In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2018
Before Their Lordships
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONOOH Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU, J.C.A.(Delivering the Leading Judgment): The appellant along with his co-accused, Safiya Umaru were arraigned before the Sokoto State High Court sitting at Sokoto for conspiracy to cause the death of a new born baby girl and causing the death of a new born baby girl by burying her alive contrary to and punishable under Sections 97 and 221 (a) of the Penal Code.
Appellant pleaded not guilty to the two counts charge and in proof of its case the prosecution called 5 witnesses and tendered documentary evidence marked Exhibits A, A1, B & B1, C & C1, D, D1 and D2, E and F respectively. The appellant gave evidence in his defence and called no further evidence. Learned counsel on both sides addressed the Court and in a reserved and considered judgment, delivered on 13/6/2012 M. U. D/Daji, J convicted the appellant and his co-accused of the offences of conspiracy and culpable homicide punishable with death at page 83 of the record of appeal in the following words:
Therefore you Muhammadu Abdullahi alias Dan Sokoto and Safiya Umaru having found you guilty of the offences of conspiracy contrary to Section 97 of the Penal Code and the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code, I hereby Sentenced you to death. You are to be hanged in the neck until you be dead. May Almighty God have mercy on your soul.
Aggrieved with the above, appellant appealed to this Court through a notice of appeal filed on 23/6/2014. His initial grounds of appeal contain a lone ground thus:
That the decision of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial.
Pursuant to a leave granted on 27/3/2018, the appellant amended his grounds of appeal. The amended grounds of appeal contains 4 grounds of appeal as follows:
The Learned trial judge erred in law, when he failed to validly and properly arraign the Appellant and take his plea.
a) Section 187 of the Criminal Procedure Code Laws of Northern Nigeria provides for the procedure for the valid arraignment of an accused person.
b) The purported arraignment of the Appellant on the 25th day of November 2013 and the 24th day of April 2014 failed to satisfy the mandatory requirements of a valid arraignment.
c) The trial and Conviction of the Appellant is vitiated by improper and or invalid arraignment and therefore a nullity.
The learned trial Judge erred in law, when he relied heavily on the purported confessional statement of the Appellant which statement failed to satisfy the conditions necessary for it to form the basis of conviction.
a) It is not a general rule that each confession relieves the prosecution of its duty of proving its case beyond reasonable doubt.
b) For a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true.
c) The Appellant denied making a confessional Statement to the police.
d) The purported confessional Statement of the Appellant was procured by promise of favour in contravention of Section 28 and 29 of the Evidence Act 2011.
The learned trial judge erred in law when he convicted and sentenced the Appellant despite the failure of the prosecution to proof his guilt beyond reasonable doubts.
(a) The Prosecution bears the non-shifting burden of proving the guilt of the Appellant as contained in the charge beyond reasonable doubt.
(b) The burden of proof is said to be discharged when the prosecution prove the essential elements of the offence alleged against the Appellant.
(c) There was no eye witness to the fact that deceased baby was killed by the Appellant and buried alive.
(d) There exists a serious doubt in the case of the prosecution especially on the medical report as to the crucial fact of whether the baby was buried alive at the time it was buried by the Appellant as requested by the mother of his neighbor.
(e) The Prosecution failed to prove the offence of conspiracy as it failed to establish common intention formed or shown to have been formed by the Appellant and the other accused person.
(f) The Court is bound by the evidence before it and cannot decide otherwise.
The decision of the learned trial Judge is unreasonable and against the weight of evidence.
Distilled from the above grounds of appeal, learned appellant’s counsel, Masud Mobolaji Alabelewe, Esq
formulated three issues for the determination of this appeal as follows:
1. Whether having regards to the requirements of the law vis–vis the material facts on the Court’s records, the appellant was validly or properly arraigned before the trial Court. (Distilled from ground 1).
2. Whether the purported confessional statement credited to the appellant relieves the prosecution of its duty to prove the guilt of the appellant beyond reasonable doubt to justify his conviction by the trial Court. (Distilled from ground 2).
3. Whether having regards to the entire evidence on records, the prosecution proved its case beyond reasonable doubt. (Distilled from ground 3).
Learned counsel for the respondent adopted the said 3 issues formulated by the appellant.
Before delving into the arguments of counsel, it is pertinent to at this juncture set out the facts of the case as disclosed by the evidence on record. The appellant was alleged to be responsible for the pregnancy of the second accused person, Safiya Umar. That when the second accused gave birth to a baby girl, the appellant buried the said baby girl alive to avoid having a bastard as his daughter which is considered as a shameful thing in the community. Hence, he dug a hole in the second accused’s house and buried the baby girl alive.
On issue No.1, learned appellant counsel submitted that the requirement of a valid arraignment are to ensure that an accused person gets a fair trial and therefore the trial Court shall specifically record that the charge was read and fully explained to the accused to the satisfaction of the Court before then recording his plea thereto. Thus, these requirements cannot be waived, ignored or presumed. He referred to Sections 36 (6) (a) and (e) of the 1999 Constitution of the Federal Republic of Nigeria, Section 187 (1) of the Criminal Procedure Code as well as the cases of JOSEPH V STATE (2014) 1 NWLR (Prt 1387) 33 and ZARABE V. STATE (2003) FWLR (Prt 187) at 759-776.
Still in argument, learned counsel submitted that the proceeding of the trial Court on 25/11/13 and 25/4/14 did not satisfy the requirements of a valid arraignment of the appellant in that the record did not show the name of the Registrar of the Court and his proficiency in English and Hausa Languages. He finally submitted that the arraignment of the appellant before the trial Court was invalid and the subsequent trial is a nullity.
On the part of the respondent, it was submitted that the appellant was properly arraigned as the charge was read and explained to the appellant by the Court’s registrar to the satisfaction of the Court below. Thus, the appellant’s arraignment before the lower Court meets the requirements of Section 187 (1) of the Criminal Procedure Code. He referred to NONSO OKERE V STATE (2016) 13 NCC 270 at 276 to the effect that the test of valid arraignment is subjective not objective and what the law enjoins is that the trial Court shall satisfy itself that the charge is read over and explained to the accused person before he pleaded thereto.
In further argument, learned counsel submitted that the failure on the part of the trial Court to write the name of the Registrar and so also stating his qualification and or his proficiency in the languages used is not the requirement of the law.
The requirements of a valid arraignment must be satisfied and the record of the trial Court must clearly show that the requirements are complied with in order to safeguard the constitutional requirement of fair trial of the person arraigned before the trial Court.
By virtue of Section 36 (6) (a) of the 1999 Constitution (as amended) every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in detail of the nature of the offence. Also the provisions of Section 187 (1) of the Criminal Procedure Code provides: –
When the High Court is ready to commence trial, the accused shall appear or brought before it and the charges shall be read out in Court and explained to him and he shall be asked whether he is guilty of the offence or offences charged.
From the community reading of Sections 36 (6) (a) of the 1999 Constitution and 187 (1) of the CPC, it is clear that where a person is charged with a criminal offence and he is to appear before a Court of law for an arraignment, the following requirements should be satisfied:
(a) the accused must be present and unfettered before the trial Court;
(b) the charge must be read and explained to him in
the language he understands to the satisfaction of the Court by the registrar or other officer of the Court;
(c) the accused shall be called upon to plead; and
(d) his plea shall be instantly recorded by the Court.
It is to be noted that the above requirements must co-exist as any failure to comply with any of the requirements will of necessity render the whole trial a nullity. Therefore, there is a duty on the part of the trial Court to ensure strict compliance with the provisions of the laws and plainly the showing so on its record. See OLABODE V. STATE (2009) 11 NWLR (Prt 1152) 254 at 276 279 and JOSEPH V. STATE (Supra).
The record showing the appellant’s arraignment are contained in pages 34 35 of the record of appeal which read thus:
Court: The Registrar of this Court affirmed himself as to the interpretation he is going to make in this case from Hausa to English language and vice-visa.
Court: The first charge was read to the accused persons by the Court in English language by this Court and same was interpreted and explained to them in Hausa language by the Registrar of this Court. Both of them pleaded not guilty to the first charge.
Court: the second charge was read to the accused persons in English language by this Court and same was interpreted and explained to them in Hausa language. They both pleaded not guilty to the said charge.
In the instant case, the charges were read and explained to the appellant and he instantly pleaded in Hausa language, the language he understood. The trial Court therefore did complied with all the requirements of the law, as stipulated by Section 36 (6) (a) of the 1999 Constitution (as amended) and Section 187 (1) of the Criminal Procedure Code.
Although it is good practice, and indeed desirable that a trial Court specifically records that a charge was read over and explained to an accused person to its satisfaction before he pleaded thereto, it is not the law that unless the Court so expressly records, such an arraignment automatically becomes invalid and null and void. In OGUNYE V. STATE (1999) 5 NWLR (Prt 604) 548, the Supreme Court was of the firm view that the requirement of strict compliance with the requisite provisions of the law relating to arraignment must not be over-stretched to a ridiculous degree and confidence and respectability must be accorded to the integrity of the adjudicator. In the instant case, there is nothing on record to suggest that the trial Court was not satisfied with the explanation of the charge to the appellant and his co-accused.
Learned appellant counsel also made a heavy weather on the non-reflection in the trial Court’s record of the name of the Registrar that read out and explained the charge to the appellant. Although reflection in the trial Court’s record of who read and explained the charge to the accused person forms part of steps of the procedure a trial Court should adhere to while arraigning an accused person but failure or omission by the trial Court to reflect them is not fatal to the proceedings once the arraignment was carried out in a manner which is substantially regular. In the instant case; it is nowhere shown that the appellant was misled by non-reflection of the name of the registrar who read out and explained the charge to the appellant. Therefore, issue No.1 is resolved against the appellant.
On issue No.2, learned appellant’s counsel submitted that a confessional statement cannot be used against an accused person unless the Court is satisfied that it is voluntary and therefore, there is a duty on the Court to test the truth of a confession by examining it in the light of other credible evidence before it. He submitted further that there is nothing outside the appellant’s confession to show that it is true. He referred to ADEKOYA V. STATE (2012) LPELR 7815 SC and IKPO V STATE (1995) 9 NWLR (Prt 421) 540.
Learned counsel also submitted that the appellant???s confessional statement was inconsistent with his testimony in open Court and that the appellant had explained the inconsistency and therefore succeeded in denying the said confessional statement credited to him. He referred to ONWUMERE V. STATE (1991) 4 NWLR (Prt 186) 428 and OSETOLA V. STATE (2012) LPELR 9348 SC.
He further submitted that there was a duty on the part of the prosecution to call all vital witnesses in prosecuting their case. Therefore, the failure to call the mother of the appellant’s co-accused who invited him to bury the child
amounts to withholding evidence relying on Section 167 (d) of the Evidence Act, 2011 and the case of EKAIDEM VÂ STATE (2011) LPELR 4076.
Learned counsel for the respondent on his part contended that a confessional statement is one of the means upon which a Court can ground of conviction. He referred to STATE V USMAN ISAH (2013) 8 NCC 320 and AJIBADE V. STATE (2013) 8 NCC 221. He also relied on NWEDE V. STATE (1986) 3 NWLR (Prt 13) 444 and IKEMSON V. STATE (1989) 3 NWLR (Prt 110) 455 in submitting that a voluntary confession of guilt made by the accused person is enough to secure a conviction even without corroboration provided it is direct and positive.
He further submitted that the appellant’s confessional statement, Exhibits B & B1 and C & C are direct, positive and same had properly established the guilt of the appellant. And the desirable corroborative evidence was provided by PW1, PW3, PW4 and PW5 as regards the killing of an innocent child. He referred to BUSARI V. STATE(2015) 11 NCC 43 at 76 77.
By virtue of Section 28 of the Evidence Act, 2011 a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If made voluntary; a confession is deemed to be a relevant fact against the maker. See SAIDU V. STATE (1982) 4 SC 41 and NWACHUKWU V. STATE (Supra). In HASSAN V. STATE (2017) 5 NWLR (Prt 1557) 1 at 36, the Supreme Court has held that once the Court is satisfied that a confessional statement was free, voluntary and true it is safe to convict on it.
In the instant case, the trial Court was satisfied that Exhibits B & B1 and C & C1 were voluntarily made by the appellant. The trial Court at pages 74 75 of the record of appeal said:-
The first accused person in this case Muhammad Abdullahi Alias Dan Sokoto first gave his statement at Ilela Police Division. That said statement was admitted in evidence by this Court as Exhibits C and C1. In exhibit C, the first accused person clearly admitted to the fact that he had sexual relationship with the 2nd accused and that as a result of that she got pregnant and when the 2nd accused person was on labour the second accused invited him to her house and after she gave birth to a baby girl, the first accused forcefully collected the baby girl and buried her alive. The first accused also gave a similar statement at the C.I.D Office Sokoto where he also stated that when the 2nd accused Safiya Umaru gave birth to a baby girl, she called him and informed him that she had given birth to a baby girl. The first accused in exhibit B1 also told the police that he had sexual relation with the 2nd accused and as a result of that she was pregnant. The first accused also stated that he collected the baby girl and buried her alive because according to him he would not want people to know that he has a bastered as a daughter.
There is no doubt that the appellant had confessed to the commission of the offences charged and I cannot agree more. It was held in plethora of judicial decisions including the case of OLALEKAN V. STATE (2001) 18 NWLR (Prt 746) 793 that where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an accused person, the statement is enough to ground the conviction of the accused. Thus, even without those corroborative act, the appellant could perfectly be convicted solely on his voluntary confessional statement.
In the instant case, the learned appellant’s counsel sought to impugn the judgment of the trial Court on the ground that the appellant had retracted his confessional statements. I had stated earlier in this judgment that the learned trial judge had made use of the said confessional statement in convicting the appellant. The appellant’s statements, Exhibits B & B1 and C & C1 were both admitted without any objection as to their involuntariness on 24/3/2014 and 8/4/2014. The appellant merely denied making the confessional statements and where an accused person denies making a confessional statement, the question of whether he made it or not is to be decided at the end of the trial as rightly done by the learned trial judge in this case.
In his evidence in chief, the appellant retracted his confessional statements but the trial Court at page 81 of the record of appeal said:
It is to be noted that as earlier stated that the accused persons in their testimonies before this Court when they testified as DW1 and Dw2 decided to modify what
they already confessed before the police by stating that at the time the baby girl was buried she was not alive. And, I said earlier that this Court will not allow the two accused persons to modify what they already confessed before the police in exhibits A and A1, B and B1 and C and C1. What is required of this Court is to ensure that there exist another evidence however slight to corroborate the confessional statement of the accused persons. It is to be noted that the evidence of PW1 the village Head of Ambaruwa who testified to the effect that he knew the first accused person was pregnant and observed that the pregnancy was missing and as a result he invited her to his palace to find out what happened to the pregnancy is indeed corroborative of the fact that the first accused person gave birth to a baby girl. There is also the evidence of PW5 the police officer who was shown where the first accused buried the baby girl by the second accused and who also examine the remains of the said baby girl. There is also exhibit F which is a medical report in respect of the said baby girl. All these evidence stated above corroborates the confessional statement of the two accused persons before the police both at Ilela Division and at the C.I.D Office Sokoto.
A confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict. Where there are facts and circumstances outside the confession which make it probable that the confession is true, the Court can convict upon the confession and those additional facts and circumstances. Corroboration means confirmation or support by additional evidence. Therefore corroboration need not consist of direct evidence that the accused person committed the offence, nor need it amount to a confirmation of the whole account given by the witness. It is sufficient if it corroborates the evidence in some respects material to the charge in issue. See KOLADE V STATE(2017) 8 NWLR (Prt 1566) 60 at 95. In DAGAYYA V. STATE (2006) 7 NWLR (Prt 980) 637, it was held that evidence corroborating a confession, could be direct or circumstantial. And in the instant case, there were facts and circumstances which tended to corroborate aspects of the confession.
Some of these were contained in the evidence of PW1, PW5 and Exhibit F. Consequently, the retraction of the appellant of his confessional statements during trial is of no moment as it does not adversely affect the situation, the trial Court having satisfied itself with the truth of the said confessional statements.
On the alleged inconsistency in the testimony of the appellant and his confessional statement which he denied making as alluded to in the appellant’s counsel brief; same in my respectful view is a recipe of retraction and not a contradiction. Even where there are contradictions in the testimonies of prosecution’s witnesses, that would not cast or raise doubts in the mind of a trial Court except where they are on material point. Mere contradictions are often noticed or found in testimonies of witnesses due to human error. Thus, where the contradiction are not on material points, they cannot be fatal to the prosecution’s case. See GALADIMA V. STATE (2017) 14 NWLR (Prt 1585) 187 at 207.
It was also the contention of the appellant that the second accused’s mother, being a neighbor to the appellant was a vital witness and the failure of the prosecution to call her as a witness before the trial Court amounts to withholding of Evidence. A vital witness is an eyewitness to the commission of a crime and or a witness who can give very truthful and relevant evidence that would resolve the case one way or the other. In other words, a witness who gives evidence on what is logical and true is a vital witness. In the instant case, the mother of the second accused person not being the only neighbor of the appellant was not a vital witness capable of giving logical and true evidence. At any rate, the prosecution is not bound to call any and every person who was present at the locus criminis. It is bound to call only those witnesses who would give relevant evidence in proof of its case. SeeIZIREN V. STATE (1995) 9 NWLR (Prt 420) 385.
Issue No.2 is also resolved against the appellant.
On issue No.3, learned appellant’s counsel submitted that even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden of establishing the guilt of the accused beyond reasonable doubt. He referred to OMONGA
V. STATE (2006) 14 NWLR (Prt 1000) 532 and SAIDU V. STATE (2016) ALL FWLR (Prt 849) 899 to the effect that the burden of proving that any person has committed an offence rests squarely on the prosecution.
He further submitted that the appellant having stated in his defence that the baby was dead at birth and all the evidence to the contrary were in decisive; the learned trial judge was therefore wrong in arriving at the decision that the prosecution had proved its case beyond reasonable doubt.
Learned counsel for the respondent however referred to Exhibits A, & A1, B and B1 and C & C1 to contend that the child was born alive and the appellant and his co-accused caused her untimely death to cover their shameless act. And that the appellant knew that death would be the probable consequences of his act.
By virtue of Section 96 of the Penal Code, when two or more persons agreed to do or cause to be done:-
(a) an illegal act, or
(b) an act which is not illegal by illegal means, such an agreement is called criminal conspiracy.
The offence of conspiracy is complete once a concluded agreement exists.
Therefore, the parties must agree that a course of conduct shall be pursued which will amount to or result in the commission of an offence by one or more of the parties to the agreement. In other words, there must be a criminal purpose that the parties shared as their common purpose. In the instant case; the evidence of PW1 and PW2 taken along with the confessional statements of both the 1st and 2nd accused persons revealed a conspiracy to terminate the life of the new born baby. When the appellant was invited to the palace of the village head at the prompting of his co-accused, he told the duo of PW1 and PW2 that it was the Act of God and no more. Thus, there was a criminal purpose that the appellant and his coaccused shared as their common purpose was to kill the deceased.
On what constitutes culpable homicide, the provisions of Section 220 of the Penal Code is clear and it provides:
220 whoever causes death-
(a) by doing an act with the intention of causing death or such bodily injury as is likely to cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing such rash or negligent act, commits the offence of culpable homicide.
Also to succeed in a charge of culpable homicide under Section 221 of the Penal Code, the prosecution must prove the following beyond reasonable doubt: –
(a) death of a human being was caused;
(b) the accused was the cause of the deceased person’s death; and
(c) the act of the accused leading to the death of the deceased person was done intentionally or with knowledge that death or grievous harm was the probable and not only likely consequences of the act.
It is clear from the contents of the confessional statement of the appellant, exhibits B & B1 and C & C1 as well as the evidence of PW1, PW2 and PW5 that death of a human being has occurred. And in Exhibit C & C1, the appellant gave graphic account on how the death of the baby girl was caused. Part of the appellant’s confessional statement was reproduced at page 78 of the record of appeal as follows: –
About one year ago I saw one Safiya Umaru (F) and I love her that is why we continue our friendship which I always go to their house to see her as a result we started having sexual intercourse until I impregnated her after that on 26th May, 2012 at about 6hours I visited her she delivered the child female and I forcefully collected the child and buried her alive. I am sure the child is now dead in the ground.
In his evidence, PW5 told the Court how he exhumed the body in the house of the appellant’s co-accused and how he took same to the hospital wherein Exhibit F was issued. However, in Exhibit F it was clearly stated that they could not carry out an autopsy to ascertain whether the deceased was alive at the time of burial owing to lack of facility at the medical Centre. The law is settled that the need for medical report to confirm the death of a deceased victim is not material where death can easily be inferred or where there is direct account of the act that led to the death of the victim. See GALADIMA V. STATE (2017) 12 NWLR (Prt 1580) 339 at 358 359. In the instant case, the failure to conduct autopsy on the exhumed body was of no practiced moment as there was a direct account of the act that led to the death of the victim. Also considering the circumstance under the
victim was buried by the appellant, the appellant must have intended the natural consequences of his action. The appellant in Exhibit C & C1 and B & B1 stated the motive of his vicious act.
Issue No.3 is also resolved against the appellant.
In conclusion, the appeal is unmeritorious and is accordingly dismissed. I affirm the judgment of the lower Court which convicted and sentenced the appellant to death by hanging.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in draft, the lead judgment of my learned brother M. L Shuaibu, JCA. For the reasons ably stated therein. I agree that the appeal is bereft of substance and accordingly fails. I dismiss the appeal and adopt the orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother MUHAMMED L. SHUAIBU, JCA just delivered and I am in total agreement with his reasoning and conclusions in dismissing the Appeal as lacking in merit. The failure to conduct an autopsy notwithstanding, it is sufficient where direct account of the cause of death is available to show that the cause of death was as a result of the act of the Appellant who callously buried the deceased alive. I also abide by other consequential made thereto.
Mas’ud Mobolaji Alabelewe-For Appellant
Almustapha Abubakar, ADPP, MOJ, Sokoto State-For Respondent