Aliyu Bashir V. Kano State (2016)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A.

This is an appeal against the judgment of Kano State High Court delivered by Hon. Justice Amina Adamu Aliyu on the 2nd day of June, 2014 wherein the Appellant was convicted and sentenced to death by hanging for the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code.

The one count charge against the accused person was as follows:
“That you Aliyu Bashir on or about the 4th day of January, 2010, at Kofar Kudu town in Dawakin Kudu Local Government Area within the Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Maimuna Aliyu (deceased) by doing an act to wit: You used your hands to close her mouth and nose with the intention of causing her death, and thereby committed an offence punishable under Section 221(a) of the Penal Code.”
The accused person pleaded not guilty to the charge against him.

The facts of the case as presented by the prosecution was that the Appellant impregnated one Hauwa Yakubu outside wedlock and after she had put to birth, the

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Appellant was requested to come and carry his little baby Maimuna who was sixteen days old by that time. The Appellant went to Hauwa’s house on the 14th of January 2010 in company of Saadatu his sister and took Maimuna away. Saadatu gave Maimuna to the Appellant and left for her house. The Appellant ceased the opportunity of being alone with Maimuna covered her nose and mouth with his hands until she died and he thereafter buried her at Dawakin Kudu Cemetery without anyone’s knowledge.

To establish its case, the prosecution called 5 witnesses and tendered 2 Exhibits. Thereafter, the Appellant in his defence, testified as DW1, and called one witness. In a reserved judgment delivered on the 2nd of June 2014, the accused person was found guilty of the offence of culpable homicide punishable with death and was sentenced to death by hanging. Dissatisfied with the decision, the Appellant appealed against his conviction and sentence vide his notice of appeal dated 23rd day of June 2014 containing five (5) grounds of appeal. The grounds are hereby reproduced without their particulars as follows:
GROUND ONE
The verdict is unreasonable and cannot be supported.

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GROUND TWO
The learned trial Judge erred in law when he convicted the Appellant for the offence of culpable homicide punishable with death, in the circumstances where the prosecution failed to prove their case beyond reasonable doubt
GROUND THREE
The learned trial Judge erred in law when he relied in Exhibit ?A’ and ?A1′ (statement of the Accused/Appellant) to convict him.
GROUND FOUR
The learned trial Judge erred in law when he convicted and sentenced the Appellant without administering Allocutus.
GROUND FIVE
The learned trial Judge erred in law when he sentenced the Appellant to death without strict compliance to the form of pronouncing judgment.

In line with the Rules and Practice of the Court, the Appellant filed its brief of argument dated 12th day of June, 2015 and filed on the 16th of June 2016 settled by Abubakar Mohammed Esq., wherein he formulated four issues for the determination of the appeal to wit;
“(1) Whether the learned trial Judge was right in law when he convicted and sentenced the Appellant for the offence of culpable homicide punishable with death, in the

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circumstances where the prosecution failed to prove their case beyond reasonable doubt’
(2) Whether the learned trial Judge was right when he relied on Exhibit ?A’ and ?A1′ (statement of the Accused/Appellant) to convict him?
(3) Whether the learned trial Judge was right in law when he convicted and sentenced the Appellant without administering Allocutus.
(4) Whether the learned trial Judge was right in law when he sentenced the Appellant to death without strict compliance to the form of pronouncing judgment.”

The Respondent consequently filed their brief of argument dated 14th day of October 2016 and filed on the same day but deemed filed on 19th January 2016 settled by Amina Yusuf Yargaya Esq., wherein he formulated two(2) issues for determination thus;
“(1) whether or not the prosecution has proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt
(2) Whether or not the learned trial Judge has complied with the requirement of the law in convicting and sentencing the Appellant.”

At the hearing of the appeal on the 6th of April 2016, the Appellant counsel

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adopted his brief of argument and urged us to allow the appeal and set aside the decision of the lower Court and to discharge and acquit the Appellant. The Respondent equally adopted his brief and urge us to dismiss the appeal.

I have carefully considered the issues as presented by both counsel, and I feel the four (4) issues formulated by the Appellant can be subsumed into the two issues formulated by the Respondent. I will therefore adopt the Respondent’s two (2) issues in the determination of this appeal.

ISSUE 1
“Whether or not the prosecution has proved the charge of culpable homicide punishable with death against the Appellant beyond reasonable doubt?

Learned counsel for the Appellant submitted that, in a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt, that where the prosecution’s case is shaky, the accused would be entitled to have the benefit of such doubt resolved in his favour. He relied on the case of Aigbedion vs. State (2000) 7 NWLR (Pt 666) p 686. He stated that in a murder charge, the burden is upon the prosecution to prove the following;

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(a) The death of the deceased,
(b) That the voluntary act or omission of the accused caused the death of the deceased.
(c) That the accused act resulted in the death of the deceased having been done with the intention of causing death or grievous bodily harm to the deceased.
(d) That the accused knew that death is the probable and natural consequences of his act or omission, citing lgri vs. State (2012) All FWLR (Pt. 653) p 1826 He thus submitted that on the above cited authority, the prosecution did not prove the case against the Appellant beyond reasonable doubt as there was no credible evidence against the Appellant that had bearing with the death of the deceased and that the inference of death of the deceased made by the lower Court was based on speculation rather than on evidence adduced by the prosecution.

Counsel went further to state that the absence of medical report in this Appeal is very fatal to the prosecution’s case. That to ascertain the actual cause of death of the deceased that is whether she died as a result of premature birth or suffocation. He referred to Olabode vs. State (2007) AII FWLR (Pt 389) p

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1301, Adekunle vs. The State (1989) 5 NWLR (Pt 123) p. 505. That the learned trial Judge erroneously held that the Appellant was not a witness of truth and submitted that the fact that the accused person has told lies does not ipso facto relieve the prosecution of the burden of proving the guilt of the accused beyond reasonable doubt. He cited John Agba vs. State (2007) 2 NCC 158 and Nwachukwu vs. State (2007) All FWLR (Pt 390) p 1380. He also submitted that the trial Judge relied on circumstantial evidence to convict the Appellant. That for a circumstantial evidence to support conviction in a criminal trial especially murder, that it must be cogent, unequivocal, compelling and must lead to the irresistible conclusion that the accused and no other is the murderer. He referred to Michael vs. The State (1997) 12 SCNJ 53 and Adepetu vs.The State (1998) 7 SCNJ 84. He also posited that suspicion cannot ground conviction however strong that such cannot take the place of a legal proof. He cited Obiakor vs. State (2002) All FWLR (Pt 113) p 299 and Ajose vs. State (2002) 7 NWLR (Pt 766) p 302 to buttress this submission.

?He further argued that the

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confessional statement of the accused to the police does not exonerate the prosecution from proving the guilt of the accused person beyond reasonable doubt. He relied on the cases of Adekoya vs. State (2013) All FWLR (Pt, 662) p 1632, Omange vs. State (2006) All FWLR (Pt 306) p 930, Aigbedion vs. State (supra) in support. That it is the duty of the Court to test the truth of the said confession by examining it in the light of other credible evidence if any before the Court and also ask itself the following questions;
(a) Whether there is anything outside the confession to show that it is true’
(b) Whether it is corroborated’
(c) Whether relevant statements made in it of facts are true as far as they can be tested.
(d) Whether the accused person had the opportunity of committing the offence charged.
(e) Whether the confession is possible;
(f) Whether the confession is consistent with other facts which have been ascertained and have been proved. He cited Adekoye vs. State (supra) Yahaya vs. State (2005) 1 NCC 120 and Ikemson vs. State (1989) 3 NWLR (Pt 110) p 455. That having failed to determine the accused confessional statement in

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the light of the above questions, the prosecution has failed to prove its case against the Appellant.
He therefore urge us to resolve the issue in favour of the Appellant.

In his response to the first issue, Learned Counsel for the Respondent submitted that the prosecution has indeed proved the charge of culpable homicide against the Appellant beyond reasonable doubt. That once the ingredients of the offence are proved, the prosecution is said to have proved its case beyond reasonable doubt.

He relied on the dictum of Oputa JSC in Mufutau Bakare vs. The State (1987) 1 NSCE 26 at 273 and the cases of Juan vs. The State (2010) 2 MJSC P 155, and Eke vs. State (2011) 1 SCA p 155 where the ingredients of the offence of culpable homicide were enumerated.

On the first ingredient learned counsel relied on the evidence of Pw2, PW3, Exhibit B, which is the confessional statement of the Appellant to prove that the deceased Maimuna died. He submitted that these pieces evidence were never contradicted nor controverted therefore they are deemed admitted so the Court can act on it. He relied on the case of Offorlette vs. The State (2000) 7 sc (Pt.1) page 80.

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On the second ingredient, counsel strongly relied on the evidence of PW5 and the confessional statement of the Appellant in proof and stated that the Appellant was the last person seen with the deceased, and that he confessed to killing her and he buried her in the bush and he even took PW1 and PW4 and their team to the grave. He submitted that in the light of these compelling evidence the prosecution has proved the 2nd ingredient of the offence that the death of the deceased Maimuna was caused by the Appellant. He urged us to so hold.

?On the third ingredient, learned counsel submitted that the Appellant in Exhibit B confessed that he used his hands to close the mouth and nose of the deceased for five minutes until she died. He said that every reasonable person ought to know that to cover the mouth and nose of a 16 days old would be fatal and the resultant injury would be death. That by his action he ought to know that there is every likelihood that death would be the probable consequence not only the likely result of his act. Thus he said his action was done with the intention of causing death. He thus submitted that the 3rd

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ingredient of the offence of culpable homicide punishable with death was proved. He urged us to hold so.

On the issue of absence of medical report, counsel submitted that it is not fatal to the prosecution’s case. That medical report can be dispensed with where facts exist which sufficiently show the cause of death without doubt. That the law is that medical report cease to be a sine quo non to the conviction of the Appellant where causes of death is obvious and where the death was instantaneous or nearly so as a result of the act of the Appellant. He relied on Jeremiah vs. State (2012) 14 NWLR (Pt 1320) p 248 and Habibu vs. State (2013) LPELR 19932 suit No. 409/2011.

On the issue of circumstantial evidence raised, counsel argued that circumstantial evidence can support conviction when it is cogent, competent and unequivocal. He submitted that the evidence before the trial Court was more than suspicion but a confession and narration of chain of events that are overwhelming in proving the guilt of the Appellant. He cited the cases of Haruna vs. A.G, of the Federation (2012) 9 NWLR (Pt 1306) 419 at 441, Rabi Ismail vs.The State (2011) SC and

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Kabele vs. The State (2008) 2 SCNJ 124 at 137 Rule 30. He further stated that confessional statements are good and reliable evidence, that especially when it was admitted. He referred to Paragraphs 2.03 and 2.04 of the Appellant’s brief and said the trial Court was right to have acted on Exhibits A, A1 and B which are the confessional statements of the Appellant and convicted him accordingly. He relied on the cases of Yusuf vs. The State (Pt. 641) All FWLR P.7486 and Abasi vs. The State (1992) 8 NWLR (Pt 260) 383 at 398. He finally submitted that the confessional statement was corroborated by the evidence of PW1, PW2, PW3, PW4 and PW5. That the evidence of these witnesses can warrant conviction even without the confession of the Appellant. He urged us to so hold and resolve issue one in favour of the Respondent.

ISSUE 2
Whether or not the learned trial Judge has complied with the requirement of the law in convicting and sentencing the Appellant

On this issue counsel submitted that in a criminal trial after conviction but before sentencing, the convict shall be asked by the Registrar whether he has anything to say why sentence should not be

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passed on him according to law. This he said is to mitigate the punishment and also give an opportunity to the convict to call witnesses as to his character. He referred to Section 197(1) and (2) and 198 of the Criminal Procedure Code (CPC) and the case ofAdemoye vs. State (2014) AII FWLR (Pt 729) p. 1210 to submit that this has occasioned a miscarriage of justice. Learned counsel thus submitted that where death sentence has been passed, such sentence shall only be carried out in accordance with the provisions of the law. He cited the cases of Kalu vs. State (1998) 13 NWLR (pt. 583) p 583 and Okoro vs. State (1998) 14 NWLR (pt 584) p 181 and the provision of Section 273 of the CPC in support. That where a Judge fails to strictly comply with the form, such failure may raise an apprehension in the mind of the accused person that it could be carried out in another way. He cited in support the case of Olowofoyeku vs. The State (1984) sc 192 and Gana vs. The State (1968) All NLR 353. He finally urged us to allow the appeal and set aside the decision of the lower Court.

?On issue 2, Learned Respondent counsel submitted that the learned trial Judge was right

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in law when he convicted and sentenced the Appellant without administering Allocutus. He argued that failure on the part of the Court to call for Allocutus has no effect on the validity of the proceedings. That in homicide cases, once convicted under Section 221(b) the only punishment available is death. Thus administering Allocutus is not necessary. He said that the provision of Section 197(1) and (2) and Section 198 of the CPC mostly apply to cases punishable with imprisonment and fine, and that failure to administer allocutus in passing sentence on capital offence particularly homicide does not occasion any miscarriage of justice. He relied on the case of Ogunye vs. The State (1995) 8 NWLR (Pt. 413) 333 at 345.

On the form of pronouncing sentence, learned counsel submitted that wording of the sentencing by the trial Judge was in full compliance with the provision of Section 273 of the CPC therefore, the sentencing was not erroneous and did not occasion any miscarriage of justice. He referred to page 93 of the record and the case of Gono vs. State (1969) 1 NMLR 316 at 317. He urge us to resolve this issue in favour of the Respondent and to affirm the

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conviction and sentence of the Appellant by the Lower Court.

It is trite that in a charge of murder, as in the instant case, the essential ingredients the prosecution must prove in order to secure a conviction are:
(a) That the deceased died
(b) That the death of the said deceased has resulted from the act of the accused.
(c) That the said act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
To sustain a conviction, all the above ingredients must be clearly proved. In the instant case, it is not in doubt that the parties are ad idem as to the first ingredient, but, however disagree on whether it was the act of the Appellant that caused the death of the deceased (Maimuna) and or whether the said act of the Appellant was intentional with knowledge that death or grievous bodily harm is probable consequence. The commission of a crime by a person must be proved beyond reasonable doubt. Therefore, the prosecution must prove beyond reasonable doubt that the death of the deceased resulted from the act of the accused and that the act was intentional. The prosecution

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also, must prove that the accused and no other person committed the offence.

Cause of death can be proved by direct or circumstantial evidence. It can also be inferred where the person injured or attacked died immediately. Although eye witness or other evidence is ideal in establishing guilt, there are situations where circumstances can clearly and forcibly suggest that the accused and no one else must have committed the offence with which he is charged. Such circumstantial evidence must, if accepted, make a complete and unbroken chain as to constitute sufficient proof that the accused person committed the offence. The Respondent in proof of their case at the trial Court through the testimonies of PW2, PW3 and PW5 established the fact that the deceased was last seen in company of the Appellant.

PW2 on page 9 line 4 – 5 of the record stated that:
“He later came with Saadatu his sister and she took the baby and after 8 days Aliyu, accused person came back to inform me that the girl has died.?

PW3 on page 10 lines 5 – 8 of the record stated that:
?After 16 days he came back and ask that the daughter be given to him he came

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three times and he later came with his sister Saadatu while I was not at home and he was given the baby and after 8 days he came back to inform us that the girl had died.”

And PW5 on page 23 lines 16 – 20 stated that:
“…..he came and met me that I should escort him and collect the baby so that he can take her to orphanage and I followed him to the house and we met Hauwa, her mother and her step mother and after I collected the baby from her mother Hauwa she the baby was in a wrapper I gave the baby to the accused person and went home she was alive but sleeping.”

Going by the circumstances of this case the Appellant was the last person that carried the deceased, the doctrine of last seen is invocable. First and foremost, it needs to be stated that in respect of the last seen doctrine, the law presumes that the person last seen with a deceased bears full responsibility for his death. Thus where an accused person was the last person to be seen with the deceased, and circumstantial evidence is overwhelming and leads to no other conclusion, it leaves no room for acquittal. See Igadele vs. The State (2006) 6 NWLR (Pt. 975) p. 100, Peter Igho

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vs. The State (1978) 3 SC 87 and Udo vs. State (1981) 11 – 12 SC 91, The evidence of the last seen doctrine adduced by PW2, PW3 and PW5 are plausible and compelling.
It is the duty of the Appellant in such damnifying circumstances to give an explanation relating to how the deceased died. This was done in the confessional statement of the Appellant in Exhibits B1 and 1A thereby giving the trial Court a perfect justification in drawing the necessary inference that he Appellant must have killed the deceased Maimuna. See Emeka v. State (2001) 14 NWLR (Pt 734) 666, Nwaeze v. State (1996) 2 NWLR (Pt 428) 1, and Uguru v, The State (2002) 9 NWLR (Pt 771) 90.

On the issue of medical report raised by the Appellant. A medical report is not a pre-requisite for establishing the cause of death in a murder charge, once the prosecution has established the death of the deceased and provided proof that the death is a result of the unlawful and intentional act of the Appellant, medical report ceases to be a sine quo non to the conviction of the accused. In Exhibits 1 and 1A the Appellant clearly stated how he killed the child Maimuna by covering her nose and

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mouth with his hands for 5 minutes. The trial judge had accepted this evidence after the document was admitted in evidence. A conviction on that circumstance is unassailable. See Nini v State (1968) 5 NSCC 37, Akpan v. State (1992) 6 NWLR (Pt 243) 439 and Oka v. State (1975) 9 – 11 SC 17.

By virtue of Section 27(1) and (2) of the Evidence Act, a confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that offence. Confessions if voluntary are deemed to be relevant facts against the person who make them. For an admission to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which the accused is charged. Once a confessional statement is admitted it becomes part of the evidence and the Court is duly bound to consider the probative value of same. See Afolabi v. C.O.P. (1961) All NLR 654, Arogundare v. State (2009) 6 NWLR (Pt 1136).

The learned counsel for the Appellant has forcefully argued that the Court did not meet the criteria enumerated below before placing reliance on the confessional statements to

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convict the Appellant.
(a) Whether there is anything outside the confession to show that it is true.
(b) Whether the statement is corroborated
(c) Whether the confession was consistent with other facts which have been ascertained and proved at the trial.
(d) Whether the accused person had the opportunity of committing the offence.
(e) Whether the confession is possible.
(f) Whether the confession is consistent with other facts which have been ascertained and have been proved.

It has been held that it is always desirable to have outside the accused person’s confession some corroborative evidence no matter how slight of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to acting on a confession without testing the truth. See lkpo v. State (1995) 9 NWLR (Pt 421) 540 at 555.

In this case, it is evident, that the learned trial Court in his judgment convicted the accused person not only on the admitted confessional statement but also on the evidence of prosecution and defence witnesses and the circumstantial evidence before him. On the 1st ingredient of

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the offence, after evaluation of evidence before him, the learned trial judge held on page 88 lines 22 of the record that:
“I am satisfied that even though the grave was not exhumed and therefore no body, the first ingredient of the offence through PW2, PW3 and the testimony of the accused person coupled with Exhibit A and A1 and Exhibit B has been proved by the prosecution.”

On the second ingredient the trial Court found on page 37 of the record that:
“I am satisfied that the prosecution through the prosecution witnesses and Exhibit A and A1 and Exhibit B have proved the second ingredient of the offence against the accused person that the accused person caused the death of the deceased.”

From the findings of the learned trial judge, it is clear that aside the confessional statement, which is been contended, there are evidence before the trial Court connecting the Appellant to the death of the baby. From the evidence on record, can the Appellant’s confession in Exhibit B, A and A1 be possible and had he the opportunity of committing the offence? PW5 stated that she left the deceased with the Appellant after they left the PW3 and the

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Appellant did not inform anybody of the death of the deceased until after eight (8) days and he thereafter buried her alone. The appellant did not proffer any defence to show that someone else other than himself committed the offence in the face of overwhelming evidence led by the prosecution witnesses. The Appellant’s confessional statement as contained in the exhibits above, were positive unequivocal and consistent and point irresistibly to the conclusion that he and no other committed the offence. I am therefore of the considered view that the Respondent has proved their case beyond reasonable doubt based on credible evidence before the Court. I resolve issue one against the Appellant.

Where a statute prescribes a mandatory sentence in clear terms the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the matter. The sentence must be pronounced without any reservation. It is a duty imposed by law. The situation is different from the one in which the statute provides for either the minimum sentence or the maximum sentence. Where the sentence prescribed upon conviction in a

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criminal charge is a term of years of imprisonment, and then extenuating factors such as the age of the convict, whether he is a first offender etc can be taken into consideration by the trial Court in passing the sentence on the convict. Indeed, the trial Court has the discretion to employ these factors to reduce the years of sentence. But in a charge where the sentence prescribed by law is death penalty, it is not within the competence of a trial Court to exercise any judicial discretion to reduce the death sentence to a term of years.
In the instant case, the Court was right in imposing the death sentence upon conviction of the Appellant being the maximum sentence prescribed by law. The failure of the trial Court to ask the Appellant if he has anything to say why sentence should not be passed is not applicable in this case and the Appellant is not misled in any way by not applying it.

On the issue raised of failure of the trial Court to strictly comply with the form of sentencing, as reproduced by the Appellant in his brief, in accordance with the provision of Section 273 of the CPC, what the trial Court stated in his judgment was that “The

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accused person shall die by hanging.” This in law is substantial compliance with the provision of Section 272 of the CPC. The case of Olowofoyeku vs. The State (supra) cited by the Appellant in support of his case, that failure of compliance may raise an apprehension in the mind of the accused person was not the position in that case but rather the Court held that there was substantial compliance in the pronouncement of the trial Court and the appeal was dismissed. Thus issues also resolved against the Appellant.

Having resolved the two issues against the Appellant, appeal therefore lacks merit and it is hereby dismissed. Accordingly, the conviction and sentence of the Appellant as contained in the judgment of Hon Justice Amina Adamu Aliyu in charge No. K/147C/2011 delivered on the 2/06/2014 is hereby affirmed.

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Other Citations: (2016)LCN/8588(CA)