Aliyu V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The charge defended by the Appellant alleges:
That you NURA ALIYU of No. 110, Zamfarawa Road, Funtua, Funtua Local Government Area of Katsina State on or about the 11th day of August, 2006 around 08.00 hrs at Government Girls Secondary School Funtua in Funtua Local Government within the Funtua Judicial Division committed the offence of culpable homicide punishable with death by doing an act to wit: stabbing one Jamilu Yahaya with a knife on the head and stomach with knowledge that such is likely to cause death and it it did cause his death and you thereby committed an offence punishable under Section 221 of the Penal Code.
The charge was accompanied with the Proofs of Evidence.
In the course of the trial, the prosecution, through the PW. 1, tendered in evidence, the confession of the Appellant, as the accused person, contained in Exhibits A and A1. The Appellant was represented by Counsel. The Counsel, after conferring with the Accused/Appellant, did not oppose or object to the confessional statement being admitted in evidence against the Defendant. Thus, the making and the voluntariness of the making of Exhibits A & A1, were seemingly no longer in issue. Exhibit A is the Hausa version of the statement; while Exhibit A1 was the English version.
However at page 32, upon the statement read to the Defendant in open Court the Appellant, as the Defendant, retorted, by way of correction;
That is not the correct statement I made. I actually used my shovel and not knife on the victim.
The voluntariness of the making of the confession, subject to the correction made by the Defendant, was at the trial Court, not in issue. Even when that was not an issue; the PW.2 at page 33 of the records was on hand to corroborate the PW.1 as to the voluntariness of the making of the confession in Exhibits A & A1.
He was not cross-examined on this aspect of his evidence. Facts not disputed and/or challenged are always taken as admitted and established.
However, in amazing desperation as it appears, the Appellant’s Counsel in paragraph 21 of the Appellant’s Brief submitted that –
In spite of unequivocal challenge on (sic) the confessional statement by the Appellant, the trial Court held that the denial amounted to a corroborative evidence of the confessional statement, and that the “corroborated confessional statement” together with the testimonies of the PW.1 and PW.4 are sufficient proof that the Appellant caused the death of the deceased. The lower Court also chose to align with the reasoning of the trial Court, by taking the view that there was no legitimate challenge to the confessional statement, and accordingly, the trial Court had no cause to seek corroborative evidence before relying on the confessional statement in convicting the accused person.
The lingua franca of the two Courts below is English Language.
Page 32 of the records is the proceeding of the trial Court written in simple laconic English that would not take a final year pupil of a Primary School preparing for his Common Entrance to comprehend. Here is a lawyer, before us at the Supreme Court appearing not to understand very simple English Language. And it is not to his credit to insist that he has come before us merely to confuse issues and thus, pander to the beer parlour gossip or glib that the lawyer is he who turns black into white and vice versa. This common man’s impression of the lawyer, though false, should of course be scandalous of us all lawyers!!
The Appellant’s lawyer is, like every lawyer, an officer of the Court enjoined not to do any act or conduct himself in any manner that will adversely affect the administration of justice. A deliberately mischievous distortion of facts, no doubt, is a conduct unbecoming which is not only capable of adversely affecting the administration of justice, but does actually affect the administration of justice. Every lawyer appearing in his professional capacity before a Court shall deal with the Court mostly candidly and fairly. Rules 30 and 32 of the Rules of Professional Conduct for Legal Practitioners, 2007 should, and indeed, offer very basic precept to every lawyer called to the Nigerian Bar and enrolled in the Supreme Court after Law School. It is not palatable to call an officer of this Court a liar, as I am tempted to call the Appellant’s Counsel.
My Lords, in open Court when Exhibits A & A1 were being proposed to the trial Court to be admitted in evidence as his confession to the alleged offence, the defence counsel, after due consultation, albeit briefly, informed the trial Court that they had no objection. Exhibits A & A1 were accordingly admitted in evidence unopposed. No issue of the confession being recorded involuntarily or oppressively (Section 29 of the Evidence Act, 2011) was raised. The PW.2, at page 33 of the record, further corroborated the PW.1, that confession (in Exhibits A & A1) was voluntarily recorded. He was not challenged or cross-examined. I do not, in the circumstance, agree with the Appellant’s Counsel that the mere fact of the Appellant proceeding to correct the slip in the statement as to the offensive weapon used on the victim — that it is a shovel, and not a knife, amounted to retraction of the confession. It was not.
In THE STATE v JAMES GWANGWAN (2015) 13 NWLR (pt. 1477) 600, Okoro, JSC, stated and I agree that a retraction means to say that something you had said earlier is not true or correct or that you did not mean it. It is therefore not a retraction to correct a mere slip in the previous statement in order that the substance of the previous statement may be more meaningful. It is not the law that a retracted confessional statement ceases to have probative value. Where a statement is subsequently retracted, after it had been admitted in evidence, and it forming part of the prosecution’s case, the trial Court is bound to consider its probative value viz-a-viz the retraction: EGBOGHONOME v. THE STATE (1993) 7 NWLR (pt. 306) 383; EKPE v. THE STATE (1994) 9 NWLR (pt. 368) 263; LEGI MOHAMMED v. THE STATE (2019) LPELR-46420 (SC).
When a Defendant retracts his previous statement to the Police Investigators, duly recorded under caution (and subsequently proved to have been made voluntarily), in his testimony in open Court at his trial; his testimony is usually treated as unreliable having been effectively rebutted. In the instant case, the purported retraction was being skillfully crafted to fit into the rule in UMANI v. THE STATE (1988) 1 NWLR (pt. 70) 270; (1988) 2 SC (pt. 1) 88 at 98 to the effect that when an extra-judicial statement is retracted by the alleged maker, both the statement and the testimony retracting it are advisedly taken as unreliable. I had earlier stated in this judgment that, notwithstanding the unwholesome antics of the Appellant’s Counsel, the purported retraction was not actually a retraction of his confession in Exhibits A & A1. The rules applicable to retracted statement will therefore not apply in the instant case.
Exhibits A & A1, are the confession of the Appellant made voluntarily. It was recorded by the PW. 1. The PW.2 corroborated the PW.1 that the Appellant voluntarily made the confession under caution. Apart from the defence not opposing its admissibility and admission in evidence; the Appellant further made corrections therein. In his subsequent defence testimony, as DW.1, the Appellant told the trial Court that “the police did not take (his) statement”. He was just flippantly enjoying the luxury of lie telling.
No eyewitness testified. The PW. 1, PW. 2 and PW. 3 were police crime investigators. The most material aspect of the evidence of PW. 1 and PW. 2 is that, the Appellant voluntarily confessed to the crime alleged and the confession was recorded in Exhibits A & A1. The evidence of the duo debunk the subsequent testimony of the Appellant that “the police did not take (his) statement”.
The PW. 4 was the medical officer who conducted the post mortem examination on the body of the deceased victim of the Appellant. The PW.4 issued his report in Exhibit C. PW. 4, adumbrating on his post mortem report, averred “that a sharp object must have been used to inflict the wound on the victim”. There is no reasonable doubt about that. The Appellant himself, correcting the prosecution, stated that he “actually used (his) shovel and not knife on the victim”. The cause of death, as found in Exhibit C, is not in any doubt. PW. 4 rushed the deceased “to the theatre for an emergency surgery” to save his life, but unfortunately he died before reaching the theatre. The PW. 4 described the injury thus —
“The injury was a stab injury. It involved the biggest intestine – and one of the biggest blood vessels. The stab wound penetrated those parts I mentioned”
In this case, actus reus is not in dispute. Exhibits A & A1 juxtaposed with Exhibit C and PW. 4’s testimony that a human being, inflicted stab wound with a sharp instrument affecting the victim’s biggest intestine and the biggest blood vessels, died just before reaching the theatre for repair surgery. The Appellant admitted his responsibility for this act resulting in the death of his victim.
At trial and in his defence, the Appellant had set up self-defence for the first time. The very fact of this defence is ordinarily, an admission of both the actus reus and the intention to kill his victim (the alleged assailant) for the purpose of saving his own life. Section 59 of the Penal Code provides that “nothing is an offence which is done in the lawful exercise of the right of private defence”. The right of private defence includes (under Section 60 of the same Penal Code) the right to defend one’s own body against any unwarranted offence affecting human body.
Where a Defendant at the bar sets up the defence of self- defence, the issue is whether he had any reasonable apprehension of grievous hurt to, or death of, himself: IHIM v. THE STATE (1991) 2 NWLR (pt. 172) 622 at 638; AKPAN v. THE STATE (1992) 6 NWLR (pt. 248) 439 at 470. This reasonable apprehension of imminent danger of death or grievous hurt to the Defendant pleading self-defence, thus justifying the appropriate defence measures he took to protect himself, is one of facts to be proved by the defence. There is no such proof to the satisfaction of the trial Court and the defence was justifiably dismissed. The trial Court found, and I agree “that the defence of self-defence was raised by the learned counsel to the accused person in the written address”, and that “the accused (person) did not mention anything about it”. The cute answer to this, in my solidarity with the learned trial Judge, is in the words of Rhodes-Vivour, JSC, in SEGUN OGUNSANYA v. THE STATE (2011) 12 NWLR (pt. 1261) 401; (2011) LPELR-2349 (SC) pp 47-48
“No amount of brilliant address or playing to the gallery by counsel can make up for evidence to prove or defend a case in Court. The main purpose of an address is to assist the Court, and is never a substitute for compelling evidence.”
See also NIGER CONSTRUCTION LTD v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 SC at 792; DONATUS NDU v. THE STATE (1990) LPELR-1975 (SC) at 22.
The defence at the trial Court failed to appreciate the significance of Sections 131(1), 132 and 135(3) of the Evidence Act, 2011 providing-
- (1) whoever desires any Court to give judgment as to any legal right or reliability dependent on the existence of facts which he asserts shall prove that those facts exist.
- the burden of proof in a suit or proceeding lies on that person who would fail if evidence at all were given on either side.
135(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant.
I agree with the two Courts below, in their concurrent findings of fact, that the Appellant herein did not prove the defence of self-defence he had latched on to as the last straw. Having failed in his justification for killing his victim, by the plea of the defence of self-defence, it does not lie in the mouth of the Appellant to say that the prosecution did not prove his intention to kill his victim, the deceased. Exhibits A & A1 in the circumstance stand tall, straight and resolute in attesting to his guilt. A Defendant at the Bar pleading the defence of self-defence takes risks in alternative. If the plea succeeds; he would have provided the justification in law for his criminal act or conduct. When it fails; the Defendant would be taken to have admitted the allegation of criminal offence brought against him.
Finally, I agree with the lower Court in its stance that intention to kill can be inferred from the manner the Defendant deployed and applied the offensive weapon to his victim. At page 167 of the record, the lower Court, per Abiru, JCA, stated and I endorse the statement to wit —
“Thus, in EJEKA v. STATE (2003) 7 NWLR (pt. 819) 408, where the appellant stabbed the deceased with a jack knife at a fragile part of the body such as the heart, the Supreme Court held that this clearly explained that the appellant’s intention was to cause grievous injury to the deceased. Similarly, in Nwokearu V. The State supra, where the appellant stabbed the deceased in the stomach with a knife, the Court of Appeal held that this showed an intention by the appellant to cause grievous harm to the deceased. In the instant case, the Appellant stabbed the Respondent in the stomach with a knife cutting through the deceased’s big intestines and the largest blood vessels in his body. This was an exhibition of a clear intention on the part of the Appellant to cause the death of the deceased. The Appellant admitted this much in his confessional statement when he said “l know that a knife of any kind is capable of killing once it is used to stab somebody, especially when it is used on somebody’s stomach”
Substituting a shovel for knife, as the Appellant wanted the trial Court to believe, should even be more outrageous.
Since a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the alleged offence (Section 28 Evidence Act, 2011); the Defendant on his confession alone, once the confession unequivocally shows the direct and positive involvement of the Defendant in the alleged crime, can be convicted for the alleged offence confessed to: ODUA v. FRN (2002) 5 NWLR (pt. 761) 615; ALABI v. THE STATE (1993) 7 NWLR (pt. 307) 5; FABIYI v. THE STATE (2015) 6-7 SC (pt. 1) 83.
The Appellant has not shown any good and substantial reasons for this Court to interfere and/or disturb the concurrent findings that his guilt in the alleged culpable homicide punishable under Section 221 of the Penal Code of Katsina State had been established beyond reasonable doubt. The appeal, lacking in substance, is hereby dismissed in its entirety. The decision appealed is hereby affirmed.
Appeal dismissed.
SC.494/2016
