Ibrahim Bature Vs The State (1994)

LawGlobal-Hub Lead Judgment Report

ONU, J.S.C.

The appeal herein is sequel to the trial and conviction of the appellant by the High Court of Bauchi State sitting in Bauchi (per Ike Okoye, J.) on 16th September, 1986 for the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. The facts of the case are briefly that on the 14th day of February, 1985 at Kumo in Bauchi State, the appellant then walking on a road in company of other Fulanis, at about 10.30 p.m., had an altercation with the deceased, police constable Sabaru Garba, then in company of one Aishatu Alhassan. That the appellant stabbed him (the deceased) after both men engaged in a struggle and in the ensuing fight with a knife to his stomach, knowing that death would be the probable consequence of his act. The prosecution called seven witnesses in all while the appellant testified and called one witness for the defence. The trial court, in a well considered judgment, convicted and sentenced the appellant to death.

Being dissatisfied with the decision, the appellant appealed to the Court of Appeal, Jos Judicial Division, (hereinafter referred to as the court below) which, in a reserved judgment, dismissed the appeal on 15th May, 1991. It is against the said judgment that the appellant has now appealed to this court after seeking and obtaining the leave of court for an extension of time to do so on 8th May, 1992.

On 4th November, 1993 when this appeal came up for hearing before us, learned counsel for the appellant, Mr. James, moved his application for leave to argue additional grounds of appeal, to deem those grounds as duly filed and served, extension of time within which to file appellant’s brief already filed and to deem same as properly served. As there was no opposition from Mr. Jauro of counsel to the respondent, the prayers were accordingly granted. Mr. Jauro, on behalf of the respondent then withdrew an application dated 28th September, 1993 which he said was not well grounded. As there was no objection thereto from Mr. James. That application was accordingly struck out. It was at that point in time that Mr. Jauro urged the court to deem the respondent’s brief filed within time to be deemed as duly filed. The court having acceded to his request and both briefs having been hitherto exchanged between the parties, the hearing of the appeal proper was then embarked upon.

On behalf of the appellant in his brief, two issues – a primary and a secondary issue – were submitted for our consideration viz:

1. Primary Issue:

Was the trial High Court which heard this case in the first instance competent to entertain it; and

2. Secondary Issue:

Having regard to the evidence before the trial High Court particularly exhibits A, A1, B, B1 (i.e. the Statement (sic) of the accused) especially when tested as to their truth by examining them in the light of other evidence, were the learned justices of the Court of Appeal right in affirming the judgment of the trial High Court.

The respondent on the other hand in his brief, formulated three issues for determination, all of which in essence, boil down to and coincide with the appellant’s two. For, while respondent’s issues 1 and 2 overlap appellant’s issue 1, its Issue 3 is identical with appellant’s secondary Issue i.e. 2. They are:-

1. Whether leave to prefer a charge against the accused person was granted by the trial High Court as required by section 185(b) of the Criminal Procedure Code.
2. Whether failure to grant the leave vitiates the proceedings and renders it a nullity.
3. Whether the confession by the appellant in his confessional statement to the police is direct, positive and unequivocal and satisfied the test laid down in R. v. Obiasa (1962) 2 SCNLR 402; (1962) 1 All NLR 651.

In the consideration of this appeal, I intend to stick to the appellant’s two issues as submitted.

Issue 1

In the written submission in the appellant’s brief, the kernel of learned counsel’s contention is that the High Court which heard this case at first instance was not competent to entertain the case. He therefore argued, that it is common ground that the offence for which the appellant as accused was tried is triable by the High Court. Thus by section 185(b) of the Criminal Procedure Code Cap.30 of the Laws of Northern Nigeria, 1963 applicable to Bauchi State, “No person shall be tried by the High Court unless a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court.” The procedure for obtaining such leave of a Judge, he maintained, is contained in the criminal procedure (Application for Leave to prefer a charge in the High Court) Rules. 1970. He then argued that it is common ground in this case on appeal that the appellant was not committed for trial to the High Court after the holding of a Preliminary Inquiry. It is therefore clear, he contends, that the condition precedent to the exercise of jurisdiction to try the appellant by the High Court must be obtained – a requirement which is not only mandatory by the use of the word “SHALL” but is also fundamental in that it goes to the root of the entire proceedings. After citing in support thereof the provisions of section 131(1) of the Evidence Act, learned counsel submitted that applying those provisions to those of section 185(b) of the Criminal Procedure Code (Ibid). It becomes clear that when leave of a Judge of the High Court is sought and obtained, evidence of same can only be by reference to the order granting the leave which must ordinarily contain the name of the Judge that grant it as well as the date it was granted. He therefore maintained that looking at the record of appeal herein, pages 1 to 17 contain the application of leave to prefer the charge against the appellant under section 185(b) of the Criminal Procedure Code (Ibid) but that there is nothing to show that the leave sought was granted and if so by whom and on what date. He therefore submitted that the High Court which heard this case had no jurisdiction to entertain it by reason of non-compliance with the condition precedent to the exercise of its jurisdiction. Thus, it is further contended, the court below erred in law in affirming the decision of the said High Court, which to all intents and purposes, amounts to a nullity. Reliance was placed on the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 587; Skenconsult Nig. Ltd & Ors. v. Ukey (1981) 1 S.C.6 at 18 approving Macfoy v. U.A.C. Ltd. (1962) A.C.152. Should the submission succeed added learned counsel, that is the end of the appeal since the competence of a court to try a case is fundamental.

The oral submission of learned counsel at the hearing of the appeal on 4th November, 1993 herein before alluded to, took the same trend as in his written brief. Suffice it to say, that the following dialogue which took place between James, Esq. learned counsel for the appellant and this court, sheds light on the matter as follows:-

Court to Mr. James:- Have you read page 1 of the Record of proceedings (bottom of page) to see a signature there signifying approval to prosecute the case

James: – I have

Court: – You were not in the case in the trial court and in the Court of Appeal where this point was not taken up

James: Yes

Court:- You had not sought this court’s leave to argue this point

James: Yes. But I refer to Criminal Procedure (Applications for Leave to Prefer a charge in the High Court) Rules, 1970, particularly Rule 3(2) and (4) thereof. Further, I submit that the Judge must hear the parties on the matter and rule on it. I, however, concede that there is no format in which the approval to prefer a charge is given.

Court:- You concede that the act is therefore purely administrative

James:- I do, but I contend that the approval must be express.

The learned Director of Public Prosecutions for his part submitted that it would now be too late in the day for the point raised by learned counsel for the appellant to be taken as an objection at the Supreme Court and in the Court of Appeal. He called in aid the case of Okaroh v. The State (1991) 1 NWLR (Pt.125) 128. He further argued that even if the complaint of the appellant was correct the lapse only amounted to an irregularity since it did not occasion a miscarriage of justice and the lapse was cured by section 382 of the Criminal Procedure Code. He relied for this submission on Okegbu v. The State (1979) 11 S.C. 1. Learned Director of Public Prosecution further submitted that omission, if any, would only amount to a technicality which should not be allowed to interfere with the attainment of substantial justice. He relied on the dicta of Obaseki, J.S.C. in Ogbomor v. The State (1985) 1 NWLR (Pt.2) 223 of Eso, J.S.C. in The State v. Gwonto (supra) and of Nnaemeka-Agu, J.S.C. in Okaroh v. The State (supra).

It will be pertinent here in answer to the appellant’s complaint to the effect that no leave was granted by the trial Judge for the prosecution to prefer a charge against the appellant as required by section 185(b) of the Criminal Procedure Code, by firmly stating that a glance at page one of the Record of Proceedings, clearly shows at the bottom of that page after the last paragraph thereto, that an approval to prefer the necessary charge was given by the trial Judge and this on 21st August, 1985. The words used there are expressly “Application approved to prefer the necessary charge.” And as against those express words, is the signature of the writer. I take judicial notice of the fact that as at the time 21st August, 1985, there was a Judge of the Bauchi State High Court called Bisi Kolawole (now of blessed Memory). The signature indicates the name ‘Kolawole’ and I have no difficulty in arriving at the conclusion that the approval of the application to prefer a charge under section 185(b) of the Criminal Procedure Code was given by him and that satisfied the Procedure to be followed. It is in this regard that the maxim Omnia Praesumuntur Solemniter esse acta,” that is to say, “all acts or things are presumed to have been done rightly and regularly,” amptly comes into play here. See The State v. Gwonto & Ors. (1983) 1 SCNLR 142; (1983) 14 NSCC. 104 and Locknan & Anor. v. The State (1972) NSCC. 30.

Now, section 185(b) of the Criminal Procedure Code under which the Criminal Procedure (Applications for Leave to Prefer a charge in the High Court) Rules, 1970 (hereinafter referred to as the Rules) provides mandatorily that

“No person shall be tried by the High Court;

(a) (not applicable)

(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a Judge of the High Court.”

Rule 3(2) and (4) of the Rules states:

“3(1): (Not applicable)

(2):- Where no proceedings have been taken under Chapter XVII of the Criminal Procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and

(a) there shall accompany the application proofs of evidence of the witnesses whom it is proposed to call in support of the charge; and

(b) the application shall include a statement that the evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs, is to the best of the knowledge, information and belief of the applicant, a true case.

(3) (Not applicable)

(4) It shall not he necessary for the applicant to appear before the Judge when all application is made under rule 3 or for the respondent to he put on notice when an application is made under either rule 2 or rule 3; provided that the Judge may, if he sees fit, order in any application under these rules that the respondent be put on notice and that he be served with a copy of the application and supporting papers; and in that event the Judge shall give both parties an opportunity of being heard before reaching a decision on the application.” (Italics is mine for emphasis).

In the case in hand, as the steps required to be taken as stipulated in the rules above are silent as to whether it should be in open court or in chambers to wit: as they do not require the appearance of the applicant before the Judge nor that he be put on notice when the application is made by or on his behalf and learned counsel concedes that he was neither in the case at the trial stage nor on appeal in the court below, the presumption of regularity hereinbefore referred to, comes into play.

In the light of what I have said above, it cannot be said that the appellant was misled, embarrassed or even prejudiced to such an extent that he did not know or appreciate what he was facing or what transpired in the proceedings in the trial court. The appellant clearly, in my opinion, therefore cannot rely upon such an omission, if any, to vitiate the trial. This is because such a point should not be hung unto as a technicality to defeat the ends of justice. After all the rules have not expressly provided that for such an approval, leave shall be given in Chambers or in open court. Invariably, under the rules, an accused person has not much to do with the actual moving of the application, provided his counsel would have hitherto been served with copies of the proofs of service. I am here not to be taken as saying that the grant of leave to prefer a charge ought not to be expressly given or stated in the record of the trial court. Rather, what I mean is that mere technicalities (as opposed to substantial justice upon which the law looks with seriousness) as depicted in the instant case ought not to be allowed to defeat the end of justice. For as Obaseki, J.S.C. pointed out in Oghomor v. The State (supra) at page 240:

“The dictates of justice which demand that the guilty be punished and the innocent set free after a fair hearing under procedural irregularity do not permit the acquittal of an otherwise guilty accused person upon fanciful errors contained in the charge. The law always aims at substantial justice.”

See also The State v. Gwonto (supra) where Eso, J.S.C. had this to say:

“The court has for sometime now laid down as a guiding principle that it is more interested in substance than in mere form – justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”

And in Okaroh v. The State (supra) Nnaemeka-Agu, J.S.C. at page 136 said inter alia:

“…….criminal justice in our courts is a matter of substance and not one that can be achieved by striking around for any tenuous twig of irregularity and technicality.”

Be that as it may in the instant case, I cannot see myself agreeing with the learned Director of Public Prosecutions’ submissions that had there been non-compliance with the provisions of section 185 of the Criminal Procedure Code, it constitutes a mere irregularity curable by section 382 of the Code which provides:

“382. Subject to the provisions hereinbefore contained, no findings, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error, omission, warrant, charge, public summons, order, judgment or other proceedings before during or during trial or any inquiry or other proceedings under this Criminal Procedure Code unless the Appeal Court of reviewing authority thinks that a failure of justice has in fact been occasioned by such error, omission or irregularity.”

This is because the authorities called in aid by him above can only be relevant where the breach complained of is a mere irregularity. They do not apply where such a breach or non-compliance goes to the root of the matter. For instance, where the question is as to the competence or jurisdiction of the trial court, if raised at any stage, even on appeal, will be entertained and the proceedings wrongly embarked upon declared a nullity vide Madukolu v. Nkemdilim (supra): Macfoy v. U.A.C. (supra) and Skenconsult Nig. Ltd & Anor v. Ukey (supra).

In the instant case in which I am not persuaded from the surrounding circumstances to hold that there was a breach of the provisions of section 185 of the Criminal Procedure Code (although the recording of the grant of the leave to prefer a charge against the appellant could have been better done to leave no room for the confusion as herein aroused) the proceedings are, in my view, not rendered a nullity.

Consequently, the trial High Court, in my firm view, was competent to try the appellant and was possessed of the jurisdiction to do so. The provisions of section 382 of the code would similarly have no application here.

In result, I hold that the approval given by the trial Judge at page 1 of the Records I earlier alluded to, amounts to a proper leave to prefer a charge against the appellant. I accordingly answer issue one (primary issue) in the affirmative.

Issue 2:

Coming to Issue 2, it is settled law that if a person makes a free and voluntary confession which is direct, positive, true and unequivocal and made out of consciousness of the necessity to uphold truth even in the face of death, it can and has been held by the Supreme Court in several cases, sufficient to support a conviction of murder. See R. v. Obiasa (supra): Jimoh Yesufu v. The State (1976) 6 S.C.167 at page 173; Achabua v. The State (1976) 12 S.C.63 at page 68; Inusa Saidu v. The State (1982) 4 S.C.41 and Obosi v. The State (1965) NMLR 119 at page 123.

For a confession to be upheld as set out in R. v. Obiasa (supra) it should be tested as to its truth by examining it in the light of other evidence to determine whether:-

(a) There is anything outside it to show that it is true;

(b) It is corroborated;

(c) The facts stated in it are true in so far as can be tested;

(d) The accused had opportunity of committing the offence;

(e) The accused’s confession is possible;

(f) The confession is consistent with other facts which have been ascertained and proved.

See also Akpan v. The State (1990) 7 NWLR (Pt.160) 101 at 109.

In the English translations of the appellant’s Statements to the Police (Exhibits A1 and B1) which are confessional in nature, the appellant said inter alia:

EXHIBIT A1

“……..Yesterday being Thursday 14/2/85 at about 22 hours in the night although I was not with watch, I left in a certain house of drink from Kumo town on my way going home myself alone I met with someone together with a lady when we met he just abuse me saying that to who fathers house I am going then I myself answered him that I am going to his mothers house from there he came on me with the intention of getting me arrested as such I beat him with my stick but he still got hold of me and take away my stick from my hand immediately I see saw I then bring out my knife and chuck him with it but still the man got hold of me with my knife and get me down almost about three times, when we were on the struggle some one came and met us and I heard him holding me and get me arrested to the Police Station.

And I don’t know that the person I was fighting with him is a Government Civil Servant and also the man did not beat me with any stick or with anything.”

EXHIBIT B1

“…….being Saturday 16/2/85 about 0800 hours in the morning when I was in the cell on the matter that were I chuck a police someone who was later came to my notice on 14/2/85 that Thursday he is a policeman the person or the police officer investigating my case whom I don’t know his name but later on introduce himself to me as Insp. Isah Abubakar inform me that the said police whom I chuck with my knife had died at General Hospital, Kaltungo on 15/2/85 although I have been hearing the death but I was not informed directly till on 16/2/85 …..”

True it is that the trial Judge first, in finding the appellant guilty of the offence of culpable homicide in the instant case, relied in the main on the statements made by him (appellant) namely Exhibits A, A1, B and B1 respectively.

Secondly, having discountenanced the evidence of PW1 and PW5 as eye-witnesses to the commission of the offence, the learned trial Judge however relied on the evidence of PW2, the Medical Doctor who treated the deceased before his death to convict the appellant.

Now, it is the contention of the appellant that Exhibits A1 and B1 did not satisfy all the tests set out above and that the appellant ought to have been convicted under section 222(4) of the Penal Code and not section 221 of same. The reason for such a submission we are told, is that if the stabbing took place during the course of the fight between the appellant and the deceased, it follows that the appellant did so in defence of himself and not knowing that death would be the probable consequence of his act.

With utmost due respect, there can be nothing farther from the truth. In the first place, there was never a time that the appellant denied making Exhibits A, A1, B and B1 which as pointed out above, are confessional in nature. All that appellant admittedly alleged was that he killed the deceased either accidentally or in self-defence. Both these, the learned trial Judge rightly, in my view, considered and rejected including the fact of his having lost two teeth in the encounter, a defence which the learned trial Judge regarded as an after-thought. Secondly, quite apart from the confessional nature of the statements (it is no use picking out Exhibits A and A1 alone to be impugned) the evidence of PW2, the Medical Doctor who examined and treated the deceased before he (deceased) died gave the cause of death to be due to abdominal injury with a sharp object which could not have been self-inflicted. In addition, PW4, Inspector Isa Abubakar, through whom these statements were received in evidence, also said that he observed the abdominal injury inflicted on the deceased and through him too, were received the appellant’s stick, gown and knife (Exhibit C) – all of which were consistent with other facts which have been ascertained and proved at the trial. Hence, the defence of self-defence could not avail the appellant, in as much as the confession in Exhibits A, A1; B and B1 were direct, positive, free and voluntary. Also, that appellant exchanged some words of abuse with the deceased could not, in my view, be said to constitute enough provocation to warrant the beating of the deceased first with a stick and after the stick was taken away from him, for him to wield a lethal weapon such as Exhibit C, on the deceased. See Itule v. Queen (1961) 2 SCNLR 183 at 187; (1961) 2 NSCC 221; (1961) All NLR 462 in which at pages 224 and 465 respectively of the Reports, Brett, Ag. Chief Justice of the Federation said:

“A confession does not become inadmissible merely because the accused person denied having made it, and in this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession; R. v. Kanu and another 14 WACA. 30. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial: R. v. Sapela & Anor. (1957) SCNLR 307; 2 F.S.C.24 but it is not itself a reason for ignoring the statement.”

The appellant being the aggressor through and through, he was, in my judgment, rightly convicted by the trial court and the court below was justified in affirming same based on his confession. See Udofia v. The State (1984) 15 NSCC. 836 where this court held that:-

“Issues of facts, evaluation of evidence and credibility of witnesses are peculiarly within the exclusive competence of the trial court. An appellate court is bound by the findings of a trial court.”

See also Adaje v. The State (1976) 6 – 9 S.C.18.

Besides, there is outside the appellant’s confession, which in this case was not retracted at the trial or were the need to have arisen, even outside the evidence of PW2 (the doctor) in as much as the deceased virtually died at the scene of crime from the fatal; injuries inflicted on him by the appellant, from which to have logically inferred the cause of death.

Indeed, as this court held recently in the case of Eghoghonome v. The State (1993) 7 NWLR (Pt.306) 383, where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such a u-turn does not necessarily make the confession inadmissible. See R. v. Kanu (1952) 14 WACA 30; The Queen v. Itule (1961) 2 SCNLR 183; (1961) 2 NSCC 221: (1961) All NLR 462; The Queen v. Obiasa (supra): Mumuni v. The State (1975) 6 S.C.79; Aremu v. The State (1984) 6 S.C.85; Ejinima v. The State (1991) 6 NWLR (Pt.200) 627;Akpan v. The State (1992) 6 NWLR (Pt.248) 439 and Akinfe v. The State (1988) 3 NWLR (Pt.85) 729 to mention but a few.

In conclusion, even if the stabbing took place during the fight, which was a consequence of the struggle, the appellant cannot, in my view, seek refuge in section 222(4) of the Penal Code to escape liability as he was depicted as having acted in a most cruel and unusual manner. The force and manner of his (appellant’s) reaction to his being threatened by the deceased, if indeed the deceased did same before the fight ensued, was excessive and disproportionate to the imagined provocation (see Obaji v. The State (1965) NMLR 417.

Moreso that the deceased was unarmed. See Njoku v. The State (1993) 6 NWLR (Pt.299) 272; (1993) SCNJ 36. Appellant’s life was never in danger at any point in time: not even when he asserted so in his defence which the trial Judge rejected; nor that he was thrown to the ground three times by the deceased and in the process lost two teeth – an assertion that was rightly rejected by the two courts below as an after-thought.

I am therefore satisfied, for all the reasons set out above, that Exhibits A1 and B1 did indeed satisfy the test laid down in R. v. Obiasa (supra) and the defence under section 222(4) of the Penal Code clearly would not avail him. My answer to Issue 2 (secondary Issue) is accordingly rendered in the affirmative.

It is in the light of the foregoing that I find no merit in this appeal and so dismiss it. The decision of the court below is accordingly affirmed by me.

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Other Citation: (1994) LCN/2650(SC)