Jafiya Kopa Vs The State (1971)

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ADEMOLA, C.J.N. 

At the hearing of this appeal on 11th May, 1971, we allowed the appeal of the appellant; acquitted and discharged him on a charge of culpable homicide punishable with death contrary to section 221 of the Penal Code and stated that we would give our reasons later.

We now do so.

The appellant was tried at Maiduguri on 18th November, 1969 and sentenced to death. He was accused of killing one Massi, a woman, by stabbing her with a knife. There was no eye-witness to the killing and indeed there was no evidence connecting the appellant with the killing except a statement allegedly made by him confessing that he killed the deceased.

The learned Judge in his judgment stated that the case against the appellant turned on this confessional statement alleged made to the police, and that the prosecution’s case rests on the acceptance of the statement. He continued –

“It was held by the Federal Supreme Court in R. v. Chukwuji Obiasa (1962) 1 All N.L.R. 651, that if a person makes a free and voluntary confession which is positive, and is properly proved he may be convicted on the confession alone, without any further evidence.”

He was satisfied that the confession was free and voluntary and he convicted the appellant solely on it.

We have to point out that the learned trial Judge has not applied the tests in The Queen v. Obiasa to which he referred. The case decided more than the acceptance of a confession which is free and voluntary, positive and properly proved. It casts a duty on the trial Judge to test the confession as to its truth. The test can be applied as laid down R. v. Sykes (1913) 8 Cr. App. Rep. 233, by examining the confession in the light of other evidence.

As Ridley, J. puts the matter when examining the judgment of the court below in R. v. Sykes (supra), he said:

“I think the Commissioner (who heard the case) put it correctly; he said –

‘A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and is properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because confessions can always be tested and examined, first by the police and then by you and us in Court, and the first question you ask when you are examining the confession of a man is, is there any thing outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved before us?”

The learned trial Judge in the instant case did not carry out any of these tests at all despite the fact that the appellant denied making the confession attributed to him. He had denied this during the preliminary investigations and had accused the police of tying him up and beating him severely in order to make him put his thumb impression on some written – paper three in all, he said.

We now proceed to set out this alleged confession. It reads –

“Here is my statement about what I know concerning Vuwa’s wife by name Massi Miffi. On Monday the 7/10/68 at about 2100hrs, since about three months, I met Vuwa and so many other people gambling in Boima’s Compound Samuwa Lassa then I bought my drink and I was drinking, then Vuwa pull off his trouser and gown and pledged them to me at 2/-, I received them, afterwards I pity him as he was going naked, then I returned his dresses to him in presence of Boima and told him that if he get the money 2/- he will give it to me, but he did not give it to me, and whenever I asked him, he refused to give me my money and even his wife Massi used to abuse me instead. I did not go to their house again, until on Monday the 7/10/68. I left my house at Kopa and came to Lassa Market and spent the whole day there, until evening at about 2100 hrs. I went to Boima’s house for drink, there, I there Vuwa drinking with Boima. Yuma stopped drinking then held my hand and both of us went to Vuwa’s house. There he called his wife out and they spoke in Higi language. I don’t hear Higi, then Vuwa said to me, let us go to Bulama Sini. There Vuwa told me before Bulama Sini to pay for his fowl which I took from his house, so I told him that I did not take any fowl. So Bulama said so far he did not see anything in my hands he cannot detain me. Therefore he allowed me to go, and both of us went away and separate ourselves on the way, and he told me to go. After that I went to Vuwa’s house and met his wife by name Massi, she locked her house and she was in the house with her husband Vuwa and their two children. I did not know their names, they were sleeping. I light up my match and saw Vuwa and he was sleeping with his wife and children. Vuwa was sleeping at where his two children were. His wife was at the wallside. By then I was with my knife in my right hand and stabbed Vuwa’s wife by name Massi at her right rib. Then she shouted saying ‘Jafiya has stabbed me with a knife’, then I ran, when I was going I fell in front of his door on the way, I agreed. Both the knife and its scarbard, I left them where I fell. I continued going until I reached Bazza Day break, on the 8/10/68 I was at Bazza Market, then I came to Uba and slept in Vaundu house at Mayanka, the next day 9/10/68 in the day time I was drinking native liquor then NA Police came and arrest me and took me to Charge Office Uba. There I told lies against Fasiri Wagira Fampul that he was the one who stabbed the wife of Vuwa with a knife, but in real sense he was not the one who stabbed her. I am the one who stabbed her with a knife, for she had beaten me before, for that reason release Fasiri Wagira to go home. Now this entirely my own matter. That is all.”

We now examine and test the alleged confession on a few points. Counsel for the appellant in the court below did make a point, rightly in our view, that the policeman who took the statement said that when he charged the accused, he denied the charge and said “It is not so; I did not go to the village.” Two minutes later, he cautioned him and he volunteered the above statements. What had prompted him to change his mind so soon?

Many people were present, according to the policeman, when he took the statement, and yet although the appellant had denied this statement at the preliminary investigation, not one of these people had been called to give evidence.

Are the facts in the statement true when tested? We find they are mostly not true. The police did not find out if it was true that the appellant and the deceased’s husband, Vuwa, were gambling together two days earlier, nor did they find out if it is true that on the night the deceased was killed the appellant and Vuwa were together with Bulama Sini, and Vuwa made a claim for his fowl which the appellant had taken away.

We observe that Vuwa himself in his evidence stated he was not in his house, but was chatting some distance away with a friend when his wife was stabbed although the statement showed that he was in the house sleeping with his children and his wife all sleeping near him. Vuwa stated that his wife was shouting and ran out of the house with the wound and blood dropping from the wound and met him on the way running back home when he heard the shout.

It seems that the prosecutions stated that the stabbing took place at night, about 8 p.m. According to the evidence of P.C. Yola, it appeared the appellant was drinking with the 1st P/W (deceased’s brother) and one Boima till 9 p.m. that night. This is in accord with the statement made by the appellant. Others left him at 9p.m. still drinking. According to the statement (Exh. A2) the deceased was asleep when stabbed in the dark and the alleged statement was to the effect that he ran away as soon as he stabbed her. Yet the statement continued that the deceased shouted “Jafiya has stabbed me with a knife.” It is strange that she could know in the dark who stabbed her.

The statement went further to say that as he was running away fell down by the door way and he dropped the knife and scarbard which he left on the spot. There is no evid

Other Citation: (1971) LCN/1182(SC)