Monday Telkwet V. The State (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSHELIA, J.C.A.
This appeal is against the Judgment of High Court of Justice, Plateau State, Jos delivered on the 30th day of October, 2017, wherein Appellant was convicted and sentenced to 10 years imprisonment without option of fine for the offence of Culpable Homicide not punishable with death under S.224 of the Penal Code. Appellant was alleged to have caused the death of one Baba Musa by hitting him with a stick on his stomach, which act resulted to the death of deceased on 17/10/2014. Appellant was arraigned before High Court of Justice Jos. An Amended charge was read over to the accused now Appellant and he pleaded not guilty to the charge. At the trial prosecution called three witnesses and tendered seven (7) Exhibits. The Defence on its part opened and closed its case with only the accused testifying as a witness. Written addresses were adopted and the matter was adjourned for Judgment. The learned trial Judge in his well considered Judgment delivered on the 30th October, 2017, wherein Appellant was convicted and sentenced to ten years imprisonment without option of fine.
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Dissatisfied with the Judgment of the trial Court, the Appellant lodged an appeal vide a Notice of Appeal dated the 26th day of January, 2018 and filed on the same date containing eight grounds of appeal.
In compliance with the rules of Court parties filed and exchanged their respective Briefs of Argument. Appellant?s Brief of Argument settled by S.S. Obende, Esq with M.A Dawawu, Esq., W.L Jencwat Esq., D.G Shut, Esq., K.M Zonglong, Esq. and W.S. Aboki, Esq., was dated 30/07/2018 and filed on 31/07/2018. While the Respondent?s Brief of Argument settled by G.D Fwomyon, Esq. Director of Public Prosecution Ministry of Justice Plateau State with I.M Saleh Esq. Principal State Counsel and I. Mantu Esq. was filed same date 01/11/2018 but deemed properly filed on 05/11/2018.
When the appeal came up for hearing, each counsel adopted their respective briefs of argument and Appellant urged Court to allow the appeal. Respondent on the other hand urged the Court to dismiss the appeal.
In the Appellant?s Brief of Argument two issues are distilled for determination as follows:
1) Whether the lower Court was right in relying on Exhibit
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3, as confessional statement to convict the appellant? Relates to Ground 1 of the Notice and Grounds of Appeal.
2) Whether the prosecution proved the guilt of the appellant beyond reasonable doubt ? Relates to grounds 2-8 of the Notice and grounds of Appeal.
The Respondent on his part did not formulate new issues but adopted that of the Appellant.
In determining this appeal, I will adopt Appellant?s issues but same will be treated together for convenience.
Under Issue 1 learned counsel submitted that there is no evidence extrinsic to Exhibits 3 that link the accused person to the death of deceased. Counsel contended that even the lower Court agreed that there was no eyewitness account, no circumstantial evidence to link the accused to the commission of the offence. Counsel contended that it was erroneous for the lower Court to have proceed to place reliance on Exhibit 3 and ascribe weight to Exhibit 3 without resolving whether the tests set out at page 105 of the record has been established. That Exhibit 3 is incapable of being ascribed any weight by the Court. Counsel contended that Exhibit 3 was recorded in English language
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hence the requirement for translation to the accused was needed. That accused was correct when he said Exhibit 3 (written in English language is not his statement). Reliance placed on Bello v C.O.P (2018) 2 NWLR (Pt.1603) 267 @ 331, Olalekan v State (2001) 18 NWLR (Pt.746) 793 @ 819-820 and FRN v Usman (2012)8 NWLR (Pt.1301) 141. Learned counsel submitted that it is clearly beyond doubt that the lower Court did not rely on any other piece of evidence other than Exhibit 3, even in the face of the absence of the Hausa version. That lower Court ought to have exercised caution in placing any weight on Exhibit 3. Counsel also referred to the case of Mudassiru Suleiman v Kano State (2014) LPELR-23601 (CA) to submit that Appellant clearly denied the making of Exhibit 3 as such the weight to be attached to such statement is very important. That the ascription of weight to Exhibit 3 by lower Court was in error. That Exhibit 3 did not satisfy the requirements for ascription of weight on Exhibit 3. He urged Court to resolve issue in favour of the Appellant.
As regards issue 2 learned counsel submitted that it is not in dispute that the Respondent is obliged to prove the
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guilt of the Appellant beyond reasonable doubt. Counsel observed that the lower Court said two of the ingredients were not proved. That proof of the guilt of the appellant can only be said to have been discharged where the prosecution is able to show that each of the element or ingredients of the offence charged has been established. Reference made to page 100 where the lower Court set out ingredients of the offence of Culpable Homicide. That the burden of proof lies on the prosecution to show that it was the act of the accused that caused the death of deceased. See Okorogba v The State (1992)2 NWLR (Pt.222) 244. That failure of the prosecution to lead cogent and credible evidence in proof of this point will result in the acquittal of the accused. Cited in aid Lori v The State (1980) 8-11 SC 81 at 95. Counsel submitted that lower Court failed to make finding on the second ingredient. Counsel further submitted that to rely on Exhibit 3 the lower Court was obliged to satisfy itself of the existence of four tests as set out at page 105 of the record. That lower Court failed to satisfy itself that Exhibit 3 was probable. That Exhibit 3 failed all the parameter for
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admissibility and ascription of weight on the statement. Counsel contended that prosecution failed to prove the guilt of the accused. That the conviction of Appellant though for lesser offence is erroneous and has occasioned miscarriage of justice.
In response learned counsel for the Respondent submitted under issue one that both Appellant and Respondent are in tandem with the position of the law that Exhibit 3 was rightly admitted by the lower Court as found at pages 13-14 of record. That Exhibit 3 is a retracted confessional statement by the Appellant and the position of the law is trite regarding the treatment of a retracted confessional statement. Counsel contended that where such statement is positive, clear, direct and establish the truth of the guilt of the accused person, such a statement can be solely relied upon to convict an accused person. Reliance placed onAwosika v State (2018) LPELR ? 44351 (SC), Asuquo v State (2016) LPELR ? 40597 (SC), Ajiboye v FRN (2018) LPELR ? 44468 (SC). Counsel submitted that Exhibit 3 apart from meeting the above requirement of the law, there are abundant corroborative evidence outside the said
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retracted confession of the Appellant. Reference made to testimony of PW3 appearing on page 77 of the record and Exhibit 6 & 7. That Appellant was directly linked to the commission of the offence charged. That the finding of the trial Court on pages 103-104 relied upon by the Appellant?s counsel is of no moment and should be discountenanced. As regards the requirement of interpreter, counsel referred to pages 69-70 of the record and submitted that PW1 understood both English and Hausa language. That, it is evident there was no third party as an interpreter to warrant the interpreter being called as a witness to either tender the Hausa version (which there was no need as in this case) or for the English version to be admissible. Reliance placed on FRN v Yaro (2012) 3 SCNJ 223 at 239, Ahmed v The State (2001) FWLR (Pt.34) 438 at 474-475 paras H-A and Semaka v State (2018) LPELR -44001 (CA). Counsel urged the Court to so find and hold that the trial Court was right to rely on Exhibit 3 in convicting the Appellant and resolve issue one in favour of the Respondent.
?As regards issue 2, counsel submitted that prosecution has the burden of proving the
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ingredients of the offence beyond reasonable doubt. The ingredients are:
a) There was a death of human being
b) The death was caused by the act of the accused person; and
c) That the accused knew or had reason to know that death will be the probable and not only the likely consequence of his act.
See Haliru Dahiru v The State (2018) 14 NWLR (Pt.1640) 567 at 576, paras G-H. Learned counsel further submitted that the guilt of an accused can be established by any or combination of the following three means:
a) Direct evidence of witnesses
b) Circumstantial evidence which is direct and cogent and leaves the Court with no doubt than the accused and no other committed the offence.
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c) Reliance on confessional statement freely made by the accused.
Counsel contended that in this case prosecution established the guilt of the Appellant through direct evidence of witnesses as well as reliance on the retracted confessional statement of the Appellant (i.e Exhibit 3). Reliance was placed on testimony of PW2 father of deceased and PW3 the IPO. Learned counsel submitted that it is trite that once a confessional statement is supported and consistent with other evidence the accused may be convicted on the basis of that. See Dibia v The State (2017) 2 SCNJ at 133. It was the contention of learned counsel that the retracted confessional statement shows that Appellant hit the deceased with a stick on the stomach and he died instantly. The testimonies of PW2 and PW3 corroborated same. Counsel submitted that in such circumstance prosecution is not required to tender medical report to prove cause of death in order to sustain conviction. See Patrick v State (2018) LPELR -43862 (SC).
?Learned counsel submitted that it is trite law that proof beyond reasonable doubt does not mean proof beyond all doubt. That it simply means establishing the
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guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with the high degree of probability. Counsel maintained that prosecution has adequately discharged the burden placed on it of proving the offence beyond reasonable doubt and urged Court to resolve the two issues in favour of the Respondent.
There is no dispute as to the fact that the learned trial Judge rightly admitted the Confessional Statement of the Appellant as Exhibit in this case. In the course of admitting the statement, Appellant did not challenge its admissibility on ground that same was not made voluntarily. Rather he said he did not make the statement. The learned trial Judge rightly admitted same but only the weight to be attached would be considered. There was no eyewitness account of what actually transpired between the deceased and the appellant. However, the appellant in his confessional statement Exhibit 3 clearly admitted that he hit the deceased with a stick on his stomach and he fainted and never recovered again. PW1 was the IPO that recorded the statement. The IPO appeared to understand Hausa, so no interpreter was used to
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translate the Statement from Hausa to English. The case of Bello v C.O.P (supra) cited by Appellant?s counsel is inapplicable to this case. In that case the Supreme Court referred to a situation where the Police Officer does not understand the language which was not the case at hand. Exhibit 3 was rightly admitted in evidence and relied upon by the learned trial Judge. PW2 the deceased father confirmed that when he went to the scene immediately he got information he found his son lying dead. PW3 confirmed that when PW2 father of deceased rushed to report to Police about the incident, team of detectives including (PW3) went to the scene and found deceased lying on ground. Once a confessional statement is found to be positive, direct and made voluntarily an accused can be convicted solely on it. See Mohammed v State (2007) 11 NWLR (Pt.1045) 303, Oseni v State (2012) 5 NWLR (Pt.1293) 351 Igba v State (2018) 6 NWLR (Pt.1614) 44 at 58. The retraction made by the appellant is of no moment.
In all criminal trials the burden is always on the prosecution to prove its case beyond reasonable doubt. See Jua v State (2010)4 NWLR (Pt. 1184) 217.
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The guilt of an accused person can be established by any or the combination of the following:
a) Direct evidence,
b) Circumstantial evidence, which is direct and cogent and the Court with no doubt that the accused and no other committed the offence.
c) Reliance on confessional statement freely made by the accused.
In the instant case the trial Court relied on the confessional statement Exhibit 3 to convict the accused now Appellant for offence of Culpable Homicide not punishable with death.
I cannot fault the finding of the learned trial Judge that the first and second ingredients required to prove the offence of Culpable Homicide punishable with death has been satisfied but the third ingredient was not proved by the prosecution. The ingredients are:
a) There was death of a human being,
b) The death was caused by the act of the accused person,
c) That accused knew or had reason to know that death will be the probable and not only the likely consequence of his act.
There is evidence to the effect that one Baba Musa died. PW1 and PW2 confirmed this fact. There is evidence to show that he died instantly after he was hit with a
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stick by the accused. As regards the 3rd ingredient the learned trial Judge found as a fact that one could not safely conclude that accused intended to cause death of the deceased having regard to the nature of weapon used its weight and size and the fact that there was no medical report to confirm the actual cause of death. This is so because the intention to kill can be deduced from the nature and type of the weapon used. There is no evidence to confirm that Appellant hit the accused on the head with the stick. However he admitted in his confessional statement Exhibit 3 that he picked a stick on the ground and hit the deceased on his body and the deceased fainted. The prosecution could have cleared this doubt by calling the security man who was present at the scene but failed to do so. Having regard to Exhibit 3 Confessional Statement which was properly admitted in evidence, the Appellant cannot go scot free. I agree with the finding of the learned trial Judge that in such circumstances the Court can impose lesser punishment which he did by convicting the Appellant for Culpable Homicide not punishable with death.
?I find nothing wrong with the findings
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made by the learned trial Judge as such this Court will not interfere.
On the whole, the appeal fails and same is dismissed. I affirm the conviction and sentence of 10 years imprisonment passed on the Appellant by Hon. Justice S.P Gang on 30th day of October, 2017 in charge No. PLD/J6C/2015.
Other Citations: (2009)LCN/3168(CA)
