Hayatu Umar V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS, J.S.C.
This is a substantive appeal not interlocutory (as described in the introduction of the respondent’s brief). It is against the judgment of the Court of Appeal, Sokoto Division in Appeal No. CA/S/20C/2013 delivered on 28 March, 2014 which affirmed the conviction of the appellant for the offence of culpable homicide punishable with death by the Sokoto State High Court. The appellant was sentenced to death by hanging on 25 June, 2012 by Abass J. (as he then was) in Charge No.SS/18C/2010.
The facts leading to this appeal are as follows:-
On 22 November 2009, which was a Sunday and Illela market day, the appellant went to the deceased’s house thrice to look for him but did not meet him. On the 3rd occasion PW4 who is the deceased wife asked him why he was looking for her husband and he answered that someone wanted the deceased to use his camel to carry goods. On the fourth visit, the appellant met the deceased and they went out together on the camel. PW6 saw the appellant riding on the camel with the deceased. The deceased did not return to his house and an alarm was
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raised. On the next day which was Monday, PW5 who is a nephew of the deceased went in search of him and found his corpse in Wauru and the camel was nowhere to be found. He then reported the matter to the police and his friend also informed some influential people in the community. He was one of those who accompanied the police in a vehicle to the scene where the corpse lay and they carried it to the village and later to the hospital where autopsy was carried before the body was released for burial. In the course of the investigation PW3 recorded the appellant’s statement in Hausa which he later translated into English. The statement recorded in Hausa and its English translation were tendered and admitted as Exhibits E and E1 respectively. Exhibit E turned out to be confessional statement but the appellant who testified as DW1 denied knowledge of anything. He said he was at his place of work when the Police went and arrested him and took him to Gada Local Government Secretariat and from there to the Police Station located in the Local Government without informing him about any offence. He said he was beaten while protesting his innocence about the offence. As a
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result of the beating he received some injuries. He was so manhandled that he could not remember what he said. He denied knowing the 2nd accused or that he went looking for the deceased. He also told the Court that he did not volunteer any statement to the Police. When he was cross-examined about the deceased, he said it was in the Police Station in Gada Local Government that he heard about the deceased’s name and that he never knew him before. He said he had never met PW4 and it was only in Court that he knew her.
The learned trial Judge considered the evidence presented to the Court and found that the evidence against the accused was circumstantial and reasoned that since the deceased was last seen alive in the company of the 1st accused, he 1st accused had explanation to give as to what led to the death of the deceased and in the absence of such explanation, the Court would be justified to draw the inference that he was the one who killed the deceased. The trial Court convicted and sentenced all the accused persons to death based on their confessional statements for which corroboration was found in the evidence of the prosecution witnesses. Each of
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them was given 5 years imprisonment with hard labour for the robbery offence.
The appellant appealed to the Court of Appeal Sokoto and it was dismissed. He felt aggrieved and further appealed to this Court and his counsel Boma Ozobia Esq raised three issues for determination as follows:-
- Whether in view of the contradiction between the retracted confessional statement of the appellant and the testimonies of the prosecution witnesses allegedly corroborating same, the Court below was right to have affirmed the decision of the trial Court Ground 1
- Whether the decision of the lower Court that the prosecution successfully proved beyond reasonable doubt that the appellant is guilty of conspiracy, murder and robbery to warrant his conviction and sentence to death by hanging is supportable by the evidence adduced at the trial.
Ground 3
- Whether the lower Court was correct to hold that the circumstantial evidence before it was sufficient to establish the conspiracy to commit the alleged offences when same was not proved Ground 2
On his part, Suleiman Usman Esq. the Attorney-General of Sokoto State who settled the brief of the
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respondent formulated a single issue for determination namely-
Whether in the circumstances of this case, the Court below was right in affirming the conviction and sentence of the appellant regard being had to the totality of the evidence adduced before the trial Court.
The hub of the arguments of learned counsel of the appellant in attacking the decision of the lower Court which dismissed the appeal and affirmed the judgment of the learned trial Judge, Abass J. (as he then was) centres around the conviction being based on the retracted confessional statement which lacked independent corroboration since PW4 and PW6 were closely related to the deceased and could not be said to have given unbiased evidence connecting the appellant with the offences for which he was convicted and sentenced. Learned counsel argued that the confessional statement Exhibit E and the English translation Exhibit E1 was challenged both at the point of tendering and during the appellant’s testimony and contended that the learned trial Court ought to have made a finding as to whether in the circumstances the confessional statement was indeed made by the appellant.
Learned
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counsel submitted that where a confessional statement had been retracted the statement must be corroborated to be able to sustain a conviction and referred to Aremu & Anor v. State (1991) 7 NWLR (Pt.201) 1 at 21-22. Learned counsel also cited Oseni v. State (2012) 5 NWLR (Pt.1293) 351 at 374 where this Court per Ngwuta JSC reiterated that before a conviction based on a confessional statement is upheld it must pass satisfactorily the six tests that have been applied to ensure that there are other facts outside the statement that go to show that the confession was probable. It was submitted by learned counsel that the prosecution failed to prove beyond reasonable doubt that the deceased died and furthermore the prosecution could not sufficiently fix the act or intention of killing the victim on the appellant as no nexus has been created between the appellant and victim of the crime.
On the issue of conspiracy, learned counsel for the appellant argued that the appellant cannot be convicted when other co-accused have been discharged and acquitted. He submitted in paragraph 46 page 18 of the appellant’s brief that
“the persons charged alongside the
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appellant at the Court below viz:
Bello Ibrahim vide judgment of 30 June, 2014 in Appeal No.CA/S/21C/2013 and Ibrahim Dan Auta vide judgment of 30 June, 2014 in Appeal No. CA/S/22C/2013 delivered by same Sokoto Judicial Division of the Court of Appeal had all been discharged and acquitted of the offence for which the appellant is said to have conspired with them to commit.”
He said it was fitting that this Honourable Court set aside the conviction for conspiracy in the circumstances.
Turning to the issue of the appellant being the person who was last seen with the deceased, learned counsel contended that it is not enough for the victim to have been last seen in the company of the appellant but that in addition there must be circumstantial evidence supporting the fact that within the period the appellant was with the victim, he indeed killed him and that no other person could have intervened to kill the victim. He relied on the dictum of Ariwoola JSC in Madu v. State (2012) 15 NWLR (Pt.1324) 405 at 447 where His Lordship expounded the principle thus:-
“The last seen theory, comes into play when the time gap between the point of time when the
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accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.”
Mr. Sulaiman Usman, the learned Attorney-General of Sokoto State appearing for the respondent pointed to the fact that the burden of proof of guilt of the accused person lies with the prosecution and the standard required to ground conviction is proof beyond reasonable doubt. That burden may be discharged through the confessional statement of the accused person; evidence of an eye witness or circumstantial evidence. In the instant case, the accused (appellant) made a confessional statement, Exhibit E and E1. He submitted that once a confessional statement of the accused person is admitted, the prosecution need not prove the guilt of the accused person beyond reasonable doubt as the confessional statement ends the need to do so and relied on Solola v. State (2005) 11 NWLR (Pt.937) 460 at 497-498. He submitted that Exhibit E and E1 were the voluntary confessional statement of the appellant which the learned trial Judge relied on to convict him. He went further to
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submit that even though the appellant retracted the statement, the Court could still convict him on his confession notwithstanding its retraction, provided there is corroboration, citing Ubierho v. State (2005) 2 SCNJ 1. He submitted that the necessary corroboration was provided by the evidence of PW4, PW5 and PW6 to the confessional statement of the appellant. He maintained that the circumstantial evidence adduced in this case is strong, cogent and sufficient to sustain the conviction of the appellant and relied on the following cases. Emeka v. State (2001) 14 NWLR (Pt.734) 666 at 669; Ejiofor v. State (2001) 9 NWLR (Pt.718) 371; (2001) 6 NSCQR 227-228.
On the doctrine of last seen, learned counsel submitted that it is settled that the law presumes that the person last seen with deceased bears full responsibility for his death if it turns out that the person seen with him last is dead. He anchored his submission on Moses Jua v. State (2010) 4 NWLR (Pt.1184) 217 and Igabele v. State (2006) 6 NWLR (Pt.975) 100.
Learned counsel argued that it behoved on the appellant to give explanation on the death of the deceased who was last seen alive with him and
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where such explanation is contained in the retracted confessional statement which was corroborated, the conviction of the appellant by the trial Court and affirmed by the Court below cannot be faulted.
THE EVIDENCE OF THE WITNESSES
The witnesses who testified in connection with the appellant were PW3, PW4 and PW6. PW3 was the one who recorded the appellant’s statement in Hausa Language. PW4 was the deceased’s wife and she recounted how the appellant visited her house four times in one day in search of the deceased. On the third visit, she asked the appellant what he wanted from the deceased and he replied that someone wanted to engage the deceased to use his camel to carry some goods. It was on the fourth visit that he met the deceased and the two of them went out with the camel but the deceased never returned home alive. PW6 met the deceased and the appellant riding on the deceased’s camel towards Wauru where the body of the deceased was found the next day. Meanwhile the camel had disappeared and could not be found.
In the statement of the appellant, Exhibit E the translation of which is Exhibit E 1, the appellant was reported to have said:-<br< p=””</br<
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I could remember last month a week of big Sallah on Sunday I and two other, one Bello and Ibrahim in all of the same address I went to Wairo to Rugar Ardo area of Gada Sokoto, we stoped (sic) one Dangoma on the road with his camel and one Ibrahim hit him with his stick and I and Bello we march him on the ground and Ibrahim came and slaughter him with knife on his neck and mouth and we collect his camel and we leave him there and we went to Illela market then Ibrahim give us the sum of N40,000.00 and went away with the camel and I and Bello we divide the money N20,000.00 each, from there we left the market and went home and after Sallah I went to Dankurmi for a job. I was there the police came and arrested me. Truly we are the one who killed Dangoma in the bush and collected his camel and left there …”.
The appellant resiled from this statement when he testified in Court as DW1. This is what he said:-
“I did not give any statement to PW3 at all.”
Although the appellant said he was beaten after his arrest and as a result of the injury he received he became unaware of what he was saying, this goes to show that he made a statement but he
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did not raise objection to the statement made as a result of torture and so the trial Court could not order a trial within trial to be conducted before the statement was admitted in evidence. Admissibility was no longer an issue at the time the appellant testified. Before relying on the statement which was clearly a confession that he participated in the killing of the deceased, the trial judge had to examine the statement using the six way test to confirm its veracity.
See: Oseni v. State (2012) 5 NWLR (Pt.1293) 351 and Adesina v. State (2012) 14 NWLR (Pt.1321) 429. The tests are:-
(i) Is there anything outside the confession to show that it is true
(ii) Is it corroborated
(iii) Are the facts therein stated as true as far as can be tested
(iv) Had the accused person the opportunity of committing the offence
(v) Is the confession possible
(vi) Is the confession consistent with other facts ascertained and proved
The fact that Dangoma died is not in dispute. The deceased was last seen riding on his camel with the appellant by PW6 a day before PW5 discovered his dead body in Wauru village and there was an injury on
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the neck. The appellant had visited the deceaseds house four times on the day the deceased disappeared and met PW4 at home. It was on his fourth visit that he met the deceased and the two of them went out with the deceaseds camel. The corpse of the deceased was seen in the bush along Wauru village, the direction the PW6 saw the deceased and the appellant were going. The injury found on the neck of the deceased is consistent with the confessional statement of the appellant that he and Bello “march him on the ground and Ibrahim came and slaughter him with knife on his neck and mouth”.
The lower Court held that the statement is corroborated by the evidence of PW4 and PW6. I am of the firm view that the evidence of PW5 provided the highest corroboration because he said that when he learnt his uncle did not sleep at home the previous night he went in search of him and on reaching Wauru he met the deceased lying dead. He had an injury on his neck. When PW3 sought to tender the statement of the appellant, the objection which learned counsel raised on the admissibility of the document was on the date the statement was recorded but the objection was
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overruled since PW3 had stated that he recorded the statement on 18/12/2009 and not 8/11/2009 as put forward by learned counsel for the appellant. Learned counsel for the respondent had argued quite correctly that the only ground on which a statement would be rejected is when the statement was obtained under duress and the trial Judge agreed with this submission. The so called challenge which learned counsel made regarding the authenticity of the appellants statement went to the weight to be attached to the statement and certainly not its admissibility.
The submission made by learned counsel for the appellant that the evidence given by PW4 and PW6 should be viewed with caution since the witnesses were related to the deceased and the said evidence contradicted rather than corroborated the confessional statement of the appellant cannot be taken seriously. The argument of counsel no matter how brilliant cannot replace evidence. See:Barr Orker Jev & Anor v. Sekav Dzue Iyortyom & Ors. (2014) 14 NWLR (Pt.1428) 575. In Exhibit E the appellant stated that after they had waylaid the deceased, Ibrahim hit him with the stick while the appellant and
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Bello strapped the deceased to the ground and Ibrahim used his knife to inflict injuries on the deceased’s neck and mouth and they then took away the camel and went to Illela market leaving the deceased on the ground.
The aspects of the statement that were corroborated were the injury which was inflicted on the deceased’s neck, the deceased being last seen with the appellant before his death and the disappearance of the camel.
The evidence given by PW4 and PW6 did not indicate any bias on the part of PW4 and PW6. PW4 was not cross-examined on her evidence and Pw6 stated under cross-examination that he knew Barmo Dan-Gwamma, the deceased who used to carry goods for people on his camel for a fee. It was not suggested to them that they had a motive to serve which made them to testify. In the absence of any cross-examination to impugn their integrity, the submission by learned counsel that the trial Judge ought to have warned himself of the inherent danger of bias of such evidence is preposterous and merely speculative.
The principle of last seen was properly applied since the deceased was last seen alive when he was in the company of the
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appellant. What the principle propounds is that if Mr. A., was last seen alive with or in company of Mr. B and the next thing that happened was the disappearance of Mr. A., the irresistible inference, is that Mr. A was or had been killed by Mr. B. and so the onus will be on Mr. B to offer an explanation for the purpose of showing that he was not the one who killed Mr. A. See: Igho v. State (1978) 3 SC 87; Gabriel v. State (1989) 5 NWLR (Pt.122) 457.
In Igabele v. State (2006) NWLR (Pt. 975) 100, this Court per Katsina-Alu JSC (as he then was) in his contributory judgment said at page 123:-
“No doubt the evidence against the appellant was circumstantial evidence. There was no direct evidence. However there is evidence that the deceased was last seen alive with the appellant. This was not in dispute. I think good sense and indeed common sense demands that the appellant should and must put forward some explanation as to what happened to the deceased. But no explanation was forthcoming.”
Oguntade JSC in his contribution adopted the reasoning of Eso JSC in Peter lgho v. State (1978) 3 SC 61 (Reprint) at pages 52-63 thus:-
“The complaint of
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learned counsel against the judgment is that the circumstantial evidence adduced in this case did not point irresistibly to the guilt of the appellant and also the evidence of the 3rd prosecution witness Phillip Umukoro, should not have been accepted having regard to the fact that it took him eleven days before he came out with the information leading to the arrest of the appellant.
But then, this is not the only evidence relied upon to convict the appellant. Apart from the evidence of Phillip Umukoro, which has been criticised by the learned counsel for the appellant, there was the evidence of Ayeferherbe Okotie. She too saw the appellant carrying the deceased who was last seen alive with the appellant. The evidence was accepted by the learned trial Judge. He rejected the denial of the appellant. The only irresistible inference from the circumstances presented by the evidence in this case is that the appellant killed the deceased. We can find no other reasonable inference from the circumstances of the case.
The facts which were accepted by the learned trial Judge, amply supported by evidence before him, called for an explanation, and beyond the
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untrue denials of the appellant (as found by the learned trial Judge) none was forthcoming. See: R v. Mary Anne Nash (1911) 6 CAR 225 at 228. Though this constitutes circumstantial evidence, it is proof beyond every reasonable doubt of the guilt of the appellant. For these reasons we dismiss the appeal.”
In the instant case, the learned trial Judge after summing up the evidence led by the prosecution and defence found that there were no eye witnesses to the incidence that led to the death of the deceased but went on to consider PW6 evidence which was not controverted or discredited that he saw 1st accused with the deceased on camel towards Wauru on the fateful day and was never found alive. He accepted and believed the evidence of PW6 to be true. He therefore held that in the absence of an explanation from the 1st accused, the Court was justified to draw the inference the accused killed the deceased and so believed the evidence of PW4, PW5 and PW6 which remained uncontroverted. The learned trial Judge then took into account the extra – judicial statements of the 2nd and 3rd accused as to the role each of them played having made Exhibits A, A1 and B, B1.
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He reasoned that the confessional statements of the accused persons were not contested at the trial on their voluntariness but were retracted by the accused. It is settled law that a voluntary confession or statement of an accused is deemed to be relevant and admissible against its maker and not against another. See: Durugo v. The State (1992) 7 NWLR (Pt.255) 524 at 541; Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 at 476 and Solola v. State supra at p.484.
Apart from the appellant who made Exhibit E and E1 where he admitted strapping the deceased to the ground and Ibrahim using a stick and knife to hit the deceased and thereafter cutting his neck, in the statement of the 2nd accused Ibrahim Bello, similar admission was made in Exhibit A, A1 wherein he slaughtered the deceased with the knife belonging to the appellant. The statement of the 3rd accused, Ibrahim Dan Auta admitted as Exhibit B, B1 was not direct. He said that on 22/11/2009 at about 8 am he was in his house together with Bello Ibrahim when Hayatu met them. He overheard Hayatu telling Bello Ibrahim that they should meet in the bush along Wauru road and that he would come with one man with
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his camel. Bello and himself then went to the bush and Hayatu met them with Dan Gwamma with his camel. It was there Hayatu hit Dan Gwamma and he fell down. After Hayatu had slaughtered Dan Gwamma, he (Ibrahim Dan Auta) took the camel to Tuhur village where he sold it to one Umaru Aliyu at the cost of N70,000.00 but did not collect the money but gave N8,000.00 to Bello Ibrahim and Hayatu.
The inference that can be drawn is that the appellant and the other two accused persons conspired to rob the deceased of his camel and in the process, they killed him.
The lower Court had acquitted and discharged Bello Ibrahim and Ibrahim Dan Auta because of absence of corroboration of their retracted statements and as a result learned counsel argued that the appellant could not be guilty of conspiracy. This argument is faulty. The doctrine of judicial precedent is dependent on settled judicial hierarchy. This is because under the doctrine, decisions of Courts higher up in hierarchy are generally binding on lower Courts in the hierarchy.
Since October, 1963, the Supreme Court of Nigeria became the highest Court in the country. Stare decisis or judicial
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precedent according to Blacks Law Dictionary 9th Edition page 1214 defines stare decisis or judicial precedent to mean standing by things decided and the Courts must follow earlier judicial decisions when the same points arise again in litigation. In National Electric Power Authority v. Onah (1997) 1 NWLR (Pt.484) 680 at 688 the term stare decisis was defined to mean to stand by your decision and the decisions of your predecessors, however wrong they are and whatever injustice they inflict. The Supreme Court is however not bound by the decisions of the lower Courts but they are persuasive in nature. The premise under which the lower Court allowed the appeals in Bello Ibrahim v. State in Appeal No. CA/S/21c/2013 and Ibrahim Dan Auta v. State. Appeal No CA/S/22c/2013 which were decided on 30 June, 2014 was that the corroboration needed to find Bello Ibrahim and Ibrahim Dan Auta guilty on their retracted confessions was lacking. If the evidence of PW5 and PW6 is properly analysed it provides the required corroboration. The injury which PW5 saw on the deceased neck makes the retracted confessional statement of Bello Ibrahim true; so also does the disappearance of
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the deceaseds camel corroborate the statement of Ibrahim Dan Auta. It is therefore not correct as the Court below made the finding that evidence was lacking which would corroborate the retracted Exhibits A, A1 and Exhibit B, B1 thereby leading to the acquittal and discharge of the two people.
The appeal lacks merit and it is hereby dismissed. The decision of the lower Court confirming the conviction and sentence imposed on the appellant by the Court below is further affirmed by this Court. The appeal is hereby dismissed.
SC.505/2014
