Jimoh Salawu V. The State (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the decision of H. A. Olusiyi J. of the High Court of Justice Kogi State sitting at Okene delivered on the 24th day of June, 2008.

The fact of the case as presented by the Prosecution witnesses who were Policemen is that at about 8.45 p.m. on 6/10/2003 while patrolling along Okene-Auchi Road, the Appellant emerged from the bush with a torchlight in his hand, sweating and covered with dust while his motor cycle (a Vespa) was packed by the road side. When the Appellant could not satisfactorily explain his presence at such a deserted place and at such time of the night, the policemen took him to Police Station at Okene and detained him for the night. The following morning, the policemen went back and searched the area where the Appellant was arrested and their search yielded the naked corpse of a young woman, a knife, invitation cards for a wedding with the picture of the dead woman and a man on it, a lady’s handbag and the sum of N10,000.00, They reported their discovery to the Police Area Commander.

Parties have exchanged their Brief. The Appellant’s Brief of Argument dated 6th October, 2008 was filed on 9th October, 2008 whilst the Respondent’s Brief of Argument dated 22nd October, 2008 was filed 23rd October, 2008.

From the Eleven grounds of Appeal contained in the Notice of Appeal, three Issues are distilled on behalf of the Appellant for the determination of this Appeal and they read as follows:

“1. Whether the prosecution had proved a case of Culpable Homicide punishable with death against the Appellant?

2. Whether the purported confessional statements (Exhibits 1, 2 and 3) were rightly admitted in evidence and rightly utilized by the learned trial Judge?
3. Whether the decision of the learned trial Judge was based on a proper evaluation of the evidence adduced at the trial?”

On behalf of the Respondent, the following Issues are raised for the determination of this Appeal:

“1. Whether the identity of the deceased HASSANAT HUSSEINI was proved beyond reasonable doubt by the Prosecution.

2. Whether Exhibits 1, 2 and 3, the Confessional Statement of the Appellant to the police were properly admitted and relied upon by the learned trial Judge in convicting the Appellant.
3. Whether the Prosecution has proved the guilt of the Appellant beyond reasonable doubt.”

The issues formulated by both parties are identical but I shall adopt the issues as formulated by the Appellant for the determination of this Appeal.

Issue No. 1:

“Whether the prosecution had proved a case of Culpable Homicide punishable with death against the Appellant.”

A.M. Aliyu, Counsel for the Appellant submitted that the burden in criminal cases is on the prosecution to prove its case beyond reasonable doubt. He maintained that this burden does not shift and that in proving beyond reasonable doubt, the prosecution must establish with credible evidence all elements or ingredients of the offence. Counsel referred the Court to the case of Tunde Adaya v. The State (2007) 2 SCNJ 259 at 261.

He maintained that to sustain a conviction for Culpable Homicide, the prosecution must establish that:

i. The deceased died,

II. The unlawful act or omission of the accused caused the death of the deceased, and

iii. The act or omission of the accused which caused the death of the deceased must have been intentional with knowledge that death or grievous bodily harm was its probable consequence.

The Court was referred to the case of Edwin v. The State (1992) 2 NWLR Pt. 222 page 164 at 198 paras C-D.

A.M. Aliyu submitted that the prosecution has failed woefully to prove the essential elements of the offence of Culpable Homicide as its case was characterized by manifest inconsistencies and that the learned trial Judge ought not to have convicted the Appellant.

Counsel for the Appellant maintained that it was the evidence of the prosecution (PW2 and PW5) that the Appellant was arrested and taken into custody on 6th October, 2003 and that the following morning 7th October, 2003 when the policemen returned to the place where they arrested the Appellant and started ransacking the bush, they allegedly discovered the body of the deceased whose death was alleged to have been caused by the Appellant.

Counsel submitted further that from the evidence of the prosecution, the Policemen took the corpse to the hospital on that same day (i.e. 7th October, 2003) for post mortem and he referred the Court to page 85 lines 15-17 of the Record of Appeal.

A.M. Aliyu maintained that it was the evidence of PW4 (the medical doctor who allegedly received the corpse and performed the post mortem examination) that he received the corpse on the 17th October, 2003 in the afternoon and that the corpse as at 17th October, 2003 was almost fresh as there was no rigor mortis. Counsel for the Appellant pointed out that item 5 on Exhibit 4C which was made by PW4 shows that the corpse was sent by the police on 17th October, 2003 for examination.

He also referred the Court to Exhibits 4A and 4B which are the coroner’s form for death report and order for post mortem examination in respect of the body of the alleged deceased. Counsel maintained that on Exhibit 4A, It was clear that the body of alleged deceased was sent to the medical officer on 17th October, 2003 while items 4, 5, 7, 10 and 14 of Exhibit 48 clearly stated that the body allegedly killed by the Appellant was found by the police on 16th October, 2003 at about 2040 hours along Okpela Road and the deceased died as a result of stabbing and beatings yet Exhibit 4D which PW4 claimed to have filled at a later day and not on the day he examined the corpse alleged that PW4 held post mortem examination on 17th October, 2003.

Counsel for the Appellant submitted that the evidence in Exhibits 4A, 4B, 4C and 4D are inconsistent and that the inconsistencies should not be ignored as they are material because if the corpse was without rigor mortis on 17th October, 2003, can such a body be said to have died earlier than 16th October, 2003 or thereabout) Or can a corpse which death is said to have occurred for more than 10 days be as fresh as described by PW4? He further maintained that such death could only have occurred 48 hours prior to 17th October, 2003.

A.M. Aliyu argued that the accused, who was arrested on 6th October, 2003 cannot be said to have killed the deceased, who, from the evidence of PW4 and Exhibits 4A and 4B died at least 10 days after the Appellant was taken into custody.

Counsel maintained that the learned trial Judge erroneously held that there was no material contradiction in the evidence of the prosecution. He submitted that the learned trial Judge failed to advert his mind to the big doubt as to the material element of the charge against the Appellant, which must show that the act of the accused actually caused the death of the deceased.

Counsel urged the Court to hold that the content of Exhibit 4C which corroborates the testimony of PW4 that he received the corpse of the deceased on 17th October, 2003 created a reasonable doubt as to whether the accused could have killed a person when he was, at the time, in police custody. He further submitted that there are material contradictions in the case of the prosecution as to create reasonable doubt in the mind of the Court which ought to have been resolved in favour of the accused person.

A.M. Aliyu maintained that cause of death is always a fact in issue in homicide cases and where cause of death is not proved to the satisfaction of the Court, a conviction for culpable homicide cannot be sustained. He referred the Court to the case of Ahmed v. State (2003) 12 SCNJ 1 at 7 and submitted that the cause of death was not attributable to the Appellant.

Counsel for the Appellant argued that the Appellant was charged for culpable homicide punishable with death for allegedly killing the deceased by doing an act to wit:

“… inflicting bodily blows on her with your hands with the intention of causing her death and thereby…”

He maintained that according to the evidence of PW4, it was the deep cut on the forehead of the deceased that caused the death of the deceased and that PW4 did not state that whether dealing a bodily blow with hands as alleged in the Charge can cause the cut so described as to result in death.

A.M. Aliyu submitted that Exhibits 4B, 4C and 4D revealed that the deceased died of wound from stabbing. He further submitted that if the deceased died by stabbing instead of blows as alleged in the Charge, the Prosecution cannot be said to have proved its case against the Appellant beyond doubt.

He urged the Court to hold that the prosecution in this case has not proved that the cause of death of the alleged deceased was attributable to the acts of the Appellant.

Counsel for the Appellant submitted that the inconsistency as to the cause of death as seen in the evidence of the prosecution and the Charge Sheet ought to have been resolved in favour of the Appellant.

In his response, Counsel for Respondent Joe Abrahams submitted that the submissions of Counsel for the Appellant on this issue as attractive as they appear cannot stand close scrutiny when closely examined against the evidence in this case especially the evidence of PW2 and PW5. He referred the Court to the evidence of PW2 at page 765 lines 28-35 and page 767 lines 1-32 of the Record.

Counsel maintained that PW5 testified that he was one of those who went to the scene of the crime and that PW5 identified the photographs of the corpse of the deceased at the scene of the crime taken on 7th October, 2003 which were tendered as Exhibits 6A, 6B and 6C in the trial Court and also identified Exhibit 5 which was the Invitation Card to the wedding of the deceased with her picture and that of her fiance’ on it.

Joe Abrahams submitted that Exhibits 5, 6A, 6B and 6C were tendered without objection through PW1 and he referred the Court to page 72 of the Record.

He further submitted that when the case was transferred from Okene Police Station to the State CID Lokoja on 10th October, 2003, PW1 took over the case and filled Exhibits 4A and 4B.

Counsel for the Respondent maintained that a close examination of Exhibits 1, 2, 3, 4A and 4B shows that the handwriting on them is the same as that of PW1.

He submitted that at the time PW1 submitted Exhibits 4A, 4B, 4C and 4D to the Doctor, PW4; PW4 had already done the post mortem examination and that this explains why the lower portion of Exhibit 4C and the whole of Exhibit 4D which were filled by PW4 give the approximate date of death to be 6th October, 2003. Whilst the column on Exhibit 40 which requires the statement of the time of performing the autopsy was stated by the Doctor to be 7th October, 2003.

Counsel argued that when PW4 dated Exhibits 4C and 4D 17th October, 2003, PW4 must be referring to the date he filled Exhibits 4C and 4D. He referred the Court to the evidence of PW4 on page 83 lines 31-33 of the Record where he testified to the fact that he performed the post mortem examination on the corpse on the very day it was brought and filled the forms at a later date.

Joe Abrahams submitted that PW4 also testified that the deceased’s corpse was identified to him by the father and that PW4’s description of the corpse also matches the description of the corpse recovered by the police from the scene of the crime. He argued that the Appellant’s Counsel did not put the identity of the corpse in issue during cross-examination at the trial Court.

Counsel further submitted that when PW4 said that the corpse of the deceased was presented to him for post mortem examination on 17th October, 2003, he was clearly mistaken as Exhibits 4C and 4D clearly show that he examined the corpse on 17th October, 2003 and he referred the Court to the case of Pius Nweke v. State (2001) 2 SCNJ 12; 22.

Joe Abrahams maintained that PW5 also confirmed that the deceased was taken to Okene General Hospital on 7th October, 2003 for post mortem examination. He submitted that when Exhibits 5, 6A, 6B, and 6C are taken together with the evidence of PW1 and PW5 vis-a’-vis Exhibits 4C, 4D, 1, 2, 3 and 9, it is undisputable that the prosecution has proved its beyond reasonable doubt.

The ingredients of the offence of Culpable homicide punishable with death under Section 221 of the Penal Code are:-

(a) That the death of humans being has actually taken place.

(b) That such death has been caused by the accused.

(c) That the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury, as

(i) The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act or

(ii) That the accused knew or had reason to know that death could be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.

All the ingredients must be proved or must co-exist before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal.

Where there is no evidence to prove that the accused had anything to do with the death of the deceased no conviction can stand, and where the medical evidence does not show that the deceased met with a violent death no charge of culpable homicide punishable with death can be brought.

The onus of proof is on the prosecution throughout the trial and does not shift. See Adaya v. State (2006) 9 NWLR Pt. 984 page 152 at 167.

It is the duty of the prosecution to prove the guilt of the accused and rebut the presumption of innocence.

The standard of proof required to discharge this burden is to prove the commission of the offence by the accused beyond reasonable doubt. See Section 138(1) of the Evidence Act.

The standard of proof is not proof beyond all doubt or proof beyond a shadow of doubt but proof beyond all reasonable doubt.

The doubt must be reasonable and it is not sufficient to raise an improbable doubt or a slight doubt or an unlikely doubt or a doubt which is not supported by credible evidence in the case.

In Bakare v. The State (l987) NSCC 267 at 273 Oputa JSC said:-

“Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt, No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically, exclude unreasonable doubt. Fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the surrounding circumstances of the case.”

Section 141(3) (a) of the Evidence Act requires that the prosecution has an obligation to re-establish by evidence according to law any act, omissions or intentions which are legally necessary to constitute the offence.

The Appellant was found guilty of the 2nd Head of charge and was convicted and sentenced to death by hanging. The said head of charge reads as follows: –

“2ND HEAD OF CHARGE

That you, Jimoh Salawu and Abolarinwa Ewedayo, on or about the 7th of October, 2003 at Okene, in Okene Local Government Area within the Kogi State Judicial Division in furtherance of your common intention did commit culpable homicide punishable with death in that you caused the death of Hassanat Hussaini by doing an act to wit: inflicting bodily blows on her with your hands with the intention of causing her death and thereby committed an offence punishable under Section 221 of the Penal Code read along with S. 79 of the same Code.”

In this issue, the Appellant is challenging the finding of the trial Court that the offence of culpable homicide has been proved against him. I have earlier stated in this Judgment the ingredients of the offence of culpable Homicide punishable with death which must be established against the Accused person beyond reasonable doubt.

The Appellant has insisted that the offence for which he was charged has not been proved against him. He insisted that the prosecution failed woefully to prove the essential ingredients of the offence of culpable homicide as the case of the prosecution in his opinion was characterized by manifest inconsistencies and that the learned trial Judge ought not to have convicted him.

It is the evidence of PW2 Danlami Bako a Mobile Policeman that while on patrol along Okene-Auchi Road on 6/10/2003, they say a Vespa Motor-cycle parked by the roadside at a point about 10 Kilometers outside Okene. They stopped and ordered the owner to come forth from the bush otherwise they will open fire on him in his hiding place. PW2 said that the accused person emerged from the bush at about 8.45 p.m. covered in dirt and holding torchlight. When they discovered that he cannot give a reasonable account of what he was doing at that place during that hour of the day, they took him and his motor-cycle and handed him over to the police under the Area Commander’s Unit at Okene and they went back on their patrol which lasted throughout the night. On their way back the next morning which was on 7/10/2003 they stopped at the spot where they picked the accused person and combed the bush around the area. He said they discovered the body of a dead lady covered with leaves.

In the team with him, PW2 said were Cpl. Abdukadir Suberu, Cpl. Solomon John, Cpl. Michael Okime, P.C. Abubakar Yinusa and their driver who was not a policeman. PW2 said he was the leader of the team.

On the 6th and 7th October 2003, the 1st Accused/Appellant was said to have made statement, Exhibits 8 and 9 which the prosecution said were confessional statements.

Throughout trial the 1st Accused/Appellant maintained that the only statement he made is that of 6/10/2003 Exhibit 8. He denied ever making Exhibits ‘1’, ‘2’, ‘3’ and ‘9’.

Exhibit 1 which the prosecution claimed to be confessional statement was recorded on behalf of the Appellant on 10/10/2003 at State C.I.D. lokoja. Exhibit 2 recorded on 10/10/2003 implicated the 2nd Accused one Alhaji Abolarinwa Ewedayo who lives in Ibadan.

Exhibit 3 was recorded 16/10/2003 at the State C.I.D. lokoja and it gave further information implicating the herbalist from Ibadan.

The trial Court seemed not to have believed the content of Exhibits 2 and 3 and the 2nd Accused was discharged and acquitted.

The Appellant had argued that there are material contradictions in the evidence of the prosecution as to the identity of the deceased. Counsel to the Appellant argued that the certainty of the identification of the deceased is a legal requirement, and that the failure of the prosecution to establish unequivocaliy the fact of the death of Hassana was fatal to the prosecution’s case.

In order to secure conviction on a charge of culpable Homicide punishable with death the prosecution as I have said earlier in this Judgment must prove inter alia

(a) that death of a human being has occurred.

(b) That it resulted from the acts of the Accused person.

(c) That the act was intentional with knowledge that death or grievous bodily harm was its probable consequence. See:

Adava v. State (2006) 9 NWLR Pt. 984 page 155;

Igabele v. State (2006) 6 NWLR Pt. 975 page 100;

Ubani v. State (2003) 18 NWLR Pt. 851 page 224;

Uguru v. State (2002) 9 NWLR Pt. 771 page 90.

The first ingredient of the offence of culpable Homicide punishable with death to be established by the prosecution is ‘that the death of a human being actually took place’.

PW2 and PW5 in their testimony stated that the body of a woman was found in a bush along Okene-Auchi Road on the ground covered with sand, and leaves, with blood stain on her forehead.

PW2 in his testimony at page 77 lines 11-22 of the Record of Appeal said:-

“While returning the following morning, we stopped at the point where the Vespa was packed the previous night.

I deployed my men to go into the bush in the direction where the 1st Accused came out from, One of my men, Cpl. Abdulkadir Suberu, rushed back from the bush together with Cpl. Solomon John and told me that they saw a corpse of a woman on the ground, naked. I followed them to the scene where I confirmed it. I saw a corpse of a woman lying on the ground covered with sand and leaves. There was blood stain on her forehead. We rushed down to the Area Commander’s office in Okene and reported our discovery.”

PW5 in his testimony at page 85 lines 14-20 said:-

“When we went to the scene of crime, we saw the corpse of a body in a shallow grave. A photograph of the scene was taken after which I removed the corpse to the General Hospital, Okene for post mortem examination.

Exhibit ‘5’ is the invitation card we saw in the deceased’s handbag. Exhibit ‘6A’-6C’ are the photographs of the deceased at the scene of crime.”

Having established that the death of a human being had taken place, the next duty of the prosecution is to prove that such death was caused by the Appellant.

In establishing this ingredient the evidence of PW5, PW4 and PW2 are pertinent.

PW5 in his evidence in chief at page 85 said he took the Mobile Police Officer who came to report the discovery of the corpse to the Area Commander who directed that the 1st Accused/Appellant be brought from the cell to say what he knew about the corpse. The witness said that the Appellant told them that he killed the lady and the reason why he did that. PW5 at page 85 of the Record of Appeal said:-

“The 1st Accused person told us how he killed the deceased lady and took us to where he hid the deceased’s handbag containing the sum of N10,000 and other things including a wedding ceremony invitation card. Thereafter we returned to the Area Commander’s office. I cautioned the 1st Accused person in English Language after which he volunteered a statement in English Language in his own handwriting.”

PW2 Cpl Danlami Bako in his testimony said at page 77 of the Record of Appeal that:

“I was present when the Area Commander, Assistant Commissioner of Police, Ogbonnaye, interviewed the 1st Accused, who confessed that the deceased was his girlfriend and that he killed her. The Area Commander accompanied the 1st Accused person and myself to the scene of the incident where the 1st Accused person confirmed that he killed the deceased. We returned to the Area Commander’s office where I hand over the case and went back to my patrol duties with my team. The corpse of the deceased was removed by the police.”

The burden of linking the cause of death of the deceased to the Accused person is not discharged by leading evidence to say that the Accused confessed to committing the crime.

It is necessary for the prosecution to also prove beyond reasonable doubt what caused the death and not the fact of death only. See Pius Odock & ors. v. State (2007) 7 NWLR Pt. 1033 page 369.

Where the cause of death is ascertained, the next hurdle is to link the cause of death with the act or omission of the Accused persons alleged to have caused it. The prosecution must lead evidence to prove those facts before a conviction for the offence of culpable Homicide can be secured. See:

Oforlere v. State (1000) 12 NWLR Pt. 631 page 415;

Oche v. State (1007) 5 NWLLR Pt. 1027 page 214.

In a situation where there is no direct evidence to the event leading to the death of the deceased, medical evidence may be of assistance to the case of the prosecution in establishing the cause of death and providing the necessary link between the death of the deceased and the act of the Accused. See Obierho v. State (2005) 5 NWLR Pt. 919 page 644.

It may be possible that an Accused person may admit causing the death of the deceased, but in actual fact unknown to him the deceased might have died of other cause unknown to the accused person.

In order to avoid such scenario that it becomes imperative that the prosecution is required to prove beyond reasonable doubt not only that the act of the Accused person could have caused the death of the deceased but that it actually did. If there is the possibility that the deceased died from other causes than the act of the Accused, the prosecution has not established the case against the Accused person. See: Audu v. State (2003) 7 NWLR Pt. 820 page 51;

Uguru v. State (2000)9 NWlR Pt. 771 page 90.

In the present case it is the evidence of PW5 that the discovery of the corpse was made on 7/10/2003 and that after visiting the scene he in the company of some policemen moved the corpse to the General Hospital Okene. He stated under cross-examination at page 45 of the Record of Appeal thus:-

“Some Policemen accompanied me with the corpse to the General Hospital, Okene. The Policemen were all my boys from the Area Commander’s office Okene. At the General Hospital, I obtained a card for the corpse the corpse was examined and deposited in the mortuary. I did not furnish the Medical Officer with any information about the corpse. I was at the General Hospital, Okene, in respect of the corpse only once and that was 7/10/2007. I have never met PW4.”

PW1 Cpl Bello Isiaka stated on page 59 of the Record of Appeal that the case was transferred to the State C.I.D. Lokoja from Okene on 9/10/2003 along with the 1st Accused person and some exhibits i.e. invitation cards, a knife, a pair of bathroom slippers, a handbag containing some cosmetics and sum of N10,000. He said he registered the items with the Exhibit keeper ASP. Okpanachi. He said that the 1st Accused person/Appellant made voluntary statements to him on 10/10/2003 and 10/12/2003. PW1 said that after his return from Ibadan where the 2nd Accused was arrested, he prepared a coroner’s form which was duly signed by a Chief Magistrate and he served it on the Chief Medical Officer, General Hospital, Okene. Thereafter he collected a Medical Report in respect of one Hassana Husseini who was allegedly killed by the 1st Accused person. PW1 said he got in touch with the father and fiance’ of the deceased from the information contained in the invitation card. He brought them to Okene where they identified the corpse of the deceased and later it was released to them for burial.

At page 75 of the Record of Appeal PW1 said under cross-examination:-

“The deceased’s father made his statement on 15/10/2003. The deceased’s fiance also made his statement on 15/10/2003.

Exhibits 4A, 48, 4C and 4D were dated 17/10/2003. I am not the first I.P.O. in this case. It was a transferred case.

I prepared, submitted and collected Exhibits 4A, 48, 4C and 4D. I did not furnish the medical doctor with the history of the case. The corpse was taken to the General Hospital, Okene by the Divisional I.P.O. whose name I cannot remember.

After the Divisional I.P.O. handed over the case diary to me, I did not have anything to do with him.”

The medical officer who performed the medical examination to determine the cause of death of the deceased, Dr. Ken Abu – PW4 stated in his evidence-in-chief at page 83 of the Record of Appeal that he performed a post mortem on the corpse and issued a Report, Exhibits ‘4C’ and ‘4D’.

The corpse was identified to him by the father of the deceased, and that it was covered with dirt, and grasses all over and has a deep cut on the forehead. In his opinion the cause of death was the deep cut inflicted on her forehead. He performed the post mortem on the same day the corpse was brought in and that he filled the form later from the card which was opened for the corpse.

Under cross-examination Dr. Ken Abu said the corpse was brought to him on 17/10/2003 by four policemen together with the father of the deceased. The corpse was brought in the afternoon and that it was almost fresh as there was no rigor mortis. The witness said he was not the person who released the corpse to the Police and that he did not know the date the corpse was released.

PW4 said he is a general practitioner and has been in medical practice for more than 10 years.

The discrepancies that have arisen from the evidence of PW1, PW4 and PW5 are that whereas the PW5 said the corpse of the lady alleged to have been killed by the 1st Accused/Appellant was removed from the scene of crime to the General Hospital Okene on the same day 7/10/2003, PW4 the Medical Doctor who conducted the post mortem examination said that a corpse which was almost fresh was brought to him in the afternoon of 17/10/2003 and that he issued Exhibits 4C and 4D the Report of his examination.

Exhibit 4A are the Coroners ordinance order for Post-Mortem Examination addressed to the Medical Doctor Okene General Hospital Okene authorizing and requiring the Medical Doctor to make a Post-Mortem examination of the body of Hassanat Husseini which will be delivered to him by the Police and make a report to the Coroner, The order was given in Lokoja on 17th October 2003, but was not signed by the Coroner. The other part of Exhibit 4A is the Warranty to Bury issued on 17/10/2003 by the Court Coroner permitting the body of Hassanat Hussein who lies dead in Okene mortuary to be buried. The order was signed by the coroner and dated 17/10/2003.

Exhibit 4B is Coroners Form B titled Death Report to Coroner, Particulars of Deceased, under Column 4 Date, hour and place of death was stated as 16/10/03, 2040 hours along Okpella Road; Column 7 gave the Date, hour first Information received by Police or authority or local government council as 16/10/2003, 2050 Hrs. Column 10 gave Date and time of Investigation as 16/10/2003 at about 1050 Hrs. Column 14 gave Date and hour when report was sent to coroner as 17/10/2003 at about 1000 Hrs. The form was signed and stamped by the coroner on 17/10/2003.

Exhibit 4C is the Police form D15 titled the Nigeria Police Post-Mortem Examination. It gave the name of the deceased as Hassanatu Hussein aged 34 years. The corpse was said to have been identified to the Medical Officer by Alhaji Hassan Hussein and the date the corpse was sent to the Hospital was 17/10/2003 and the Exhibit was signed by a Police Officer on 17/10/2003.

At the bottom of Exhibit 4C is the following endorsement:-

“To be filled by the medical officer and handed to the Police escort immediately on completion of the Post Mortem.

10. Approximate date of death. 6th October 2003.
11. Approximate hour of death – 8.40 p.m.
12. Brief notes of Post-Mortem findings:-

Death body of a young lady with Stab Injury on the forehead.

Signature: (sgd) signed & dated

Date: 17/10/2003 signature of medical officer.”

Exhibit 4D titled the Coroners Ordinance Report of Medical Practitioner; under Column 1, the date and hour of receipt of corpse at Mortuary was stated as 7/10/2003. In Column 4, date and hour of holding examination was given as 7/10/2003; Column 10 stated the probable date of death as 6/10/2003. It was signed by PW4 Mr. Abu and dated 17/10/2003.

Although Exhibit 4C stated that the corpse was sent to the Hospital on 17/10/2003 and Exhibit 46 gave the date, hour and place of death as 16/10/2003, 2040hrs along Okene Road.

However the endorsement at the bottom of Exhibit 4C gave the approximate date of death as 6th October 2003 and the approximate hour of death as 8.40p.m.

This information provided in Exhibits 4B and 4C contradict the testimony of the Medical Officer who conducted the Post-Mortem examination who said that the corpse that was brought to him in the afternoon of 17/10/2003 was almost fresh. He did not state the approximate date and hour of death in his testimony before the Court. If the corpse whose approximate date of death was 6/10/03 was brought to the medical doctor almost fresh for examination on 17/10/2003, where was the corpse between 6/10/03 and 17/10/2003?

The Medical Doctor also said that Rigor mortis had not set in on the corpse. Can a body that died almost eleven days be almost fresh, even if kept in a Refrigerator in the Mortuary?

In Exhibit 4C, although the approximate date of death is said to be 6/10/2003, yet the corpse was said to have been sent to the Hospital for Post-Mortem Examination on 17/10/2003. Exhibit 4C was signed by both the Police and the Medical Officer on 17/10/2003.

The question to ask is where was the corpse between 6/10/2003 and 17/10/2003?

Exhibit 4D stated that the corpse was received at the Mortuary on 7/10/2003 and that the Post-Mortem Examination was conducted on 7/10/2003 while the probable date of death was said to be 6/10/2003. The report was however signed on 17/10/2003.

Exhibit 4B stated that the First information of the incident was received by the Police or authority or local Government Council on 16/10/2003 while 16/10/2003 was also give as the date of investigation into the incident. The report which was signed and dated 17/10/2003 was said to have been sent to the Coroner on 17/10/2003.

Another contradiction is that although Exhibit 4C stated that the corpse was sent to the Hospital on 17/10/2003, Exhibit 4D gave the date of the Post-Mortem Examination as 7/10/2003.

Can a Post-Mortem Examination be conducted before the receipt of the corpse at the Hospital?

The information provided in Exhibit 4D said that Post-Mortem Examination was conducted on the corpse on 7/10/2003 while the Medical Doctor said it was conducted on 17/10/2003.

It is the evidence of PW2 and PW5 that the discovery of the corpse was reported to the Area Commander in Okene on 7/10/2003; however Exhibit 4B stated that the report was received on 17/10/2003.

There is confusion from the evidence placed before the Court as to which corpse was the Post-Mortem Examination of 7/10/2003 conducted on as per Exhibit 4D and on which corpse was Post-Mortem Examination of 17/10/2003 conducted on as per Exhibit 4C and the evidence-In-Chief of PW4, the Medical Doctor.

These inconsistencies or contradictions are substantial and fundamental to the main issues in question before the trial Court and are capable of creating some doubt in the mind of the Court. I am of the opinion that the 1st Accused/Appellant should be entitled to the benefit of these doubts.

In Okonji v. The State (1987) NSCC 291 at 302, the Supreme Court per Nnamani JSC said thus:

“It is trite law that where there is a doubt in the mind of the Court in a criminal matter it ought to be resolved in favour of the accused person.”

See also Chukwu v. State (1996) 7 NWLR Pt. 463 Page 686.

I am in agreement with the submission of the learned Counsel for Appellant that it is very doubtful if the corpse examined by PW4 on 17/10/2003 was that of the deceased allegedly killed by the 1st Accused person/Appellant, going by the contradictions in the evidence of the prosecution witnesses as regards the identity of the corpse.

I am satisfied that the prosecution has not linked the 1st Accused/Appellant to the cause of death of the deceased and has therefore not proved a case of culpable Homicide against the Appellant.

In Alarape v. The State (2001) 4 SCNJ 162 at 180, the Supreme Court held that:

“It is better that 10 guilty ones are allowed to escape that that one innocent man is made to suffer. Therefore to place upon an accused the responsibility for a crime, there must be that degree of certainty which the law requires in all criminal cases and conclusions based on possibilities and probabilities must be excluded.”

Therefore, this first issue is resolved in favour of the Appellant.

Issue 2

“Whether the purported Confessional Statements (Exhibits 1, 2 and 3) were rightly admitted in evidence and utilized by the learned trial Judge.”

Counsel for the Appellant, A.M. Aliyu submitted that there was ample evidence at the trial that Exhibits 1, 2 and 3 were not voluntarily made. He maintained that the onus was on the prosecution to prove otherwise but they did not.

Counsel argued that Exhibits 1, 2 and 3 were tendered through PW1 that the 1st Accused/Appellant objected to their admissibility on the ground that the Statements were not voluntary, that a trial within a trial was ordered and that at the trial within trial, the prosecution called 2 witnesses while the Appellant called none but gave evidence. He maintained that PW1 admitted at the trial within a trial under cross-examination that Exhibits 1, 2 and 3 were obtained as a result of the questions he threw to the Appellant and that Appellant testified that he was tortured, his hand was burnt with candle and was shot on his right leg to get him to confess to the killing of the deceased.

A.M. Aliyu submitted that the learned trial Judge decided not to rule on the voluntariness of Exhibits 1, 2 and 3 on the ground that the evidence of the Appellant was at variance with the objection and went ahead to admit them without ruling on the objection.

He further submitted that where an alleged confessional statement is found to be answers to questions asked by the police officers, it will be regarded as involuntary, He referred to Section 27(1) of the Evidence Act (Cap. E 14) Laws of the Federation of Nigeria and the case of Namsoh v. State (1993) 6 SCNJ (Pt.1) page 55 at 67-70.

A.M. Aliyu maintained that the procedure adopted by the learned trial Judge offends the concept of a fair trial.

Counsel argued that since the burden of proving the voluntariness of a Statement lies on the prosecution, then once evidence emerge from the prosecution to show that the statement was not voluntarily made, the trial Judge must reject the statement irrespective of whatever the accused says in his evidence in a trial within a trial.

Counsel maintained that a careful look at the Judgment of the learned trial Judge will reveal that the conviction of the Appellant was based solely on the confessional statements. Counsel argued that if the confessional statements are expunged from the Record, there will no longer be evidence to sustain the conviction.

A.M. Aliyu submitted that where a Court wrongly admits legally inadmissible evidence and founding of facts is based on it, an appellate Court can interfere. He referred the Court to the cases of: Archibong v. State (2007) 2 NCC 286 at 307.

Joe Abrahams maintained that Exhibits 1, 2 and 3 fall within the category of documents that must be objected to whilst being tendered and so failure of the Appellant to object to their admissibility at the time they were being tendered disentitles him from objecting to their admissibility in the present Appeal.

He submitted that the trial Court was therefore entitled to admit Exhibits 1, 2 and 3 and to rely on them. He referred the Court to the case of Mr. Bernard Ojeifo Longe v. First Bank of Nigeria Plc. (2006) 6 NWLR Pt. 967 page 228 at 280.

Counsel maintained that argument of Counsel to the Appellant to the effect that Exhibits 1, 2 and 3 were inadmissible because PW1 obtained them in a question and answer session is misconceived because unlike the case of Namsoh v. State (supra) relied on by the Appellant’s Counsel, the PW1 in the present case did not ask Appellant questions from a prepared . He submitted that the case of Namsoh v. State (supra) is therefore completely inapplicable in this case.

He further submitted that PW1’s answer under Cross-examination that “the 1st accused person answered the questions I put to him which I recorded in Exhibits 1 and 3rd was merely to show that he had complied with the provisions of Section 126(2) of the Criminal Procedure Code.

Counsel for the Respondent maintained that apart from Exhibits 1, 2 and 3, the Appellant made Exhibit 9 on 6th October, 2003 respectively at Okene Police Station. He submitted that Exhibit 9 against which Appellant’s Counsel has not complained is a confessional statement in which Appellant clearly admitted killing the deceased.

It is the duty of the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court. See: Solola v. State (2005)11 NWLR Pt. 937 page 460; Akinmoju v. The State (2000) 4 SC Pt. 1 page 64.

In the present case the 1st Accused/Appellant had denied making any statement other than the one he made at Okene on 6/10/2003 – Exhibit 8. He denied making Exhibits 1, 2, 3, and 9.

Exhibit 1 was said to have been made on 10/10/2003, Exhibit 2 on 10/12/2003 while Exhibit 3 was also said to have been made on 16/10/2003 by the 1st Accused/Appellant.

The 1st Accused/Appellant said that despite the fact that he was tortured by the Police he did not make any statement to the police at Lokoja.

PW1 at page 73 of the Record of Appeal said:

“Exhibit ‘2’ was written by the 1st Accused person himself I recorded Exhibits ‘1’ and ‘3’. The 1st Accused person answered the questions I put to him which I recorded in Exhibits ‘1’ and ‘3’.”

In the present case from the evidence in chief of PW1 reproduced above the confession associated with the 1st Accused/Appellant was recorded from question and answers prompted by the Police.

A confession obtained through questions and answers cannot be said to be voluntary. I am of the opinion that such statements alleged to have been made by the 1st Accused/Appellant to the Police (PW1) have not satisfied the provisions of Section 21(1) of the Evidence Act which requires that confession made by an accused person must be voluntary before it can be admissible in evidence. See: Okonkwo v. The State.

In Namsoh v. The State (1993) 6 SCNJ Pt. 1 pages 55 at 67-77 Kutigi JSC (as he then was) observed:

“…. both PW7 and Appellant in their testimonies made it abundantly clear that Exhibit H was a product of the ‘question and answer’ session between the two of them. The Police recorder (PW7) was putting questions already prepared by his superior on a sheet of paper to the Appellant, which he PW7 also recorded the answers. This procedure is already wrong…I cannot see how a statement such as Exhibit H herein would be regarded as free and voluntary when it is evident that the so called statement was as a result of questions selected and put to the accused by the Police Officer himself.”

I am of the opinion that Exhibits 1 and 3 admitted by the trial Court as a confession have not passed the test of their being made voluntarily. They were made as a result of question and answer session between the 1st Accused/Appellant and PW1.

There is also the evidence that Exhibit 3 which the prosecution said was a confessional statement was recorded on 16/10/2003 at the State C.I.D. Lokoja and gave further information implicating a herbalist at Ibadan also provided the motive for killing. The trial Court disbelieved the content of Exhibit 3 and discharged the 2nd Accused person, the herbalist arrested from Ibadan.

It was the evidence of PW1, PW3 and PW5 that what was recovered from the scene of the crime includes a lady’s handbag containing N10,000, a knife and a pair of bathroom slippers. PW1 said he deposited the items with the Exhibit keeper ASP Okpanachi. Those items were never put in evidence in this case.

It is the duty of the prosecution to present all relevant evidence at its possession to the Court in order to assist it in arriving at a just and proper decision of the case. See Ibrahim Abdul-Rahaman v. Commissioner of Police (1971) NNLR 24.

In Exhibit 9, another alleged confessional statement of the 1ST Accused/Appellant, he was said to have used his fist to kill the deceased whom he claimed to be his girl friend Sunbiatu Adiku from Cotonou.

The medical evidence Exhibit 4C and 4D gave the cause of the death of the deceased whose name was said to be Hassanatu Husseini, as stab injury on the forehead.

There was no evidence of any blood stain on the 1st Accused/Appellant nor did the prosecution tender any weapon which could have been used.

I have also carefully perused all the Exhibits tendered in evidence as confessional statement and having mirrored them against other credible evidence before the Court, I am satisfied that they did not constitute a confessional statement because they are not positive and direct and are also not credible.

I am of the opinion that Exhibits 1, 2 and 3 were improperly admitted in evidence and utilized by the learned trial Judge.

This issue is also resolved in favour of the Appellant.

Issue 3

“Whether the decision of the learned trial Judge was based on a proper evaluation a/the evidence adduced at the trial.”

Counsel for the Appellant A.M. Aliyu submitted that the onus of proof in criminal cases rest squarely on the prosecution and that until that duty is discharged; an accused person is not under a duty to adduce evidence. He maintained that the standard is beyond reasonable doubt.

A.M. Aliyu further submitted that to determine whether this standard has been met or the duty has been discharged, the Court is bound to consider the totality of the evidence before it by the prosecution. Counsel maintained that the Court must consider aspects which are favourable and those not favourable to the prosecution before making findings as to whether all the essential ingredients of the offence had been proved by the Prosecution and referred the Court to Akpan v. State (1994) 12 SCNJ 140 at 148-149

He maintained that the learned trial Judge failed to properly evaluate the evidence of the prosecution at the trial. A.M. Aliyu submitted, with due respect, that the learned trial Judge was consumed by the absence of evidence on the part of the Appellant thereby ignoring the damaging aspect of the prosecution’s evidence which could be seen on Page 103 lines 30-34, Page 104 lines 9-12 and Page 106 lines 8-10 of the Record.

Counsel argued that in considering the case for the prosecution, the learned trial Judge did not avert his mind to:

(i) the material contradiction in Exhibits 4A,4B,4C and 4D as to the date of death vis-a-vis the corpse examined by the Doctor;

(ii) The contradiction as to the date of death and the date of autopsy on a fresh corpse inherent in the testimonies of PW2, PW5 and PW4;

(iii) The testimony of PWI that Exhibits 1-3 were answers given to his question by the Appellant;

(iv) The Exhibits purportedly recovered from the scene of crime were not tendered in Court.

He submitted that if the above issues had been appraised by the learned trial Judge, he would have found that the case of the prosecution had inherent weaknesses that should have warranted the discharge and acquittal of the Appellant

Counsel maintained that in a trial such as this, where vital issues are left unapprised by the trial Court, an Appellate Court ought to allow the Appeal and set aside the decision. He referred the Court to the case of Umar v. BUK (1988) All NLR 361 at 368.

In his response, Joe Abrahams Counsel to the Respondent submitted that the prosecution has established the guilt of the Appellant beyond reasonable doubt. He referred the Court to the evidence of PW2, PW5 and Exhibits 6C and 6D.

Counsel maintained that as soon as the Police discovered the corpse of the deceased in the bush where the Appellant emerged from in the night of 6th October, 2003, Appellant continuously confessed his guilt in the murder of the deceased as seen in the oral confession of the Appellant to PW2, PW5 and the Area Commander ACP Ogbonnaya at the Police Station and at the scene of crime. He submitted that Exhibit 9 which Appellant made to the Police at Okene in his own handwriting is also a confession by the Appellant that he killed the deceased.

Joe Abrahams further submitted that the wedding Invitation Card of the deceased bearing her name and her picture was recovered by the Police from the scene of crime, was tendered and admitted as Exhibit 5 in the trial Court.

He maintained that there were also in the proceedings Exhibits 6A, 6B, 6C and 6D, pictures of the naked body of the deceased as well as Exhibits 1, 2 and 3 confessional statement of the Appellant to the Police at the State CID Lokoja.

Counsel argued that despite this overwhelming evidence, Appellant elected not to give evidence, thereby making the prosecution’s version the only evidence before the trial Court. He maintained that the trial Court was therefore right to accept and believe the only evidence before it. He referred the Court to the cases of: Beecroft v. Cudjoe (2006) 8 NWLR Pt. 983 page 557; A.M. Apatira v. L.I.L.G.C. (2006) 17 NWLR Pt. 1007 page 46; M.M. Ali v. State (2003) 3 ACLR 581 page 595-596.

On the submission of Appellant’s Counsel that the cause of death as stated by PW4 to be death by stabbing was different from the act of the Appellant alleged in the Charge of Culpable homicide as the Charge Sheet alleged that Appellant killed the deceased by inflicting blows with his hands on the deceased; Counsel submitted that this submission is misconceived.

He argued that when Exhibit 4D column 11 is read, it will become clear that PW4 also stated that the deceased died of other causes. Counsel also referred the Court to Exhibit 1, Appellant’s Confessional Statement to the Police as well as Exhibit 9, the additional Statement made by the Appellant to the Police at Okene on 8th October, 2008 after the deceased’s corpse was discovered and the case of [me David Idiok v. State (2008) 4-5 SC 84; 109.

Joe Abrahams further submitted that the charge as framed tallies with the confession of the Appellant that he killed the deceased with his hands. He maintained that the trial Judge cannot be faulted on his evaluation and assessment of the evidence before him when there was no other contrary version as Appellant refused to testify in his defence.

I have earlier said in this Judgment that the prosecution has not been able to connect the Appellant with the death of the deceased. The confessional statements attributed to the Appellant have been found not to be direct, positive or reliable and have not been corroborated nor are they sufficient to sustain a conviction against the Appellant.

I am of the opinion that the decision of the trial Court was not based on a proper evaluation of the evidence presented to it.

In Ndidi v The State (2007) 5 SCNJ 274 at 292. Mohammed JSC held that:

“A Judgment which will send a man to the gallows to await the hang man to execute him at any single minute must be punctuated by logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inferences is carefully drawn ….”

The last issue is also resolved in favour of the Appellant. The decision of the trial Court delivered on 24/6/2008 which convicted and sentenced the Appellant to death is hereby set aside and the Appellant is hereby discharged and acquitted.

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Other Citations: (2009)LCN/3309(CA)