Junaidu V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.S.C. 

This is an appeal against the decision of the Court of appeal (lower Court) sitting in the Kaduna Division of the Court of appeal (Coram: Isaiah O. Akeju, H.A.O. Abiru and O. A. Adefope-Okojie, JJCA.,) delivered on the 4th December, 2015 affirming the conviction and sentence of the Respondent passed by the High Court of Justice, Katsina State presided over by Hon. Justice Sanusi Tukur delivered on the 30th May, 2014 in suit No. KTH/8C/2012.

The facts that led to this appeal are as follows:

The Appellant was charged vide an amended CHARGE NO: KTH/8C/2012 dated 9th April, 2014. The Appellant was accused of causing the death of his wife Rukayya Zaharaddeen by hitting her on the chest with an axe with the knowledge that death would be the probable consequences of his act. He was charged with committing the offence under Section 221 of the Penal Code Law, Cap. 96, Laws of Katsina State, 1991.

The trial commenced before Hon. Justice Sanusi Tukur. The plea of the Appellant was taken and the Appellant pleaded Not Guilty to the Charge.

​In the course of the trial, the

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Prosecution called four (4) witnesses and tendered three (3) Exhibits which were all admitted in evidence. The Exhibits were Exhs. 1(An Axe), 2A and 2B- Appellant’s Hausa Statement and its English translated version recorded by PW 4 at Katsina State CID).

The Appellant on the other hand, testified for himself and did not call any other witness. No Exhibit was tendered by the Appellant in the course of the trial. At the end of the trial, the trial Court found the Respondent guilty, convicted him as charged and sentenced him to death accordingly on the 30th of May, 2014.

Dissatisfied with the judgment of the trial Court, the Appellant had appealed to the lower Court which affirmed the decision of trial Court. The Appellant being dissatisfied with the decision of the lower Court has now appealed to this Court. In the Appellant’s brief filed on 30/8/2016 settled by Esene Emmanuel Esq., the Appellant identified two issues for determination as follows:

1. Whether from the facts and circumstances of this case, the prosecution has proved its case beyond reasonable doubt against the Appellant. (distilled from grounds 1, 3 and 4).
2. Whether

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the respondent’s failure to present P.W.4 for cross-examination did not amount to lack of fair hearing and thereby nullifying the conviction (distilled from ground 2).

The Respondent’s counsel, Mr. Abu Umar, Esq., adopted the issues settled for determination by the Appellant which I will also consider in the determination of this appeal.

ISSUE ONE

The standard of proof required of the prosecution in criminal cases is a heavy one as the State must adduce proof beyond reasonable doubt.

In a charge of culpable homicide punishable with death, under Section 221 of the Penal Code Law of Katsina State, the essential ingredients which the prosecution must prove to secure a conviction are as follows:

(a) That the deceased died

(b) That the death of the deceased person resulted from the acts of the Defendant.

(c) That the Defendant caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was the probable consequence of his action.

The prosecution must prove that the death of the deceased person resulted from the act of the Defendant by direct eye witness account, circumstantial

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evidence from which the guilt of the Defendant can be inferred or by free and voluntary confessional statement of guilt which is direct and positive. See Iliyasu v. State (2014) 15 NWLR (Part 1430) 245.

In this case, there was no eye witness who saw the Appellant kill the deceased. The only evidence relied upon by both lower Courts is the confessional statement of the Appellant and circumstantial evidence from which both Courts arrived at the conclusion that the Appellant killed his wife. When the prosecution sought to tender the confessional statement, the Defendant opposed the voluntariness of the statement on the one hand that he did not make the statement at all and on the other hand that he was forced to make a statement.

Nevertheless, a trial within trial was conducted at the end of which the Court admitted the statement of the Appellant as Exhibit 2A, the Hausa version taken in the language of the Appellant and the English translation, as Exhibit 2B. In effect, the confessional statement of the Appellant was retracted and he needs some other evidence for it to be solely used to convict the Appellant.

​It is trite that the mere retraction

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of a confessional statement by the Defendant will not render it inadmissible. It will only affect the weight to be attached to it where the Defendant denies making it at the earliest opportunity. Counsel cited Abdullahi vs. The State (2013) 11 NWLR Pt. 1366 Pg.435, Itule vs. Queen (1961) 2SCNLR 183, Nwachukwu vs. The State (2007)17 NWLR (Pt. 1062) 31.

The argument of the learned Appellant’s counsel is that apart from the confessional statement, there is no other evidence linking the Appellant to the offence. Counsel insists that the evidence of PW1 and PW2 did not link the Appellant to the offence as charged. The evidence of PW1 is to the effect that he was alone when the Appellant came to inform him that a door had fallen on his wife. He swore that he went to the house and did not see the fallen door. He also stated that he did not see the Appellant kill the deceased person. PW2’s evidence was that the deceased was his daughter and that on the 4th day of September, 2011, he was informed that his daughter was dead. He said he saw the deceased with blood all over her body prepared for burial. He stated that he did not witness the crime. PW3 gave

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evidence as the Exhibit keeper and tendered an axe which had been admitted through the IPO as exhibit 1. PW4 gave evidence as the Investigating Police Officer and the Appellant’s Confessional statement was admitted as Exhibits 2A and 2B through him. The PW4 was not cross-examined because the prosecution closed it case after stating that the IPO had gone on assignment to another State.

The argument of the Appellant is that PW1, PW2 and PW3 did not witness the incident and their evidence did not corroborate the Appellants confessional statement in any way and manner, thus, the confessional statement cannot be the basis of his conviction.

The case of the Appellant, my Lords, is that Exh. 2A and 2B the confessional statement was not corroborated and cannot be a basis for his conviction as it is not consistent with other facts established during the trial. Counsel also argued that it is only a post mortem examination that could determine the cause of death and without it, the cause of death had not been established by the prosecution.

​I entirely agree with the contention of the Respondent’s counsel that the nature of the corroborative evidence

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required does not need to be direct evidence linking the Defendant to the commission of the offence. Circumstantial evidence is sufficient, particularly where it leads to no other conclusion than the guilt of the Defendant.

I agree with the Respondent’s counsel that a confessional statement is the best evidence in Nigerian criminal jurisprudence as it is direct evidence by the perpetrator giving the reasons for and how the offence was committed. So long as it is voluntary and it is a direct and positive admission of guilt, it can be used to convict even where it has been retracted. See Okanlawon vs. The State (2015) 17 NWLR (Pt. 1489) 445 at P. 478 paras. A-E.; Kareem vs. F.R.N (NO. 2) (2002) 8 NWLR (Pt.770) 664 at P.683 Paras. B -D

I however cannot subscribe to the learned Respondent counsel’s argument that once a confessional statement is admitted, the prosecution need not prove the case against the Defendant beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused. That is definitely not the law and not the ratio inSolola vs. State (2005) 2 NWLR Pt.937 Pg.460 cited by the learned Respondent’s

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counsel.

My Lords, the confessional statement of the Appellant was retracted by him in the course of the trial and the position of the law as reiterated by this Court in several cases is that the statement must meet the probability test set out in R. v. Sykes (1913) 18 CR All Pg. 233:

a) Whether there is anything outside it to show the statement is true,

b) Whether it is corroborated,

c) Whether the statement made in it of fact so far as they can be tested are true,

d) Whether the accused had the opportunity of committing the offence,

e) Whether it is consistent with other facts which have been ascertained and have been proved

See…

In this case, there is no doubt that the deceased died of wounds to her upper body. The evidence of the Appellant’s neighbor P.W.1 and the deceased father P.W.2 who saw the body is unequivocal and not in doubt on this point. There was no need for a post mortem examination in the circumstances of this case. The deceased died on the spot with obvious grievous wounds on her body. The issue at stake is who caused the injuries and the circumstances under which they were caused.

​My

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Lords, the evidence here is very clear. The Appellant rushed to his neighbor P.W.1 to report that a door fell on his wife and she was wounded and he needed assistance to take her to the hospital. P.W.1 on oath stated that when he got to the scene, the deceased was near death with a big gash on her chest. He also noted that there was no fallen door on her body or anywhere in the house to which her wound could be attributed. P.W.2, the father of the deceased stated on oath that the Appellant was in the habit of beating the deceased. That he had even beat her with a cable when she was pregnant and the matter was reported to the Sharia Court. He swore that he saw the dead body of his daughter in a pool of her own blood and later buried her. This evidence was not seriously controverted under cross-examination by the Appellant during the trial. The IPO, P.W.4 tendered an axe which was found in the house. The Appellant initially denied ownership of the axe but later admitted that he owned an axe but the axe was not in the house on that day. In his evidence on oath, the Appellant denied killing his wife and insisted that his wife had a leg injury prior to the

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incident and that she fell and wounded herself. In Exh 2A and 2B the Appellant had stated as follows:

“…I could remember on Sunday 04-9-2011 at about 11.00hrs-12.00hrs I came back from work – PHCN – at Katsina. I met my wife saying that I should give her transport money to enable her go to her home town – Bafarawa. And I told her that I have no money, let her exercise patience, she just said must give her the money even by force. By that time, I was holding an axe in my hand. And when I turned to come out of the room, she came to grip me, I raised the axe and hit her with it on her chest, the other point end. And she fall on the ground and hold the place while crying. And I saw blood rushing at the point. Then I carried her shirt with milk color and blocked the point, carried wrapper which belongs to her and tied it round her chest may be the bleeding may stop. From there I went to her mother, Agu, and told her what happened. She said nothing concern her with me. And I came back home and met she had died… I know that my wife died as a result of the injury inflicted on her by an axe at her chest…”

​Exh 2B, the interpreted

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version of the Appellant’s brief indicated the defence of provocation. The trial Court did not consider the defence of provocation alluded to in the confessional statement, neither did the Court below. However, it is settled that in order to invoke the plea embedded in Section 221(1) of the Penal Code, the accused must lead evidence to establish the following elements of facts:

1. The act of provocation must be grave and sudden
2. The accused must have been deprived of the power of self-control actual & reasonable
3. The mode of resentment degree or extent of the relationship must bear a reasonable relationship or be proportionate to the provocation offered.

In this case the, defence was never actually given in evidence in chief to warrant a consideration and determination of it as a defence for the Appellant. The Appellant depended on the incredulous explanation that a door fell on his wife.

​There is no doubt that she suffered injury to her body before she died, there is no contention about that. The issue in contention would be whether the injury was caused by the Appellant in circumstances that would make it murder for

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him to have caused the injury where the injury is apparently not self-inflicted. The wound on the body, the blood on the body, and the death of the deceased attest to the fact that she died of her wounds. However, the circumstantial evidence which corroborates foul play is the fact that the Appellant lied that a door fell on her. The confessional statement Exh 2 & 2A is corroborated by the state of her body and the existence of the axe Exh 1 in the house when police searched the place.

I am persuaded that the Appellant murdered his wife intentionally and was rightly found guilty by the two lower Courts.

ISSUE TWO

My Lords, the right of a Defendant to cross-examine a prosecution witness is a constitutional one hinged on fair hearing. It is a matter of duty and obligation for the prosecution to present its witness for cross-examination having concluded examination in chief. Any other course of action would be unconstitutional and a violation of the rights to fair hearing of the Defendant. See Oforlete v. State (2000) LPELR-2270 (SC), Tyonex Nig. Ltd & Anor v. Pfizer Ltd (2019) LPELR 49520(SC).

From the records, particularly at page

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67, the prosecution informed the trial Court that PW4 was not in Court for cross-examination as he was away in Sokoto State on official assignment and applied to close its case. My Lords, there is no doubt that the failure of the prosecution to present its witness before the trial Court to give the Appellant the opportunity of cross-examine the witness is ostensibly violation of the right to fair hearing of the Appellant as contained in Section 36(1) of the Constitution. I have to agree with the learned Appellant’s counsel that if the Appellant “could not complete the cross-examination” due to no fault of his, could he be said to have had “the ample opportunity of being heard”. There is no doubt that the well-settled position is that in order to be fair, “hearing” or “opportunity to be heard” must, inter alia, encompass a party’s right to cross-examine or otherwise confront or contradict all the witnesses who testified against him. The Appellant’s counsel submitted that the confessional statement of the Appellant tendered by P.W.4 who was not cross-examined should be expunged from the record. He cited Ola v. State (2018) LPELR-44983 (SC),

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Patrick Oforlete v. The State supra.

My Lords, the prosecution dispensed with further appearance for cross-examination of the witness who was the IPO who tendered Exh. 2A and 2B with the acquiescence of the Judge and the Appellant’s counsel. It is important to note that the Appellant’s counsel did not object to the wrong procedure while it was being proposed by the prosecution. Be that as it may, the effect of the failure of the prosecution to present their witness for cross-examination is that the evidence of the witness must be expunged even where there is no clear evidence that the lapse had caused any gross miscarriage of justice. Generally, the effect of the corporate failure of all actors to ensure the cross-examination of P.W.4 is that all the evidence led in chief must be jettisoned. See Ali v State (2015) LPELR-24711.

I cannot agree with the view of the learned Respondent’s counsel that the Appellant’s counsel compromised the right of the Appellant and thus the Appellant cannot complain. The right to fair hearing cannot be waived or compromised as it is not donated but inherent for the person involved. See Arije v Arije & Ors (2018) LPELR-44193 (SC).

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My Lords, I am of the view that in the peculiar circumstances of this case, while the axe recovered by the witness may be disregarded, the confessional statement may not be disregarded. There was a trial within trial to test the admissibility of the statement and there was a ruling admitting the statement. It would have been a different matter if there was no separate trial in which that aspect of the evidence of the witness was diligently looked into by the Court and all parties given an opportunity to be heard. I would expunge that part of the evidence not tested under cross-examination but leave the portion of the evidence already well tested in evidence. The learned Justices of the Court of Appeal held as follows at Pg. 151 of the record.

“The admission of the confessional statements of the Appellant, Exhibit 2A and 2B, was not based on the evidence of the fourth prosecution witness in course of his testimony in the main trial. They were admitted after a trial within trial and in the course of which witnesses were called by both sides and they were cross-examined. A trial within trial is described as a process that a trial Court

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undertakes when an accused in a criminal trial protests the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him and that the statement was obtained under duress or some threat of whatever nature or actual physical torture to his person. The main trial in the Court is abated and the accused person is made to face a mini trial, within the context of the main trial, to determine the veracity of the account of the accused person on whether his statement to the police was voluntary or not, the procedure at the mini trial is similar to that of the main trial as witnesses are called to give evidence on both sides and they are subjected to cross-examination by the other side. The trial Court writes a ruling at the conclusion of the mini trial either admitting the statement of the accused person or rejecting same and after which the main trial will resume – see the unreported decision of this Court in Appeal No CA/K/30/C/14 – Maidawa vs. The State delivered on the 7th of May, 2014. The failure of the fourth prosecution witness to return to Court to

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continue his evidence in the main trial did not affect the confessional statements admitted in the trial within trial.

The lower Court in its ruling on the trial within trial made specific findings on the evidence led by the parties on the voluntariness of the confessional statement and it was on the basis of the findings that it held that the statement was made voluntarily. The Appellant did not appeal against any of the findings of fact made by the lower Court in the ruling, even in his final notice of appeal, and no issue was formulated or argument put forward by the Counsel to the Appellant in this appeal to challenge those findings.”

I agree with the Court of appeal’s ratio on this point and could not have put the matter better myself. Even though the confessional statement has been made an issue in this Court, its admissibility has been tested and determined by the trial Court. That aspect of the trial and the admissibility of the statement would not be affected by the IPO’s absence to answer questions on some other areas of his investigation.

In this appeal, the failure to cross-examine the IPO cannot lead to an acquittal of the

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Appellant. There is sufficient circumstantial evidence even without the confessional statement of the Appellant to prove the offence of culpable homicide beyond reasonable doubt. The half-hearted defence of provocation put up by the Appellant in his extra-judicial statement was not well articulated enough to be taken seriously. Neither was there any effort to press that defence during the trial. The story that a door fell on the deceased and caused her death was debunked by P.W.1 and P.W.2 whose evidence was not seriously controverted during the trial.

There is no doubt that in the circumstances of this case, the Appellant caused the death of the deceased intentionally by hitting her on her chest with an axe with knowledge that death or grievous bodily harm was the probable consequence of that action in view of the laid down criteria to determine knowledge of probable consequence including the lethal nature of the weapon used, the part of the body brutalized by the lethal weapon, and the proximity of the victim with the lethal weapon used by the Defendant. See Iden v. The State (1994) 8 NWLR Pt. 365 Pg. 719, Nwokearu v. State 15 NWLR (Pt. 1215) 1,

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Njoku v. State (2013) 2 NWLR (Pt 1339) 548, Afosi v. State (2013) 13 NWLR (Pt.1371) 329.

My Lords, I find no merit in this appeal and it is hereby dismissed. The judgment of the Court of appeal delivered on 17th September, 2015 in Appeal CA/K/513/C/2014 is hereby affirmed. Appeal dismissed.

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SC.321/2016