Kalgo V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
On 25/1/2014, at Kalgo Town, Kalgo Local Government of Kebbi State, a group of hunters, including the Appellant and one Mohammed Bandi, went on a hunting, expedition, and a fight broke out over bush meat.
Offended by what Mohammed Bandi said to him during the fight, the Appellant used an axe to inflict injury on Mohammed Bandi’s head.
Mohammed Bandi was first taken to a Hospital in Birnin Kebbi, and was later transferred to the University Teaching Hospital, Sokoto, where he died twelve days later. The Appellant was arraigned before the High Court of Kebbi State and charged with the offence of culpable homicide punishable with death. After a trial in which four witnesses testified for the Prosecution, and he testified in his own defence, the Appellant was found guilty and was convicted and sentenced to death.
He appealed to the Court of Appeal but his appeal was dismissed; the Court of Appeal affirmed the decision of the trial Court. Aggrieved, he has appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and he formulated the following issue in his Brief:
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Whether from the evidence before the trial Court, the Respondent proof (sic) the offence of culpable homicide with death beyond reasonable doubt against the Appellant.
The Respondent adopted the sole issue as formulated by the Appellant, including the use of the word “proof” instead of proved, in its own Brief.
I must say that the Issue for Determination as formulated by the Appellant and adopted by the Respondent leaves much to be desired. There was no mention of the Court of Appeal and it is well settled that there is no nexus or connection between this Court and the trial Court; not directly anyway. The Findings of a trial Court must be affirmed or reversed by the Court of Appeal before its decision gets to this Court – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430, Djukpan V. Orovuyovbe (1967) 1 All NLR 134, Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271.
But this Appeal involves a death sentence, and it is clear that the issue for determination is simply whether the Court of Appeal was right to affirm the trial Court’s decision that the Appellant is guilty as charged for the offence of culpable homicide punishable with death. First of
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all, there was no direct evidence of what transpired between the Appellant and the deceased; no one saw him inflict injury on the deceased’s head. The first three witnesses called by the Prosecution only narrated what happened after the deceased was injured and taken to the Hospital(s).
However, the Appellant’s Confessional Statements to the Police were admitted in evidence as Exhibits 2 & 3 through the Investigating Police Officer, CpI. Abdullahi Lawal, who testified as PW4. In Exhibit 2, recorded by the said PW4 on 6/2/2014, the Appellant stated as follows:
On Saturday – 25/01/14 – – we went to the bush for hunting in a group, after we went there, we started fighting each other and the reason for the fight was bush meat. There is one man by name Mohd Bandi, he said he wanted to kill me during the fight, from there he remove his cutlass and I remove my own, from there I cut him on his head and I ran away inside town (sic), from there Police arrested me and brought me to the Police Station. I was in the Prison yard when I heard the information that Mohd Bandi has died.
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In Exhibit 3, recorded earlier on 27/01/14, he had stated as follows –
It was on Saturday, 25/01/12 – – we went hunting to commemorate one of our member, by name Nasiru who his mother gave birth, myself, I was in Tauri group, while the victim was in the group of hunters. In the bush gauro. Then the victim Bandi said his boys suppose to kill me. When we return back to town, I saw Bandi coming from his house myself was passing the road, we met from there Bandi commented that he will kill me. From there we started fighting. Bandi has a knife, myself I have axe. I was able to cut him on his head, he sustained injury blood was rushing all over. Then, I decided to run and hid in the bush, later I was arrested. I knew that Bandi was taken to Hospital. That is all my statement.
In his evidence as DW1, while testifying in his own defence, he said –
On the 25th day of January 2014 at about 1 o’clock, I was in the bush on a hunting expedition. We were in a group so many of us. I know the Charge against me. On that they (sic) there was a fight over game, which included the use of sticks. I know Mohd Bondi. He was involved in the fight. The fight also included the use (of) matchets. In the course of the fight, Mohd Bondi struck me and I struck him back. He struck me on the left shoulder. The Charge against me is not true I am not guilty.
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In his Judgment delivered on 30/6/2015, the learned trial Judge, I. B. Mairiga, CJ, evaluated the evidence vis-a-vis ingredients of the offence, and found that “it was the injury inflicted on the head of the deceased”.
He considered the “availability of the defence of self-defence and provocation under the scenario presented by the Defence”, and held –
From the totality of evidence adduced before me – – neither the self-defence nor provocation can avail the Accused in the circumstances. The Accused is accordingly found guilty as charged and is convicted of the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code. The Accused having (sic) is hereby sentenced to death.
In its Judgment of 8/6/2017, the Court of Appeal concluded as follows:
The Appellant having used an axe in striking the deceased on the head, must have intended killing the deceased. Consequently, the trial Court has come to the correct conclusion that an offence of culpable homicide punishable with death has
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been committed by the Appellant. Learned counsel for the Appellant has made an allusion that Exhibits 2 and 3 ought not to have been relied upon by the trial Court in convicting the Appellant, contending that same is a qualified confession. The word “qualified” connotes to some restriction or limitation. I have reproduced the relevant Statement of the Appellant and same in my view admits no limitation, restriction or condition. A confessional statement made by an Accused Person which is properly admitted in evidence is in law, the best pointer to the truth of the role played by such Accused Person in the commission of the offence. Such confessional statement can be accepted as satisfactory evidence upon which alone the Accused can be convicted. In the instant case, it is clear from the Statement that the Appellant positively and unequivocally admitted hitting the deceased with an axe on the head. Thus, the confessional statement of the Appellant alone was sufficient to sustain his conviction. I am not unaware of the fact that the Appellant, while testifying in chief retracted where he stated at page 26 of the Record:
“I know Mohd Bandi. He was involved in
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the fight. The fight also included the use (of) matchets. In the course of the fight, Mohd Bandi struck me and I struck him back. He struck me on the left shoulder. The Charge against me is not true I am not guilty”.
Once the trial Court is satisfied, as the trial Court was in this case, that the Statement is free, voluntarily made, unambiguous, true, direct and positive with reference to the offence charged, it can convict on it. Thus, the U-turn made by the Appellant was of no avail. See FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 at 336. In conclusion, I hold that this Appeal lacks merit and is accordingly dismissed. The Judgment of the lower Court, coram Hon. Justice I. B. Mairiga, CJ, …… delivered on 30/7/2015 is hereby affirmed.
It is the Appellant’s contention in this Appeal that the Court of Appeal erred in law when it affirmed the Judgment of the trial Court because there was no evidence to prove the ingredients of the offence charged. He argued that PW1, PW2 and PW3 gave hearsay evidence and pointed to discrepancies between his name and the names on Exhibits 2 and 3. To put it in his own words, he argued as follows at pages 5-7 of his Brief:
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Exhibit 2 is a statement made by one “Moh’d Sani S/Yaki.” The Appellant’s name is Mohammed Sani Kalgo. Exhibit 2, which is in a foreign language and not in [his] name cannot be used to convict [him]. Exhibit 3 – – is a statement made by one “Mohd Sani Kalgo S/Yaki”. The Appellants’ name is Mohammed Sani Kalgo hence Exhibit 3 is not relevant to [his] case. Assuming but not conceding that “Mohd Sani Kalgo S/Yaki’ in Exhibit 3 is the same as ‘Mohammed Sani Kalgo’ on the Charge Sheet – – The Court after judicially noticing [him] as an illiterate cannot assume that Exhibit 3 is made by [him]. Exhibit 2 in the name “Mohd Sani S/Yaki” is not the same as Exhibit 3 in the name “Mohd Sani Kalgo S/Yaki” – – The Appellant ‘Mohammed Sani Kalgo’, whose name did not appear on Exhibit 2 and 3 as such; but a different name “Mohd Sani S/Yaki” and “Mohd Sani Kalgo S/Yaki” created a whole lot of doubt as to whether the three names are one and the same thing. The trial Judge and the Respondent were wrong in law when they refused to clear this doubt by a corroborative evidence; hence such doubt will be resolved in favour of the Appellant.
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He also submitted that the said discrepancies and inconsistencies in the names on Exhibit 2 and Exhibit 3 and his own name is a fundamental and core issue, which must be resolved in his favour; and citing the case of Musa Ikaria V. State (2013) 8 NCC 253, he urged this Court to so hold.
The Appellant, who filed a 9-page Brief, had nothing more to say. The Respondent filed a 15-page Brief, wherein it canvassed arguments and made submissions ranging from the ingredients of the said offence to the state of the law on means of proof and confessional Statements.
The points made by the Respondent are well taken but the fact is that the Appellant concentrated all his arguments on the discrepancies between his name on the Charge Sheet and names on Exhibits 2 and 3.
On this score, the Respondent simply submitted that “the days of technicalities are over”; that the facts and circumstances of this case are so glaring that the identification of who killed the deceased is not in doubt; that the attitude of the Courts now is to do substantial justice without undue adherence to technicalities, citing Adelusola V. Akinde (2004) 18 NSCQLR 371, Fagunwa V. Adibi (2004) 19 NSCQLR 415; and that the Prosecution had proved its case beyond reasonable doubt.
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Now, it is an established principle of criminal law that the burden of proving a fact, which if proved, would lead to the conviction of the Accused Person, is on the Prosecution, and the Prosecution is enjoined to prove such fact beyond reasonable doubt. What is more, any doubt as to the guilt of the Accused must be resolved in favour of the Accused -Ahmed V. State (1999) 7NWLR (Pt. 612) 641, Oforlete V. State (2000) 12 NWLR (PL 681)415, Kalu V. State (1988) 4 NWLR (Pt. 90) 502/513.
The legal definition of doubt is “to question or hold questionable. Uncertainty of mind; the absence of a settled opinion or conviction”; and a “reasonable doubt” is defined as “such a doubt as would cause a reasonable and prudent person – – to pause and hesitate to act upon the truth of the matter charged. It does not mean a mere possible doubt, because everything relating to human affairs – – is open to some possible or imaginary doubt”- legal-dictionary.thefreedictionary.com.
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As the Respondent rightly submitted, the Prosecution must prove its case “beyond reasonable doubt”, and as Oputa, JSC, observed in Bakare V. State (1987) 1 NWLR (Pt. 52) 579, the said standard of proof “stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice”. He further explained as follows:
To displace this presumption, the evidence of the Prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the Person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All E. R. 373: –
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence – ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt”.
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In the case now on appeal, it is possible that a man slipping and falling and hitting his head on a motorcycle pedal may sustain some injury to the head but it is highly improbable that he will have a cut as deep and as wide as that described by the medical evidence of PW6. Also, it is 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 facts and surrounding circumstances of the case.
So, as much as the Prosecution has to prove its case against an Accused “beyond reasonable doubt”, the emphasis is on the word “reasonable”, and the word “reasonable” means “fair, proper or moderate under the circumstances; according to reason”- see Black’s Law Dictionary, 9th Ed.
In this case, the Appellant insists that the three different names in the Charge Sheet and the Confessional Statements created doubts in the case against him; and the trial Court and Respondent were wrong “when they refused to clear this doubt by a corroborative evidence”.
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I have gone through the Record of Appeal, and I cannot see where the Appellant raised an objection on this ground to warrant a complaint that the trial Court and the Respondent refused to clear the said doubt, and this is not the time and place to raise such an Issue in this Court.
This Court has repeatedly said that the appropriate time to object to the admissibility of a Statement said to be a Confession is when the Statement is sought to be tendered-see Oseni V. State (2012) 5 NWLR. (Pt. 1293) 351, wherein I.T, Muhammad, JSC (as he then was) observed:
The Appellant’s counsel at the trial stage did not object to the admissibility of [his] confessional statement, yet he went on to blame the trial Court in not treating [the] confessional statement with utmost caution. It [is] too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived. – – It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is – -taken as an afterthought, which Courts are not ready to accommodate.
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In this case, the Appellant did not object to the admissibility of the said Confessional Statements [Exhibits 2 & 3], when the Prosecution applied to tender them in evidence through PW4; he did not raise the issue in in his Final Address; and the trial Court did not consider any such issue.
The Notice of Appeal he filed at the Court of Appeal contains five Grounds of Appeal but there is no complaint therein regarding the said discrepancies, and the Court of Appeal did not consider any such issue.
So, the Appellant is raising this issue for the first time in this Court, but he is asking for the impossible because, this Court is not in a position to consider any issue that was not determined by the two lower Courts – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430, wherein this Court held:
It is the opinion appealed against, which is affirmed or reversed. Hence, without the benefit of such opinion, an appellate Court will be extremely reluctant to interfere. Any Judgment – -founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the Judgment appealed against ideally is not an appeal against
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such a Judgment. Since an Appellant’s right of appeal is circumscribed within the parameters of the Judgment appealed against, this Court will not lightly permit impugning the Judgment on grounds of error other than are contained therein.
Moreover, an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court because as this Court observed in Ibafidon V. Igbinosun (2001) 8 NWLR (Pt. 716) 653, “such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony”.
Be that as it may, looking at the merits of the case, I have to agree with the Respondent that the identification of who killed the deceased, is not an issue in this case. Yes, the Prosecution is enjoined to prove its case beyond reasonable doubt, and yet, not all doubts are reasonable. Reasonable doubt automatically excludes unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt-a doubt not borne out by the facts and circumstances of the case – see Bakare V. State (supra).
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In this case, the Appellant admitted in his evidence as DW1 that he fought with the deceased; that the fight included “use of matchets”. that the deceased struck him; and he, the Appellant, “struck him back”. In Exhibit 2, the Appellant stated that he cut the deceased on the head, and in Exhibit 3, he stated that after he used his axe to cut the deceased on the head, “he sustained injury (and) blood was rushing all over”. So, the Appellant linked himself to the injury on the head of the deceased.
In affirming the trial Court’s finding that it was the injury on the deceased’s head that caused his death, the Court of Appeal observed:
It is not in contest that Muhamad Bondi Kalgo – – is dead. It is also on record that the deceased sustained injury on the head as a result of which he was rushed to the Hospital wherein he died after 12 days of admission at the Usman Danfodio University Teaching Hospital, UDUTH. Likewise, there is no other person that struck the deceased with an axe on the head.
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I agree. There is no other person that struck the deceased on the head with an axe except the Appellant, and in the circumstances of this case, the discrepancies in the names on the Charge Sheet and Exhibits 2 & 3, could not have raised any doubts in the Prosecution’s case against him.
The concurrent findings of the two lower Courts are unassailable. The Appellant’s confession in Exhibits 2 & 3 rings true and is in harmony with his admission as DW1 that he struck the deceased during a fight.
This Appeal lacks merit. It fails and it is dismissed. I affirm the Judgment of the Court of Appeal that upheld the trial Court’s decision.
SC.583/2017
