HAMZA V. STATE (2019)

MUSA HAMZA V. THE STATE

IN THE SUPREME COURT OF NIGERIA

SC. 613/2016

Before Their Lordships

FRIDAY, 31ST MAY 2019

MUSA DATTIJO MUHAMMAD, J.S.C.

KUMAI BAYANG AKA’AHS, J.S.C.

JOHN INYANG OKORO, J.S.C.

SIDI DAUDA BAGE, J.S.C.

UWANI MUSA ABBA AJI, J.S.C.

BETWEEN

MUSA HAMZA

AND

THE STATE

…………………….A…………………….

OKORO, J.S.C. (The Lead Judgment): The appellant herein was arraigned before the Katsina State High Court in charge No. KTH/32C/2D12 dated 29th October, 2012 on a one count charge of the offence of culpable homicide punishable under section 221 of the Penal Code in that he, on or about the 19th day of April, 2012 at Abukar Village, Rimi Local Government Area of Katsina State, hit one Suleiman Abubakar with a hoe blade on his stomach which resulted in his death. A summary of the facts leading to this appeal will suffice.

On 19th April, 2012, at about 8.00pm, the deceased, Suleiman Abubakar was in the company of his friend one Abubakar Umar on their way to Mandiri, behind Abukar township mosque, when chased and attacked by someone whom both the deceased and Abubakar Umar (PW2) identified to be the appellant. The deceased was struckand injured with an iron rod on his stomach which caused him pains and he fell ill. He was subsequently taken to Abukar dispensary for medication from where he was referred to Federal Medical Centre, Katsina where his chest and stomach were X-rayed. He was again referred to General Hospital Katsina where he was operated upon. This could not save him as he died subsequently. The appellant was arrested and arraigned on a charge of culpable homicide punishable under section 221 of the Penal Code.

At the trial of the case, the appellant pleaded not guilty to the charge. The respondent as the prosecution, called three witnesses and tendered two exhibits i.e. exhibits A and A1, the appellant’s statements to the police which were so admitted after a trial within trial. The medical and post mortem reports were rejected and marked accordingly.

In his defence, the appellant denied the charge, testified in his defence and called one witness. After the close of the defence and adoption of written addresses, the learned trial Judge, in a considered judgment delivered on 31st March, 2014, found the appellant guilty, convicted and sentenced him to death by hanging.

Aggrieved by the said judgment, the appellant appealed to the Court of Appeal, Kaduna Division which after hearing the appeal, dismissed same for lacking in merit. The said judgment of the lower court was delivered on 29th April, 2016.

…………………….B…………………….

Again, not being satisfied with the judgment of the Court of Appeal, the appellant filed notice of appeal on 17th May, 2016 with two grounds of appeal, out of which the appellant has distilled two issues for the determination of this appeal. The issues as contained in the appellant’s brief of argument settled by Chief Henry Akunebu, of counsel, are as follows:-

1.Whether exhibits A and A1 being the alleged appellant’s cautioned statements were rightly admitted by the trial court as confirmed by the court below.

2.Whether the cause of death of the deceased having regard to the gamut of the prosecution’s evidence was linked to the appellant.

In the respondent’s brief of argument settled by Chukwuka Ikwuazam Esq. and filed on 12/2/19 but deemed filed on 7/3/19, the learned counsel for the respondent adopts the two issues formulated by the appellant. I shall therefore determine this appeal on these two issues.

Issue One:

Learned counsel for the appellant submitted on this issue that the appellant’s cautioned statement referred to as exhibits A and A1 are inadmissible in law for reason of being obtained by PW3 who acted as both recorder and interpreter but who did not give specific evidence as to the questions put to the appellant and his answers to the said questions which is a strict procedure that must be complied with where a statement is obtained through the instrumentality of interpretation by any interpreter and any defect in the requisite procedure as legally prescribed will result in making the said statement obtained through an interpreter unsafe and inadmissible. He refers to F.R.N. v. Usman (2012) 49 NSCQLR (Pt. III) 1941;(2012) 8 NWLR (Pt. 1301) 141, Olalekan v. The State (2002) 1Supreme Court Monthly, 104; (2001) 18 NWLR (Pt. 746) 793.

Learned counsel further submitted that exhibits A and A1 were wrongly admitted by the trial court and confirmed by the court below in a procedure that fell short of the prescribed procedure by law as PW3 did not read exhibits A and A1 in the full view of the court and acknowledge that it was the statement he interpreted. He submitted further that the court below failed to direct their minds to the necessity for PW3 to give evidence as to questions put to the appellant and the answers thereto as required where statement is obtained by an interpreter and the said non direction resulted in miscarriage of justice; relying on Mohammed Ibrahim v. State (2015)

…………………….C…………………….

61 NSCQLR (Pt. 3) 1713; (2015) 11 NWLR (Pt. 1469) 164, Kalu v. State (1988) 10 – 11 SCNJ 1 at 9; (1988) 4 NWLR (Pt. 90) 503.

Learned counsel further contended that exhibits A and A1 arenot consistent with other facts proved in evidence. That whereasexhibits A and A1 allege that the appellant hit the deceased with ahoe handle on the chest, evidence led shows that the appellant hitthe deceased with iron rod on the stomach. He opined that becauseof this difference, exhibits A and A1 fail to have probative value onthe nature of a good confessional statement, he relies on the case ofUbierho v. State (2005) 1 NSCC 148; (2005) 5 NWLR (Pt. 919) 644.He urged this court to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent submittedthat apart from the fact that the issue is a new issue and was raisedwithout leave of court, appellant’s contention in this regard is grosslymisconceived. That it is not a requirement for the admissibility ofa confessional statement that an interpreter must give evidence ofany specific questions asked and answers elicited. That the decisionof FRN v. Usman (supra) which is quoted in paragraph 4.6 ofappellant’s brief requires the interpreter to be called as a witnessand nothing more.

Learned counsel contended that in this case, PW3 was boththe recorder and interpreter of the appellant’s statement and havingbeen called as a witness and cross examined by the appellant, thissatisfied the requirement of the law. That the case of Olalekan v. State (2002) 1 SCNJ 104; (2001) 18 NWLR (Pt. 746) 793 reliedupon by the appellant is distinguishable on this issue. He opinedthat since PW3 testified and identified exhibits A and A1, there wasno doubt that they were the Hausa and English versions of the samestatement respectively.

Learned counsel further submitted that there is no materialinconsistency between exhibits A and A1 and any other evidenceprovided at the trial court at the trial of the matter. That there wasenough corroboration in the matter. That the appellant havingadmitted in exhibits A and A1 that he beat the deceased with hoehandle on the chest and that he died thereafter, the trial court wasright to convict the appellant even on his confessional statementalone. He urged the court to resolve this issue against the appellant.

…………………….D…………………….

This issue is whether the court below was right to affirmthe decision of the trial court that exhibits A and A1 were rightlyadmitted in evidence. Before I make any statement on this issue, I wish to reproduce the views of the court below on this issue ascontained on pages 99 – 100 of the record of appeal as follows:-

“In the instant case, objection was raised to theadmissibility of the appellant’s statement to the policeon the ground that it was not made voluntarily becausethe appellant was beaten and tortured by the policebefore making same. That necessitated the conductof a trial-within-trial wherein 2 witnesses testifiedfor the prosecution who explained the manner thestatement was rendered and maintained that it wastaken voluntarily. The appellant testified as DW1 andtestified that he was beaten and tortured to make thestatement. The learned trial Judge who saw, heardand observed the witnesses considered the evidencefor the prosecution and the appellant and in admittingthe statements, held that the appellant was unable tosupport his allegation of torture or undue influence.

Significantly also, the appellant at page 27 of therecord stated he signed his statement voluntarily andin cross-examination admitted that it was what he toldthe Investigation Police Officer that was written in thesaid exhibits A and A1.

On the contention that exhibits A and A1 are productsof question and answer between PW3 and the appellantthereby making them involuntary and inadmissible, Iknow of no law that automatically makes involuntaryand inadmissible a confessional statement solely onthe ground that it was obtained by means of a policeofficer questioning an accused person and recordingthe answer given by the accused.”

May I state clearly, at this stage that admissibility, one of thecornerstone of our Law of Evidence, is based on relevancy. A factin issue is admissible if it is relevant to the matter before the court.In that respect, it is correct to say that relevancy is a precursor toadmissibility in our law of Evidence. See Nwabuoku & Ors. v. Onwordi & Ors. (2006) 5 SC (Pt. III) page 103. Still on the issueof admissibility of evidence, this court, per Adekeye, JSC put theissue succinctly in Haruna v. Attorney General of the Federation (2012) 9 NWLR (Pt. 1306) page 419, (2012) LPELR – 7821 (SC)page 29 – 30 paragraphs F – as follows:-

…………………….E…………………….

“Ordinarily, admissibility of evidence is governedby section 6 of the Evidence Act. Once a piece ofevidence is relevant, it is admissible in evidenceirrespective of how it was obtained. Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558. Wherea piece of evidence is wrongly received in evidenceby the trial court, an appellate court has the inherentjurisdiction to exclude it or expunge it from the recordsnot withstanding that counsel at the trial court did notobject to the admissibility of the piece of evidenceas any finding made on inadmissible evidence isperverse. However, the proper time to object to theadmissibility of a document, particularly exhibits, M1– M3 the confessional statement of the appellant wherenecessary was when they were tendered in evidence.Olayinka v. State (2007) 9 NWLR (Pt. 1040) page 561,Ogudu v. State (2011) vol. 202 LRCN page 1 (Reportedas Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1).”

The appellant herein actually raised an objection to thetendering of exhibits A and A1 his confessional statement i.e. theHausa and English translated version respectively. The recordshows that the reason for objection was that the appellant wastortured to make the statement. In view of the objection, as alsonoted by the court below, the learned trial Judge conducted a trial-within-trial to ascertain the voluntariness or otherwise of the saidstatement. The learned trial Judge who saw the appellant and therespondent witnesses giving evidence, as affirmed by the lowercourt, held that the statement was voluntarily made as the appellantfailed to show evidence of torture before he signed the statement.Moreso, the appellant, at page 27 of the record of appeal stated thathe signed the statement voluntarily and during cross-examination,admitted that it was what he told Investigation Police Officer thatwas written in the statement i.e. exhibits A and A1.

Now, the said confessional statement, having been adjudgedvoluntary and admitted in evidence, the learned trial Judge was rightto rely on same to convict the appellant even without the evidenceof PW1 in the matter. By section 28 of the Evidence Act, 2011, aconfession is an admission made at any time by a person chargedwith a crime, stating or suggesting the inference that he committedthat crime. Such a confession would be relevant against the

…………………….F…………………….

personwho made it once it is found to be positive, direct and unequivocaland is proved to have been voluntarily made without any form of duress or inducement. The court can even convict on a confessionalstatement alone. See Saliu v. The State (2014) 12 NWLR (Pt. 1420)65, (2014) LPELR-22998 (SC), Alabi v. The State (1993) 7 NWLR(Pt. 307) 5; Nwachukwu v. The State (2002) 7 SCNJ 230; (2002)12 NWLR (Pt. 782) 543, Blessing v. F.R.N. (2015) LPELR – 24689(SC), (2015) 13 NWLR (Pt. 1475) 1.

An aspect of the appellant’s argument in this issue as containedin paragraphs 4.1 – 4.18 of the appellant’s brief that exhibits A andA1 are inadmissible because PW3, Corporal Husamatu Umar, whotook the appellant’s statement in Hausa language and interpretedthe said statement into the English language “did not give specificevidence as to the questions put to the appellant, and the answersto the said questions” is worrisome. Appellant’s contention is thatwhere a confessional statement is interpreted from one language toanother, in addition to calling the interpreter as a witness which isa legal requirement for admissibility, the interpreter must also giveevidence under oath of the specific questions asked the accusedand the specific answers provided by the accused, failing which theconfessional statement will be inadmissible.

As was rightly pointed out by the learned counsel for therespondent, it is not a requirement of the law governing admissibilityof a confessional statement that a recorder of a confessionalstatement must give evidence of any specific questions asked andanswers elicited from an accused person. The decision of this courtin F.R.N. v. Usman (supra) relied upon by the appellant requires theinterpreter to be called as a witness simpliciter. The rationale behindthe requirement that the interpreter must be called is that giventhat it is the interpreter who understands both the language spokenby the accused person and the language understood by the officerwho records the statement, unless the interpreter is called to giveevidence, the information given by the interpreter to the recording

…………………….G…………………….

id=”_id5961″ class=”justifier”>officer may properly be considered hearsay and inadmissible. See

Ifaramoye v. The State (2017) LPELR – 4203 (SC); (2017) 8 NWLR(Pt. 1568) 457.

It has to be recalled that in the instant case, PW3 was boththe recorder and interpreter of the appellant’s confessionalstatement. The PW3 was called as a witness and cross examinedby the appellant as contained on page 22 of the record. Withthis, the requirement of the law was met. In my opinion, thereis no prescription either by statute or case law that evidence of specific questions asked, and specific answers received duringthe recording of a voluntary confessional statement of an accusedperson must be given for the confessional statement to beadmissible. As was held by the court below, which I agree thereis nothing in law which makes a statement inadmissible because itwas obtained by questioning the accused person. Appellant reliedon the case of Olalekan v. State (supra). However, I agree withthe learned counsel for the respondent that this court in Olalekan v. The State (supra) was addressing a peculiar set of facts whichrenders the case clearly distinguishable from the instant case. Theofficer who recorded the confessional statement in Olalekan v. The State (supra) was different from the officer who interpretedthe statement and it therefore became imperative that theinterpreter should identify and confirm to the court the statementhe interpreted and that the statement was accurate.

Generally, where an accused person is unable to write hisstatement by himself and the said statement is to be recorded forhim by the Investigation Police Officer, the accused may not knowwhat should be the content of the statement. The police need toask him of his name, address, occupation and other details abouthimself. Again, the police will need to ask the accused about hisinvolvement in the crime he is alleged to have committed. I do notthink it is necessary for the police to make a list of those questionsand answers available before the statement can be admitted. In theinstant case, having conducted a trial-within-trial and believing theprosecution’s evidence that the statement was voluntarily given,and having called PW3 who was both the recorder and interpreterto testify, I am satisfied that the learned trial Judge as affirmed bythe court below, was right to admit exhibits A and A1. This issue istherefore resolved against the appellant.

Issue Two:

…………………….H…………………….

The learned counsel for the appellant submitted in this issuethat for a charge of murder to succeed, all the material ingredientsof the offence of murder must be proved beyond reasonabledoubt by the prosecution, relying on Okereke v. The State (2016)NSCQR Vol. 65 (Part 1) 247; (No. 1) (2016) 5 NWLR (Pt. 1504)69.He submitted that from the whole gamut of evidence adducedby the prosecution, no evidence has connected the alleged act ofthe appellant with the death of the deceased, which is a material element that must be proved by the prosecution before a chargecan succeed.

Learned counsel contended that the evidence of PW1 and PW2are hearsay because they are what the deceased told them. Also thatlack of medical evidence was fatal to the prosecution’s case. Again,that whereas exhibits A and A1 say that the deceased was hit withhoe handle, the PW1 and PW2 testified that the deceased was hitwith iron rod.

It was submitted that in the circumstance of this case, sincethe deceased did not die on the spot and explanation as to cause ofdeath not medically provided, then the material ingredient that theappellant’s act caused the death of the deceased was not established,relying on the case of Adava v. The State (2006) 9 NWLR (Pt. 984)152. He insisted that the lack of exhibit of injury on the deceasedleft a gap in the prosecution’s case. According to him, courts arenot allowed to conjecture as to cause of death, relying on Ubani v. The State (2003) 18 NWLR (Pt. 681) 224, Oforlete v. The State(2000) 12 NWLR (Pt. 681) 415. He urged the court to resolve thisissue in favour of the appellant.

In response, the learned counsel for the respondent submittedthat the appellant’s contention was that there was no credibleevidence which showed that the appellant willfully caused thedeath of the deceased is untenable. Referring to the judgment ofthe court below in this regard, he submitted that the analysis of thecourt below is unimpeachable and should be easily accepted bythis court. It is his contention that the appellant willfully causedthe death of the deceased by initiating the chain of events whichultimately resulted in the death of the deceased.

Learned counsel further submitted that medical evidence isnot a prerequisite to the conviction of an accused person in murder

…………………….I…………………….

class=”justifier”>trial, relying on Ameh v. The State (2018) LPELR – 44463 (SC);

(2018) 11 NWLR (Pt. 1632) 99.He urged the court to resolve thisissue against the appellant.

The main issue tackled by both parties in issue 2 relates tothe cause of death. Whereas the learned counsel for the appellantcontends that it was not the act of the appellant that led to the deathof the deceased, learned counsel for the respondent opines that thedeceased died as a direct consequence of the act of the appellant.The offence of murder involves the taking of human life by a personwho either has a malicious and willful intent to kill or do grievous bodily harm or is wickedly reckless as to the consequences of hisact upon his victim. See Yekini Afosi v. The State (2013) 13 NWLR(Pt. 1371) 329, Ayedatiwor v. The State (2018) LPELR – 43847(SC); (2018) 11 NWLR (Pt. 1631) 542.

Consequently, in a charge of murder contrary to section 221of the Penal Code, the prosecution must establish the followingingredients of the offence beyond reasonable doubt before anaccused person can be convicted:-

1.That the deceased has died

2.That the death of the deceased resulted from the act ofthe accused person, and

3.That the act of the accused was intentional withknowledge that death or grievous bodily harm was theprobable consequence.

The offence of murder, like any other offence may be proved byany of the following ways:-

1.The confessional statement of the accused which hasbeen duly tested, proved and which is unequivocal andadmitted in evidence,

2.By circumstantial evidence which is complete,cogent and unequivocal and which leads to theirresistible conclusion that the accused committedthe offence charged.

3.By direct evidence of eye witnesses who actually sawthe accused committing the offence. See Idiok v. The State (2008) 13 NWLR (Pt. 1104) 225, Okereke v. The State (2016) LPELR – 40012 (SC); (2016) 5 NWLR(Pt. 1504) 96, Chukwunyere v. The

State (2017)LPELR – 43725 (SC); (2018) 9 NWLR (Pt. 1624) 249,Famakinwa v. The State (2016) LPELR – 40104 (SC);(2016) 11 NWLR (Pt. 1524) 538, Apugo v. The State(2006) 15 NWLR (Pt.1002) 227.

…………………….J…………………….

In the instant appeal, there is no doubt that the deceased haddied and the appellant agrees that he hit the deceased with thehandle of a hoe on his chest. This is well captured in exhibits A andA1 – the confessional statement of the appellant. Perhaps the onlycontention of the appellant in the matter is that because there wasno medical evidence before the trial court and that the deceased didnot die on the spot, the cause of death is in doubt.

Now taking the issue of medical evidence first, the law is trite that though desirable, a medical report is not a sine qua non indetermining the cause of death in a case of murder where thereare other evidence upon which the cause of death can be inferredto the satisfaction of the court. See Onitilo v. The State (2017)LPELR – 42576 (SC); (2018) 2 NWLR (Pt.1603) 239, Bille v. The State (2016) LPELR – 40832 (SC); (2016) 15 NWLR (Pt.1536)363, Alarape & Ors v. The State (2001) 5 NWLR (Pt. 705) 79,Aiguoreghian v. The State (2004) 3 NWLR (Pt. 860) 367.

The PW2 clearly stated before the trial court that on thefateful night, he was with the deceased when the appellant cameand threatened violence against them. The appellant then pursuedthe deceased and when the deceased returned to meet him, heshowed him the spot the appellant hit him with an iron rod.Although the learned counsel for the appellant tried to say thatPW2’s evidence is hearsay, I do not think so. The court belowsaid this much in its judgment spanning pages 110 – 113 of therecord of appeal as follows:-

“……The evidence of PW2 at pages 21 – 22 of therecord is that he was together with the deceased on thefateful night at about 8.00pm on their way to Mandiribehind Abukur township mosque when the appellantwanted to attack them, and he escaped but the appellantchased the deceased and when the deceased came backto meet him, the deceased told him that the appellanthit him with iron rod on his stomach and lifted his shirtto show PW2 the injury. They returned home wherethey used to sleep, and the deceased could not sleepas a result of the pain from his injured stomach untilPW2 massaged the area with hot water. The illnessgot severe and the deceased’s father, Abubakar RaboAbukur (PW1) took the deceased to the dispensary,the Federal Medical Centre and then to the GeneralHospital where he was operated upon, but the stomachpain persisted and the deceased subsequently died.

…………………….K…………………….

The appellant’s counsel argued that PW2 is not aneye witness and his evidence was wrongly relied uponby the learned trial Judge. By section 126(a) of theEvidence Act, an eye witness is a witness who sawor witnessed the occurrence of an event, of which hetestifies about in this sense while it is true that PW2 is not an eye witness to the actual hitting of the deceasedand when the deceased returned to meet PW2 who waswaiting for the deceased, he saw the injury sustained bythe deceased on his stomach. The witness maintainedin cross-examination that he knew the appellantbefore the attack and recognized him as the personwho attacked and chased the deceased. Shortly afterbeing chased by the appellant, the deceased showedto PW2 the injury he sustained. PW2 witnessed all theevents leading to the injury inflicted on the deceased.It has not been suggested let alone was there any iotaof evidence on the part of the defence to show that thedeceased had the injury on him before being attackedand chased by the appellant. The interval of time fromthe time the deceased was chased to the time he cameto meet PW2 and showed PW2 the injury leaves noroom to suggest that another person other than theappellant inflicted the injury on the deceased. Thisfact is supported by the confessional statement of theappellant already reproduced in this judgment. Thelearned trial Judge evaluated the evidence of PW1 andPW2 from the attempt to attack the deceased whichPW2 witnessed to the injury the deceased sustained,and his being taken to the hospital by PW1 up to thetime the deceased died and correctly held that thepieces of evidence cannot be referred to as hearsay …”

The court below proceeded at paragraph 2, page 19 of itsjudgment (copied at page 113 of the record of appeal) to stateas follows:

“On the contention that the unsuccessful surgery, poorattendance of the deceased after the surgery and theabsence of the post-mortem examination report raises(sic) doubt as to the cause of death, the undisputedfact as rightly found by the learned trial Judge isthat it was the injury inflicted on the deceased by theappellant that started the chain of action that followed.The hitting of the deceased by the appellant causedthe injury which necessitated the operation carriedout for the purpose of saving the life of the deceased.The proximate cause of the injury

…………………….L…………………….

was the injury inflicted by the appellant from which the deceasednever recovered but died therefrom. Had the appellantnot inflicted the injury on the deceased, there wouldhave been no cause to operate on the deceased. By theprinciple of causation, an event is caused by the actproximate to it and in the absence of which the eventwould not have happened. In a charge of culpablehomicide, the important consideration for determiningresponsibility is whether death of the deceased wascaused by injuries he sustained through the act ofthe accused and not whether from the medical pointof view, death was caused by the injuries. See R. v. Enang (1969) 1 All NLR 339 considered in Uyo v. A.-G., Bendel State (1986) 1 NWLR (Pt. 17) 418.”

I agree entirely with the above summation by the courtbelow. There was enough evidence outside medical evidenceto convict the appellant. Whether he used an iron rod or thehandle of a hoe to hit the deceased, it is immaterial. It has to benoted that it was night time and as such the deceased may nothave seen exactly the weapon used by the appellant to hit him.Secondly, the appellant may have used the iron rod as stated bythe deceased to PW1 only to state in his confessional statementthat he used the handle of a hoe.

Both the trial court and the court below agree that it wasthe appellant who willfully caused the death of the deceased byinitiating the chain of events which ultimately resulted in thedeath of the deceased. The law is very clear that if the killing of ahuman being is in the course of prosecuting an unlawful purposeand the act of the accused is such as likely to endanger humanlife, this would be murder. See Akinkunmi v. The State (1987)1 NWLR (Pt. 52) 608, Yakubu Mohammed & anor v. The State(1980) 3 – 4 SC 84.

It was the contention of learned counsel for the appellantthat the cause of death could be traceable to the treatment offeredthe deceased in the hospital. My view is that this is not a matterfor counsel’s address. The law is well settled that even where themedical treatment results in the death of the deceased, a convictionfor murder will lie except the deceased died from other causesand the onus is on the defence to prove same. See R. v. Abengowe(1936) 3 WACA 85, Uyo v. Attorney-General of Bendel State (1986) 1 NWLR (Pt.17) 418, (1986) LPELR – 3452 (SC) at page22 paragraphs B – C, per Karibi-Whyte, JSC.

…………………….M…………………….

From all I have said above in this issue, it is clear that thecause of death of the deceased is apparent from the evidence on therecord. Both the trial court and the court below in their concurrentfindings were satisfied that it was the injuries inflicted on thedeceased by the appellant that was responsible for his death. I amin complete agreement with the two courts below on this issue.Accordingly, this issue is also resolved against the appellant.

Having resolved the two issues against the appellant all thatis left for me to do, is to state clearly that there is no merit in thisappeal. Accordingly, it is hereby dismissed. I affirm the decision ofthe court below delivered on 29th April, 2016.

Appeal dismissed.

M.D. MUHAMMAD, J.S.C.: On reading in advance the leadjudgment of my learned brother, John Inyang Okoro, JSC, justdelivered, I agree with the reasoning and conclusion therein thatthe appeal lacks merit.

Exhibits A and A1 have, through DW3, been established tobe appellant’s voluntarily confessional statement. The confessionalstatement is positive and unequivocal. It is settled that convictioncan be founded solely on such a statement. See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 and Sule v. The State (2009) LPELR-3129(SC); (2009) 17 NWLR (Pt. 1169) 33.In thecase at hand, the lower court’s judgment arrived at in obedience ofthis trite principle must endure.

For this and the fuller reasons outlined in the lead judgment, Ialso dismiss the appeal and abide by the consequential orders madein the said judgment.

AKA’AHS, J.S.C.: I was privileged to read before now thejudgment of my learned brother, Okoro JSC. He adroitly addressedthe issues in the appeal. The requirement of the law with regard tothe recording of the statement of the accused is that the statementshould be, whenever practicable, be recorded in the languagespoken by the accused. This is a practical wisdom directed to avoidtechnical arguments which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of thestatement made by the accused person. Where an interpreter hasbeen used, the law provides that the interpreter should confirmthe statement otherwise it becomes inadmissible. See: R. v. Sapele(1957) 2 FSC 24 reported as German Awip v. Queen (1957) SCNLR307; Zakwakwa v. Queen (1960) SCNLR 36.

…………………….N…………………….

I agree entirely with my learned brother, Okoro JSC that theappeal lacks merit and I accordingly dismiss it.

BAGE, J.S.C.: I have had the benefit of reading in draft the leadjudgment of my learned brother, John Inyang Okoro, JSC, justdelivered. I agree entirely with the reasoning and conclusionreached. The appeal lacks merit and it is accordingly dismissed.

ABBA AJI, J.S.C.: I had a preview of the judgment just deliveredby my learned brother, John Inyang Okoro, JSC, I agree with thereasoning and conclusion therein arrived at that the appeal is devoidof any merit.

On 19/4/2012, at about 8a.m., the deceased, SuleimanAbubakar was in the company of his friend, Abubakar Umar ontheir way to Mandiri, when chased and attacked by the appellant,who struck an injured the deceased with an iron rod on hisstomach which caused him pains and he fell sick. Taken to Abukardispensary, he was referred to Federal Medical Centre, Katsina,and again from there referred to general Hospital, Katsina, wherehe was operated upon but he subsequently died, which led to hisarraignment for culpable homicide punishable with death. Beingconvicted and sentenced as charged by the trial court, he lost in thelower court and again appealed to this court.

Nevertheless, the appellant contested voluntariness of exhibitsA and A1 being the Hausa and English versions of his confessionalstatement. Having conducted a trial within a trial by the trial court,affirmed and reaffirmed by my learned brother, there cannot beany dent to the voluntariness of his confessional statement to beadmissible and relied upon for his conviction. In Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383, it was held that wherean extra-judicial confession has been proved to have been madevoluntarily and it is positive and unequivocal and amounts to [2019] 16 NWLR 443 an admission of guilt, it will suffice to ground a finding of guiltregardless of the fact that the maker resiled therefrom or retractedit altogether at the trial, since such u-turn does not necessary makethe confession inadmissible. See also Queen v. Itule (1961) 2SCNLR 183; Aremu v. The State (1984) 6 SC 85; Ejinima v. The State (1991) 6 NWLR (Pt.200) 627; Akpan v. The State (1992) 6NWLR (Pt. 248) 439 and Akinfe v. State (1988) 3 NWLR (Pt.85)729. In Sule v. The State (2009) 4 NCC 456; (2009) 17 NWLR(Pt. 1169) 33, this court decided that a court can still convict ona confessional statement alone even if the accused person resilesfrom it. A confessional statement is part of the evidence adduced bythe prosecution. See also Per. Bage, J.S.C. in Lase v. State (2017)LPELR-42468(SC); (2018) 3 NWLR (Pt. 1607) 502. PW3, beingboth the interpreter and recorder having being called and cross-examined makes exhibits A and A1 admissible to convict theappellant on it.

…………………….O…………………….

I will without further ado endorse the reasoning and conclusionreached by my learned brother, John Inyang Okoro, JSC, in hislead judgment to dismiss the appellant’s appeal and to affirm the 2lower courts’ decisions in convicting and sentencing the appellantfor culpable homicide punishable with death.

Appeal dismissed.

Representations:

Chief Henry Akunebu, Esq. (with him, Daniel Awuapila andAnthony Ndanusa) – for the Appellant

Chukwuka Ikwuazom, Esq. (with him, Kehinde Olona andMoira Frank-Peterside) – for the Respondent

LOR (31/5/2019) SC

MUSA HAMZA V. THE STATE

IN THE SUPREME COURT OF NIGERIA

SC. 613/2016

Before Their Lordships

FRIDAY, 31ST MAY 2019

MUSA DATTIJO MUHAMMAD, J.S.C.

KUMAI BAYANG AKA’AHS, J.S.C.

JOHN INYANG OKORO, J.S.C.

SIDI DAUDA BAGE, J.S.C.

UWANI MUSA ABBA AJI, J.S.C.

BETWEEN

MUSA HAMZA

AND

THE STATE

…………………….A…………………….

OKORO, J.S.C. (The Lead Judgment): The appellant herein was arraigned before the Katsina State High Court in charge No. KTH/32C/2D12 dated 29th October, 2012 on a one count charge of the offence of culpable homicide punishable under section 221 of the Penal Code in that he, on or about the 19th day of April, 2012 at Abukar Village, Rimi Local Government Area of Katsina State, hit one Suleiman Abubakar with a hoe blade on his stomach which resulted in his death. A summary of the facts leading to this appeal will suffice.

On 19th April, 2012, at about 8.00pm, the deceased, Suleiman Abubakar was in the company of his friend one Abubakar Umar on their way to Mandiri, behind Abukar township mosque, when chased and attacked by someone whom both the deceased and Abubakar Umar (PW2) identified to be the appellant. The deceased was struckand injured with an iron rod on his stomach which caused him pains and he fell ill. He was subsequently taken to Abukar dispensary for medication from where he was referred to Federal Medical Centre, Katsina where his chest and stomach were X-rayed. He was again referred to General Hospital Katsina where he was operated upon. This could not save him as he died subsequently. The appellant was arrested and arraigned on a charge of culpable homicide punishable under section 221 of the Penal Code.

At the trial of the case, the appellant pleaded not guilty to the charge. The respondent as the prosecution, called three witnesses and tendered two exhibits i.e. exhibits A and A1, the appellant’s statements to the police which were so admitted after a trial within trial. The medical and post mortem reports were rejected and marked accordingly.

In his defence, the appellant denied the charge, testified in his defence and called one witness. After the close of the defence and adoption of written addresses, the learned trial Judge, in a considered judgment delivered on 31st March, 2014, found the appellant guilty, convicted and sentenced him to death by hanging.

Aggrieved by the said judgment, the appellant appealed to the Court of Appeal, Kaduna Division which after hearing the appeal, dismissed same for lacking in merit. The said judgment of the lower court was delivered on 29th April, 2016.

…………………….B…………………….

Again, not being satisfied with the judgment of the Court of Appeal, the appellant filed notice of appeal on 17th May, 2016 with two grounds of appeal, out of which the appellant has distilled two issues for the determination of this appeal. The issues as contained in the appellant’s brief of argument settled by Chief Henry Akunebu, of counsel, are as follows:-

1.Whether exhibits A and A1 being the alleged appellant’s cautioned statements were rightly admitted by the trial court as confirmed by the court below.

2.Whether the cause of death of the deceased having regard to the gamut of the prosecution’s evidence was linked to the appellant.

In the respondent’s brief of argument settled by Chukwuka Ikwuazam Esq. and filed on 12/2/19 but deemed filed on 7/3/19, the learned counsel for the respondent adopts the two issues formulated by the appellant. I shall therefore determine this appeal on these two issues.

Issue One:

Learned counsel for the appellant submitted on this issue that the appellant’s cautioned statement referred to as exhibits A and A1 are inadmissible in law for reason of being obtained by PW3 who acted as both recorder and interpreter but who did not give specific evidence as to the questions put to the appellant and his answers to the said questions which is a strict procedure that must be complied with where a statement is obtained through the instrumentality of interpretation by any interpreter and any defect in the requisite procedure as legally prescribed will result in making the said statement obtained through an interpreter unsafe and inadmissible. He refers to F.R.N. v. Usman (2012) 49 NSCQLR (Pt. III) 1941;(2012) 8 NWLR (Pt. 1301) 141, Olalekan v. The State (2002) 1Supreme Court Monthly, 104; (2001) 18 NWLR (Pt. 746) 793.

Learned counsel further submitted that exhibits A and A1were wrongly admitted by the trial court and confirmed by the courtbelow in a procedure that fell short of the prescribed procedure bylaw as PW3 did not read exhibits A and A1 in the full view of thecourt and acknowledge that it was the statement he interpreted. Hesubmitted further that the court below failed to direct their mindsto the necessity for PW3 to give evidence as to questions put tothe appellant and the answers thereto as required where statementis obtained by an interpreter and the said non direction resulted inmiscarriage of justice; relying on Mohammed Ibrahim v. State (2015)

…………………….C…………………….

61 NSCQLR (Pt. 3) 1713; (2015) 11 NWLR (Pt. 1469) 164, Kalu v. State (1988) 10 – 11 SCNJ 1 at 9; (1988) 4 NWLR (Pt. 90) 503.

Learned counsel further contended that exhibits A and A1 arenot consistent with other facts proved in evidence. That whereasexhibits A and A1 allege that the appellant hit the deceased with ahoe handle on the chest, evidence led shows that the appellant hitthe deceased with iron rod on the stomach. He opined that becauseof this difference, exhibits A and A1 fail to have probative value onthe nature of a good confessional statement, he relies on the case ofUbierho v. State (2005) 1 NSCC 148; (2005) 5 NWLR (Pt. 919) 644.He urged this court to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent submittedthat apart from the fact that the issue is a new issue and was raisedwithout leave of court, appellant’s contention in this regard is grosslymisconceived. That it is not a requirement for the admissibility ofa confessional statement that an interpreter must give evidence ofany specific questions asked and answers elicited. That the decisionof FRN v. Usman (supra) which is quoted in paragraph 4.6 ofappellant’s brief requires the interpreter to be called as a witnessand nothing more.

Learned counsel contended that in this case, PW3 was boththe recorder and interpreter of the appellant’s statement and havingbeen called as a witness and cross examined by the appellant, thissatisfied the requirement of the law. That the case of Olalekan v. State (2002) 1 SCNJ 104; (2001) 18 NWLR (Pt. 746) 793 reliedupon by the appellant is distinguishable on this issue. He opinedthat since PW3 testified and identified exhibits A and A1, there wasno doubt that they were the Hausa and English versions of the samestatement respectively.

Learned counsel further submitted that there is no materialinconsistency between exhibits A and A1 and any other evidenceprovided at the trial court at the trial of the matter. That there wasenough corroboration in the matter. That the appellant havingadmitted in exhibits A and A1 that he beat the deceased with hoehandle on the chest and that he died thereafter, the trial court wasright to convict the appellant even on his confessional statementalone. He urged the court to resolve this issue against the appellant.

…………………….D…………………….

This issue is whether the court below was right to affirmthe decision of the trial court that exhibits A and A1 were rightlyadmitted in evidence. Before I make any statement on this issue, I wish to reproduce the views of the court below on this issue ascontained on pages 99 – 100 of the record of appeal as follows:-

“In the instant case, objection was raised to theadmissibility of the appellant’s statement to the policeon the ground that it was not made voluntarily becausethe appellant was beaten and tortured by the policebefore making same. That necessitated the conductof a trial-within-trial wherein 2 witnesses testifiedfor the prosecution who explained the manner thestatement was rendered and maintained that it wastaken voluntarily. The appellant testified as DW1 andtestified that he was beaten and tortured to make thestatement. The learned trial Judge who saw, heardand observed the witnesses considered the evidencefor the prosecution and the appellant and in admittingthe statements, held that the appellant was unable tosupport his allegation of torture or undue influence.

Significantly also, the appellant at page 27 of therecord stated he signed his statement voluntarily andin cross-examination admitted that it was what he toldthe Investigation Police Officer that was written in thesaid exhibits A and A1.

On the contention that exhibits A and A1 are productsof question and answer between PW3 and the appellantthereby making them involuntary and inadmissible, Iknow of no law that automatically makes involuntaryand inadmissible a confessional statement solely onthe ground that it was obtained by means of a policeofficer questioning an accused person and recordingthe answer given by the accused.”

May I state clearly, at this stage that admissibility, one of thecornerstone of our Law of Evidence, is based on relevancy. A factin issue is admissible if it is relevant to the matter before the court.In that respect, it is correct to say that relevancy is a precursor toadmissibility in our law of Evidence. See Nwabuoku & Ors. v. Onwordi & Ors. (2006) 5 SC (Pt. III) page 103. Still on the issueof admissibility of evidence, this court, per Adekeye, JSC put theissue succinctly in Haruna v. Attorney General of the Federation (2012) 9 NWLR (Pt. 1306) page 419, (2012) LPELR – 7821 (SC)page 29 – 30 paragraphs F – as follows:-

…………………….E…………………….

“Ordinarily, admissibility of evidence is governedby section 6 of the Evidence Act. Once a piece ofevidence is relevant, it is admissible in evidenceirrespective of how it was obtained. Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558. Wherea piece of evidence is wrongly received in evidenceby the trial court, an appellate court has the inherentjurisdiction to exclude it or expunge it from the recordsnot withstanding that counsel at the trial court did notobject to the admissibility of the piece of evidenceas any finding made on inadmissible evidence isperverse. However, the proper time to object to theadmissibility of a document, particularly exhibits, M1– M3 the confessional statement of the appellant wherenecessary was when they were tendered in evidence.Olayinka v. State (2007) 9 NWLR (Pt. 1040) page 561,Ogudu v. State (2011) vol. 202 LRCN page 1 (Reportedas Ogudo v. State (2011) 18 NWLR (Pt. 1278) 1).”

The appellant herein actually raised an objection to thetendering of exhibits A and A1 his confessional statement i.e. theHausa and English translated version respectively. The recordshows that the reason for objection was that the appellant wastortured to make the statement. In view of the objection, as alsonoted by the court below, the learned trial Judge conducted a trial-within-trial to ascertain the voluntariness or otherwise of the saidstatement. The learned trial Judge who saw the appellant and therespondent witnesses giving evidence, as affirmed by the lowercourt, held that the statement was voluntarily made as the appellantfailed to show evidence of torture before he signed the statement.Moreso, the appellant, at page 27 of the record of appeal stated thathe signed the statement voluntarily and during cross-examination,admitted that it was what he told Investigation Police Officer thatwas written in the statement i.e. exhibits A and A1.

Now, the said confessional statement, having been adjudgedvoluntary and admitted in evidence, the learned trial Judge was rightto rely on same to convict the appellant even without the evidenceof PW1 in the matter. By section 28 of the Evidence Act, 2011, aconfession is an admission made at any time by a person chargedwith a crime, stating or suggesting the inference that he committedthat crime. Such a confession would be relevant against the

…………………….F…………………….

personwho made it once it is found to be positive, direct and unequivocaland is proved to have been voluntarily made without any form of duress or inducement. The court can even convict on a confessionalstatement alone. See Saliu v. The State (2014) 12 NWLR (Pt. 1420)65, (2014) LPELR-22998 (SC), Alabi v. The State (1993) 7 NWLR(Pt. 307) 5; Nwachukwu v. The State (2002) 7 SCNJ 230; (2002)12 NWLR (Pt. 782) 543, Blessing v. F.R.N. (2015) LPELR – 24689(SC), (2015) 13 NWLR (Pt. 1475) 1.

An aspect of the appellant’s argument in this issue as containedin paragraphs 4.1 – 4.18 of the appellant’s brief that exhibits A andA1 are inadmissible because PW3, Corporal Husamatu Umar, whotook the appellant’s statement in Hausa language and interpretedthe said statement into the English language “did not give specificevidence as to the questions put to the appellant, and the answersto the said questions” is worrisome. Appellant’s contention is thatwhere a confessional statement is interpreted from one language toanother, in addition to calling the interpreter as a witness which isa legal requirement for admissibility, the interpreter must also giveevidence under oath of the specific questions asked the accusedand the specific answers provided by the accused, failing which theconfessional statement will be inadmissible.

As was rightly pointed out by the learned counsel for therespondent, it is not a requirement of the law governing admissibilityof a confessional statement that a recorder of a confessionalstatement must give evidence of any specific questions asked andanswers elicited from an accused person. The decision of this courtin F.R.N. v. Usman (supra) relied upon by the appellant requires theinterpreter to be called as a witness simpliciter. The rationale behindthe requirement that the interpreter must be called is that giventhat it is the interpreter who understands both the language spokenby the accused person and the language understood by the officerwho records the statement, unless the interpreter is called to giveevidence, the information given by the interpreter to the recording

…………………….G…………………….

id=”_id5961″ class=”justifier”>officer may properly be considered hearsay and inadmissible. See

Ifaramoye v. The State (2017) LPELR – 4203 (SC); (2017) 8 NWLR(Pt. 1568) 457.

It has to be recalled that in the instant case, PW3 was boththe recorder and interpreter of the appellant’s confessionalstatement. The PW3 was called as a witness and cross examinedby the appellant as contained on page 22 of the record. Withthis, the requirement of the law was met. In my opinion, thereis no prescription either by statute or case law that evidence of specific questions asked, and specific answers received duringthe recording of a voluntary confessional statement of an accusedperson must be given for the confessional statement to beadmissible. As was held by the court below, which I agree thereis nothing in law which makes a statement inadmissible because itwas obtained by questioning the accused person. Appellant reliedon the case of Olalekan v. State (supra). However, I agree withthe learned counsel for the respondent that this court in Olalekan v. The State (supra) was addressing a peculiar set of facts whichrenders the case clearly distinguishable from the instant case. Theofficer who recorded the confessional statement in Olalekan v. The State (supra) was different from the officer who interpretedthe statement and it therefore became imperative that theinterpreter should identify and confirm to the court the statementhe interpreted and that the statement was accurate.

Generally, where an accused person is unable to write hisstatement by himself and the said statement is to be recorded forhim by the Investigation Police Officer, the accused may not knowwhat should be the content of the statement. The police need toask him of his name, address, occupation and other details abouthimself. Again, the police will need to ask the accused about hisinvolvement in the crime he is alleged to have committed. I do notthink it is necessary for the police to make a list of those questionsand answers available before the statement can be admitted. In theinstant case, having conducted a trial-within-trial and believing theprosecution’s evidence that the statement was voluntarily given,and having called PW3 who was both the recorder and interpreterto testify, I am satisfied that the learned trial Judge as affirmed bythe court below, was right to admit exhibits A and A1. This issue istherefore resolved against the appellant.

Issue Two:

…………………….H…………………….

The learned counsel for the appellant submitted in this issuethat for a charge of murder to succeed, all the material ingredientsof the offence of murder must be proved beyond reasonabledoubt by the prosecution, relying on Okereke v. The State (2016)NSCQR Vol. 65 (Part 1) 247; (No. 1) (2016) 5 NWLR (Pt. 1504)69.He submitted that from the whole gamut of evidence adducedby the prosecution, no evidence has connected the alleged act ofthe appellant with the death of the deceased, which is a material element that must be proved by the prosecution before a chargecan succeed.

Learned counsel contended that the evidence of PW1 and PW2are hearsay because they are what the deceased told them. Also thatlack of medical evidence was fatal to the prosecution’s case. Again,that whereas exhibits A and A1 say that the deceased was hit withhoe handle, the PW1 and PW2 testified that the deceased was hitwith iron rod.

It was submitted that in the circumstance of this case, sincethe deceased did not die on the spot and explanation as to cause ofdeath not medically provided, then the material ingredient that theappellant’s act caused the death of the deceased was not established,relying on the case of Adava v. The State (2006) 9 NWLR (Pt. 984)152. He insisted that the lack of exhibit of injury on the deceasedleft a gap in the prosecution’s case. According to him, courts arenot allowed to conjecture as to cause of death, relying on Ubani v. The State (2003) 18 NWLR (Pt. 681) 224, Oforlete v. The State(2000) 12 NWLR (Pt. 681) 415. He urged the court to resolve thisissue in favour of the appellant.

In response, the learned counsel for the respondent submittedthat the appellant’s contention was that there was no credibleevidence which showed that the appellant willfully caused thedeath of the deceased is untenable. Referring to the judgment ofthe court below in this regard, he submitted that the analysis of thecourt below is unimpeachable and should be easily accepted bythis court. It is his contention that the appellant willfully causedthe death of the deceased by initiating the chain of events whichultimately resulted in the death of the deceased.

Learned counsel further submitted that medical evidence isnot a prerequisite to the conviction of an accused person in murder

…………………….I…………………….

class=”justifier”>trial, relying on Ameh v. The State (2018) LPELR – 44463 (SC);

(2018) 11 NWLR (Pt. 1632) 99.He urged the court to resolve thisissue against the appellant.

The main issue tackled by both parties in issue 2 relates tothe cause of death. Whereas the learned counsel for the appellantcontends that it was not the act of the appellant that led to the deathof the deceased, learned counsel for the respondent opines that thedeceased died as a direct consequence of the act of the appellant.The offence of murder involves the taking of human life by a personwho either has a malicious and willful intent to kill or do grievous bodily harm or is wickedly reckless as to the consequences of hisact upon his victim. See Yekini Afosi v. The State (2013) 13 NWLR(Pt. 1371) 329, Ayedatiwor v. The State (2018) LPELR – 43847(SC); (2018) 11 NWLR (Pt. 1631) 542.

Consequently, in a charge of murder contrary to section 221of the Penal Code, the prosecution must establish the followingingredients of the offence beyond reasonable doubt before anaccused person can be convicted:-

1.That the deceased has died

2.That the death of the deceased resulted from the act ofthe accused person, and

3.That the act of the accused was intentional withknowledge that death or grievous bodily harm was theprobable consequence.

The offence of murder, like any other offence may be proved byany of the following ways:-

1.The confessional statement of the accused which hasbeen duly tested, proved and which is unequivocal andadmitted in evidence,

2.By circumstantial evidence which is complete,cogent and unequivocal and which leads to theirresistible conclusion that the accused committedthe offence charged.

3.By direct evidence of eye witnesses who actually sawthe accused committing the offence. See Idiok v. The State (2008) 13 NWLR (Pt. 1104) 225, Okereke v. The State (2016) LPELR – 40012 (SC); (2016) 5 NWLR(Pt. 1504) 96, Chukwunyere v. The

State (2017)LPELR – 43725 (SC); (2018) 9 NWLR (Pt. 1624) 249,Famakinwa v. The State (2016) LPELR – 40104 (SC);(2016) 11 NWLR (Pt. 1524) 538, Apugo v. The State(2006) 15 NWLR (Pt.1002) 227.

…………………….J…………………….

In the instant appeal, there is no doubt that the deceased haddied and the appellant agrees that he hit the deceased with thehandle of a hoe on his chest. This is well captured in exhibits A andA1 – the confessional statement of the appellant. Perhaps the onlycontention of the appellant in the matter is that because there wasno medical evidence before the trial court and that the deceased didnot die on the spot, the cause of death is in doubt.

Now taking the issue of medical evidence first, the law is trite that though desirable, a medical report is not a sine qua non indetermining the cause of death in a case of murder where thereare other evidence upon which the cause of death can be inferredto the satisfaction of the court. See Onitilo v. The State (2017)LPELR – 42576 (SC); (2018) 2 NWLR (Pt.1603) 239, Bille v. The State (2016) LPELR – 40832 (SC); (2016) 15 NWLR (Pt.1536)363, Alarape & Ors v. The State (2001) 5 NWLR (Pt. 705) 79,Aiguoreghian v. The State (2004) 3 NWLR (Pt. 860) 367.

The PW2 clearly stated before the trial court that on thefateful night, he was with the deceased when the appellant cameand threatened violence against them. The appellant then pursuedthe deceased and when the deceased returned to meet him, heshowed him the spot the appellant hit him with an iron rod.Although the learned counsel for the appellant tried to say thatPW2’s evidence is hearsay, I do not think so. The court belowsaid this much in its judgment spanning pages 110 – 113 of therecord of appeal as follows:-

“……The evidence of PW2 at pages 21 – 22 of therecord is that he was together with the deceased on thefateful night at about 8.00pm on their way to Mandiribehind Abukur township mosque when the appellantwanted to attack them, and he escaped but the appellantchased the deceased and when the deceased came backto meet him, the deceased told him that the appellanthit him with iron rod on his stomach and lifted his shirtto show PW2 the injury. They returned home wherethey used to sleep, and the deceased could not sleepas a result of the pain from his injured stomach untilPW2 massaged the area with hot water. The illnessgot severe and the deceased’s father, Abubakar RaboAbukur (PW1) took the deceased to the dispensary,the Federal Medical Centre and then to the GeneralHospital where he was operated upon, but the stomachpain persisted and the deceased subsequently died.

…………………….K…………………….

The appellant’s counsel argued that PW2 is not aneye witness and his evidence was wrongly relied uponby the learned trial Judge. By section 126(a) of theEvidence Act, an eye witness is a witness who sawor witnessed the occurrence of an event, of which hetestifies about in this sense while it is true that PW2 is not an eye witness to the actual hitting of the deceasedand when the deceased returned to meet PW2 who waswaiting for the deceased, he saw the injury sustained bythe deceased on his stomach. The witness maintainedin cross-examination that he knew the appellantbefore the attack and recognized him as the personwho attacked and chased the deceased. Shortly afterbeing chased by the appellant, the deceased showedto PW2 the injury he sustained. PW2 witnessed all theevents leading to the injury inflicted on the deceased.It has not been suggested let alone was there any iotaof evidence on the part of the defence to show that thedeceased had the injury on him before being attackedand chased by the appellant. The interval of time fromthe time the deceased was chased to the time he cameto meet PW2 and showed PW2 the injury leaves noroom to suggest that another person other than theappellant inflicted the injury on the deceased. Thisfact is supported by the confessional statement of theappellant already reproduced in this judgment. Thelearned trial Judge evaluated the evidence of PW1 andPW2 from the attempt to attack the deceased whichPW2 witnessed to the injury the deceased sustained,and his being taken to the hospital by PW1 up to thetime the deceased died and correctly held that thepieces of evidence cannot be referred to as hearsay …”

The court below proceeded at paragraph 2, page 19 of itsjudgment (copied at page 113 of the record of appeal) to stateas follows:

“On the contention that the unsuccessful surgery, poorattendance of the deceased after the surgery and theabsence of the post-mortem examination report raises(sic) doubt as to the cause of death, the undisputedfact as rightly found by the learned trial Judge isthat it was the injury inflicted on the deceased by theappellant that started the chain of action that followed.The hitting of the deceased by the appellant causedthe injury which necessitated the operation carriedout for the purpose of saving the life of the deceased.The proximate cause of the injury

…………………….L…………………….

was the injury inflicted by the appellant from which the deceasednever recovered but died therefrom. Had the appellantnot inflicted the injury on the deceased, there wouldhave been no cause to operate on the deceased. By theprinciple of causation, an event is caused by the actproximate to it and in the absence of which the eventwould not have happened. In a charge of culpablehomicide, the important consideration for determiningresponsibility is whether death of the deceased wascaused by injuries he sustained through the act ofthe accused and not whether from the medical pointof view, death was caused by the injuries. See R. v. Enang (1969) 1 All NLR 339 considered in Uyo v. A.-G., Bendel State (1986) 1 NWLR (Pt. 17) 418.”

I agree entirely with the above summation by the courtbelow. There was enough evidence outside medical evidenceto convict the appellant. Whether he used an iron rod or thehandle of a hoe to hit the deceased, it is immaterial. It has to benoted that it was night time and as such the deceased may nothave seen exactly the weapon used by the appellant to hit him.Secondly, the appellant may have used the iron rod as stated bythe deceased to PW1 only to state in his confessional statementthat he used the handle of a hoe.

Both the trial court and the court below agree that it wasthe appellant who willfully caused the death of the deceased byinitiating the chain of events which ultimately resulted in thedeath of the deceased. The law is very clear that if the killing of ahuman being is in the course of prosecuting an unlawful purposeand the act of the accused is such as likely to endanger humanlife, this would be murder. See Akinkunmi v. The State (1987)1 NWLR (Pt. 52) 608, Yakubu Mohammed & anor v. The State(1980) 3 – 4 SC 84.

It was the contention of learned counsel for the appellantthat the cause of death could be traceable to the treatment offeredthe deceased in the hospital. My view is that this is not a matterfor counsel’s address. The law is well settled that even where themedical treatment results in the death of the deceased, a convictionfor murder will lie except the deceased died from other causesand the onus is on the defence to prove same. See R. v. Abengowe(1936) 3 WACA 85, Uyo v. Attorney-General of Bendel State (1986) 1 NWLR (Pt.17) 418, (1986) LPELR – 3452 (SC) at page22 paragraphs B – C, per Karibi-Whyte, JSC.

…………………….M…………………….

From all I have said above in this issue, it is clear that thecause of death of the deceased is apparent from the evidence on therecord. Both the trial court and the court below in their concurrentfindings were satisfied that it was the injuries inflicted on thedeceased by the appellant that was responsible for his death. I amin complete agreement with the two courts below on this issue.Accordingly, this issue is also resolved against the appellant.

Having resolved the two issues against the appellant all thatis left for me to do, is to state clearly that there is no merit in thisappeal. Accordingly, it is hereby dismissed. I affirm the decision ofthe court below delivered on 29th April, 2016.

Appeal dismissed.

M.D. MUHAMMAD, J.S.C.: On reading in advance the leadjudgment of my learned brother, John Inyang Okoro, JSC, justdelivered, I agree with the reasoning and conclusion therein thatthe appeal lacks merit.

Exhibits A and A1 have, through DW3, been established tobe appellant’s voluntarily confessional statement. The confessionalstatement is positive and unequivocal. It is settled that convictioncan be founded solely on such a statement. See Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 and Sule v. The State (2009) LPELR-3129(SC); (2009) 17 NWLR (Pt. 1169) 33.In thecase at hand, the lower court’s judgment arrived at in obedience ofthis trite principle must endure.

For this and the fuller reasons outlined in the lead judgment, Ialso dismiss the appeal and abide by the consequential orders madein the said judgment.

AKA’AHS, J.S.C.: I was privileged to read before now thejudgment of my learned brother, Okoro JSC. He adroitly addressedthe issues in the appeal. The requirement of the law with regard tothe recording of the statement of the accused is that the statementshould be, whenever practicable, be recorded in the languagespoken by the accused. This is a practical wisdom directed to avoidtechnical arguments which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of thestatement made by the accused person. Where an interpreter hasbeen used, the law provides that the interpreter should confirmthe statement otherwise it becomes inadmissible. See: R. v. Sapele(1957) 2 FSC 24 reported as German Awip v. Queen (1957) SCNLR307; Zakwakwa v. Queen (1960) SCNLR 36.

…………………….N…………………….

I agree entirely with my learned brother, Okoro JSC that theappeal lacks merit and I accordingly dismiss it.

BAGE, J.S.C.: I have had the benefit of reading in draft the leadjudgment of my learned brother, John Inyang Okoro, JSC, justdelivered. I agree entirely with the reasoning and conclusionreached. The appeal lacks merit and it is accordingly dismissed.

ABBA AJI, J.S.C.: I had a preview of the judgment just deliveredby my learned brother, John Inyang Okoro, JSC, I agree with thereasoning and conclusion therein arrived at that the appeal is devoidof any merit.

On 19/4/2012, at about 8a.m., the deceased, SuleimanAbubakar was in the company of his friend, Abubakar Umar ontheir way to Mandiri, when chased and attacked by the appellant,who struck an injured the deceased with an iron rod on hisstomach which caused him pains and he fell sick. Taken to Abukardispensary, he was referred to Federal Medical Centre, Katsina,and again from there referred to general Hospital, Katsina, wherehe was operated upon but he subsequently died, which led to hisarraignment for culpable homicide punishable with death. Beingconvicted and sentenced as charged by the trial court, he lost in thelower court and again appealed to this court.

Nevertheless, the appellant contested voluntariness of exhibitsA and A1 being the Hausa and English versions of his confessionalstatement. Having conducted a trial within a trial by the trial court,affirmed and reaffirmed by my learned brother, there cannot beany dent to the voluntariness of his confessional statement to beadmissible and relied upon for his conviction. In Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383, it was held that wherean extra-judicial confession has been proved to have been madevoluntarily and it is positive and unequivocal and amounts to [2019] 16 NWLR 443 an admission of guilt, it will suffice to ground a finding of guiltregardless of the fact that the maker resiled therefrom or retractedit altogether at the trial, since such u-turn does not necessary makethe confession inadmissible. See also Queen v. Itule (1961) 2SCNLR 183; Aremu v. The State (1984) 6 SC 85; Ejinima v. The State (1991) 6 NWLR (Pt.200) 627; Akpan v. The State (1992) 6NWLR (Pt. 248) 439 and Akinfe v. State (1988) 3 NWLR (Pt.85)729. In Sule v. The State (2009) 4 NCC 456; (2009) 17 NWLR(Pt. 1169) 33, this court decided that a court can still convict ona confessional statement alone even if the accused person resilesfrom it. A confessional statement is part of the evidence adduced bythe prosecution. See also Per. Bage, J.S.C. in Lase v. State (2017)LPELR-42468(SC); (2018) 3 NWLR (Pt. 1607) 502. PW3, beingboth the interpreter and recorder having being called and cross-examined makes exhibits A and A1 admissible to convict theappellant on it.

…………………….O…………………….

I will without further ado endorse the reasoning and conclusionreached by my learned brother, John Inyang Okoro, JSC, in hislead judgment to dismiss the appellant’s appeal and to affirm the 2lower courts’ decisions in convicting and sentencing the appellantfor culpable homicide punishable with death.

Appeal dismissed.

Representations:

Chief Henry Akunebu, Esq. (with him, Daniel Awuapila andAnthony Ndanusa) – for the Appellant

Chukwuka Ikwuazom, Esq. (with him, Kehinde Olona andMoira Frank-Peterside) – for the Respondent

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