(2018) LPELR-45519(CA)

Transcription

1 MATHEW v. STATE CITATION: In the Court of Appeal In the Yola Judicial Division Holden at Yola ON WEDNESDAY, 15TH AUGUST, 2018 Suit No: CA/YL/170C/2017 OYEBISI FOLAYEMI OMOLEYE JAMES SHEHU ABIRIYI SAIDU TANKO HUSSAINI Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal JULIUS MATHEW - Appellant(s) And THE STATE - Respondent(s) RATIO DECIDENDI 1. CRIMINAL LAW AND PROCEDURE - PLEA OF GUILT: Proper plea to record for an accused person who pleads guilty to a capital offence "Although the appellant had entered a plea of "Guilt" to the charge framed against him, trial Court, nonetheless directed the prosecuting counsel to proceed and prove his case and accordingly the Court entered a plea of "not guilty" on behalf of the appellant as the accused person. This approach of the Court by the procedure, in directing the prosecuting counsel to proceed and prove his case, even in the face of the plea of "guilt", is commendable, the same being in line with Section 187(2) of the Criminal Procedure Code, which provides thus: "If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused."per HUSSAINI, J.C.A. (P. 2, Paras. A-D) - read in context

2 2. CRIMINAL LAW AND PROCEDURE - OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH: Ingredients the prosecution must prove to establish the offence of culpable homicide punishable with death "Issue No.1 raised in the appellant's brief of argument bring into focus the question whether the prosecuting counsel had proved his case of culpable Homicide punishable with death. From the array of authorities at my disposal, to succeed in a case like this, the prosecution is required to prove the presence of the following ingredient namely: (a) That the death of a human being has actually taken place. (b) That the death was caused by the accused. (c) That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his acts. These ingredients must all co-exist to ground conviction. Failure to establish any of the ingredients will lead to an accused person being discharged. See: Yakubu V. State (2014) LPELR (CA); State Vs. John (2013) 1 SC M 172, 178; Deriba V. The State (2016) LPELR (CA); Ali V. State (2015) 5 SCM 26; Iliyasu Vs. State 2015) 11 NCC 300."Per HUSSAINI, J.C.A. (Pp , Paras. D-C) - read in context 3. CRIMINAL LAW AND PROCEDURE - PLEA OF GUILT: Whether a plea of guilt will amount to a confession "The trial Court in the Judgment under appeal at page 99 made reference to the plea of the accused as another useful incident lending credence to Exhibit P1 as true. On this point, I should say that the said plea of guilt by the accused/appellant is only a statement made by him as his plea. A statement is not evidence. A statement does not become evidence until it is admitted as such by the Court as evidence and marked as an exhibit. See Q Vs. Mboho (1964) NMLR 49, 52; Ahmadu Tea Vs. C.O.P. (1963) NRNLR 77."Per HUSSAINI, J.C.A. (P. 21, Paras. B-D) - read in context 4. EVIDENCE - STANDARD OF PROOF: Standard of proof required in a case of culpable homicide punishable with death "The charge preferred against the appellant and for which he was tried, is for the offence of Culpable Homicide punishable under Section 221(b) of the Penal Code Law. It is a charge whose sentence carry death penalty. All the authorities on this area point to one direction: that for the Prosecution to succeed in a case like this, where allegation of culpable Homicide is made, he must prove the allegation beyond reasonable doubt. This is a duty which the prosecution is under obligation to discharge by law. See Section 135(1)(2) of the Evidence Act, 2011."Per HUSSAINI, J.C.A. (Pp , Paras. F-B) - read in context 5. EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Whether proof beyond reasonable doubt means proof beyond all shadow of doubt "The concept of Proof beyond reasonable doubt does not entail proof beyond a shadow of doubt but simply means that there is credible evidence upon which the Court can safely convict even if it is upon the evidence of a single witness. See: Afolalu V. State (2010) LPELR 197; Giki V. State (2014) LPELR (CA). Mufutau Bakare Vs. The State (1987) 3 SC 1, 32."Per HUSSAINI, J.C.A. (P. 13, Paras. B-D) - read in context 6. EVIDENCE - PROOF: Ways of proving the commission of a crime "The commission of an offence can be proved by: (a) confessional statement (b) direct or the eye witness account; (c) circumstantial evidence. See Igri Vs. The State (2010) 7 WRN 1, 47; Emeka Vs. State (2010) 1 WRN 41, 64. The prosecution can also prove his case by a combination of any two or all of the means referred to above. Although evidence of Pw1 and Pw2 were taken viva voce, such evidence cannot compare to the direct or eye witness account required to prove a criminal case except in cases where a document was tendered and admitted through the witness as a Confessional Statement of an accused person."per HUSSAINI, J.C.A. (P. 15, Paras. B-E) - read in context

3 7. EVIDENCE - CONFESSIONAL STATEMENT: Conditions for admissibility of a confessional statement; approach of court to retracted confessional statement "The statement which can be admitted and acted upon as the confessional statement is the free and voluntary statement made by the person charged with a crime stating or suggesting the inference that he committed the crime for which he was charged. Such a statement is relevant. Refer to Section 28 and 29 Evidence Act, 2011 and the decision in Olalekan Vs. The State (2001)LPELR-2561(SC). So far as the voluntariness of a confession is not an issue (as in this case on appeal), the Court is bound to admit the confessional statement in evidence if the confession is direct and positive. Where however the voluntariness of a confession is in issue in the sense that the statement was not made out of the free will or volition of the accused person, the Court at the point the application was made to tender the statement and an objection was taken, the Court at that point, is bound to conduct a trial within trial so as to ascertain the voluntariness or otherwise of that statement. See: Nwangbomu Vs. State (1994) 2 NWLR (Pt. 327) Igri Vs. State (2009) LPELR (CA). The proper time to raise objection against a Confessional Statement being tendered in evidence on account of the involuntariness of the Statement must be at the time the Statement was tendered. See: Alarape Vs. State (2001) FWLR (Pt. 41) 1872, Amina Musa Vs. State (2014) LPELR (CA); Edet Ekpo Vs. State (2008) LPELR 4370 (CA). Where however the objection taken is on account of the Statement not having been made or signed by the accused, the trial Court is on good authority to admit that statement in evidence as the retraction of a confessional statement does not make it inadmissible see: Akpan Vs. State (1992) NWLR (Pt. 248); Ubierho Vs. State (2005) 5 NWLR (Pt. 919) 644. The Court can admit such statement and act on it. The proviso however is that the Court, in evaluating evidence in its Judgment must subject the confessional statement (retraction) to the test enunciated in the case of R Vs. Sykes (1913) CR App. Report 224, 230 to come to the conclusion whether or not the appellant did make the statement as alleged by Police authorities. See: Hassan Vs. State (2001) 15 NWLR (Pt. 735) 184, 199. Questions the trial Court should seek to ask in the application of this test or rule include:- i. Is there anything outside the confession (in this case Exhibit P1) to show that it is true? ii. Is it corroborated no matter how slight? iii. Are the facts made in it true as far as they can be tested? iv. Was the prisoner or accused one who had the opportunity of committing the offence? v. Is the confession possible, and vi. Is it consistent with other facts which have been ascertain and proved in the matter. In Nwachukwu Vs State (2007) 17 NWLR (Pt. 1062) 31, 70, the apex Court held:- "It is desirable to have, outside an accused person's confession, some corroborative evidence, no matter how slight of circumstances that make it probable that the confession is true and correct as the Court are not generally disposed to act on a confession without testing the truth thereat. The test would also include the Court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial." In the instant case on appeal, the trial Court in its Judgment was positive that the test in R V. Sykes (supra) had been complied with before reaching a final decision. Hear the Court at page 99 of the record thus: "In discharging its obligation under this submission, the Court enjoined to look for a corroborative evidence either direct or circumstantial. I find this corroborative evidence on Exhibit P4, the testimony of Pw1, Pw2 and Dw1. The plea of the accused is also helpful and relevant. The oral and documentary evidence referred to are adequate convince a liberal mind that the accused made the statement on Exhibit P1. I so find and hold." Exhibit P4 tendered as the confessional statement of the appellant was admitted through him in the course of his evidence under cross-examination. See pages of the record particularly page 82. The trial Court in my view was wrong to have admitted and relied on Exhibit P4 in the manner it did and to act on it as corroborative evidence outside Exhibit P1, when proper foundation for the admissibility of the statement had not been laid or the recorder of the statement called upon to testify and tender same. Exhibit P4 being in itself a confessional statement, is admissible only through that person or authority who recorded that statement in line with provisions of Sections 28 and 29 of the Evidence Act and Section 126 of the Criminal Procedure Code. The recorder of the statement needed to satisfy the Court (trial) that the statement (Exhibit P4) was not only the voluntary Confessional Statement of the accused person but same was obtained after the words of caution had been administered on him as a requirement for compliance for obtaining Statement under the Criminal Procedure (Statement to Police Officers) Rules, I have to ignore Exhibit P4 in this regard, as having any corroborative effect outside Exhibit P1."Per HUSSAINI, J.C.A. (Pp , Paras. A-D) - read in context

4 8. EVIDENCE - CONFESSIONAL STATEMENT: Conditions to be satisfied before a confession can be used in convicting an accused person "A free and voluntary confessional statement which can be acted upon to secure conviction must be a microcosm of the offence alleged in the sense that all the ingredients constituting the offence alleged can be seen as apparent on the face of that statement. A reading through the confessional statement (Exhibit P1) reveal that: (a) The appellant and one person who is described as a Fulani man engaged themselves in a scuffle. (b) The Fulani man was armed with a matchet or cutlass. (c) The appellant and his friends succeeded in disarming the Fulani man of the cutlass or matchet held by him. (d) The appellant cut the Fulani man on the head several times using the cutlass/matchet. (e) Blood was gushing out of the head of the Fulani man until he died. (f) The appellant and one Julius John killed the Fulani man. (g) The appellant was drunk. Going therefore by Exhibit P1, I would say that by the reason of the acknowledgment of the death of a Fulani man and the manner by which the assailant killed the Fulani man, a case of culpable Homicide under Section 221(b) would have been established but for the fact that the identity of the Fulani man must also be established or proved. In this case, the identity of the deceased was not so established. It was Pw1 who attempted to smuggle in the name of "Yerima Yahaya" into evidence by reference to Exhibit P1 in his evidence at page 81 of the record. But looking at Exhibit P1 the name Yerima Yahaya" did not feature neither was the name mentioned in Exhibit P1 as the victim of the acts orchestrated by the appellant. The Prosecution needed to lead evidence of the identity of the deceased and link it up to the death or the killing referred to in Exhibit P1 as one and the same person. See: (1) Akinlolu Vs. State (2013) LPELR (CA); (2) R. Vs. Momodu Laoye (1940) 5 WACA 6; (3) State Vs. Uzoagwu (1972) ECSLR (Pt. 11) 429. In the absence of any such evidence being led, the case of the prosecution cannot be said was complete or proved beyond reasonable doubt, hence a verdict of discharge and acquittal ought to have been returned at the trial but which the trial Court failed to. Trial Court's finding of guilt cannot stand."per HUSSAINI, J.C.A. (Pp , Paras. E-D) - read in context

5 SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The appellant was tried convicted and sentenced to death at the High Court of Justice of Adamawa State sitting in Yola on the 22nd June, 2011 for the offence of Culpable Homicide Punishable under Section 221(b) of the Penal Code. He was alleged to have caused the death of one Yerima Yahaya by knocking him down and cutting him on the head and shoulder by the use of cutlass, knowing that death would be the probable consequence of his act. The deceased was said to have hailed from the village of Tell-Tell in Madagali Local Government Area of Adamawa State where the incident took place on the 20th November, The appellant was returning to his home when the deceased allegedly grabbed him by the neck and in the struggle that ensued, the appellant got hold of the cutlass/matchet held by the deceased and struck the deceased several times on the head. Blood started gushing out of his head until he died. The case came up for mention on the 17th December, 2007 when the plea of the accused/appellant was also taken. (see pages 48-49) of the record of appeal. 1

6 Although the appellant had entered a plea of Guilt to the charge framed against him, trial Court, nonetheless directed the prosecuting counsel to proceed and prove his case and accordingly the Court entered a plea of not guilty on behalf of the appellant as the accused person. This approach of the Court by the procedure, in directing the prosecuting counsel to proceed and prove his case, even in the face of the plea of guilt, is commendable, the same being in line with Section 187(2) of the Criminal Procedure Code, which provides thus: If the accused pleads guilty, the plea shall be recorded and he may in the discretion of the Court be convicted thereon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused. (words underlined for emphasis) At the hearing, the prosecuting counsel called evidence of two (2) witnesses including evidence of the Investigating Police Officer (Pw1) and the Exhibit Keeper (Pw2). Exhibits P1, P2 were also tendered and admitted through the prosecution witnesses in support of prosecution s case. 2

7 The appellant as the accused, elected to give evidence in his own defence at the close of prosecution s case. He testified as Dw1 and denied the allegation made against him, of the killing of Yerima Yahaya. Through him Exhibit P4 was admitted in his evidence under cross-examination. The defence closed his case thereafter. In the Judgment delivered as aforesaid on the 22nd June, 2011, the trial Court found the appellant guilty as charged and accordingly sentenced him to death. The appeal to this Court is against that order and Judgment vide the Notice of Appeal dated and filed on the 12th July, 2017 with leave of this Court sought and granted on the 6th July, See the record of appeal at pages The appeal is on 3 (three) grounds and shorn of the particulars, the 3 (three) grounds of appeal are as follows:- Ground: 1. The Judgment of the trial Court is against the weight of evidence. 2. The trial High Court erred when it convicted the appellant as follows:- I hereby find and hold that the accused is guilty as charged and is therefore hereby convicted for the offence of culpable homicide under Section 221(b) of the Penal Code 3

8 3. The learned trial Judge erred in sentencing the convict to death by hanging. Briefs of argument were filed exchanged and adopted by the respective counsel at the hearing of the appeal on the 12th June, In the brief of argument for the appellant two issues were formulated for determination thus: 1. Whether the learned trial Judge was right to have convicted the appellant for culpable Homicide punishable with death under Section 221(b) of the Penal Code Laws (from grounds 1 and 2 of the Notice of Appeal) 2. Whether the learned trial Judge was right to have sentenced the appellant to death by hanging in view of facts before the Court. (from ground 3 of the Notice of Appeal) The respondent formulated two issues for determination thus:- 1. Whether from the evidence adduced, the trial Court was right when it convicted the appellant for culpable Homicide punishable with death (grounds one and two) 2. Whether the trial Court was right to have sentenced the appellant to death by hanging having found for the prosecution and convicted the Appellant under

9 4

10 Section 221(b) of the Penal Code Cap 98 Laws of Adamawa State1997 (Ground three). The two (2) sets of issues formulated in the respective briefs of argument are substantially one and the same thing. For ease of reference, I adopt the two (2) issues formulated in the appellant s brief of argument in addressing this appeal. Argument On Issue No. 1. Whether the learned trial Judge was right to have convicted the appellant for culpable Homicide punishable with death under Section 221(b) of the Penal Code Laws. In reference to Section 135 of the Evidence Act, appellant counsel reiterated the duty on the Prosecuting counsel to discharge as a statutory obligation by a proof beyond reasonable doubt. Thus in a case of culpable Homicide, this duty/obligation is discharged by the proof that: 1. The death of a human being has taken place. 2. That the death was caused by the accused. 3. That the act of the accused that caused the death was done with the intention of causing death or that the accused knew that death would be the probable consequence of his act. 5

11 Learned appellant s counsel having cited the decision in Haruna Vs. Attorney General of the Federation (2012) 9 NWLR (Pt. 1306) 419, 444 submitted that there is no clear evidence from the prosecution that any individual was shown to have died so long as there was no medical evidence to that effect. This is even more so that none of the two witnesses called by prosecution related with or saw the body of Yerima Yahaya. In reference to the evidence of Pw1, the Investigating Police officer who is the recorder of Exhibit P1, but which the appellant had denied making, he argued, stating that the witness (Pw1) did not carry out further investigation to confirm the contents of Exhibit P1 or as regards to what took place at the scene of crime or how Exhibit P2 (the cutlass) was recovered from the scene of crime. For those reasons we were urged to hold that the appellant never made exhibit P1 and P4. With regard to Exhibit P4, in particular, it is argued that the same was admitted through Dw1 in the course of his evidence under cross-examination and that the signature on Exhibit P4 is not the signature of the appellant. He argued that the recorder of Exhibit P4 was not called to lay proper foundation for the admissibility of Exhibit P4. 6

12 He argued therefore that Exhibit P4 lack probative value. He referred us to Section 50 of the Evidence Act, 2011 and the decision in Olude V. State (2014) NWLR (Pt. 1405) 89, 113 to 114 (CA). In relation to Exhibit P1, it is argued that a confessional statement admitted amid objection that the accused did not make it leaves the Court with the duty to explore other pieces of evidence adduced at the trial in support before any weight can be attached to that statement. He relied on Akpa V. State (2007) 2 NWLR (1019) 500, 527 (CA); Udofia V. State (1984) 12 SC 139; Dawa V. State (1980) 8-11 SC 236; Sabi V. State (2011) 14 NWLR 422; Nwachukwu Vs. The State (2007) 17 NWLR (Pt. 1062) 31, 70. Based on the above stated decisions particularly the decision in the Nwachukwu Vs State (supra), it is argued that Exhibit P4 which is without foundation cannot be relied on as corroborative evidence of Exhibit P1. Therefore there is nothing outside Exhibit P1 to show that it is true. He further relied on Okoh V. State (2014) 8 NWLR (Pt. 1410) 502, 526 (SC). Learned counsel argued further and submitted that neither Exhibit P1 nor P4 carry the regular signature of the 7

13 appellant as in Exhibit P3 hence both Exhibit P1 and P4 cannot also be relied on. Learned appellant s counsel further submitted that the Court failed to consider those defences (self-defence) put up by the appellant, that is, assuming that the appellant committed the act for which he was charged. He relied on Edoho V. State (2010) LPELR-1015 (SC). It is argued that had the trial Court considered appellant s defence of self-defence, as contained in Exhibit P1 the appellant would have been exculpated at the trial Court. He relied on Jeremiah Vs. State (2012) 14 NWLR (Pt. 1320) 248, 281. On the Issue of the cause of death of Yerima Yahaya, it was argued by the appellant in his brief that there was no evidence of the cause of death of the Yerima Yahaya. He argued that if Exhibit P1 should be acted on, it must be apparent that the act of the accused/appellant instantaneously led to the death of the deceased but in this case, no explanation or any suggestion is given that the act of the appellant conclusively led to the death of anybody. That there was no explanation given as to the whereabout of the body of the deceased and the circumstances 8

14 under which he was certified dead, if at all. He argued that medical evidence of death can be dispensed with in certain cases especially in cases where it is obvious that the death of the deceased arose instantaneously from the acts of the accused. In such a case, medical evidence of death, is not required. In this instant case, it is argued, there is no evidence fixing the time of death proximate to the time of the incident, and there is no evidence, going by Exhibit P1, that show that the appellant s action conclusively led to the death of anybody. Learned appellant s counsel argued finally and submitted that the statement made by the appellant at page 97 lines 5-7 of record, after the charge was read to him, cannot be interpreted to mean an admission of his guilt. Learned appellant s counsel on this point went rhetorical when in his brief, he proceeded to ask the question: how did the appellant know that the deceased died at that material time or soon thereafter? We were urged to resolve issue 1 in favour of the appellant. On issue No. 2 which is whether the trial Judge was right to have sentenced the appellant to death by 9

15 hanging, we were urged to answer the question in the negative, that is to say that the trial Court was wrong when it passed death sentence on the appellant whose guilt and conviction was not properly grounded or proved at the trial court. He argued that even if they are to assume but without conceding that Exhibits P1 and P4 are believable, the two statements therein can only establish the offence of causing hurt or grievous bodily hurt which do not carry a sentence of death. We were urged to set aside the conviction of the appellant for culpable homicide under Section 221(b) of the Penal Code. In the response of counsel for the respondent, it was argued that by the combined evidence of Pw1, Pw2 and Exhibits P1, P2 and P4, the prosecution had proved the 1st ingredient of the offence, of Culpable Homicide punishable with death, namely that the death of Yerima Yahaya had been established and to that extent, he urged us to discountenance any argument by the appellant to the contrary. He referred us, in particular to Exhibit P1, the Statement attributed to the appellant as his Confessional Statement. 10

16 On the issue of Exhibit P1 and the probative value which can be attached to it, it is contended that the Statement, although retracted, is nonetheless admissible and same can be acted on, as the trial Court had done, provided that there was evidence outside of the statement (Exhibit P1) to make it believable. On this point it was argued that the testimonies of Pw1 and Pw2 were more than enough to support the fact that the statement in Exhibit P1 was true. On the issue of Causation, that is, who or what caused the death of Yerima Yahaya, learned counsel again referred us to Exhibit P1, stating that the death of the deceased, was instantaneous after sustaining those matchet cuts from the appellant. He argued that by the circumstances under which Yerima Yahaya was killed, medical evidence as to the cause of his death was no longer necessary. He cited the case of Akpan V. The State (1992) 6 NWLR (Pt. 248) On the third ingredient of the offence charged, he argued that by the appellant making use of a lethal weapon such as a cutlass to cut the deceased several times on the head, which is a vital and sensitive part of the body, he intended to cause the death of the deceased or at least to inflict 11

17 grievous bodily harm on him. He relied on Fred Dapare Gira V. the State (1996)4 NWLR (Pt. 443) 375. On the defence of self-defence which the appellant claimed the trial Court did not consider in his favour, learned counsel for the respondent argued that this defence does not avail the appellant since the deceased had been disarmed, he did not pose any threat to the appellant who in any case used the matchet or cutlass repeatedly on the head of the deceased. We were urged to resolve issue 1 in favour of respondent. On the second question: whether the trial Court was right to have sentenced the appellant to death, we were urged to answer this question in the affirmative. He argued that the offence of culpable Homicide under Section 221(b) of the Penal code carry death sentence and the prosecution having proved all the essential ingredients of the offence, the appellant was rightly and properly convicted and sentenced. We were urged to so hold. The charge preferred against the appellant and for which he was tried, is for the offence of Culpable Homicide punishable under Section 221(b) of the Penal Code Law. It is a charge whose sentence carry death penalty. 12

18 All the authorities on this area point to one direction: that for the Prosecution to succeed in a case like this, where allegation of culpable Homicide is made, he must prove the allegation beyond reasonable doubt. This is a duty which the prosecution is under obligation to discharge by law. See Section 135(1) (2) of the Evidence Act, The concept of Proof beyond reasonable doubt does not entail proof beyond a shadow of doubt but simply means that there is credible evidence upon which the Court can safely convict even if it is upon the evidence of a single witness. See: Afolalu V. State (2010) LPELR 197; Giki V. State (2014) LPELR (CA). Mufutau Bakare Vs. The State (1987) 3 SC 1, 32. Issue No.1 raised in the appellant s brief of argument bring into focus the question whether the prosecuting counsel had proved his case of culpable Homicide punishable with death. From the array of authorities at my disposal, to succeed in a case like this, the prosecution is required to prove the presence of the following ingredient namely: (a) That the death of a human being has actually taken place. 13

19 (b) That the death was caused by the accused. (c) That the act was done with the intention of causing death or that the accused knew that death would be the probable consequence of his acts. These ingredients must all co-exist to ground conviction. Failure to establish any of the ingredients will lead to an accused person being discharged. See: Yakubu V. State (2014) LPELR (CA); State Vs. John (2013) 1 SC M 172, 178; Deriba V. The State (2016) LPELR (CA); Ali V. State (2015) 5 SCM 26; Iliyasu Vs. State 2015) 11 NCC 300. In the bid to prove their case, the prosecution at the trial Court called evidence of the Investigating Police Officer (Pw1) and the Exhibit keeper (Pw2). Pw1 (Inspector Humphrey Eli) is the recorder of Exhibit P1, a statement he attributed to the appellant as his Confessional Statement. He undertook this duty of recording Exhibit P1 after the transfer to the C.I.D, Yola, a case of Criminal Conspiracy and Culpable homicide from Madagali South. Amid objection, that the statement was not made by the appellant, the trial Court nonetheless admitted same and marked it as such. 14

20 The statement had been obtained under words of caution. Abubakar Yahaya, the Exhibit Keeper who testified as Pw2 tendered in evidence Exhibit P2, a cutlass which he collected from Pw1 for safe keeping. He marked it accordingly as CER/180/2007. Even though objected to, Exhibit P2 was admitted in evidence (See pages of the record). The commission of an offence can be proved by: (a) confessional statement (b) direct or the eye witness account; (c) circumstantial evidence. See Igri Vs. The State (2010) 7 WRN 1, 47; Emeka Vs. State (2010) 1 WRN 41, 64. The prosecution can also prove his case by a combination of any two or all of the means referred to above. Although evidence of Pw1 and Pw2 were taken viva voce, such evidence cannot compare to the direct or eye witness account required to prove a criminal case except in cases where a document was tendered and admitted through the witness as a Confessional Statement of an accused person. Having said that, it is my view that the prosecution, in building its case, relied principally on Exhibits P1, P2 and P4. Exhibits P1 and P4 are Statements attributed to the appellant as his confessional statements. 15

21 Exhibit P2 is the cutlass said to have been used by the appellant on the victim of the attack. The statement which can be admitted and acted upon as the confessional statement is the free and voluntary statement made by the person charged with a crime stating or suggesting the inference that he committed the crime for which he was charged. Such a statement is relevant. Refer to Section 28 and 29 Evidence Act, 2011 and the decision in Olalekan Vs. The State (2001)LPELR-2561(SC). So far as the voluntariness of a confession is not an issue (as in this case on appeal), the Court is bound to admit the confessional statement in evidence if the confession is direct and positive. Where however the voluntariness of a confession is in issue in the sense that the statement was not made out of the free will or volition of the accused person, the Court at the point the application was made to tender the statement and an objection was taken, the Court at that point, is bound to conduct a trial within trial so as to ascertain the voluntariness or otherwise of that statement. See:Nwangbomu Vs. State (1994) 2 NWLR (Pt. 327) Igri Vs. State (2009) LPELR (CA). 16

22 The proper time to raise objection against a Confessional Statement being tendered in evidence on account of the involuntariness of the Statement must be at the time the Statement was tendered. See: Alarape Vs. State (2001) FWLR (Pt. 41) 1872, Amina Musa Vs. State (2014) LPELR (CA); Edet Ekpo Vs. State (2008) LPELR 4370 (CA). Where however the objection taken is on account of the Statement not having been made or signed by the accused, the trial Court is on good authority to admit that statement in evidence as the retraction of a confessional statement does not make it inadmissible see: Akpan Vs. State (1992) NWLR (Pt. 248); Ubierho Vs. State (2005) 5 NWLR (Pt. 919) 644. The Court can admit such statement and act on it. The proviso however is that the Court, in evaluating evidence in its Judgment must subject the confessional statement (retraction) to the test enunciated in the case of R Vs. Sykes (1913) CR App. Report 224, 230 to come to the conclusion whether or not the appellant did make the statement as alleged by Police authorities. See: Hassan Vs. State (2001) 15 NWLR (Pt. 735) 184, 199. Questions the trial Court should seek to ask in the application of this test or rule include:- 17

23 i. Is there anything outside the confession (in this case Exhibit P1) to show that it is true? ii. Is it corroborated no matter how slight? iii. Are the facts made in it true as far as they can be tested? iv. Was the prisoner or accused one who had the opportunity of committing the offence? v. Is the confession possible, and vi. Is it consistent with other facts which have been ascertain and proved in the matter. In Nwachukwu Vs State (2007) 17 NWLR (Pt. 1062) 31, 70, the apex Court held:- It is desirable to have, outside an accused person s confession, some corroborative evidence, no matter how slight of circumstances that make it probable that the confession is true and correct as the Court are not generally disposed to act on a confession without testing the truth thereat. The test would also include the Court considering the issue of whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial. 18

24 In the instant case on appeal, the trial Court in its Judgment was positive that the test in R V. Sykes (supra) had been complied with before reaching a final decision. Hear the Court at page 99 of the record thus: In discharging its obligation under this submission, the Court enjoined to look for a corroborative evidence either direct or circumstantial. I find this corroborative evidence on Exhibit P4, the testimony of Pw1, Pw2 and Dw1. The plea of the accused is also helpful and relevant. The oral and documentary evidence referred to are adequate convince a liberal mind that the accused made the statement on Exhibit P1. I so find and hold. Exhibit P4 tendered as the confessional statement of the appellant was admitted through him in the course of his evidence under cross-examination. See pages of the record particularly page 82. The trial Court in my view was wrong to have admitted and relied on Exhibit P4 in the manner it did and to act on it as corroborative evidence outside Exhibit P1, when proper foundation for the admissibility of the statement had not been laid or the recorder of the statement called upon to testify and tender same. 19

25 Exhibit P4 being in itself a confessional statement, is admissible only through that person or authority who recorded that statement in line with provisions of Sections 28 and 29 of the Evidence Act and Section 126 of the Criminal Procedure Code. The recorder of the statement needed to satisfy the Court (trial) that the statement (Exhibit P4) was not only the voluntary Confessional Statement of the accused person but same was obtained after the words of caution had been administered on him as a requirement for compliance for obtaining Statement under the Criminal Procedure (Statement to Police Officers) Rules, I have to ignore Exhibit P4 in this regard, as having any corroborative effect outside Exhibit P1. There is also Exhibit P2, the cutlass allegedly used by the appellant in hacking down the deceased. Again the origin of Exhibit P2 is doubtful. Aside from the fact that Pw1 handed over the weapon to Pw2 for safe keeping, evidence of how Pw1 came about Exhibit P2 or where Exhibit P2 was recovered from was not given. There is a broken chain of transmission of Exhibit P2. Such evidence (Exhibit P2) cannot therefore constitute valid evidence upon which the trial Court can safely rely on as an 20

26 independent, corroborative evidence supportive of the confessional statement in Exhibit P1, upon which the appellant can be convicted. Again, I have to discountenance Exhibit P2 as having that corroborative effect. The trial Court in the Judgment under appeal at page 99 made reference to the plea of the accused as another useful incident lending credence to Exhibit P1 as true. On this point, I should say that the said plea of guilt by the accused/appellant is only a statement made by him as his plea. A statement is not evidence. A statement does not become evidence until it is admitted as such by the Court as evidence and marked as an exhibit. See Q Vs. Mboho (1964) NMLR 49, 52; Ahmadu Tea Vs. C.O.P. (1963) NRNLR 77. The overall effect is that Exhibit P1 was not supported by any outside independent evidence to lend credence to the truth of the statement contained in Exhibit P1. A free and voluntary confessional statement which can be acted upon to secure conviction must be a microcosm of the offence alleged in the sense that all the ingredients constituting the offence alleged can be seen as apparent on the face of that statement. 21

27 A reading through the confessional statement (Exhibit P1) reveal that: (a) The appellant and one person who is described as a Fulani man engaged themselves in a scuffle. (b) The Fulani man was armed with a matchet or cutlass. (c) The appellant and his friends succeeded in disarming the Fulani man of the cutlass or matchet held by him. (d) The appellant cut the Fulani man on the head several times using the cutlass/matchet. (e) Blood was gushing out of the head of the Fulani man until he died. (f) The appellant and one Julius John killed the Fulani man. (g) The appellant was drunk. Going therefore by Exhibit P1, I would say that by the reason of the acknowledgment of the death of a Fulani man and the manner by which the assailant killed the Fulani man, a case of culpable Homicide under Section 221(b) would have been established but for the fact that the identity of the Fulani man must also be established or proved. In this case, the identity of the deceased was not so established. It was Pw1 who attempted to smuggle in the name of Yerima Yahaya into evidence by reference to Exhibit P1 in his evidence at page 81 of the record. 22

28 But looking at Exhibit P1 the name Yerima Yahaya did not feature neither was the name mentioned in Exhibit P1 as the victim of the acts orchestrated by the appellant. The Prosecution needed to lead evidence of the identity of the deceased and link it up to the death or the killing referred to in Exhibit P1 as one and the same person. See: (1) Akinlolu Vs. State (2013) LPELR (CA); (2) R. Vs. Momodu Laoye (1940) 5 WACA 6; (3) State Vs. Uzoagwu (1972) ECSLR (Pt. 11) 429. In the absence of any such evidence being led, the case of the prosecution cannot be said was complete or proved beyond reasonable doubt, hence a verdict of discharge and acquittal ought to have been returned at the trial but which the trial Court failed to. Trial Court s finding of guilt cannot stand. Issue 1 is thus, resolved in favour of the appellant. Issue No. 2 argued by the appellant and the respondent in the respective briefs of argument automatically fall in line in the light of the position taken by me with regard to issue No. 1 above. Issue 2 is resolved in favour of the appellant. The conviction and sentencing of the appellant to death in the 23

29 Judgment delivered on the 22nd June, 2011 is hereby set aside hence the appeal, on the whole, succeeds and the same is allowed. The appellant is entitled to an order of discharge and acquittal. I so order. OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I agree with the opinion expressed in the leading Judgment that this appeal is meritorious and also allow it. I equally abide by the consequential orders made in the said leading judgment. JAMES SHEHU ABIRIYI, J.C.A.: I agree. 24

30 Appearances: E. O. Odo, Esq. For Appellant(s) A.M. Iliyasu Esq., Senior Counsel I, Ministry of Justice, Adamawa State For Respondent(s)