Usuman Madu V. The State (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The appellant was alleged to have killed one Janyo Kuti sometime in March, 1986. The Appellant was arraigned before the then Gongola State High Court of Justice sitting at Mubi, under section 221 of the Penal Code. The Appellant pleaded not guilty. Eight witnesses were called by the prosecution (Respondent). The Defence (Appellant) called one witness. Learned Counsel for the Defence addressed the Court. No reply was made by the prosecution. The learned trial Judge, after having considered the evidence called by the parties and the address by the Defence found that, the essential ingredients of the offence of culpable homicide punishable with death have ‘been proved beyond all reasonable doubt by the prosecution’ and found the accused (Appellant) guilty as charged. Learned trial Judge accordingly convicted the Appellant and sentenced him to death by hanging.

Dissatisfied with the trial Court’s verdict, the convict appealed to this Court. Briefs were filed and exchanged (Appellant’s and Respondent’s brief were both filed out of time by leave of this Court granted on various dates).

In his brief, learned Counsel for the Appellant, after having adopted same on the hearing date, formulated the following issues for our consideration:

“1. Whether the prosecution (Respondent) proved its case against the appellant (accused) beyond reasonable doubt before the Court convicted the Appellant (accused)?.

2. Was fair hearing accorded the Appellant at the trial?
3. Was the sentence of the trial Court that the Appellant be hanged to death valid in law in view of his age at the time of committing the offence?”

Learned Counsel for the respondent adopted and relied on the brief filed on behalf of the respondent. He formulated three issues as well:

“1. Whether the prosecutor (Respondent) proved its case against the Appellant (accused) beyond reasonable doubt before the Court convicted the Appellant (accused)?.

2. Was fair hearing accorded the Appellant at the trial? and
3. Was the sentence of the trial Court that the appellant be hanged to death valid in law in view of his age at the time of committing the offence?”

Learned Counsel for the Appellant submitted that the prosecution did not prove its case against the Appellant beyond reasonable doubt before the trial Court convicted the Appellant. He cited section 138 of the Evidence Act and the Case of Alabi v. The State (1993) 7 NWLR (pt. 307) 511 (1993) 9 SCNJ 109.

He argued further that, the prosecution relied upon a confessional statement said to be made to the police by the Appellant which the trial Court made a heavy weather out of in convicting and sentencing the Appellant. The Appellant, it was argued further vehemently denied the said confessional statement. The said confessional statement was in apparent contradiction with the testimony of PW1.

On issue No.2, learned Counsel for the Appellant submitted that the trial Court did not afford the Appellant a fair hearing at the trial before conviction and sentencing to death of the Appellant. Learned Counsel argued that, it was wrong of the learned trial Judge to have himself translated Exhibit 2 from Hausa to English language without the knowledge and consent of the parties and by admitting same, suo motu, without the participation of the parties. It was further alleged that, the learned trial Judge erred in law when he refused to consider the defences put up by the appellant. All these the learned Counsel argued, infringed on the fundamental right of the appellant to fair hearing as entrenched in section 33(4) of the Constitution of the Federal Republic of Nigeria, 1979 (as amended) and the rules of natural justice of ‘audi alteram partem’ and ‘nemo judex in causa sua’. This infringement had vitiated the trial court’s proceedings. He cited the cases of Akinfe v. The State (1988) 3 NWLR (pt. 58) 729; Christopher Otti v. I.G.P. (1956) NNLR 1; Njoku v. The State (1993) 6 NWLR (Pt. 299) 272,(1993) 7 SCNJ 36 at 41.

Learned Counsel for the Appellant argued in his issue 3 that by March, 1986 when the offence was said to have been committed by the Appellant, the Appellant was less than 17 years. And that section 272 of the Criminal Procedure Code applicable to Adamawa State forbade death sentence on a convict who was less than 17 years of age. He cited Odidika v. The State (1977) 2 SC 21. Learned Counsel finally urged this court to allow the appeal.

In the brief filed by learned Counsel for the Respondent, all the issues raised by the Appellant and indeed the whole appeal were conceded by the Respondent. At the tail end of the brief learned Counsel for the Respondent stated:

“The three issues of argument raised by the Appellant have been and are all conceded with their supporting authorities by the respondent and admit of no argument…

We therefore, have no other thing than to urge your lordships to discharge and acquit the appellant accordingly as prayed by the appellant”.

I think where a respondent concedes to an appeal and admits of no argument, the duty of the Court becomes much easier. Obviously, the duty of the Court is not to make out cases for the parties but to consider and make pronouncement on the credible evidence by the parties albeit, with more weight on the side of the party whose case appears more just to the Court. See Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt. 439 637 (1996) 3-4 MAC 24 page 28.

A concession to a case is another form of telling the Court that the Defendant has no defence and does not object to the granting of all the reliefs asked by the Plaintiff. In such a situation, the Plaintiff in a civil suit or the accused in a criminal case shall be entitled to all the reliefs sought or a discharge order against the crimes preferred against him as the case may be. In this appeal, both parties agreed that the prosecution (the state), Respondent in the appeal, failed to establish the offence of culpable homicide punishable with death preferred against the accused before the trial court as is under section 221 of the Penal Code. It is trite law that where the prosecution has failed to establish a case against an accused person, the trial Court has no alternative but to discharge and acquit the accused. See: Okatie & Others v. The State (1996) 2 SCNJ 42.

The basic principle in a criminal trial always is that the prosecution must prove all the ingredients of the offence charged and the burden of such proof, which is on the prosecution, never shifts. The standard of proof required is ‘proof beyond reasonable doubt.’ Kalu v. State (1988) 4 NWLR (Pt. 90) 503; Ugbaka v. State (1994) 8 NWLR (pt.364) 568) 568 at 581; Obri v. State (1997) 7 NWLR (Pt.513) 352. Under section 221 of the Penal Code, the law requires the prosecution to prove:

1. That death of the deceased has actually taken place.
2. That such death has been caused by the accused.
3. That the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:

(a) the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act or

(b) that the accused knew or had reason to know that death would be the probable and not only the likely consequences of any bodily injury which act was intended to cause.

The learned trial Judge based his conviction and sentence on the strength of the Appellant’s confessional statement which was admitted in evidence as Exh. 2 and the testimonies of the prosecution witnesses. This is what the learned trial Judge among others said:

“I have no doubt in my mind that the confessional statement of the accused approximates fairly to what really happened between the deceased and the accused and goes to explain the circumstances and the facts of the killing of the deceased. I therefore hold that, the confessional statement is true and voluntary. I also accept the evidence of the prosecution witnesses. They each struck me as a witness of truth. In my opinion their evidence substantially accords (sic) with the contents of Exh.11. I hold that it is my opinion that the essential ingredients of the offence has (sic) been proved beyond all reasonable doubt by the prosecution.”

I have earlier on summarised the submission of learned Counsel for the Appellant that the prosecution failed to establish its case against the Appellant and that the confessional statement credited to the accused was later retracted. It was also written in Hausa language but the Court suo motu translated in into English language. Learned Counsel for the Appellant contended that further proof on the confessional statement was necessary before it was admitted by the trial Court. Learned Counsel for the Respondent in conceding to the above points stated:

“The burden of discharging all the rudiments of the offence against the Appellant was not carried out by the prosecution (Respondent) as required by section 138 of the Evidence Act, this makes it fatal to the prosecution (Respondent’s) case and admits of no argument”.

Section 138 of the Evidence Act, LFN, 1990 provides:

“138(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of section 141 of this Act on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused”.

Secondly, for a confessional statement to be acted upon, the trial Judge must ask himself the following questions:

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 facts, true as far as they can be tested?
4. Was the prisoner the one who had the opportunity of committing murder?
5. Is his confession possible?
6. Is it consistent with others which have been ascertained and have been proved?

See: Kanu v. The King (1952) 14 WACA, 30; Dowo v. State (1980) 8-11 SC 236; Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383; Akinfe v. State (1988) 3 NWLR (pt.85) 729; Re-Osokwe (1994) 2 NWLR (Pt.326) 273.

Therefore, in view of the above and other hurdles which have not been crossed by the prosecution and having myself found that the trial Judge was in grave error in the evaluation of the evidence placed before him, in addition to the concession of all points raised by the Appellant in his grounds of appeal clothed by the issues formulated, I come to the inevitable conclusion that there is merit in this appeal and must and is hereby allowed. Accordingly, the decision of the lower Court is hereby set aside. The conviction against the Appellant is hereby quashed. The sentence of death by hanging pronounced on the Appellant is hereby set aside. The Appellant is accordingly, hereby discharged and acquitted of the charge of culpable homicide punishable with death preferred against the Appellant.

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Other Citations: (2000)LCN/0704(CA)