Ahmadu Garba V. The State (2016)
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TUNDE OYEBANJI AWOTOYE, J.C.A.
This is the judgment in respect of the appeal of the appellant vide his Notice of Appeal filed on 6/5/2014 challenging the judgment of D.B. Sambo J. of Sokoto High Court on 5 grounds.
The grounds of appeal (shorn of the particulars are set out hereunder)
?Ground one
The decision of the Court below is unreasonable, unwanted and cannot be supported having regard to the evidence adduced at the trial.
Ground two
The Court below erred in law and occasioned a miscarriage of justice on the Appellant when in convicting and sentence the appellant to death for the offence contrary to Section 221 (b) of the penal code, it failed and/or neglected to consider the case or evidence against the appellant separately from that of Abu Damo with whom the appellant was being tried jointly.
Ground three
The Court below erred in law when in convicting and sentencing the appellant to death for the offence contrary to Section 221(b) of the penal code, it relied in the evidence of PW?s 1 & 2 to convict the appellant and this has occasioned a miscarriage of
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justice.
Ground four
The Court below erred in law when in convicting and sentencing the Appellant to death for the offence contrary to Section 221 (b) of the penal code, it denied the appellant his constitutional right to fair hearing thereby occasioned a miscarriage of justice on the appellant when it failed and neglected to consider all the defence/s open up to the appellant on the evidence adduced before the Court below but considered only the case presented by the prosecution against the appellant. Ground five
The Court below erred in law and prejudiced the constitutional right of fair hearing of the appellant an guarantee under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 when in convicting and sentencing the appellant to death for the offence contrary to Section 221 (b) of the penal code, the Court refused and/or failed to consider the cross examination of PW1 & PW2 on record before placing probative value on some and using the same evidence in convicting and sentencing the appellant to death for the offence contrary to Section 221 (b) of the penal code law and this has occasioned a miscarriage of justice. The
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charge against the accused at the lower Court reads thus
“That you Samaila Umaru, Salihu Sule, Buhari Idi, ibrahim Umaru, Abubakar Labaran, Dahiru Danjoda, Abu Damo, Ahamdu Garba and Sanusi Umaru all males of Kwargaba and Araba Village Wurno Local Government Area Sokoto State, on or about the 3rd April, 2012 at 2200hrs in Kwargaba Village, did commit the offence of Culpable Homicide punishable with death in that you caused the death of one Ardo Umaru ?M? by inflicting serious bodily injuries with cutlass and sticks on him as a result he died on the spot you thereby committed an offence punishable under Section 221 (b) of the Penal Code.?
The respective pleas of the accused persons was taken after which the learned trial Judge heard the parties.
On 13/3/2014, His Lordship of the lower Court found the accused now appellant guilty and convicted him accordingly.
The appellant was referred to as the 8th accused in the judgment of the lower Court. The learned trial Judge gave reasons for his conviction on pages 260 ? 261 of the record of appeal as follows
?8th Accused ? Ahmadu Garba ? DW7:
This accused gave
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evidence as DW7 and made two statements to the police at the CID Office Sokoto in the Exhibits P18 and P19, P19A dated the 7/8/2012 respectively. In the first statement, he narrated that though aware of the fight between the Hausa and Fulanis that took place on the 3/4/2014, he did not take part. The extent of his participation was only that he helped stopped the Arba people from entering Kwargaba village and thereafter went home to sleep. His statement was taken late because he ran to Lagos immediately the unfortunate incident. However, in his second statements in the Exhibits P19, P19A, the 8th accused disclosed that he and Abu Damo was among the persons that pursued the deceased to the bush where he was attacked by the crowd and consequently the deceased death. It is worthy of note here that none of the prosecution witnesses identified him rather, it is his confession to that effect. But his evidence on oath he denied having participated in the attack. He denied making P19, P19A and said he was arrested was in the month of August 2012 (sic).
?For certain, though none of the prosecution witnesses identified this accused as one of the attackers on the fateful
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day on which the ugly incidence took place, in his statement made in the Exhibits P19, P19A, he has confessed his participation. It is found in the above statements the accused saw when the deceased came out from a house and they all pursued him untill he was killed near the cemetery. He confessed pursuing the deceased to the point he was killed. Whoever was in the pursue race had a conceived common purpose to wit killing the deceased. This accused therefore is accountable like each of any person in that crowd.?
Miffed by the judgment of the Court, the appellant appealed to this Court.
The record of appeal was deemed compiled and transmitted to this Court on 21/9/2015.
The appellant?s brief of argument which was prepared by Ibrahim Abdullahi appellant?s counsel was filed on 30/10/2015.
Learned appellant?s counsel formulated 3 issues for determination. The issues are
1. Was the Court below right when it failed and or neglected to consider the evidence of the appellant separately from that of his co ? accused persons before convicting and sentencing the appellant for the (sic) offence contrary to Section 221 (b) of the
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penal code? (This relates to ground 2 of the grounds of appeal)
2. When the Court below right in law when it refused to consider all the defences open up to the appellant on the evidence adduced before the Court below? (This relates to ground 4 of the grounds of appeal)
3. Whether a case of culpable homicide punishable with death was made out before the Court below to justify the conviction and sentence of the appellant? (This relates to grounds 1, 3 and 5 of the grounds of appeal)
On issue No 1, learned appellant?s counsel submitted that the lower Court erred when it failed to consider the evidence of the appellant separately from that of his co ? accused. He relied on MBANG V STATE (2009) 18 NWLR (PT 1172) 140 at 159 in submitting that the confessional statement of an accused could not be used against a co – accused.
He urged the Court to resolve issue No 1 in favour of the appellant.
On issue No 2, learned counsel submitted that the lower Court failed to consider all the defences raised on the evidence no matter how slight. He referred to OFORLETE V STATE (2000) 3 NSQR 43 at 245. Mr. Abdullahi for the appellant submitted
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that he defence of alibi was raised in Exhibits P18 and P19 A and yet the lower Court did not consider it. He cited IKEMSON V STATE (1989) ICLRN 1 at 5, ADELE V STATE (2001) 2 ACLR 420 at 443; ONAFOWOKAN V STATE (1987) 3 NWLR (PT 61) 538 at 552.
He relied on OGUNLEYE V STATE (1991) 3 NWLR (PT 177) 1 at 13 to further submit that failure by the Court to consider and examine a defence raised by the accused vitiated the whole trial.
He urged the Court to resolve the issue in favour of the appellant.
On issue No 3, learned appellant?s counsel quoted copiously and relied on the evidence adduced at the lower Court and submitted that a case of culpable homicide was not made out before the Court below. He posited that the essential ingredients of the offence had not been proved.
He further contended that the learned trial Judge was wrong to have placed reliance on Exhibit P19 and P19A to convict and sentence the appellant.
He added that the learned trial Judge discredited the identification of the 2nd accused, the entire testimony of 2nd PW ought to have been rejected altogether. He relied on IDIOK V STATE (2010) LRCNCC 96 at 110.
He added that Exhibits
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P1 which was a cutlass tendered by the prosecution was not shown to have been used in the commission of the crime. He referred MICHAEL V STATE (2010) 8 LRCNCC 11 at 237.
He finally urged the Court to resolve this issue in favour of the appellant and allow the appeal.
The respondent inspite of having been served with necessary Court processes failed to file respondent brief of argument.
I shall therefore determine this appeal based on appellant?s brief alone. I have deeply considered the issues as formulated by learned counsel for the appellant. I am of the respectful view that the three formulated issues can be condensed into one for the just determination of this appeal.
The sole issue that I consider wide and apt enough for this appeal is:
?Whether or not the learned trial Judge was right in law to have convicted and sentenced the appellant in the light of the evidence adduced before him.?
I shall proceed to determine this appeal in the above light. The learned trial Judge in finding the appellant guilty relied on Exhibits P19 and P19A, the second statement of the appellant.
Learned trial Judge on page 18 of his judgment conceded that
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the appellant made earlier statement denying any involvement in the crime. He further conceded that none of the prosecution witnesses identified the appellant as one of the attackers on the fateful day.
It is also clear from the judgment that the appellant denied making Exhibits P19 and P19A. The meaning of all of these is that the only piece of evidence relied upon by the learned trial Judge in convicting the appellant was the retracted statement of the appellant ? Exhibits P19 and P19A.
Indeed, a Court can convict an accused based on his retracted statement but this however depends on whether or not there is anything outside the statement to show that it is true. In KAREEM V F. R. N. (NO. 2) (2002) 8 NWLR (PT 770) 664, Ejiwumi JSC. had this to say on this point:
“It is … right to uphold the Court below that though the appellant resiled from that statement, his statement remained voluntarily and his conviction upon that statement depended very much upon, whether there is anything outside it to show it was true; is it corroboration? Are the statements made in it of fact so far as they can be tested true? Was the prisoner a man who had the
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opportunity of committing the offence? Is his confession possible? Is it consistent with other facts which have been ascertained and have been proved See also OTUFALE V THE STATE (1968) NMLR 261 at 265; ULUEBEKA V THE STATE (2000) 7 NWLR (PT. 665) 404 and IKPO V STATE (2016) LPELR – SC 722/2014.
In view of the above decisions, the pertinent question to ask is: are Exhibits P19 and P19A (retracted statements of the appellant) corroborated in any way by other facts in the case? The implication of this is that the contents of Exhibits P19 and P19A should be juxtaposed with the other established facts in this case to see whether they are corroborative of one another.
One needs not go too far in this case as there were only two eye witnesses who gave evidence for the prosecution. True, the prosecution called 9 witnesses comprising of 5 official witnesses who were policemen who took statements from the accused persons, and 4 other witnesses. Out of the 4 witnesses, only Pw1 and PW2 were the eye witnesses. The other two gave evidence as victims of the attack, who could not recognize any of the culprits.
?Pw1, Muhammad Tukur was the biological son of the
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deceased, He witnessed what happened, how his father was killed and some houses were burnt down. He identified some of the attackers to include Samaila Umaru ? 1st accused, Salihu sule 2nd accused, Ibrahim Umaru ? 4th accused, Dahiru Danjuda ? 6th accused, Abu Damo ? 7th accused and Sanusi Umaru ? 9th accused. He did not identify the appellant who was the 8th accused on the amended charge before the lower Court. He did not give any incriminating evidence against the appellant.
PW2, the second eye witness on that day i.e. 3/4/2012, was attracted to the direction of the burning fire in Kwargaba village He went there and saw some people setting houses on fire. He identified Samaila Umaru (1st accused) and Sanusi Umaru (the 9th accused person). He did not identify the appellant.
?I have combed through the evidence adduced by the prosecution witnesses. There is nothing implicating the appellant in the prosecution?s case except the retracted statements of the appellant. If the appellant was not identified by the prosecution witnesses, it is in my respectful view unsafe to convict him based on his retracted statement. The
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retracted statement was uncorroborated in any way by the evidence adduced by the prosecution witnesses. The appellant himself who made the statements denied the said statements.
?I need to state that similarity in the stories narrated by an accused in his statement and the ones in the written statements of the witnesses should, without more in my respectful view, not be used as corroboration of the statement of the accused having regards to the role of investigating police officers who double to take statements of accused as well as that of the witnesses. An overzealous investigating Police Officer who is familiar with the statement of the witnesses might tilt or alter the statement of the accused in line with other statements made to him by witnesses. There should be more corroboration than that, from the prosecution?s case. Was anything incriminating recovered from the appellant implicating him in crime? Did any witness hear anything incriminating spoken by the appellant? Was he positively identified by any witness? Any of these would be more credibly corroborative than mere similarity in the contents of the statements recorded by same set of police
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officers.
If there is no such corroboration then to my mind there is reasonable doubt in the prosecution?s case which must be resolved in favour of the appellant See AHMED V THE STATE (1999) 7 NWLR (PT. 612) 673 NAMSOH V THE STATE (1993) 5 NWLR (PT. 292) 129; ALARAPE V THE STATE (2001) 2 SCNJ. 162; THE STATE V AZEEZ (2008) ALL FWLR (PT 424) 1423 at 1463.
Beside the above, the appellant was recorded to have made two statements at the police station.
On 7/8/2012, the appellant made statement denying involvement in the crime.
His statements, P18 and P18A read as follows in English
“I Ahmadu Garba, wish to give statements as follows: I live at Kwargaba, Wurno Local Government area of Sokoto State. I have one wife and live with my parents in our village. On 4/3/2012 at about 8:00 pm, I was in Kwargaba village together with my friends Yusuf and Junaidu in market. We sighted flame of fire toward Arba, Hausas farmer were burning the hut of fulani herdsmen, later stone people from Arba village one trying to extend and entered (Kwargaba) to burn our house, we stopped them. It was then I went to my house and sleep. In fact, I did not witness what happened in
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Kwargaba, it was the next day I see that hausa living in Kwargaba has burn down some houses of fulani cattle rearers.
Truly, I ran to Lagos State and I did not inform my friend Bala Dantalaka that we are the people that kill Ardo. That is all my statement.?
9days later, while still in custody and without being identified by any person as one of the culprits and without any incriminating item found against him the appellant made another statement incriminating himself as follows:
?I, Ahmadu Garba with to give statements as follows: I live at Kwargaba Village Wurno Local Government area Sokoto State. I have one wife. I do travel to Lagos State for business of selling Recharge Cards and Recharging of handset. On Tuesday 3/4/2012 at about 9:00pm in the night some Fulani living at Kwargaba fought at Arba Village with Hausa farmers. It was as a result of this, fulani men inflicted injury on one Madugu ?M? of Kwargaba village. When the people of Kwargaba see Madugu with wound, they attacked some fulani living in Kwargaba. In fact, I was together with the attacked fulani houses, But I did not burn anybody house. When the Hausas were
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burning the houses of fulani, one Ardo Usman came out of his house and run to the bush. We pursued him in the bush where one Abu Damo, – Lawali Danshehu and Murtala Abdullahi inflicted injuries on him with cutlass. I was afraid and ran back home. I did not beat Ardo Usman. The people that burn the houses of Fulani are many, I cannot be able to know their names. That is all my statement.”
The question is what happened to him within the 9 days to warrant the change of statement? Without any other evidence implicating the appellant on what basis could one of the statements be preferred to the offer? The maker of the second statement retracted it!
There is reasonable doubt that Exhibits P19 and P19A contain the truth of what happened. There is nothing else to confirm the truthfulness of the Exhibits.
I therefore resolve the sole issue formulated by me in favour of the appellant.
I hereby allow this appeal. The conviction and sentence of the appellant by the lower Court in its decision delivered on 13/3/2014 are hereby set aside. I hereby discharge and acquit the appellant instead.
Other Citations: (2016)LCN/8855(CA)
