OJODOMO EKOMO ALFRED VS THE STATE
April 2, 2025BULUS HAMMAN VS AMINU UMAR BABA
April 2, 2025Legalpedia Citation: (2020) Legalpedia (CA) 11891
In the Court of Appeal
HOLDEN AT ABUJA
Wed May 20, 2020
Suit Number: CA/A/129C/2018
CORAM
PARTIES
MICHAEL IKEO-OJO IDAKWO ETUH
THE STATE
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Appellant was arraigned before the High Court of Justice of Kogi State ,holden at Idah on a one count charge of culpable homicide punishable with death to wit he stabbed one named Chukwudi Onah on his neck and leg with a knife with the knowledge that his death would be the probable consequence of his act and thereby committed an offence punishable under Section 221 (a) of the penal code. The Appellant pleaded guilty, but being a capital offence, the trial court, as it were in keeping in fidelity with the requirement of the law that a plea of not guilty be recorded even when the accused person pleads guilty, the court deemed the plea of guilty as one of not guilty and called on the prosecution to prove the charge as required by law. During the trial, the prosecution called one witness, and tendered the Appellant’s extra judicial statement which was admitted in evidence and marked as Exhibit P1 and closed its case, while the Appellant testify his defence, and closed his case. Counsels for both parties orally addressed the court. In its judgment, the trial court found the charge proved but convicted the Appellant under Section 222 of The Penal Code and sentenced him to 5 years imprisonment without an option of fine. Dissatisfied with the judgment, the Appellant appealed to the Court of Appeal vide a Notice of Appeal which contains three grounds inclusive of the omnibus ground of appeal.
HELD
Appeal Dismissed
ISSUES
Whether the trial court was right in convicting the appellant for culpable homicide not punishable with death under Section 224 (4) of the penal code.
RATIONES DECIDENDI
FORMULATION OF ISSUES FOR DETERMINATION – CONSEQUENCES OF FORMULATING ISSUE FOR DETERMINATION FROM A COMBINATION OF COMPETENT AND INCOMPETENT GROUND (S) OF APPEAL
“The settled position of the law is that where an issue for determination is formulated from a combination of competent ground (s) of appeal and incompetent ground (s) of appeal, such issue is in itself incompetent and liable to be struck out. See Queen Chioma Ezuma & Anor V. Federal Republic of Nigeria (2017) LPELR – 43382 (CA), Yakubu V. Tsauri (2003) 52 WRN 110, Tiamiyu V. Olaogun (2008) 17 NWLR (Pt 1115) 66, NPF &ors V. Omotosho &ors (2018) LPELR – 45778 (CA). –
ISSUES RAISED SUO MOTU –WHETHER A COURT HAS JURISDICTION TO RAISE AN ISSUE SUO MOTU AND PROCEED TO DETERMINE SAME WITHOUT AFFORDING PARTIES AN OPPORTUNITY TO BE HEARD
“The settled position of the law is that a court has no jurisdiction to raise an issue suo moto and proceed to make pronouncement on same without giving the parties an opportunity to be heard on the issue. See Groner & Anor V. EFCC &Anor (2014) LPELR – 24466 (CA), PAM &ors V. ABU &ors (2013) LPELR – 21406 (CA). –
OFFENCE OF CULPABLE HOMICIDE –ELEMENTS THAT MUST BE ESTABLISHED TO SECURE A CONVICTION OF THE OFFENCE OF CULPABLE HOMICIDE UNDER THE SECTION 224 (4) OF THE PENAL CODE
“Even though the appellant was charged with culpable homicide punishable with death under Section 221 (a) of the penal code, the trial court convicted him under Section 224 (4) of the penal code. The said Section 224 (4) of the penal code provides:
“Culpable homicide is not punishable with death if it is committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and without the offender’s having taken under advantage or acted in a cruel or unusual manner.
Explanation: – It is immaterial in such cases which party first provokes the other or commits the first assault”.
The prosecution in order to secure conviction under Section 224 (2) of the penal code must establish the following:
That the death of a human being occurred,
That the death was caused by the accused person by a rash or negligent act. See the case of Iregu Ejima Hassan V. The State (2016) LPELR –42554 (SC).
BURDEN AND STANDARD OF PROVING THE OFFENCE OF CULPABLE HOMICIDE- METHODS BY WHICH A PROSECUTION WOULD DISCHARGE THE BURDEN OF PROOF IN THE OFFENCE OF CULPABLE HOMICIDE
“Being a criminal offence the requirement of the law is that the burden is always on the prosecution, and never shifts; and is on the standard of proof beyond reasonable doubt. To discharge that burden the prosecution usually adopts one or a combination of the following methods: –
By direct eye-witness evidence,
By circumstantial evidence,
By the confessional statement of the accused person. See the case of Gidado Adamu V. The State (2019) LPELR – 46902 (SC).
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CONFESSIONAL STATEMENT – GROUND ON WHICH A COURT WOULD CONVICT AN ACCUSED BASED ON HIS RETARCTED CONFESSIONAL STATEMENT
“Now, it is well settled that an accused can be safely convicted on his retracted confessional statement if the trial court is satisfied that the accused made that statement and as to the circumstances which give credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See Asuquo Okon Asuquo V. The State (2016) LPELR – 40597 (SC), Karimu Sunday V. The State (2017) LPELR – 42259 (SC).
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FINDINGS OF FACT – EFFECTS OF FAILURE TO APPEAL AGAINST THE FINDINGS OF FACT OF THE TRIAL COURT
“The appellant has nowhere in this appeal complained against the above findings of the trial court that those facts which it considered as constituting the tests laid down by law to be applied where a court seeks to rely on a retracted confessional statement do not satisfy the tests. The tests which are six (6) have earlier been set out in this judgment in the case of Ikechukwu Okoh V. The State (supra). What the appellant did argue is that the trial court did not at all apply those tests. Having not appealed against the facts considered by the trial court as satisfying those tests, the appellant is deemed to have conceded to the finding of the trial court that those facts indeed constitute the tests which the law has mandated a court relying on a confessional statement to apply. See Buhari & ors V. Obasanjo & ors (2003) LPELR – 24859 (SC),Anyanwu V. Ogunewe & ors (2014) LPELR – 22184 (SC).-
CONFESSIONAL STATEMENT- TESTS FOR DETERMINING THE VERACITY OR OTHERWISE OF A CONFESSIONAL STATEMENT
“Now, the law is that a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved is enough to sustain a conviction. The law however mandates the court not to act on the confession without first subjecting it to certain tests to test its truth. The tests for determining the veracity or otherwise of a confessional statement as laid down by law include:
Whether the statement is corroborated no matter how slight.
Whether the facts contained therein so far as can be tested, are true.
Whether there is anything outside the confession to show that it is true.
Whether the accused person had the opportunity of committing the offence.
Whether the confession was consistent with facts which have been ascertained and proved in the matter.
Whether the confession of the accused person was possible. See the case of OnyiaIfeanyi V. Federal Republic of Nigeria (2018) LPELR – 43941 (SC).
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MEDICAL REPORT – CIRCUMSTANCES WHEN MEDICAL REPORT IS UNNECESSARY TO PROVE CAUSE OF DEATH
“It is established law that medical report is not absolutely necessary to prove death where death was instantly caused by the act or attack by the accused person as in the instant case in which the appellant himself stated in his confessional statement that he used the jackknife in his possession to stab the deceased on the neck and he died. See Shabe Alh. Galadima V. The State (2017) LPELR – 41911 (SC), Inyang Etim Akpan V. The State (1994) LPELR – 382 (SC).-
THE INCONSISTENCY RULE – APPLICABILITY OF THE INCONSISTENCY RULE
“The rule does not apply to a situation in which an accused person resiles from or retracts his confessional statement. In the case of Okeke V. The State (1995) 4 NWLR (Pt 392) 676 at 704, the court held:
“The inconsistency rule does not apply to confessional statements of accused persons because it would be an escape route for an accused to freely take without any hindrance to escape from justice. It would be in the interest of society not to allow a man who has confessed to a crime to walk out of court simply because he had a change of mind. The whole trial would be a mockery”.
My Learned brother, Uchechukwu Onyemenam, JCA, who presided over the hearing of the instant appeal, in the case of Noah V. The State (2014) LPELR – 23810 (CA) held:
“Retracted confessions are normally extra judicial statements which amount to confessions but which are inconsistent with testimony at the trial. Whereas, the inconsistency rule deals with such extra judicial statement which is inconsistent with the testimony at trial if the maker is a witness, the rule does not apply to a retracted statement of an accused person…” (Pp 30 – 31, paras 30 – 31). The cases of Onubogu V. The State (1974) SC 1, Egboghonome V. State (1993) 7 NWLR (Pt 906) 383 were referred to.
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CASES CITED
Not Available
STATUTES REFERRED TO
Evidence Act, 2011|Penal Code|