appellant did during his defence at the trial court) does not affect its admissibility. This has long been settled in the very old cases of R v. Sapele and Anor (1952) 2 FSC 74; R v Itule (1961) All NLR 462; the relatively old decisions of Ikpasa v The State (1981) 9 SC 7; Akpan v State (1992) LPELR -381 (SC) 36; Osakwe v State (1994) 2 SCNJ 57; Nwangbonu v The State (1994) 2 NWLR (pt 327) 380; Bature v State (1994) 1 NWLR (pt 320) 267; Eragna and Ors v The AG, Bendel (1994) LPELR -(SC) 30; Idowu v State (1996) 11 NWLR (pt 574) 354; as well as the more recent decisions of Silas Sule v State (2009) LPELR – 3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR – 9350 (SCO 53; Oseni v The State (2012) LPELR -7833 (SC) 22-23.
Essentially, both the trial court and the lower court placed reliance, inter alia, on exhibits F1; F2 and G, the appellant’s confessional statements, (and circumstantial evidence exemplified, for example, in the appellant’s blood-spattered room; in exhibits C1 to C5- photographs showing a heap of sand in the appellant’s compound with a dead body buried there-under and the “last seen doctrine”) in finding in favour of the proof of the above three ingredients of the offence in question. In the said confessional statement, the appellant gave a picturesque description of his gory and dastardly sequence of acts that dispatched the deceased to his untimely death. The lower court summed up this ugly account thus:
The appellant stated in the two statements that he and one Kabiru Mohammed, aka, Two Hours, killed the deceased (person) in the appellant’s room in the appellant’s house and that while Kabiru hit the deceased (person) with an iron rod on his head, he beat the deceased with bare hands and that they killed the deceased (person) because of a dispute over the sum of N4, 000. 00. The appellant stated that the deceased (person) came to his house with a Vespa motorcycle and that after they killed the deceased (person), they buried the corpse in a heap of sand in front of his room and within the compound and that he took the Vespa motorcycle to a friend of his junior (sic) brother called Haruna to keep…
(Pages 197 – 198 of the record)
From the appellant’s own vivid; direct; positive and cogent account, both the trial court and the lower court had no difficulty in resolving the first two ingredients in favour of the Prosecution, that is, the fact of the death of the deceased (Abdullahi Bala Getso) and the fact that the appellant’s gruesome act of hitting the late Abdullahi Bala Getso with an iron rod several times on his head and stomach caused the death of the said deceased person.
The trial court found abundant evidence from the Prosecution’s case that corroborated these vivid descriptions of the unholy actions of the appellant which occasioned the death of the deceased person. The Prosecution had placed at the disposal of the trial court, through the testimonies of PW2 (the wife of the deceased person) and PW3 (the appellant’s younger brother), evidence of blood splashes in the appellant’s house, (page 64 of the record); the sand-covered lifeless body of the deceased person in the appellant’s morbid compound, (page 66 of the record); sand used in covering the blood of the deceased person, page 64 of the record.
In addition, the Prosecution marshalled evidence in proof of the fact that the appellant, unsuccessfully, tried to conceal a vital piece of evidence that linked him, inextricably, with the said offence. That was his action of hiding the deceased person’s “Vespa” Motorcycle sequel to the gruesome and grisly death of the deceased person, page 64 of the record. Being clever by half, the appellant bought two gallons of paint and a brush at Panteka market (page 77 of the record).
This was, inferentially, for the purpose of swathing the scarlet memento of the grisly incident he had caused, that is, the death of the deceased person. Unarguably, the most handy nail that sealed the coffin of the infantile or puerile testimony of the appellant was the unchallenged testimony that the deceased person was last seen with the appellant, (pages 63 and 64 of the record for the testimonies of PW2 and PW3 in this regard). In effect, the cogency of the appellant’s confession was all too evident and, most instructively, the testimonies of PW1; PW2; PW3; PW4 and PW6, demonstrably, bore out its incontestable veracity.
Against this background, Abiru JCA, who read the leading judgement of the lower court, did not entertain any doubt that the confession of the appellant, apart from being cogent, direct and compelling, scaled the threshold test enunciated in case law for ascertaining the truth of confessions. Little wonder then why His Lordship opined that the said confessions (evidenced in the said exhibits F1; F2 and G) would not just morph into pieces of inadmissible evidence because the appellant (as accused person) denied having made them; retracted them or resiled from them, see 197 of the record.
I, entirely, endorse the approach of the lower court on this issue. I note that a confession contained in a statement, such as exhibits F1; F2 and G (supra), is not to be treated differently from any other confession. From our reading of pages 147 – 148 of the record, I am satisfied that trial court factored in all the tests laid down in R v Kanu (1952) 14 WACA 30.
From pages 196-197 of the record, I find clear evidence of the lower court’s application and consideration of the principles which should be considered in determining whether or not to believe and act on a confession or confessions which an accused person resiled from as enunciated in R. v. Sykes (1913) 8 C. A. R. 233, 236; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; (1962) 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Onochie and Ors v. The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150 Dawa v The State (1980) 8 – 11 SC 236; Ejinima v The State (1991) 5 LRCN 1640, 1671; Arthur Onyejekwe v The State (1992) 4 SCNJ 1, 9; (1992) 3 NWLR (pt. 230) 444; Aiguoreghian and Anor. v. The State (2004) 3 NWLR (pt 860) 367; (2004) 1 SCNJ 65; (2004) 1 SC (pt.1) 65.
These are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v The State (2012) LPELR – 9348 (SC) 32-33, G-D; Kareem v FRN (2002) 7 SCM 73; Akpan v The State (2001) 11 SCM 66.
This court cannot, therefore, interfere with the concurrent findings of the lower courts on the first two ingredients of the offence in question having regard to the cogency of the confessions and the other circumstances (which we had set out above) which corroborate them.
We, therefore, endorse the conclusion that the prosecution proved the first two ingredients of the said offence. I agree with the lower courts that the Prosecution proved that the deceased died. It also, proved that, in actual fact, the deceased died as a result of the act of the accused person, to the exclusion of all other possibilities, R. v. Nwokocha (1949) 12 WACA 453, 455; The State v. Omoni (1969) 2 ANLR 337; Adie v. The State (1980) 1-2 SC 116, 122 – 123; R. v. Owe (1981) ANLR 680; Princewill v The State (1994) 7 – 8 SC (pt.11) 226, 240; Silas Sule v The State (2009) LPELR – 3125 (SC) 24, F-G.
As indicated earlier in this judgement, the third ingredient of the offence under consideration is that the Prosecution must prove that the accused person intended to either kill the victim or cause him grievous bodily harm, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (supra); Maigari v State (supra); Ochemeje v The State (supra); Daniel v The State (supra); Obudu v State (supra); Gira v State (supra).
Again, from my reading of pages 199- 200 of the record, I find that the lower court, admirably, dealt with this requirement. Listen to Abiru JCA, who read the leading judgement of the lower court:
The third requirement of the offence of culpable homicide punishable with death is whether the appellant caused the death of the deceased (person) intentionally or with knowledge that death or grievous bodily harm was its probable consequence… In order to determine whether the defendant really had an intention to murder, the law has set down some criteria, some of which are (i) the nature of the weapon used; here, the law builds its tent not just on any weapon but on a lethal weapon that is, a weapon which is deadly or death-dealing; (ii) the part of the body which was brutalized by the lethal weapon; and (iii) the extent of the proximity of the victim with the lethal weapon used by the accused (person), citing Iden v State (1994) 8 NWLR (pt 365) 719… In the instant case, the appellant confessed in exhibits F1 and F2 that the appellant was hit on the head several times with an iron rod until he died.
This was an exhibition of a clear intention on the part of the appellant and his alleged cohorts to cause the death of the deceased.
(pages 199-200 of the record)
True, indeed, case law and scholastic treatises are unanimous on the point that if a dangerous weapon (such as the iron rod used in dispatching the late victim of the offence charged to the great beyond) was used, the courts will infer that death was a probable and not just a likely consequence of the accused person’s act, Adamu Garba v The State (1997) 3 SCNJ 68; Bakuri v The State (1965) NMLR 163; Silas Sule v The State (2009) LPELR -3125 (SC) 24, F-G; Ejeka v State (2003) 7 NWLR (pt 819) 408; Garos Bwashi v State (1972) 6 SC (Reprint) 55; (1972) LPELR-SC.104/1972; P. Ocheme, The Nigerian Criminal Law, (Kaduna: Liberty Publications Ltd, 2006) 203; also, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (supra) 221. I, equally, endorse the concurrent findings of the lower courts on the Prosecution’s proof of this third element of the offence in question.
I pause here to acknowledge the academic reservations on the propriety of the courts’ continued espousal of the “reasonable man” or “natural consequence” guide in ascertaining intent in homicide cases, see, for example, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (supra) 55; Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited in C. O. Okonkwo, (supra) at page 55; Wootton, Crime and the Criminal law (London: Hamlyn Lectures, 1963) 33-39. According to Professor C. O. Okonkwo, SAN, Africa’s leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (supra) 55′ However’ these academic views notwithstanding, this court has continued to invoke the natural consequence test, see, for example, Garba and Ors v State (2000) 6 NWLR (Pt 661) 378, 388; Adamu Garba v State (1997) 3 SCNJ 68.
I now return to the appellant’s so-called defence of alibi. At page 5 of his brief, counsel claimed that “the appellant raised a complete defence of alibi in his evidence – in – chief of not being in Kaduna at the relevant time and this alibi was creditably supported and corroborated by the evidence of PW3 and PW4 during further cross-examination by the prosecution,” citing pages 118-119 of the record, (italics supplied for emphasis).
With respect, this is a very curious submission. In our accusatorial jurisprudence, the defence of alibi falls into the genre known as exculpatory defences, Ebre v State (2001) 12 NWLR (pt 729) 617,636; others include: self defence, Uwaekweghinya v The State (2005) 9 NWLR (pt 930) 227 and accident, Bakare v State (1987) NSCC 267.
They are exculpatory defences because where they are established in a criminal trial, they exonerate the accused person, Uwaekweghinya v. The State (supra) 287 C-D.
From the italicised portion of the above submission, it is evident that even the learned counsel for the appellant entertained no doubt that the appellant only trumped up his so-called defence of alibi during his evidence-in-chief. Even then, he proceeded to categorise it as “a complete defence”. This cannot be. The said defence of alibi is not conceded with levity to an accused person due to the fact that, as indicated above, when properly established’ it has the far-reaching effect of exculpating him from criminal responsibility, Ebre v The State (supra).
Thus, to be entitled to its beneficent effect, such an accused person must raise it at the earliest opportunity, Hassan v The State (2001) 6 NWLR (pt 709) 286, 305, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person, Ibrahim v The State (1991) 4 NWLR (pt 186) 399; Nwabueze v The State (1988) 3 NWLR (pt 86); Ikemson v The State (1989) 3 NWLR (pt 110) 455. Above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him, Onyegbu v The State (1995) 4 SCNJ 275, 285-286; Ibrahim v State (supra); Balogun v AG, Ogun State (2002) 6 NWLR (pt 763) 512, 535-536; Eke v The State (2011) LPELR – 1133 (SC) 16.
It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v State (2000) 4 NSCQR 60 and to disprove same, Eke v The State (supra). Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v The State (1965) ANLR (Reprint) 199; Bello v. Police (1956) SCNLR 113; Odu and Anor v The State (2001) 5 SCNJ 115, 120; (2001) 10 NWLR (pt.772) 668.
In effect, where a defence of alibi consists of vague accounts which are devoid of material facts worthy of investigation, the Police, in the circumstance, would least be expected to embark on a wild goose chase, Ebre v The State (supra) at 636, In situations, such as was the case at the court of trial, where the accused person raised the defence of alibi during the trial, it would be unavailing. Such a strategy would simply be viewed as a ploy, deliberately, contrived to deny the Prosecution its right and duty to investigate the defence, Hassan v State (2001) 6 NWLR (pt 709) 305. Worse still, where an accused person was fixed at the scene of crime, any plea of alibi would be valueless, Obokpolo v The State (1991) 1 SCNJ 91, 107, 108.
At the trial court, PW3 and PW4, during their further cross-examination, merely re-iterated the vague defence of alibi which the appellant introduced for the first time during evidence at the trial court.
Surely, that was a deliberate ploy aimed at short-changing the Prosecution. The said defence could, therefore, not avail the appellant contrary to the misconceived submissions of his counsel on paragraphs 4. 00; 4. 01; 4.02- 6.00 and, even, paragraph 7.00 of the appellant’s brief where he (counsel) urged the court to extend the trial court’s resolution of doubt in favour of the discharged second accused person to the appellant. We find no merit in the contention of the learned counsel on these issues.
Next, counsel turned to the question whether the circumstantial evidence used in convicting the appellant was “direct, positive and equivocal (sic, unequivocal),” On his part, Kehinde Ogunwumiju, learned counsel for the respondent, invited the court to hold that “even though there was no eye witness to the death of the deceased, the circumstantial evidence placed before the trial court was enough to sustain the finding of the court below that the appellant intentionally caused the death of the deceased (person).” From my earlier review of the totality of the circumstances surrounding the death of the deceased person, I, entirely, agree with the brilliant and compelling submissions of Mr Ogunwumuu on this point.
Now, the category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v State (1965) NMLR 119; Ukorah v State (1977) 4 SC 167; Lori v State (1980) NSCC 269; Onah v State (1985) 3 NWLR (pt 12) 236; Ebenehin v State (2009) All FWLR (pt 486) 1825, 1832-1833; Ijiofor v State (2001) 9 NWLR (pt 718) 371, 385, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijiofor v State (supra) 385. This is so for, in their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person caused the death of the deceased person, Idiok v State (2008) All FWLR (pt 421) 797, 818.
Simply put, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors v State (2009) 7 NWLR (pt 1139) 148, 178; (2009) LPELR -2663 (SC) 42-43.
Where such circumstances are established to the satisfaction of the court, they may be properly acted upon, Wills on Circumstantial Evidence (Seventh edition) 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v State (supra) 178, Thus, where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igbale v State (2004) 15 NWLR (pt 896) 314. However, such circumstantial evidence must point to only one conclusion, namely, that the offence had been committed and that it was the accused person who committed It, Dick v C. O. P. (2009) 9 NWLR (pt 1147) 530, 551. For the purpose of drawing an inference of an accused person’s guilt from circumstantial evidence, there must not be other co-existing circumstances which would weaken or destroy the inference, Igho v State (1978) 3 SC 87: State v Edobor (1975) 9-11 SC 69. Thus, all other factors and surrounding circumstances must be carefully considered for they may be enough to adversely affect the inference of guilt, Lori v State (1980) 8-11 SC 81; Udedibia v State (1976) 11 SC 133; Aigbadion v State (2000) 7 NWLR (pt 666) 686.
The explanation for this need for circumspection is simple: evidence that falls within this category may be fabricated to cast aspersion on other people per Lord Normand in R v Tepper (1952) 480, 489 approvingly adopted in State
v. Edobor (1975) 9-11 SC 69, 77. That is why a court must, properly, appraise the circumstantial evidence adduced by the Prosecution before convicting an accused person thereon, Adepelu v State (1998) 9 NWLR (pt 565) 185; Iko v State (2001) FWLR (pt 68) 1161; (2001) 14 NWLR (pt 732) 221; Orji v State (2008) All FWLR (pt 422) 1093, 1107.
It must be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an accused person. Thus, each case depends on its own facts. However, one test which such evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree to possibility or chance that other persons could have been responsible for the commission of the offence, Ijiofor v State (supra) 385; Ebenehi v State (supra) 1832.
With regard to this appeal, I take the view that the lower court, correctly, mapped the nexus of the criminality of the accused person in the circumstances. In the first place, the appellant’s retraction of his confessional statements, as shown above, could not have vitiated the proceedings, Obidiozo and Ors. v. The State (1987) 1 NWLR (pt. 67) 748; (1987) 11-12 SCNJ 103; Okaroh v The State (1988) 3 NWLR (pt 81) 220; (1988) 1 SCNJ 124; Ikemson and Ors v The State (1989) 3 NWLR (pt 110) 455, 467-468; (1989) 6 SCNJ 54; Ejinima v The State (1991) 6 NWLR (pt. 200) 637; (1991) 7 SCNJ 318; Durugo v The State (1992) 7 NWLR (pt. 255) 525; (1992) 9 SCNJ 46; Egboghonome v The State (1993) 7 NWLR (pt.306) 382; (1993) 9 SCNJ (pt.1) 1, 29, 32, 48.
Indeed, the lower court’s unanswerable concurrent findings put paid to the appellant counsel’s submission on this issue. Hear Abiru JCA:
Additionally, the lower court referred to the doctrine of ‘last seen’…The doctrine of ‘last seen’ means that the law presumes that the person last seen with a deceased (person) bears full responsibility for his death if it turns out that the person last seen with him has turned up (sic) dead. Thus, where a defendant was the last person to be seen in the company of the deceased (person) and circumstantial evidence is overwhelming and leads to no other safe confusion, then there is no room for acquittal. It is the duty of the defendant in such damnifying circumstances to give an explanation relating to how the deceased met his or her death and in the absence of such an explanation, surely and certainly, a trial court will be perfectly justified in drawing the necessary inference that the defendant must have killed the deceased…
(page 199 of the record)
His Lordship then proceeded to instantiate the circumstances which favoured the inferences that the appellant, intentionally, caused the death of the deceased person. According to the erudite Justice of the Court of Appeal:
There was unchallenged evidence in the testimony of the second prosecution witness, the wife of the deceased person, that the deceased was last seen leaving the house in the company of the appellant in the night of the day before the corpse of the deceased (person) was discovered and the third prosecution witness said he last saw the appellant with the deceased (person) in the room of the appellant in the compound where the corpse was discovered under a heap of sand. This was the room where splashes of blood were found everywhere on the next day shortly before the corpse was discovered in a heap of sand in the compound. These were compelling facts requiring explanation from the appellant and the appellant offered no explanation. There was thus cogent, credible and compelling facts in the evidence led by the Prosecution before the lower court to justify and sustain the finding of the lower court that the appellant participated in the killing of the deceased (person). This court cannot fault the findings of the lower court on the guilt of the appellant.
(page 199 of the record)
Just like the lower court could not fault the findings of the trial court on the guilt of the appellant, I find that I cannot, equally, fault the lower court in its concurrent finding on the appellant’s guilt, I had earlier noted the peculiar facts of this case: peculiar facts that prompted the lower court’s conclusion that it could not fault the trial court’s findings.
At the risk of repetition, I shall highlight the circumstances again: the sudden disappearance of the deceased person who was last seen with the appellant (pages 63 and 64 of the record); the sand-covered lifeless body of the deceased person in the appellant’s morbid compound, (page 66 of the record); sand used in covering the blood, (page 64 of the record); the unsuccessful attempt to conceal a vital piece of evidence that linked him, inextricably, with the said offence, namely, his action of hiding the deceased person’s “Vespa” Motorcycle sequel to the gruesome and grisly death of the deceased person, (page 64 of the record); his purchase of two gallons of paint and a brush at Panteka market (page 77 of the record).
That action was, inferentially, for the purpose of swathing the scarlet memento of the grisly incident he had caused, that is, the death of the deceased person. All these were matters which called for explanation for they inculpated him, against this background, I agree with the lower court that the available pieces of circumstantial evidence were cogent, complete and led irresistibly to the guilt of the accused person, Igho v State (1978) NSCC 166; Popoola v Police (1964) NMLR 1; Udedibia v State (1976) 11 SC 133; Lawanson v State (1975) 4 SC 115; Dick v C. O. P. (2009) 9 NWLR (pt 1147) 530, 546. Though the said pieces constituted circumstantial evidence, they proved the guilt of the appellant beyond every reasonable doubt, see, per Eso JSC in Igho v State (supra).
One final point: the submission of the appellant’s counsel in paragraph 8.02 of the brief bespeaks his misconception of the pungency of the evidence, which the trial court believed and the lower court affirmed, that the deceased person was last seen with the appellant on the fateful night. The last seen doctrine, a doctrine of global application, Madu v. The State (2012) LPELR -7867 (SC) 51-52; (2012) 15 NWLR (pt 1324) 405; (2012) 6 SCNJ 129; (2012) 6 SC (pt 1) 50; (2012) 50 NSCQR 67, also, referred to as “the last seen theory,” Rajashkhanna v State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v The State (2010) 2 MJSC 152, 186 -187.
Thus, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial court and even an appellate court will be justified in drawing the inference that he (the accused person) killed the deceased person, Igabele v State (2006) 6 NWLR (pt. 975) 100; Obosi v State (1965) NMLR 140; Nwaeze v The State (1996) 2 SCNJ 47, 61 – 62; Gabriel v. State (1989) 3 NWLR (pt.122) 457; Adeniji v. State (2001) 87 LRCN 1970; Madu v The State (supra); Igho v The State (1978) 3 SC 87, 254; (1978) 3 SC 61, 63.
In view of the said doctrine, therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death. Surely, in the absence of such an explanation, a trial court and even an appellate court, will be justified in drawing the inference that the accused person killed the deceased, Igabele v The State (supra); Obosi v The State (supra); Adepetu v The State (1998) 7 SCNJ 83; (1998) 9 NWLR (pt.565) 185; Adeniji v The State (supra); Emeka v The State (2001) 14 NWLR (pt 734) 666, 683; (2001) 6 SCNJ 259; Uguru v The State (2002) 4 SCNJ 282, 293; (2002) 9 NWLR (pt, 771) 90.
The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed innocent until proved guilty, Madu v The State (supra) 84, A-D, citing Igho v State (1978) 35 SC 51, 62 – 63; Igabele v State (supra); Nwaeze v State (supra); Obosi v State (supra); Uguru v State (supra); The State v. Kalu (1993) 7 SCNJ 113, 124-125; Adepetu v The State (supra); Rabi Ismail v The State (2011) MJSC 28, 77.
There was ample evidence before the lower court that the deceased person was last seen in the company of the appellant, Unfortunately, he (the appellant) could not give an explanation relating to how the deceased person met his death. The trial court, accordingly, convicted him. The lower court, rightly, affirmed the conviction and sentence on the appellant. Surely, in the absence of such an explanation, both the trial court and the lower court were justified in drawing the inference that the appellant killed the deceased, Igabele v The State (supra); Obosi v The State (supra); Adepetu v The State (supra); Adeniji v The State (supra); Emeka v The State (supra); Uguru v The State(supra).
I find no justification for disturbing their concurrent findings. This appeal has no redeeming feature. I, hereby, enter an order dismissing it.
In consequence, I further enter an order affirming the lower court’s affirmation of the trial court’s conviction of, and sentence on, the appellant. Appeal dismissed.
SC.241/2013