Yohanna Danjuma V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division dated 26th February, 2016 dismissing the appeal of the Appellant and confirming the conviction and sentence of the Appellant for offence culpable homicide not punishable with death. Being dissatisfied with the decision of the lower Court, the Appellant brought this appeal vide a Notice of Appeal containing four grounds, dated 3rd March, 2016

SUMMARY OF FACTS:

The Appellant who was the second accused person at the trial Court was arraigned before the High Court of Kaduna State for criminal offences of conspiracy, punishable under Section 97 of the Penal Code Law of Kaduna State and culpable homicide punishable under Section 221 of the Penal Code Laws of Kaduna State. The Appellant and the co-Accused pleaded not guilty. In the course of the trial, the prosecution called 5 witnesses who testified on its behalf and tendered several documents in evidence among which is the confessional statement of the Appellant.

In defense, the Appellant testified in person and called no

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other witness. After the close of proceedings, Counsel to both parties addressed the Court. The trial Court found the Prosecution had proved its case beyond reasonable doubt and the Appellant was convicted for the offences of conspiracy and culpable homicide not punishable with death pursuant to Section 222(7) of the Penal Code and sentenced to one (1) year imprisonment for count number one dealing with criminal conspiracy and five (5) years imprisonment for the offence of culpable homicide not punishable with death, both sentences to run concurrently.

The Appellant being dissatisfied with the said judgment of the trial Court filed an appeal at the registry of the Court of Appeal, Kaduna. However, on 26th February 2016, the Court of Appeal, Kaduna Division delivered its judgment and dismissed the appeal while affirming the judgment of the trial Court. Still being dissatisfied with the judgment of the Court below the Appellant filed this appeal seeking to upturn the decision of the Court below.

ISSUES FOR DETERMINATION:

The Appellant filed his Brief of Argument dated 20th October, 2016 and formulated two issues for determination before this

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Court. The issues formulated by the Appellant as contained at page 3 of the Appellant’s brief are:

“1) Whether the prosecution was able to prove the essential elements of the offence of conspiracy in this case for which the appellant was convicted and which conviction was affirmed by the Court below (Grounds 1 and 2)

2) Whether the affirmation of the Court below of the conviction and sentence of the appellant under Section 222 (7) of the Penal Code Laws of Kaduna State is justified putting into consideration all the circumstances in this case (Grounds 3 and 4)”

On its part, the Respondent formulated one issue for determination, thus:

“1) Whether in the entire proceedings of this case and the evidence adduced, the Court below was right when it affirmed the judgment of the trial Court which convicted and sentenced the Appellant for the offences of Criminal Conspiracy and Culpable Homicide not punishable with death punishable under Section 97 and 224 of the Penal Code Law having found that the Respondent proved its case beyond reasonable doubt against him. (Grounds 1, 2, 3, and 4).”

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CONSIDERATION AND RESOLUTION OF ISSUES:

The Appellant’s contention on its issue one is that the Appellant having pleaded not guilty to the charge contained in count one on criminal conspiracy, by virtue of Section 36 (5) and Section 138 (1) of the Evidence Act, it is the prosecution that has the burden of proof of the said count. The Appellant relied on the case of SAMAILA VS THE STATE (2016) All FWLR (Pt.818) 845 at 857, Para C-D; THE STATE VS GWANGWAN (2015) All FWLR (Pt.8010) 1470 at 1491, Paras E-F.

Relying on the above authorities, the Appellant submitted that the Prosecution has a duty to prove the particulars of the offence spelt out in the charge, citing the case of CAPT. O. ABIDOYE VS FEDERAL REPUBLIC OF NIGERIA (2014) All FWLR (Pt.722) 1624 at 1642-1643, Para G-D.

The Appellant disagreed with the Court of Appeal’s position to the effect that the offence of conspiracy can be inferred from the criminal acts of the parties, including acts of complicity, and the attainment of a common end. The basis of the Appellant’s position is that it is not in all cases that the Court would infer conspiracy from acts done. The Appellant relied on the case of SHAZALI VS STATE (1988)

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NWLR (Pt.93) 614, and submitted that conspiracy was not established against the Appellant contrary to the decision of the Court below.

The Appellant further contended that Exhibits 3, 3A and 4A are not sufficient to conclude that since the Appellant went with the 2nd Accused person to deceased’s house to ask why he burnt their farm, that amount to an agreement to, and that an inference of conspiracy can be drawn from it. On this proposition the Appellant relied on the case of ODUNEYE VS THE STATE (2001) 2 NWLR (Pt.697) 311. The Appellant further contended that at no time was evidence led to prove the charge of conspiracy and that the active ingredient of the offence of conspiracy is the agreement, citing the case of FATAI BUSARI VS THE STATE (2015) 15 LPELR 24279 (SC).

The Appellant submitted that conspiracy cannot be inferred merely because the Appellant also beat the deceased. To find the accused guilty, there must be proof of meeting of minds to commit the offence. It is the argument of the Appellant that from the totality of the evidence adduced by the witnesses for the prosecution, an inference of common intention in pursuance of a criminal purpose between the

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Appellant and his co-accused cannot be easily drawn. The Appellant then urged this Court to answer issue one in the negative and set aside his conviction.

On issue two, the Appellant contended that the affirmation by the Court below of the conviction and sentence of the Appellant under Section 222(7) of the Penal Code Law of Kaduna State is not justified in the circumstances of this case. The contention of the Appellant is that by virtue of Section 36(5) of the 1999 Constitution (as amended), and Section 138 (1) of the Evidence Act, it is the prosecution who has the burden of proving the alleged offence of rash act for which the accused was convicted and sentenced, and must do this beyond reasonable doubt. The Appellant cited the case of OKORO VS THE STATE (1988) 5 NWLR (Pt.94) 255 at 267; EMINE VS THE STATE (1991) 7 NWLR (Pt.204) 280 at 492, Para D-F.

The Appellant specifically contended that the Court of Appeal was wrong when it declared at page 193 of the record, that:

…The judgment of the High Court of Kaduna State in Charge KDH/KAD/41C/2008 delivered by Honourable Justice G.I. Kurada on the 22nd March 2011, inclusive

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of the conviction and sentence of the Appellant contained herein, are hereby Affirmed.

The Appellant’s displeasure stems from the fact that according to him, the judgment of the Court below was erroneous as the trial Court did not consider the defence of the Appellant. The Appellant relied on the case of MANU GALADIMA VS THE STATE (2012) LPELR-15530 (SC), to the effect that the trial Court has the onerous duty to consider all the defences raised by the evidence whether the accused specifically put up such defence or not; and any defence raised by an accused Person no matter how weak, inconsequential or stupid it may appear must be given due attention.

The Appellant was piqued that the trial Court had correctly found that there was no evidence to establish that the accused knew that death would be a probable and not only likely consequence of their act. The Appellant contended that this finding is crucial as an intention to do an act which death will be the probable consequence is an essential element to be proved by the prosecution, which was not the case in the instant appeal. The Appellant relied on the case

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of ADAVA VS THE STATE (2006) 9 NWLR (Pt.984) 152 at 167 and MUSA VS THE STATE (2009) 15 NWLR (Pt.1165) at 467.

In his closing submission, the Appellant reiterated that the element of the offence must be proved beyond reasonable doubt by the prosecution as held in the case of KAZA VS THE STATE (2008) 7 NWLR (Pt.1085) 125 and that failure to prove any of the ingredients will be fatal to the prosecution. The Appellant stressed that the Court should not find a man such as the Appellant guilty of an offence unless in the absence of a guilty mind. See MOHAMMED VS THE STATE (1991) 5 NWLR (Pt.192) 438. The Appellant then urged this Court to allow the appeal because the offence of conspiracy as alleged in the charge has not been proved to the extent that there is no proof before the trial Court to show that the fight was intended to kill or that death was a natural resultant effect of the fight, and that there was no evidence to prove the offence under Section 222(7) of the Penal Code on which the Appellant was convicted.

The Respondents case is essentially based on the contention that the onus of proving the guilt of any person accused of the commission of a crime lies on the

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prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See the case of THE STATE VS JAMES GWANGWAN (2015) 13 NWLR (Pt.1477) 600, at 621, Paras B-E, Per OKORO JSC. See also YONGO VS COMMISSIONER OF POLICE (1992) LPELR 3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (Pt.257) 36; OGUNDIYAN VS THE STATE (1991) LPELR- 2333 (SC); (1991) 3 NWLR (Pt.181) 519, ALONGE VS IGP (1959) 4 FSC 203; IBRAHIM VS THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192, Paras A-B.

The Respondent contended that the Appellant’s conviction and sentence were justified by the trial Court which found on page 104 of the record that, the Appellant simply acted rashly and thus was convicted of a lesser offence by virtue of Section 218 (2) of the Criminal Procedure Code. The Respondent drew further emphasis from the findings of the trial Court on page 105 of the record, to the effect that by Exhibit 3, 3A and 4 and 4A, the accused and his co-accused went to the house of the deceased and jointly beat him. This forms the basis of the finding of the trial Court

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that the Appellant and his collaborator were guilty of criminal conspiracy to commit culpable homicide not punishable with death under Section 97 of the Penal Code.

The Respondent contended that the guilt of an accused person for the commission of an offence can be established by any one or more of the following methods: by eye witness evidence, by a free and voluntary confessional statement of the accused person and by circumstantial evidence; see SUNDAY UDOR VS THE STATE (2014) 12 NWLR (Pt.1422) 548 at 561 Para B; AKEEM AGBOOLA VS THE STATE (2013) 11 NWLR (Pt.1366) 619 at 648 Para A-C; and EMEKA VS THE STATE (2012) 14 NWLR (Pt.734) 666 at 683 Para G-H.

The Respondent admitted that the onus of proving the offence lies on the prosecution, but contended that this onus has been effectively discharged by evidence of PW.1, an eye witness in addition to the confessional statement of the Appellant which were admitted in evidence without objection and marked as Exhibit 4 and 4A. The Respondent contended that the trial Court was perfectly in order when it found the Appellant guilty of a lesser offence of culpable homicide not punishable with death pursuant

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to Section 218 (2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

The Respondent argued further that the Respondent has proved the ingredients of the offence for which the Appellant was charged as required by law, See THE STATE VS BOKA (1982) 1 NCR 85 at 93, Lines 24-33; EMMANUEL AYO VS THE STATE (2015)16 NWLR (Pt.1486) 531 at 546-547, Para H-B. The Respondent then urged this Court to hold that based on the evidence led, the Court below was right in affirming the conviction and sentence of the Appellant for the offence of culpable homicide not punishable with death.

The Respondent contended that contrary to the Appellant’s submission, the trial Court considered the defence of self-defence put up by the Appellant and having failed to challenge the finding of the trial Court that he (Appellant) was not acting in self- defence when they beat up the deceased and prevented him from entering his house, he must be taken to have accepted that finding.

On conspiracy, the Respondent relied on the decision of this

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Court in OKANLAWON VS THE STATE (2015) 17 NWLR (Pt.1489) at 477, Para C-D and KAYODE BABARINDE & ORS VS THE STATE (2014) 3 NWLR (Pt.1395) 568 at Page 594 Per Kekere-Ekun, JSC to the effect that the actual argument alone constitute the offence and it is not necessary to prove that the act has in fact been committed. Because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain acts.

In its concluding submission, the Respondent urged this Court to dismiss this appeal as the Respondent had by cogent and credible evidence proved beyond reasonable doubt that the Appellant and his co-accused person jointly beat the deceased person, which beating led to the death of the deceased. On this premise, the Respondent urged this Court to affirm the judgment of the Court below which had confirmed the judgement of the trial Court convicting and sentencing the Appellant for the offences of criminal conspiracy and culpable homicide not punishable with death.

I have carefully considered the arguments of both the Appellant and Respondent in this appeal. I see one clear

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issue for determination in this appeal. For this reason, I have formulated the sole issue for determination in this appeal, thus:

“Whether given the circumstances of this case, the Court below was right in affirming the judgment of the trial Court which convicted and sentenced the Appellant for the offences of Criminal Conspiracy and Culpable Homicide not punishable with death punishable under Sections 97 and 224 of the Penal Code Law.”

I now return to answer the above question. The point that must be made, and clearly made, is that the appeal before us borders on criminal conspiracy and offence of culpable homicide not punishable by death. The offence for which the Appellant is charged is a very serious one, and by virtue of Section 135 (1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convincing evidence that leaves no iota of doubts or scepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides:

“135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted.”

“(1) If the commission of a crime by a party to any

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proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. I need to emphasize that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See YONGO VS COMMISSIONER OF POLICE (1992) LPELR – 3528 (SC), (1992) 4 SCNJ 113, OGUNDIYAN VS THE STATE (1991) LPELR – 2333 (SC), (1991) 3 NWLR (Pt.181) 519, AKIGBE VS IOG (1959) 4 FSC 203,

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ONUBOGU VS THE STATE (1974) 9 SC1 at 20, BABUGA VS THE STATE (1996) LPELR – 701 (SC), (1996) 7 NWLR (Pt.460) 279.

To all intent and purposes, the burden of proving the commission of a crime by the prosecution has constitutional limitation to the extent that where the burden shifts or a written law assumes or imposes the duty of proof of a particular fact on the accused person, the burden is not displaced by presumption of innocence. Section 36 (5) provides that:

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”

The adversarial system of adjudication in our Criminal justice set up is well established that the onus of proof is firmly rested on the prosecution following the Constitutional presumption of innocence of the accused person until proven guilty. Thus, once the onus is discharged, there is little option for the Court as in the instant case. The totality of the evidence presented in this case leaves this Court with little

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or no room to arrive at a different conclusion with the trial Court and Court below.

By virtue of Sections 131 and 132 of the Evidence Act:

“Burden and Standard of Proof

131. Burden of proof.”

“(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

132. On whom burden of proof lies.

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Section 138 of the Evidence Act further complements the above. It provides for the burden of proving facts necessary to be proved to make evidence admissible.

“138(1) The burden of proving any fact necessary to be proved in order to

“(a) enable a person to adduce evidence of some other fact; or

(b) prevent the opposite party from adducing evidence of some other fact, lies on the person who wishes to adduce, or to prevent the production of such evidence, respectively.”<br< p=””

</br<

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“(2) The existence or non – existence of facts relating to the admissibility of evidence under this section is to be determined by the Court.”

Proof in criminal trial is attained against the background of the burden enshrined in Section 135 (1) of the Evidence Act, 2011 which states thus:

“135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

The Appellant made heavy weather of the failure of the prosecution to prove the offence of conspiracy. This is a cheap attempt to becloud the issue in this appeal. This is because the prosecution had been able to deploy an array of proofs. The Respondent’s case was predominantly based on circumstantial evidence, which is one of the ways to prove commission of an offence. See ADEBAYO VS THE STATE (2007) All FWLR (Pt.365), 498-519.

What manner of evidence was presented by the prosecution before the trial Court and what informed the basis of upholding or affirming same by the Court

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below This question is not intended to be another issue for determination, but ancillary to the sole issue for determination as I had formulated above. The penal provisions of our land give the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilt of an accused may be proved by:

“(i) a confessional statement of the accused;

(ii) evidence of an eye witness; or

(iii) Circumstantial evidence.”

See IGRI VS THE STATE (2012) 16 NWLR (Pt.1327) 522; OGUNO VS THE STATE (2013) 15 NWLR (Pt.1377) at 1; IBRAHIM VS THE STATE (2014) 3 NWLR (Pt.1394) 305; OGEDENGBE VS THE STATE (2014) 12 NWLR (Pt.1421) 338 and UMAR VS THE STATE (2014) 13 NWLR (Pt.1425) at 497.

The evidence adduced by the prosecution in proving its case at trial was in several folds. There is the side of confessional evidence of the Appellant which is neither denied nor challenged as contained in Exhibit 4 and 4A. This alone could ground conviction. By virtue of the provisions of Sections 28 of the Evidence Act, Confessional Statement is tenable and admissible.

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The section describes a confessional statement thus:

“A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.”

Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice. See for example PATRICK IKEMSON & 2 ORS VS THE STATE (1989) 3 NWLR (Pt.110) 455 at 476 Para D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 AT 62; (2000) 12 NWLR (Pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt.438) 530 at 537 Para D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (Pt.423) Page 139 at 155 Para A-B; and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151. See also PETER ILIYA AZABADA VS THE STATE (2014) All FWLR (Pt.751) 1620, Para B where this Court, per the Learned

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Onnoghen, JSC (as he then was) declared that:

“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved…Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.”

The Respondent had contended, and rightly so, that the Appellant’s conviction and sentence were justified by the trial Court which found that on page 104 of the record that, the Appellant simply acted rashly and thus convicted him of a lesser offence by virtue of Section 218 (2) of the Criminal Procedure Code. I can’t agree less with the Respondent that the trial Court was perfectly in order when it found the

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Appellant guilty of a lesser offence of culpable homicide not punishable with death pursuant to Section 218 (2) of the Criminal Procedure Code having found that there was no intention to kill the deceased, but that the Appellant acted rashly and his action led to the death of the deceased.

By way of restating the position of this Court on the issue of conspiracy as held in OKANLAWON VS THE STATE (2015) 17 NWLR (Pt.1489) at 477, Para C-D and KAYODE BABARINDE & ORS VS THE STATE (2014) 3 NWLR (Pt.1395) 568 at Page 594 per Kekere-Ekun, JSC, because of the nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain acts. In ADEBAYO VS THE STATE (2007) All FWLR (Pt.365), 498-519, circumstantial evidence was described thus:

“Circumstantial evidence is a series of circumstances leading to the inference or conclusion of guilt when direct evidence is not available. Evidence which although not directly establishing the existence of facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or in relation to the extent that it is sometimes

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regarded as of higher value than direct evidence, which may or can be perjured or mistaken.”

In view of the above and given the circumstances of this case, the trial Court was perfectly in order to infer conspiracy from the circumstances of this case, particularly the invasion of the deceased house by Appellant and his co-accused and the act of beating which was the unintended consequences of the beating that eventually resulted in the death of the deceased. These are findings of facts for which the trial Court and Court below have found concurrently on both counts for which the Appellant was charged.

In view of the foregoing, I wish to restate that it is my considered view that the judgment of the trial Court cannot be faulted at all and the lower Court was right in affirming and endorsing it. The Appellant has failed to convince us that this is a situation in which this Court should interfere in the concurrent findings of fact. The law is settled that if there are concurrent findings of fact made by the High Court and Court of Appeal, the Supreme Court will not readily set them aside or substitute its own views unless there is no evidence to

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support the findings. See Re: MOGAJI (1986) 1 NWLR (Pt.19) 759; SALAMI VS THE STATE (1988) 3 NWLR (Pt.85) 670; MBENU VS THE STATE (1988) 3 NWLR (Pt.84) 615.”Per Akaahs, JSC. (P. 18, Paras. D-F). See also MINI LODGE LTD VS NGEI (2009) 18 NWLR (Pt.1173) 254 Per Musdapher, JSC (p.33, Paras. B-D).

The Respondent has proved the ingredients of the offence for which the Appellant was charged as required by law and the Court below was right in affirming the conviction and sentence of the Appellant for the offence of conspiracy to commit an illegal act under Section 97 and culpable homicide not punishable with death under Section 221 of the Penal Code Law of Kaduna State.

In view of the above, the sole issue formulated is resolved against the Appellant. This appeal fails in whole. It lacks merit and is accordingly dismissed. The judgment of the lower Court dated 26th February 2016 is hereby affirmed. The conviction and sentence of the Appellant are hereby reconfirmed.

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SC.655/2016