Mohammed v. THE STATE (2019)

USMAN MOHAMMED v. THE STATE

In The Court of Appeal of Nigeria

On Monday, the 25th day of March, 2019

CA/YL/102C/2018

Before Their Lordships

OYEBISI FOLAYEMI OMOLEYEJustice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINIJustice of The Court of Appeal of Nigeria

Between

USMAN MOHAMMEDAppellant(s)

AND

THE STATERespondent(s)

…………………….A…………………….

JAMES SHEHU ABIRIYI, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment delivered on 16th April, 2017, in the High Court of Adamawa State holden at Yola. In the High Court (Court below), the Appellant was tried, convicted and sentenced to death for the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code.

The only evidence adduced by the prosecution is the cautionary statement of the Appellant which he made in Hausa language but was recorded by PW1 in English language.

In that statement the Appellant stated inter alia as follows:
This embarrassment and frustrations of similar kinds from the deceased and his family member became too much for me to contained and while I was under this emotional pains, the deceased met me at the frontage of my house alone and he promised that I was going to be sent to untimely grave same day, hence I became scared and armed myself with a sharp cutlass on the 23/12/11 and kept searching for him until I met him at a television viewing centre at about 2000hrs and without a second thought I hacked him with great momentum  with the same cutlass on his neck and legs and he slumped with blood profusely gushing out of him. Knowing that I would be attacked by his family members and friends I ran to a neighbouring village called Bandake and continue to take refuge at the house of one Mallam Gidado M until I was arrested at Jimeta township by an eagle eye Samaritan from Malabu who knew that I was wanted man. The cutlass I used in committing this havoc was thrown in a stream at Malabu village and I dont know if someone has removed it or it is still where I threw it. I am read to lead the police to recover same. I have committed a great sacrilege by shading the blood of my own relation and also sending him to his untimely grave. It was not my wish to do what I I did. I have never killed in my entire life, so as a first offender I want amnesty to be granted to me so that I could return home and turn a new leaf. That is all about my statement.

In his defence in Court, the Appellant said he did not know anything about this matter. That he was arrested at the Mubi roundabout Jimeta when he came from Bardake at 9am.

…………………….B…………………….

According to him there was a bomb blast at the Jimeta Market and so searches were being conducted. They were asked to enter vehicles stationed there. They did and they were taken to the SCID. He could not count the number of people arrested. He was accused of being one of the perpetrators of the bomb blast. Later he was accused of fighting an unknown person. He denied knowledge of this. The people arrested with him who had relations were released leaving him alone in custody because he had no relations.

After considering evidence and written addresses of learned counsel for both parties, the Court below convicted the appellant and sentenced him to death.

The Appellant has approached this Court by a notice of appeal dated and filed 6th July, 2018. The notice of appeal contains eight grounds of appeal.

From the eight grounds of the appeal, the Appellant in the Appellants Brief of Argument dated 7th September, 2018 and filed on 12th September, 2018 presented the following lone issue for determination:
The Appellant respectfully submits that the sole issue arising for determination by this Honourable Court is whether the Trial Court was correct when it held that the Respondent proved against the Appellant beyond reasonable doubt the offence of Culpable Homicide punishable with death, convicted and sentenced the Appellant to death? (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the Notice of Appeal.)

The Respondent, however, formulated two issues for determination in the Respondents brief dated 11th October, 2018 and filed on 19th October, 2018. The two issues are reproduced immediately hereunder:
1. Whether from the totality of the evidence adduced before the trial Court, the learned trial Judge decided rightly when he relied on exhibits A, A1 a confessional Statement of the Appellant and convicted him for the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code Law. (Distilled from grounds 1, 2, 4 and 5 of the grounds of Appeal)
2. Whether the prosecution proved the offence of culpable homicide punishable with death contrary to Section 221(b) of the Penal Code Law beyond reasonable doubt (Distilled from Grounds 3, 6, 7 & 8 of the Grounds of Appeal).

The two issues formulated by the Respondent are encapsulated in the lone issue formulated by the Appellant. I will therefore determine the appeal on the lone issue presented by the Appellant.

…………………….C…………………….

Arguing the lone issue for determination, learned counsel for the Appellant submitted that the Respondent failed to prove beyond reasonable doubt the offence of culpable homicide punishable with death against the Appellant.

It is trite law, it was submitted, that in order to establish the offence of culpable homicide punishable with death, the prosecution must prove (1) That the deceased had died; (2) That the death of the deceased resulted from the act of the accused person; and (3) That the act or omission of the accused person which caused the death of the deceased was intentional with full knowledge that death or grievous bodily harm was its probable consequence.

The prosecution, it was submitted, has the burden of proving the guilt of the accused person and the standard of proof is proof beyond reasonable doubt. The Court was referred to Section 36(5) of the 1999 Constitution FRN (as amended) Section 135 of the Evidence Act, 2011, The State vs. Onyeukwu (2004) All FWLR (Pt. 221) 1388 at 1425 and Igabele vs. The State (2004) 15 NWLR (Pt. 896) 314 at 334.

The Appellant, it was contended, denied making the confessional statement Exhibit A  A1 and the Court below ought to have sought an independent corroboration outside the confessional statement of the Appellant before convicting the Appellant. But the Court below did not seek any independent corroboration before relying solely on the alleged confessional statement of the Appellant in convicting him. This was because there was no such independent evidence to corroborate Exhibit A  A1, it was submitted.

The Court, it was submitted, should not attach probative value to a retracted confessional statement. The Court was referred to Oche vs. The State (2006) LPELR-11634 (CA); Queen vs. Itule (1961) 1 All NLR 462; Asanya vs. State (1991) 3 NWLR (Pt. 180) 422 and Onafawokan vs. The State (1986) 2 NWLR (Pt. 23) 496, Okoh vs. The State (2014) LPELR-22589 SC page 27  28, Ifedayo vs. The State LPELR-CA/AK/219/2013 page 44  45, Azabada vs. The State (2014) LPELR-23017 SC page 14  15 and State vs. Muhammed Masiga (Tsolo) (2017) LPELR-43474 SC page 14  15.

Exhibit A  A1, it was further submitted, was inadmissible because the Appellant made the statement in Hausa language and it was recorded in English language. It was submitted that a statement of an accused person made to the police must be written in the language in which it is made. The Court was referred to Ajidahun vs. State (1991) 9 NWLR (Pt. 213) 33 at 41 E  G, Queen vs. Sapele (1957) SCNLR 307, Udo vs. Queen (1964) 1 All NLR 21; R v. Ogbuewu (1949) 12 WACA 483, Okoro vs. Queen (1960) SCNLR 292.

…………………….D…………………….

Learned counsel for the Appellant contended that the authenticity of Exhibit A  A1 is in doubt in that PW1 said that it was endorsed on 17th January 2012 while PW2 claimed that it was endorsed on 18th January, 2012. But Exhibit A  A1 shows that it was endorsed on the 13th January, 2013. Since a document speaks for itself and exhibit A  A1 was endorsed on 13th January, 2012, the question is whether it was endorsed before it was made.

The Court below, it was submitted, erroneously held that Exhibit B was used by the Appellant in hacking the deceased to death at the television viewing centre when no one linked the Appellant with Exhibit B. The Court was referred to the evidence of PW3 under cross examination at page 45 of the record.

It was submitted that the death of a human being had not been established as the death of the deceased in the instant case was speculative.

It was submitted that the Court below could not have been correct when it held at page 73 of the record that the Appellant and no one else was responsible for causing the death of the deceased because the Court below also found that the deceased was at a television viewing centre. It was surprising, learned counsel for the Appellant submitted that no eye witness was called if truly the deceased was killed at a television viewing centre. It was further submitted that if the deceased was killed at a television viewing centre, it would be wrong to hold that the Appellant and no one else was responsible for the death of the deceased.

It was submitted that the dead body of the deceased was not produced in evidence neither was an autopsy or medical report tendered to establish if truly the deceased died or died as a result of hacking.

Learned counsel for the Respondent submitted that in a criminal trial the guilt of an accused person can be proved by
(a) Evidence of an eye witness
(b) Confessional statement of the accused
(c) Circumstantial evidence.

The Court was referred to Igabele vs. The State (2007) LNCC 125. It was submitted that the Appellant was rightly convicted on his confessional statement Exhibit A  A1 admitted in evidence without objection. The Court was referred to Nguma vs. A.G. Imo State (2014) 3 SCM 137, Basil vs. The State (2008) 163 LRCN 163 at 186, Fatai vs. State (2013) Vol. 2  3 MJSC 145 and Kamila vs. The State (2018) EJSC (Vol. 87) 68.

…………………….E…………………….

It was submitted that whenever an accused person makes an extra judicial statement admitting the commission of an offence with which he is charged, the statement will still be considered in the determination of his guilt notwithstanding that in his evidence he resiles from the statement or gives evidence contrary to the statement. The Court was referred to Akpan vs. The State (2000) 12 NWLR (Pt. 682) 612.

In the instant case, it was pointed out, there was no objection to the admission of the statement from the Appellant.

It was when he was testifying in his defence that he belatedly denied making the statement. The Court was referred to Useini vs. State (2012) Vol. 208 151.

It was submitted that the prosecution has a duty to prove the guilt of the accused beyond reasonable doubt in accordance with Section 135 of the Evidence Act 2011 the following:
(a) Death of the deceased
(b) That the death of the deceased resulted from the act of the accused person.
It was submitted that the prosecution by way of PW2 and Exhibit A  A1 has proved that one Nasiru Adamau was killed.

In the reply brief of the Appellant dated 29th October, 2018 and filed 5th November, 2018 it was submitted that the confessional statement was not tested as laid down in Akpan vs. State (1992) 6 NWLR (Pt. 248) 439 at 460.

It was again submitted that before a trial Court convicts on a retracted confessional statement of an accused person, the Court must look for some evidence outside the confession which would make the confession probable. The Court was referred to Azabada vs. State (2014) NWLR (Pt. 1420) 40 and Bassey vs. State (2012) 12 NWLR (Pt. 1314) 209 at 227.

In a criminal trial the burden of proof, throughout, lies upon the prosecution to establish the guilt of the accused and the burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden so that a wrong person will not be convicted for an offence he never committed. See People of Lagos State vs. Umaru (2014) 3 SCNJ 114 at 137 and Igabele vs. The State (2006) 6 NWLR (Pt. 975) 100.
The onus is on the prosecution to prove a criminal case beyond reasonable doubt. See Igabele vs. The State (supra).
The guilt of an accused person can be proved by:
(1) The confessional statement of the accused person; or
(2) By circumstantial evidence; or
(3) Evidence of eye witness of the crime. See Igabele vs. The State (supra).

…………………….F…………………….

The accused person was tried and convicted for culpable homicide contrary to Section 221(b) of the Penal Code. The ingredients of the offence of culpable homicide punishable with death are:
(1) That the death of a human being took place;
(2) That such death was caused by the accused person;
(3) That the act of the accused that caused the death was done with the intention of causing the death; or that the accused knew that death would be the probable consequence of his act.
All the ingredients must be proved or co-exist before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See Adava vs. The State (2006) 9 NWLR (Pt. 984) 152 at 167 and the decisions of this Court in Akpa vs. The State (2007) 2 NWLR (Pt. 1019) 500 and Uwagboe vs. The State (2007) 6 NWLR (Pt. 1031) 606.

Statements should wherever practicable be recorded by the police in the language in which they are made. See the decision of the Supreme Court in Olanipekun vs. The State (2016) 13 NWLR (Pt. 1528) 100 at 118. In Jimoh vs. The State (2014) 3 SCNJ at 27 the police recorder of the statement recorded the statement in English language as the maker of the statement made the statement in Yoruba language. Only the statement recorded in English was tendered in evidence. There was no Yoruba recording of the statement. The Supreme Court did not fault the procedure. The important thing is that the statement was tendered through the interpreter/recorder.

Where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down. See Olalekan vs The State (2001) 18 NWLR (Pt. 746) 293.
It is clear from Jimoh vs. The State (supra) and Olanipekun vs. The State (supra) that the police officer who recorded the statement was not wrong in doing so in English language. As he was also the interpreter, the statement Exhibit A  A1 was rightly admitted in evidence.

The statement was signed and dated 17/1/2012. The endorsed date 13/1/2012 does not form part of the statement of the Appellant and does not affect admissibility vel non of the statement.

…………………….G…………………….

Exhibit A  A1 was rightly admitted. The Court below relied on it to convict the Appellant. In law the Appellant can be convicted on Exhibit A  A1. However, when an accused person confesses to a crime in his extra judicial statement but in Court retracts from his confession, the well known practice is that before such an accused person is convicted on the said confessional statement the Court looks for some evidence outside the confession which would make the confession probable. I dare say that nowadays, the need is compelling.
Since 1913 when R v Sykes was decided, the Courts have adopted the practice recommended in the case of subjecting a confessional statement to some careful examination before relying on it as a basis for conviction. The factors to be considered are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it true, as far as they can be tested?
(4) Was the accused person one who had the opportunity of committing the offence?
(5) Is the confession possible?
(6) Is it consistent with other facts which have been ascertained and proved?
See R v Sykes (1913) 8 C.A.R 233 and F.R.N.V Barminas (2017) 177 at 214 ??? 215.
According to PW1, the accused person was transferred from Divisional Police Headquarters Malabu to Anti Culpable Homicide Section SCIID Yola and he recorded the statement Exhibit A  A1. The PW1 therefore merely recorded the confessional statement of the Appellant which the PW2 endorsed. PW3 through whom a cutlass was tendered and admitted as Exhibit B said under cross examination that there is nothing to link the Appellant with the said cutlass.
It is clear from the foregoing that there was no other evidence before the Court below against which it would have tested the alleged confessional statement. See Bassey vs. State  (2012) 4 SCNJ 141 at 155  156 and F.R.N vs. Barminas (2017) 15 NWLR (Pt. 1588) 177 at 214  215.

The Court below erred when it found that there was overwhelming evidence of intention to cause death. There was no such evidence apart from Exhibit A  A1.

Although the Court below had already found the Appellant guilty it proceeded to hold that there was sufficient circumstantial evidence leading to the conclusion that the Appellant and no one else was responsible for causing the death of the deceased Nasiru Adamu. There was no such evidence before the Court.

In the absence of any jot of evidence outside the confessional statement pointing to the guilt of the Appellant, the Appellant was entitled to a discharge and acquittal.
The only issue for determination is therefore resolved in favour of the Appellant and against the Respondent.

The appeal is allowed.
The conviction and sentence of the Appellant by the Court below are hereby quashed.
The Appellant is discharged and acquitted.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.

I agree that the appeal is meritorious and equally allow it. Consequentially, I set aside the judgment of the trial Court which convicted and sentenced the Appellant to death. Hence, the charge preferred against the Appellant and his conviction and sentence are quashed. The Appellant is accordingly discharged and acquitted.

SAIDU TANKO HUSSAINI, J.C.A.: I read in advance the lead Judgment just delivered by my Lord, JAMES SHEHU ABIRIYI, JCA with whom I agree with his reasoning and conclusion. I have nothing useful to add but allow this appeal and set aside the Judgment delivered at the High Court of Adamawa State on the 16th April, 2017 convicting the appellant on a charge of Culpable Homicide punishable with death under Section 221(b) of the Penal Code.
The appellant is discharged and acquitted.

Appearancesc

Fred Onuobia, Esq.For Appellant

AND

Z. U. Usman, Esq.For Respondent

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