Yelli V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C. 

After a trial in which the Prosecution called four Witnesses, and the Appellant testified in his own defence, the Sokoto State High Court found the Appellant guilty as charged for causing the death of “Abubakar Magaji by hitting him with a stick on his head with knowledge that death will be a probable consequence!

He was, accordingly, convicted and sentenced to death for the offence of culpable homicide punishable with death. He appealed to the Court below, wherein he complained inter alia that the trial Court erred in law when it relied on his extra-judicial statement, which did not meet the requirement of the law, as laid down in Utuyorome V. State (2010) 43 WRN 162. But, in its judgment, delivered on 21/2/2017, the Court below held that “his appeal is moribund and lacks merit, and it is accordingly dismissed. The judgment of the High Court of Justice sitting at Sokoto and delivered on 28/4/2015 – – is hereby affirmed”.

​Dissatisfied, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal. He distilled three Issues for Determination from the three Grounds of Appeal in his Brief of Argument, and the Issues are:

a. Whether the learned Justices erred in law when they disregarded the already laid down principles of law as laid down in Utuyorome V. State (2010) 43 WRN 162, in convicting and sentencing the Appellant.

b. Whether the learned Justices erred in law when they relied on the extra-judicial Statement of the Appellant, which does not meet the requirement of law as laid down in the case of Utuyorome V. State (2010) 43 WRN 162, in convicting and sentencing the Appellant.

c. Whether the judgment is not against the weight of evidence.

The Respondent distilled a “lone Issue” from the three Grounds of Appeal and that is “whether the Court below was right to have upheld the conviction of the Appellant”, with the focus being on the “proprietary of the value placed on the extra-judicial statement of the Appellant by the trial Court, which was confirmed by the Court below”. Nonetheless, it also made the argument in its Brief that –

“The Grounds of Appeal in this appeal is virtually not an appeal against the judicial exercise of the Court below because they are nothing but repetition of Grounds of Appeal against the judgment of the trial Court.”

Citing FRN V. Nwosu (2017) All FWLR (Pt 883) 1484, it submitted that it is settled that Grounds of Appeal should constitute a challenge to the ratio of the decision appealed against, and it is well-nigh impossible that the same Grounds of Appeal raised against the trial Court’s decision, will be apposite to sustain an appeal against the decision of the Court below; and that the three Grounds of Appeal are incompetent, and issues formulated thereon must also fail and fall like a pack of cards, citing Akpan V. Bob (2010) All FWLR (Pt. 501) 896. The Appellant, however, argued in his Reply Brief that the Respondent’s contention is not only misconceived in law but an attempt to persecute and shut him out in an offence involving capital punishment, which is out of the question.

He referred the Court to its decision in Nwankwo V. E.D.C.S.U.A (2007) 5 NWLR Pt. 1027 377, wherein Onnoghen, JSC (as he then was), observed:

It is settled law that a ground of appeal is basically a highlight of the error of law or fact, or mixed law and fact made by the Court in the decision sought to be set aside in the appeal. It is the sum total of the reason(s) why the decision on appeal is considered by Learned Counsel for the Appellant to be wrong and liable to be set aside. It follows, therefore, that for a ground of appeal to be capable of achieving the purpose of setting aside the decision appealed against, it has to be very substantial and must relate to the ratio of the decision not directed at the obiter dictum of the Court or in the Judgment.”

He argued that this appeal is not against the obiter dictum of the Court below; and citing Ndike V. State (1994) 8 NWLR (Pt. 360) 33, he further argued that it is safe to say that the Court below had examined the trial Court’s Record and concluded that the issues were properly decided, and by so doing, the Court below affirmed the entire decision of the trial Court; that the Respondent failed to show how the ratio of the Court below is different from that of the trial Court; that it admitted in its Brief that the Court below gave a nod to the decision of the trial Court, and it cannot turn around to argue that their ratios were different; and that the law is that a Party cannot be allowed to approbate and reprobate, citing Hymn Hydraulic Mach. co. V. Jaffar (2004) 15 NWLR (Pt. 896) 343.

Furthermore, that the Respondent’s interpretation of FRN V. Nwosu is misconceived and uncharitable; that while he says that this appeal is against the decision of the Court below, what this Court held in FRN V. Nwosu is that Parties cannot agitate in this Court Issues determined at the trial Court by way of an appeal, “asserting same to be a challenge to the jurisdiction of this Court or in response to such purported objection”; that the Grounds of Appeal and Issues for Determination are a direct and unalloyed attack on the judgment of the Court below appealed against. Thus, he urged this Court to dispassionately examine the Grounds of the instant appeal and the Issues distilled therefrom.

Basically, the Respondent is challenging the competency of this appeal, on the ground that Grounds of Appeal in the Notice of Appeal filed in this Court against the lower Court’s judgment, are a repetition of Grounds of Appeal in the Notice of Appeal filed at the lower Court against the trial Court’s judgment.

​At this point, it is necessary to look at the facts of this case, the decisions of the lower Courts, and the complaints in the respective Grounds of Appeal; because, as the Appellant submitted, it is settled law that a ground(s) of appeal must arise from the ratio decidendi of a decision appealed against, and Issues formulated for the determination of the appeal, must arise from the grounds of appeal, which emanated from the decision appealed against – see Ibigbami & Anor V. Mil. Gov. Ekiti State (2004) 4 NWLR (Pt. 863) 243 and Muhammed V. State (2000) 12 NWLR (Pt. 682) 596, Nwankwo V. E.D.C.S.U.A (supra).

Four Witnesses testified for the Prosecution. The key Witnesses is PW1 Magaji Mammar, who is the father of the deceased, and he testified as follows:

“I know the Accused. He is my junior brother. He killed my son… The incident occurred at night, I was lying down me and my son as we were lying down, the Accused climbed on the wall and when he came, he hit my son with a stick on the forehead, who was asleep by the time. When Bello Yelli hit my son I pursued him, and he escaped by climbing the wall and went into the bush. I came back crying, calling for assistance from neighbours. I said they should pursue him but he escaped, I then came back and carried the said Abubakar to the Police Station, Gidan Madi, and he was rushed to the hospital. I was in company of Policemen. He was examined and confirmed dead. We were ordered to take him home for burial and the Police and vigilante group continued to search for the Accused.”

The other Witnesses are Police Officers. PW2, Sgt. Ahmed Abubakar, is an Exhibit Keeper, and a Fulani stick was admitted in evidence through him as Exhibit A. PW3, Sgt. Mohammed Bawa, of CID Office, Sokoto, testified that he recorded the Appellant’s Statement, and the Statement in Hausa language and its English translation were admitted through him as Exhibits B and B1.

Cpl. Yahaya Lawal, who was at Gidan Madi Division, testified as PW4. He narrated how his team went to Wariya Village after the case was reported and met PW1 and his relatives on the road. They followed them to the hospital, where the deceased died. The Coroner’s Form they sent to the Medical Doctor, was admitted in evidence through him as Exhibit C. PW4 also identified a photograph of the deceased, showing his head. The Defence Counsel objected to its admissibility in evidence because “the negatives or the memory were not attached and violates the provision of Section 87(b) of the Evidence Act”. But the trial Court overruled the objection of the Defence Counsel and admitted the photographs in evidence through PW4 as Exhibits D1 D2 & D3 respectively.

It is settled law that a confessional statement that is properly admitted, is part and parcel of the evidence adduced by the Prosecution to prove its case against an Accused Person – see Egboghonome V. State (1993) 7 NWLR (Pt. 306) 383 SC, wherein this Court, per Belgore, JSC (as he then was) stated –

“The voluntary statement of the Accused is part of the case for the Prosecution whether it contains confession or not and whether the Accused resiles it at trial or not. It is when the Court treats such Statement as part of the defence of an Accused that the confusion arises as to consistency of the Accused’s testimony. The most important aspect of the words of caution should not be overlooked, it says — “and may be given in evidence”. The prima facie refers to evidence at trial by the Prosecution that – “…decided to make a complaint against …(Accused) before a Court”. If in the trial the Accused asserts in his evidence that he never made the statement voluntarily (in which case the voluntariness will be decided in a trial within trial), or that he never made the statement at all (whereby voluntariness is not involved and a Court can admit the statement subject to the weight to be attached to it in general consideration of all the evidence at the trial), the statement should always be viewed as part of the case for the Prosecution. A fortiori if the Accused does not challenge the statement. Such a statement, once legally admitted in evidence, will be juxtaposed with all the evidence in Court, including the defence, so as to decide the general merit of the case. But such statement is always part of the case for the Prosecution.”

​In this case, the Appellant stated as follows in Exhibit B1 (English translation):

On 14/4/2013 at about 0130 hours, I went to Wariya Village and saw one Abubakar

Magaji sleeping. By then I was in possession of a stick. I then hit Abubakar with the stick on his head once. I then run away. The reason why I hit him is that about two months ago, he, Abubakar, met me at Ruwa Wuri Market and he hit me to an extent I sustain injury. Later, I was arrested by the Police with an allegation that I killed Abubakar. Honestly, I hit him with a stick on his head and I know that that is the cause of his death That is all I have to state.”

However, in his testimony as DW1, the Appellant told a different story. He said:

I don’t even know Abubakar Magaji, the deceased, whom they alleged that I killed. On 15/4/2013 I can remember what happened on that date. I was sitting myself and my brothers when the Police came and arrested me. I asked them what happened, they handcuffed me and placed me into a vehicle and carried me to Police Station, Gidan Madi. They asked me what had happened, and I told them that by God I did not know what had happened. They did not tell me at that time until when I was taken to the State CID. I did not make any statement to the Police before I was taken to State CID. At State CID they asked me, and I denied, and they started beating me. That is all I know in this case.

​Under cross-examination by the Prosecution Counsel, he stated as follows: I told the Court that my name is Bello Yelli. I live at Buguwa Village. I don’t know one Abubakar Magaji. Police arrested me. I did not make any statement to the Police. Even at the State CID I told them I don’t know anything. I don’t know the Policemen till they arrested me. I don’t know who told the Police my name. I don’t know one Magaji Mamman. It was only in this Court that I saw Magaji Mamman, PW1. I never knew Kasuwa Ruwawuri.

In his judgment delivered on 28/4/2015, the learned trial Judge, B. Abbas, J., reproduced the Appellant’s confession in Exhibit B1, and observed as follows:

The said Confessional Statement, Exhibit B, B1 made by the Accused and duly admitted through PW3 without any objection by the learned Counsel to the Accused, has further been corroborated by the evidence of PW1 who gave an eye-witness detailed account of what transpired on the fateful day of the incident. The piece of evidence had not been contradicted even under cross-examination, as the Witness, though he agreed that there was no electricity in the said Village at that material time at night but maintained that there was lamp and that he saw when the Accused hit the deceased with a stick on his head, who was then asleep, and was confirmed dead at the Hospital, while the Accused escaped into the bush.

Conviction can be sustained on a confessional statement provided that the statement is direct and positive and such confessional statement alone is sufficient to ground and support conviction. The Accused, by Exhibit B, B1 clearly admitted that he hit the deceased with a stick on the head while he, the Accused (sic) was sleeping and that it was upon inflicting the injury that resulted into his death and that confessional Statement, Exhibit B, B1 was not objected to when sought to be tendered in evidence. The Accused in his defence as DW1 merely testified that he does not know Abubakar Magaji, the deceased but that the Police, on 15/4/2013 arrested him, handcuffed him, and placed him into a vehicle, carried him to Gidan Madi Police Station and stated that he did not make any statement and when he denied at State CID Police started beating him. Under cross-examination, DW1 maintained that he did not make any statement and that he did not know anything and that it was only in this Court that he saw Magaji Mamman, father of the deceased, Abubakar Magaji. The Accused, retracting his confessional statement, resiling from same Exhibit B, B1 is an afterthought and that defence does not avail him in the face of an overwhelming evidence presented by the Prosecuting (sic) Witnesses and various Exhibits tendered.

After making these observations, the learned trial Judge concluded as follows:

From the peculiar facts and circumstances of this case, having considered the uncontroverted evidence of the Prosecution Witnesses, PWs 1-4 and the relevant Exhibits tendered and admitted in evidence, this Court accepts the Prosecution’s evidence and reject the defence evidence of the Accused as DW1 to be an afterthought and hold that the 2nd and 3rd ingredients of the offence of culpable homicide contrary to Section 221(b) of the Penal Code to have been proved by the Prosecution beyond reasonable doubt and hold that the act of the Accused by hitting the deceased with a stick on his head while he, Abubakar Magaji, was asleep that caused the death and the Accused will in the circumstances be fixed with knowledge that his death will be the probable consequence of his act.

In the result, therefore, the Prosecution has established its case against the Accused Person beyond reasonable doubt and he is found guilty of the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code, and is, therefore, hereby convicted as charged accordingly.

Dissatisfied, the Appellant filed an original Notice of Appeal at the Court below wherein he complained that “the decision of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial”. However, he also indicated in the said Notice of Appeal that further Grounds of Appeal would be filed upon receipt of the Record of Proceedings.

The said Notice of Appeal was amended. The Amended Notice of Appeal contains three Grounds of Appeal, and the complaints therein read as follows:

GROUND 1: The learned trial Judge erred in law when he disregarded already laid down principle of law as laid down in the case of Utuyorome V. The State (2010) 43 WRN P. 162 @ 166, Ratio 2 in convicting and sentencing the Appellant

PARTICULARS

i) The Supreme Court had in plethora of cases held that the Prosecution bears the burden of proving its case against the Accused Person, particularly, in capital offences, beyond reasonable doubt.

ii) Any iota of doubt must be resolved in favour of the Accused Person as held by the Supreme Court in Aigbadion V. The State (2000) 4 SCNJ 1.

GROUND 2: The learned trial Judge erred in law when he relied on the extra-judicial statement of the Appellant, which does not meet the requirements of the law, as laid down in the case of Utuyorome V. The State (2010) 43 WRN P. 163 @ 168-169, R. 10 in convicting and sentencing the Appellant.

PARTICULARS

i) Whereas the Supreme Court held in Okpako V. State (2013) 11 WRN P. 31 @ 35 R. 3 that it is desirable to have some evidence outside the confession, which will make it probable that the confession was true.

ii) Confessional Statement must be direct and positive before a Court can convict based on same.

iii) The trial Court acted on a confessional statement that did not satisfy the requirement of the law vis-a-vis the totality of evidence as held in the case of Aderoju V. Nigerian Army (2013) 27 WRNP. 149 @ 156 Ratio 6.

GROUND 3: The learned trial Judge erred in law by convicting the Accused Person as charged

PARTICULARS

i) The trial Court relied on the evidence of PW1 who testified to have seen the Appellant scaling through the fence in the middle of the night when there was no electricity.

ii) The evidence of PW1 is doubtful and such doubt should have been resolved in favour of the Accused Person.

In his Brief of Argument filed at the Court below, the Appellant distilled three Issues for Determination from the three Grounds of Appeal, and the Issues are.

(a) Whether the trial Court reached a conviction against the Appellant for culpable homicide based on laid down principles of law? (Ground 1)

(b) Whether there was a credible confessional statement warranting the trial Court to convict the Appellant?

(c) Whether the trial Court’s decision against the Appellant resulted in a miscarriage of justice, without further proof of the evidence of PW1? (Ground 3)

The Court below resolved the Issues against him, and concluded as follows –

The mere fact that he subsequently retracted Exhibits B and B1 does not necessarily mean that the trial Court could not have acted on the Statements, more so when the Court successfully tested the truth in the confessions against the guidelines issued by the Court in the case of R. vs. Sykes (supra). [On] the issue of whether the trial Court rightly found the ingredients of culpable homicide punishable with death had been established in this case, it is rather clear from the testimonies of PW1 to PW4 and from the contents of Exhibit B and B1 which are the Statements of the Appellant tendered at the lower Court without objection, and Exhibit C the Medical Report tendered in the course of trial, I am unable to disagree with learned Respondent’s Counsel that the Prosecution did not prove its case to the hilt. The position of the law is that a person is clearly guilty under Section 221 (b) of the Penal Code, if the act by which death is caused is done with the intention of causing death, or if the doer of the act knew or had reason to know that death would be the probable and not a likely consequence of the act or of any bodily injury, which the act was intended to cause. The Appellant cannot feign ignorance of the likely consequences of his action. He saw the deceased sleeping when he struck the fatal blow to his head. He had hit the deceased right at the head with a stick, even at such a time when the deceased was fast asleep, not on any other part of the body, but the head. His intention to kill or cause bodily harm was betrayed by the fact that the deceased was asleep and that all he simply had to do was to kill him once and for all. By hitting the deceased with a stick on the head while the deceased was fast asleep and quite vulnerable, clearly demonstrated the intended mission of the Appellant on the fateful day, which manifested as a clear intention on his part to kill. To this end, his appeal is moribund and lacks merit, and it is, accordingly, dismissed. The Judgment of the High Court of Justice sitting at Sokoto and delivered on 28/4/2015, by Bello Abbas, J., is hereby affirmed.

Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, wherein he also complained as follows –

GROUND ONE:

The learned Justices erred in law when they disregarded the already laid down principle of law as laid down in the case of Utuyorome V. The State (2010) 43 WRN P. 162, Ratio 2 in convicting and sentencing the Appellant.

PARTICULARS

i. The Supreme Court had in plethora of cases held that the Prosecution bears the burden of proving its case against the Accused Person, particularly, in capital offences, beyond reasonable doubt.

ii. Any iota of doubt must be resolved in favour of the Accused Person as held by the Supreme Court in Aigbadion V. The State (2000) 4 SCNJ 1.

GROUND TWO:

The learned Justices erred in law when they relied on the extra-judicial statement of the Appellant, which does not meet the requirements of the law as laid down in the case of Utuyorome V. The State (2010) 43 WRN P. 162, Ratio 10 in convicting and sentencing the Appellant.

PARTICULARS

i. Whereas the Supreme Court held in Okpako V. State (2013) 11 WRN P. 31 @ 35 R. 3 that it is desirable to have some evidence outside the confession, which will make it probable that the confession was true.

ii. Confessional Statement must be direct and positive before a Court can convict based on same.

iii. The Court of Appeal acted on the confessional statement that did not satisfy the requirement of the law vis-a-vis the totality of evidence as held in the case of Aderoju V. Nigerian Army (2013) 27 WRN P. 149 @ 156 Ratio 6.

GROUND THREE:

The judgment is against the weight of evidence.

True enough, apart from substituting “the learned trial Judge erred in law”, with “the learned Justices erred in law’”, Ground One and Ground Two of the Grounds of Appeal in this appeal are word for word the same as Ground 1 and Ground 2 of the Grounds of Appeal filed in the appeal at the Court below.

This smacks of mental or intellectual laziness on the part of the Counsel, who prepared and filed the processes, but the said repetition is not sufficient, in my view, to render this appeal incompetent, as argued by the Respondent.

Ground(s) of appeal encapsulate reasons why the decision complained against is considered wrong by the Appellant – Ehinlanwo V. Oke (2008) 6-7 SC (Pt. II) 123. Therefore, a ground of appeal consists of error of law or fact alleged by the Appellant as the defect in the judgment he is appealing against – Metal Construction Ltd. V. D. A. Migliore & Ors (1990) 1 NWLR (Pt. 126) 229 SC.

​An appellate Court is enjoined to examine the Record in relation to the grounds of appeal filed and issues for determination; and “thereafter determine whether such issues were properly decided having regard to the evidence adduced by the Parties and the applicable laws”- see Ndike V. State (supra).

As this Court observed in Afro-Continental Nigeria Ltd. V. Ayantuyi (1995) 9 NWLR (Pt. 420) 411, in the judgment of the Court, the binding part of the decision is its ratio decidendi, as against the remaining parts thereof, which merely constitute obiter dicta; an opinion that is not necessary for the decision.

In this case, I agree with the Appellant that the Respondent’s contention that the ratio of the trial Court cannot be the same with that of the Court below, is misconceived because it is very clear from its judgment that the Court below examined the Record and determined that the issues were properly resolved before it affirmed the decision of the trial Court, including its ratio decidendi.

I also agree with the Appellant that the case of FRN V. Nwosu (supra), relied upon by the Respondent, is of no moment in this appeal. In that case, which dealt with the issue of jurisdiction, M. D. Muhammad, JSC, stated thus:

The (lower) Court concluded that the trial Court lacked jurisdiction over the subject matter of the appeal before it as the law has made jurisdiction over the offences against the Respondents exclusive to the Federal High Court. The Court also declined deciding the remaining two issues set out for the determination of the appeal as same had become academic or hypothetical. A dispassionate examination of the grounds of appeal and issues distilled from the grounds undoubtedly reveals that both relate to the Judgment of the lower Court – – I am of the firm and considered view that the entire grounds of appeal and the issues predicated on them are a direct and unalloyed attack on the judgment of the lower Court appealed against, On the authorities, therefore, both the grounds and the issues are competent, and I am unable to hold that they are otherwise. Those aspects of 1st Respondent’s objection, which ascribe to the grounds of appeal and the Appellant’s issues for the determination of the appeal attributes, not manifest in them, are not only misconceived but uncharitable. The 1st Respondent, having neither filed a cross-appeal nor a Respondent’s Notice, lacks the locus of raising issues not traceable to the extant notice of appeal and the Appellant’s issues for determination, which have necessarily drawn from the grounds of appeal. Addedly, neither the Appellant nor the 1st Respondent is allowed by law to agitate in this Court, issues determined at the trial Court by way of an appeal asserting same to be a challenge to the jurisdiction of this Court or in response to such purported objection.

It is a settled principle that “a case is only an authority for what it decides” – see Okafor V. Nnaife (1987) 4 NWLR (Pt. 64) 120, Adegoke Motors V. Adesanya & Anor (1989) LPELR-U(SC), Izeze V. INEC (2018) LPELR-442U60(SC), and PDP V. INEC & Ors (2018) LPELR-44373(SC), wherein this Court added that relying on a case without relating it to the facts that induced it, will amount to citing the case out of proper context. In other words, the importance of facts cannot be overemphasized, as the facts determine the fate of any case — see Obasi Bros. Co. Ltd. V. M.B A.S. Ltd. (2005) 9 NWLR (Pt. 929) 123. In effect, it is not enough to cite an authority, it must be related to the facts of the case.

In this case, the Respondent merely cited FRN V. Nwosu (supra) and submitted that the “Grounds of Appeal should constitute a challenge to the ratio of the decision appealed against”, without relating the decision in that case to facts of this case, the judgment appealed against and the Grounds of Appeal.

No doubt, the Respondent is making a mountain out of a molehill with its argument that this appeal is not an appeal against the judicial exercise of the Court below because the said Grounds of Appeal raise the same complaints in the Court below and this Court. So, the objection lacks merit, and it is overruled.

However, before I round up, I must point out that Ground Three of the Grounds of Appeal filed in this appeal, which complains that “the judgment is against the weight of evidence”, is clearly incompetent and must be struck out, because, as this Court held in Ndike V. State (supra), criminal cases are not decided on weight of evidence or balance of probabilities. A ground of appeal alleging that the decision appealed against is “against the weight of evidence” is, therefore, not a competent ground of appeal in a criminal case. The said Ground and the Issue distilled therefrom are incompetent and are struck out.

As it is, I agree with the Respondent that the sole Issue for determination is simply whether the Court below was right to affirm the trial Court’s decision. To start with, the Appellant cited Utuyorome V. State (2010) 43 WRN 162, wherein the Court set out the ingredients of the offence charged, which are –

1. That the death of a human being has actually taken place.
2. That such death was caused by the Accused.
3. That the act was done with the intention of causing death; and
4. That the Accused knew or had reason to know that death would be the probable and not the likely consequence of his act.

​He submitted that in considering the ingredients, the Court should examine the totality of the evidence and not the act or evidence of the Appellant in isolation; that the Court below did not do this before affirming the trial Court’s decision; that the trial Court’s test of his criminal responsibility was subjective instead of objective, citing Kaza V. State (2008) 7 NWLR (Pt. 108) 125, and it relied solely on his recanted Confessional Statements to prove the said ingredients; and that any doubt must be resolved in favour of the Accused, citingAigbadion V. State (2000) 4 SCNJ 1 and Sale V. State (2016) 3 NWLR (Pt. 1499) 392.

Furthermore, that in criminal cases, the guilt of the Accused Person must be established beyond reasonable doubt, citing Obiode V. Ors V. State (1970) LPLER 2524 (SC), Ogundiyan V. State (1991) 3 NWLR (PT. 181) 519; Ani V. State (2009) 6 SCJN 98, Alao V. State (2011) 34 WRN 90; that in this case, the Prosecution did not prove its case beyond any reasonable doubt that mere hitting the head of the deceased with a stick and in the dark, as stated by PW1 was sufficient to cause the death of the deceased or that his act was intended to cause the death of the deceased; that there was lack of mens rea and other vital ingredients to prove the offence; and that the trial Court used inadmissible and/or wrong evidence to establish the intent on his part to commit the offence.

​On the Issue of his Confessional Statement, he submitted that the Record shows that he is literate in Hausa language, took his plea in Hausa language, and testified in same as DW1; that he was never asked to write his statements, even in the Hausa Language that he is well-versed in; that PW3 wrote the said Statement in Hausa language and went further to write it in English language; that he was made to sign a statement he did not write; that if he were to be an illiterate in both Languages, he would have thumb printed, rather he signed by “writing his name”; that the trial Court acted on and the Court below affirmed a confessional statement that did not satisfy the requirement of the law vis-a-vis the entire evidence as held in Aderoju V. Nigerian Army (2013) 27 WRN 149; and that he denied making the confessional statement, and when the Charge was read and explained to him in Court, he stated that the Charge was not true.

​The Respondent argued that the Appellant’s cry that Exhibits B & B1 were not confessional or made by him, can be likened to that of a wolf because the said Exhibits, which are his extra-judicial Statements, were in the first place admitted without any challenge at the critical time that mattered; and that this forms the basic set back to his case, as rightly observed by the Court below.

It submitted that in criminal trials, the defence has a duty to challenge every evidence it wishes to dispute by cross-examination of the Witness while in the Witness Box and not at the close of the case or in an Address of Counsel, citing Nwaebonyi V. State (1994) 5 NWLR (Pt. 343) 138; that the effect of the failure to challenge the Exhibits in any form when they were being tendered as the Appellant’s voluntary Statement is that the trial Court could safely act on the facts therein; and even without corroborative evidence, it is safe for a trial Court to convict an Accused Person on his free and voluntary Statement alone.

It also argued that the contention that the Appellant did not write any of the said Exhibits B & B1 is only a ploy to negotiate what was left unchallenged at the material time of trial; and that though the Appellant canvassed the failure of the Court below to adhere to the principles in Utoyorume V. State (supra), without relating the said principles in any way, the Court below appreciated the cardinal position of the law on the trial Court’s duty, when it stated as follows:

On the question of weight to be attached to a confessional statement whether retracted or not retracted, the tests are so laid down in the old English case of R. vs. Sykes (1913) 8 C.R APP. R. 233, approved by WACA in Kanu v. King (1952/55) 14 WACA 30 and several other decided cases on the subject. The tests, therefore, as laid down in the case of R vs. Sykes (supra) to be applied to a man’s confession are: Is there anything outside it to show that it is true? Is it corroborated? Are the statements made in it of fact, true as far as can be tested? Was the Appellant, one who had the opportunity of committing the crime? Is his conviction possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved?

It submitted that the trial Court evaluated the contents of Exhibits B & B1 along with other available evidence, and this was confirmed by the Court below; and that the trial Court diagnosed and brought to bear all the above related tests in R. vs. Sykes (supra), and as such, the trial Court’s decision, as affirmed by the Court below on Exhibits B & B1, “are direct, compelling, and unassailable”

​There is no question that Exhibits B & B1, the Statements made by the Appellant to the Police, which the two lower Courts found to be confessional, was a key factor in the case against the Appellant, and a good place to start in resolving this appeal is to take a hard look at what the law says on the subject.

It is settled that a confessional statement is the most effective compass of navigating culpability of an Accused on the part he played in the commission of the offence, and different principles govern the admissibility of a confessional statement disowned, and the one that is objected to as involuntarily made.

See Obidiozo & Ors V. State (1987) LPELR-2170 (SC) and Solola V. State (2005) 11 NWLR (Pt. 937) 460, wherein Tobi, JSC, aptly observed that:

A confessional statement is the best evidence. It is a statement of admission of guilt by the Accused and the Court must admit it in evidence, unless it is contested. If a confessional statement is contested at the trial, our procedural law requires that the trial Court should conduct a trial within a trial for purposes of determining the admissibility or otherwise of the statement. Once a confessional statement is admitted, the Prosecution need not prove the case against the Accused beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the Accused.

In this case, the trial Court did not need to conduct a trial-within-trial because the Appellant did not challenge the admissibility of Exhibits B & B1 on the ground of involuntariness. He merely retracted his Confessional Statement, and it is well settled that a confessional statement, if made voluntarily, and even if it is subsequently retracted, is sufficient to sustain a conviction – see Solola V. State (supra), Nwaeze V. State (1996) 2 NWLR (Pt. 428) 1.

What is more, this Court has repeatedly said that the time to object to the admissibility of a confessional statement is when the Statement is sought to be tendered – see Oseni V. State (2012) 5 NWLR (Pt. 1293) 351, wherein this Court observed.

The Appellant’s counsel at the trial stage did not object to the admissibility of [his] confessional statement, yet he went on to blame the trial Court in not treating [the] confessional statement with utmost caution. It [is] too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived. It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is taken as an afterthought, which Courts are not ready to accommodate.

In other words, a challenge to the voluntariness of a confessional statement made after it has been admitted in evidence without objection on that ground, as in this case, is exactly what the trial Court said, nothing but an afterthought, and the Court below was right to affirm the said finding because as it put it –

To make matters worse and as revealed by the Record the said Statements were not even challenged on grounds of involuntariness or any other at all.

As the Respondent rightly submitted, the effect of the Appellant’s failure to challenge the Exhibits in any form when they were being tendered in evidence, is that the Court could act on the facts therein; and even without corroborative evidence, it is safe to convict an Accused on his confessional statement alone.

​Even so, the general and more abiding principle is that it is better to find evidence outside the confession, however slight, of circumstances that makes it probable that the confession is true — Queen V. ltule (1961) 2 SCNLR 183, Edhigere V. State (1996) 8 NWLR (Pt. 464) 1. Thus, the Court is enjoined to evaluate the confession, the testimony of the Accused and other evidence adduced at trial. It must also satisfy itself that the statement passed the tests laid out by Ridley, J., in R. v. Sykes (supra), which have been set out earlier.

Corroborative evidence, as stated in Rex v Baskewille (1916) 2 KB 658 and adopted by this Court in Okabichi V. State (1975) 3 SC 96, is evidence, “which shows or tends to show that the story that the Accused committed the crime is true, not merely that the crime has been committed, but that it was committed by him”. In Okabichi V. State (supra), Coker, JSC, further stated:

It is the duty of the Court to ascertain that whatever evidence is used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders the story more probable that it implicates the Accused. No stereotyped category of evidence is envisaged and a great deal depends on the circumstances of each case for what may in a given set of circumstances amount to corroboration may not be so in another set of circumstances.

In this case, the trial Court held that Exhibits B & B1 were corroborated by the evidence of PW1 that was not contradicted under cross-examination. It added that although PW1 agreed that there was no electricity in the Village at the said time of the night, “but he maintained that there was lamp and that he saw when the Accused hit the deceased with a stick on his head, who was then asleep”

The point made by the trial Court about the evidence of PW1 not being contradicted under cross-examination is well taken. The trial process revolves around the art of cross-examination, the essence of which is to test the veracity or credibility of a Witness — see Section 223 of the Evidence Act, which says:

When a witness is cross-examined, he may in addition to the questions referred to in preceding Sections be asked any questions which tend to:

(a) Test his accuracy, veracity, or credibility; or

(b) Discover who he is and what is his position in life; or

(c) Shake his credit by injuring his character. So, where an adversary or the witness called by him testifies on a material fact, the other Party, if he does not accept it as true, should cross-examine him on that fact or at least show that he does not accept the evidence of the witness as true — see Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583, Oforlete V. State (2000) 12 NWLR (Pt. 681) 415, Emoga V. State (1997) 9 NWLR (Pt. 519) 25, and Simon V. State (2017) LPELR-41988(SC). In this case, the Record shows that PW1 was cross-examined by Defence Counsel, and he stated as follows:

The incident occurred in the night. I agree that there was no electricity but there was lamp at that time. We live in the same house with Abubakar, the deceased. Abubakar was married, and his wife had given birth. The Accused is my relation. My mother and Accused’s father are relatives. There wasn’t any misunderstanding between myself and the Accused’s parents. There was misunderstanding between Bello and Abubakar. I saw Bello with my own eyes, I remembered I gave my statement at the State CID. I used to write my signature in Western education means not in Arabic. My room and the room of Abubakar are close to one another. I saw the Accused with my own eyes at the time of the incident.

The trial Court accepted that PW1 is an eyewitness. In his evidence-in-chief, PW1 testified that the Appellant hit the deceased on the forehead with a stick, and when he pursued him, the Appellant climbed a wall and went into the bush. Even under cross-examination, he insisted he saw the Appellant with his eyes, and although he agreed that there was no electricity, he said there was a lamp. In other words, PW1’s evidence remained unshaken under cross-examination.

Even more damming is the fact that no attempt was made to challenge the testimony of PW1 that the Appellant is his relation, even as the Appellant’s defence is that he did not know the deceased and had never seen PW1 before until he saw him in Court. Obviously, the only conclusion that can be reached is that the trial Court was justified in rejecting the evidence of the Appellant, and the Court below was right to uphold the trial Court’s decision on that score.

​As to the offence itself, culpable homicide punishable with death, it is the Appellant’s contention that there was lack of mens rea, and the trial Court used inadmissible or wrong evidence to establish his intent to commit the offence.

It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element. The concept of mens rea, which is Latin for “guilty mind’, developed in England around 1600, when Judges began to hold that an act alone could not create criminal liability unless it is accompanied by a guilty state of mind. The degree of mens rea required for a particular crime varied then.

In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely, or recklessly – see legal-dictionary.thefreedictionany.com. In this case, the Appellant was charged with the offence of culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code and the Prosecution had to prove beyond reasonable doubt that the alleged act of hitting the deceased on the head with a stick was done with the intention of causing death — see Uturorume V. State (supra).

The trial Court concluded that the Prosecution proved the 2nd and 3rd ingredients of the offence beyond reasonable doubt and then held as follows:

The act of the Accused by hitting the deceased with a stick on his head while he, Abubakar Magaji, was asleep that caused the death, and the Accused will in the circumstances be fixed with knowledge that his death will be the probable consequence of his act.

The Court below echoed the same reasoning in its own judgment, as follows:

The Appellant saw the deceased sleeping when he struck the fatal blow to his head. The Appellant had hit the deceased right at the head with a stick, even at such a time when the deceased was fast asleep, not on any other part of the body, but the head. His intention was to kill or cause bodily harm was betrayed by the fact that the deceased was asleep and that all he simply had to do was to kill him once and for all. By hitting the deceased with a stick on the head while the deceased was fast asleep and quite vulnerable, clearly demonstrated the intended mission of the Appellant on the fateful day, which manifested as a clear intention on his part to kill.

The two lower Courts said it all. The Appellant, who climbed over a wall then proceeded to hit the deceased, who was sleeping, with a stick on the forehead, clearly intended to kill the deceased, and he admitted in Exhibits B & B1 that: “l hit him with a stick on his head and I know that that is the cause of his death”

The Appellant’s confession rings true, and it is consistent with other facts established by the Prosecution. So, the two lower Courts were right to find that Appellant knew or had reason to know that death would be the probable and not likely consequence of his act, beyond reasonable doubt, and I totally agree. The concurrent findings of the two lower Courts cannot be faulted in any way.

In the circumstances, this appeal lacks merit. It fails and it is dismissed.

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SC.238/2017