Hussaini Samaila V. The State (2008)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER- ODILI, J. C. A.
The Appellant was on 26/3/02 arraigned on a three count charge of Criminal Conspiracy, Robbery and Culpable homicide on the 26/6/2004 the Hon. Trial court found the Appellant guilty and sentenced him accordingly, The Appellant not satisfied with his conviction has filed this appeal.
BRIEF FACTS
The Appellant was arraigned along with Emmanuel Oche and Samaila Umaru on a three count Charge of Criminal Conspiracy, robbery and culpable homicide on 26th March 2002 before the High Court of Justice Kontogora presided over by Hon. Justice M.J. Evuti.
The Appellant along with Emmanuel Oche and samaila Umaru were said to have conspired together and robbed one Saminu Sale at Kontogora on 28th July 2001 of his motorcycle Zuzuki and in the cause of the execution of their action the victim died.
At the conclusion of the trial, the Appellant was convicted and sentenced to 5 years imprisonment with hard labour on 1st count. On 2nd count the Appellant was convicted and sentenced to 10 years imprisonment while the Appellant was convicted and sentenced to twelve years imprisonment on 3rd count. Sentences were to run concurrently. Dissatisfied with the decision of the trial court, the Appellant filed his Notice of Appeal having obtained the leave of this Court which Notice of Appeal was flied with five grounds of appeal.
The Appellant on the 19/12/05 filed his Brief and in it formulated three issues:
- Whether the erroneous conclusion of the Hon. Trial Judge that the Appellant never denied the committal of the three counts charge made against them, did not cause or occasion a miscarriage of justice.
- Whether the offence of culpable homicide was proved against the Appellant.
- Whether having regard to the totality of evidence before the Hon trial court the Trial Judge was right in have returned a verdict of guilty against the Appellant on the three counts.
The Respondent adopted the issues framed by the Appellant.
ISSUE NO 1:
Whether the Erroneous conclusion of the Hon trial court that the Appellant never denied the committal of the 3 counts charge made against them, did not cause or occasion a miscarriage of justice?
Learned counsel for the Appellant submitted that the learned trial Judge’s conclusion that the Appellant never denied the committal of the 3 counts charged made against him was a misstatement of fact leading to a miscarriage of justice. He cited R v. Cohen &. Bodeman (1909) 73 JP 352.
Mr. Ume of counsel for the Appellant said it was obvious that the Appellant was boxed to a corner wherein he had to enter into his defence without counsel. That Appellant had even in his statement to the police denied any involvement that led to the charge of homicide. That the wrong conclusion weighed heavily on the mind of the trial Judge that he did not properly consider the evidence of the prosecution as to discover the numerous lapses that could have worked in favour of the Appellant.
Learned counsel for the Respondent said that the trial court acted rightly in concluding that the Appellant never denied the committal of the 3 counts charge made against them and there was no miscarriage of justice. He referred to the evidence of PW5, Sgt. Shuaibu Sani and also Exhibit E, the confessional statement of the Appellant. He said the Appellant can safely be convicted based on his confessional statement alone. He cited Akpan v. The State (1990) 7 NWLR (pt. 160) 101 at 102; Akinmoje v. The State SCNQLR (2000) P. 90 at 91.
The learned trial Judge had in his judgment stated:
“The accused persons never denied to the committal of the 3 counts charge made against them”.
Earlier in the judgment the learned trial Judge had said:
“The 1st accused (appellant herein) gave evidence of self defence wherein he pleaded guilty to the first two counts of the charge against him that is of conspiracy and robbery, but not of homicide.”
This later finding of the learned trial Judge tallied with the statement of the Appellant to the police and his evidence in court.
It is necessary to explore the implication of a confessional statement in the decision against an accused and its conviction.
It is settled law that if a person makes a free and voluntary confession which is direct and positive, and if properly proved, he may be convicted on the confession alone without further evidence. Akpan v. State (1990) 7 NWLR (pt. 160) 101 at 105.
An accused person can be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial. However, the retraction notwithstanding, a confessional statement must be considered along with other evidence by the trial court which will decide whether or not the accused did make the statement. R v. Itule (1961) 2 SCNLR 183; Salawu v. State (1971) NMLR 249; Ikpasa v. Attorney-General Bendel State (1981) 9 SC 7; Akinfe v. State (1988) 3 NWLR (pt. 8S) 729; Bamgboye v. Attorney-General Western Nigeria (1966) NMLR 266.
An accused person can be convicted on his confession alone when the conditions for this are present. Thus a voluntary confession of guilt by an accused is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved. It is desirable however to have outside the confession some evidence of circumstances no matter how slight which make it probable that the confession was true. See Hassan v. State (2001) 15 NWLR (pt. 735) 184 at 197, 200 per Katsina-Alu JSC; Onochie v. Republic (1966) NMLR 307; Yesufu v. State (1975) 6 SC 167; Kanu v. King (1952) 14 WACA 30.
The Appellant had through counsel contended that the fact that the learned trial Judge concluded that the Appellant and his co-accused had confessed to all three counts of the charge viz conspiracy, robbery and homicide which was not completely the truth occasioned a miscarriage of justice and warrant the allowing of the appeal. I think not. This is because indeed his statement to the police which was clearly confessional met the requirements upon which such a statement is admissible. Appellant admitted to the conspiracy and robbery but denied the homicide as he could not say how that came about. This was confirmed in his evidence. It would be too sweeping to throw in the towel on account of such a situation which was clearly, genuinely and humanly made by the trial Judge which has not compromised the entire trial or decision and so I answer this issue in the negative and in favour of the Respondent.
ISSUE NO 2
Whether the offence of culpable homicide was proved against the Appellant?
For the Appellant it was contended that the intention to kill or cause grievous bodily harm was not proved against the Appellant. That the Appellant both in his statement to the police and evidence in court maintained that there was no intention to kill or cause grievous bodily harm on the deceased and this was not contradicted by the prosecution. He cited the cases of R v. Williamson and Ellerton (1977) 67 CAR 63; R v. Cunningham (1981) 2 All ER 863.
Mr. Ume further stated that in law a man intends the consequences of his voluntary act when he desires it to happen, whether he foresees that it probably will happen or when he foresees that it will probably happen whether he desired it or not. He referred to Archbold Criminal Pleading Evidence & Practice 41st Edition p. 995.
Learned counsel went on to say that by the act of tying the deceased with a rope is not an act with the probability of causing grievous bodily harm or death and the Appellant could not have foreseen it. That the supervening acts which allegedly caused death was not an act of the Appellant. He said for a person to cause the death of another, death must be the result or consequence of the physical conduct or inversely, the conduct in question must be the cause of death. That it was not the case of the prosecution that it was the tying of the deceased that caused his death in this case and there was no evidence to imply that. He cited Criminal Law of India 4th Edition at page 469.
Learned counsel further stated that in order that a person should be guilty of culpable homicide, it is indispensable that the death of the deceased should be connected with the act of violence or other primary cause, not merely by a claim of causes and effect, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances. He cited Public Prosecution v. Mushunooru Suryanarayana Moorty 13 Cr. L.J. 145.
Learned counsel for the Respondent, Mr. Abdul said the offence of culpable homicide punishable under Section 221 of the penal code, has been proved by the prosecution beyond reasonable doubt against the Appellant as required by Section 137 – 138 of the Evidence Act and as decided in the case of Woolmington v. DPP (1935) (Citation omitted by counsel).
That for the prosecution to sustain a charge of homicide contrary to Section 221 of the penal code, the prosecution is duty bound to prove the following essential ingredients beyond reasonable doubt:
(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused;
(c) That the accused knew or had reason to know that death would be the “probable” and not only the “likely” consequence of his act.
Learned counsel for the Respondent referred to the relevant pieces of evidence concluding that those ingredients had been proved beyond reasonable doubt. He referred to Umaru Gwandu v. Gwandu Native Authority (1961) All NLR49 at 52.
“In order to prove intent in the crime of murder it was sufficient for the crown to establish an intention to cause grievous bodily harm, even though such intention might fall short of an intention to kill or to endanger life”. See R v. Cunningham (1981) 2 All ER 863.
The bare facts in the case in hand are that the Appellant and his two co-accused had conspired to steal or rob a motorcycle and they bought ropes to facilitate the project. They succeeded in robbing a motorcyclist and dispossessing him, had him tied up with the ropes earlier purchased.
These are not disputed. The area of controversy is whether at the time of having the victim/deceased tied up, the act of tying up alone could be foreseen as would probably lead to the victim’s death. In Fact the evidence strongly agrees with the version of the Appellant that after tying up the deceased the Appellant and the 2nd Accused left the deceased in the custody of the 3rd accused and that they (Appellant and 2nd accused) could not understand how the deceased was found drowned in the water. Indeed it is difficult to pin the Appellant to the homicide directly or even circumstantially since the death cannot be taken as connected with the act of violence or other primary cause not merely by the suspicion which could be tempting as to link the act of tying the victim with the rope as directly responsible for the victim’s death by drowning. I am placing reliance on Public Prosecution v. Mushunooru Suryananayana Moorty 13 Cr. LJ. 145.
In the instant case there was a break in the chain of events between the tying up of the victim and his death by drowning thereafter. That break of nexus makes it difficult for a court to make a finding that the culpable homicide has been proved beyond reasonable doubt. This is so since the requirements of section 221 of the Penal Code cannot be said to have been met as the prosecution did not carry out the duty to prove two of the three ingredients that is :
(b) That such death has been caused by the accused;
(c) That the accused knew or had reason to know that death would be the ”probable” and not only the “likely” consequence of the Appellant act.
It is in the light of the foregoing that it has not been difficult at all to hold that the prosecution had not proved the offence of culpable homicide against the appellant at the court below and so I answer this issue No 2 in the negative and in favour of the Appellant.
ISSUE NO 3
Whether having regard to the totality of evidence before the court, the Hon trial court was right to have returned a verdict of guilt against the Appellant on the three counts.
Learned counsel for the Appellant stated that if death is caused by one person but it was not the common intention of all the persons to cause death, the others are not liable therefore. That in this instance if stealing a motorcycle is the common intention and no more, if any of the parties kill the victim others cannot be held liable. He cited Nga Turn Saw v. Emperor 1 Cr. L.J. 2005; Gul Shah v. Emperor (1914) 16 Cr. L.J. 93.
Mr. Ume said there was no evidence to have warranted the conviction of the Appellant on the court of conspiracy and murder. That the trial court did not give equal treatment to the incriminating and exculpating parts of the purported admission or confession. He stated on that any statement made by a co-accused outside the court is only evidence against himself and no one else. Also that the purported confessional statement admitted in evidence and relied on by the trial court was not dear, precise and unequivocal which are cardinal features of a confession he referred to Gbadamosi v. The State (1992) 11/12 SCNJ (pt.2) 268 at 776.
Learned counsel said by the evidence of PW5. The statement did not qualify as a confession. He referred to R v. Nyriya Kwagbo (1962) NNLR 4.
He further stated that despite the objection of the Appellant to the admission of the medical report the trial court still went ahead to admit it even though it was tendered through a witness who was not the maker. That it was wrong of the court to have admitted the document in evidence without first reading it out to the accused who should either agree or disagree with the content. He cited Mbura v. State Digest of Supreme Court cases 1956 – 1984 Vol. 10 page 22.
Learned counsel submitted that the procedures adopted with the Appellant vitiated the statement he made. He cited Kika v. The Queen (1963) ANLR 219 at 223; Evbuowan v. The Queen (1961) WRNLR 257.
He said the question arose as to what language the statement was read out to the appellant. He cited R v. Okoro (1960) 5 FSC 134.
Learned counsel for the Respondent said the offence of culpable homicide punishable under Section 221 of the penal code had been proved beyond reasonable doubt. That this court should not interfere with or disturb the findings of the lower court since from the available evidence a miscarriage of justice has not been occasioned. He cited Amusa v. The State (2002) FWLR (pt. 85) 382 at 387.
Bearing in mind the answers in the two earlier issues 1 and 2 the question posed in this Issue NO.3 has virtually been answered from what transpired in issue NO.2, and it is true as stated by counsel for Appellant that the Appellant had not confessed to the homicide and it is easy to see that this issue NO. 3 has to be answered with a capital NO. That is that the trial high court was not right to have returned a verdict of guilt against the Appellant on the three counts of the charge since the offence or count of culpable homicide was not proved on the required standard of proof which is beyond reasonable doubt. However the first two counts of conspiracy and robbery were properly proved both by the evidence and the admission of the Appellant in his statement to the police and in evidence in court in his own defence. Therefore I allow the appeal in part that is that the 3rd count of culpable homicide against the Appellant is not proved, the finding, conviction and sentence of the Appellant in the court below are set aside. The Appellant is discharged and acquitted in count 3.
I affirm the conviction and sentences in counts 1 and 2 that is the Appellant having been found guilty in counts 1 and 2 and the sentences of 5 years and 10 years with hard labour respectively which sentences are to run concurrently.
Other Citations: (2008)LCN/2626(CA)
