ABUBAKAR JOJI V. COMMISSIONER OF POLICE

CORAM

Ita George Mbaba Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal

PARTIES

ABUBAKAR JOJI

APPELLANTS

COMMISSIONER OF POLICE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, JUDGMENT

SUMMARY OF FACTS

At the trial Court, the Appellant, as 1st Defendant, was charged with two other persons (Abubakar Ahmodu, Isah Mohammedu) with conspiracy and culpable homicide punishable with death. They were accused of inflicting multiple cutlass wounds on him thereby causing severe injuries which subsequently led to the death of the victim (deceased), Mamman Haruna.

The oral account of the confessional statement of the accused as narrated by the Investigating Police Officer in court was heavily relied on but the written statement was never brought to the court as evidence. Each of the defendants/convicts was accordingly sentenced to death by hanging on counts 1 and 2 of the charge.

The Appellant was dissatisfied by the decision hence the instant appeal.

HELD

Appeal allowed

ISSUES

Whether, from the totality of the evidence before the trial Court, the trial Court was right to convict Appellant of conspiracy and culpable homicide, based on alleged oral confession by Appellant, as stated by PW1 – the Investigating Police Officer (I.P.O)?

RATIONES DECIDENDI

COMMISSION OF AN OFFENCE – THREE MAIN WAYS OF PROVING THE COMMISSION OF AN OFFENCE

The law provides for 3 main ways of proving the commission of an offence, in our Criminal jurisprudences, namely:

(1) By evidence of an eyewitness

(2) By confessional statement of accused person, adjudged to have been voluntarily made, admitting the commission of offence, and

(3) By circumstantial evidence, pointing directly, conclusively and positively at the accused person as the one to bear the guilt for the Criminal act or omission.

See the case of Hassan Vs The State (2021) LPELR – 56572 CA, Ugboji Vs The State (2017) LPELR – 43427 (SC), Asekere Vs State (2022) LPELR – 56863 (SC) and Suleiman Vs The State (2023) LPELR 60049 CA, where it was held:

“Counsel on both sides have stated the three ways of proving commission of offence, namely: 1) By evidence of eye witness of the Commission of the offence; 2) By confessional statement of the accused person, adjudged voluntarily made by him/her, admitting the offence. 3) By circumstantial evidence, which is direct and cogent, tracing the commission of offence and the guilt thereof, irresistibly, to the accused person. See the cases of Okeke vs FRN (2020) 18 NWLR (Pt. 1755) 11, Abdu vs State (2017) 7 NWLR (Pt 1564) 171 Famakinwa vs State (2013) (pt. 1354) 597, Amusa vs The State (2002) All FWLR (Pt. 85) 382, Adisa vs The State (1991) 1 NWLR (Pt 168) 490, Okanlawon vs State (2015) 17 NWLR (Pt. 1489) 445.”

Of Course, sometimes the above ways of proving commission of the crime, overlap or coalesce, to make it difficult for an accused to wriggle out of the web. See the case of Hassan Vs The State (Supra) where it was held:

“It is also the law, that where the various ways of proving the commission of offence coalesce or are established in a given case, it becomes difficult for the accused (Appellant) to get out of the entrapment. Thus, where evidence of eye witness account combines with a confessional statement and perhaps with strong circumstantial revelations to give effect to a conviction, Appellant will have serious difficulties impeaching the conviction. See the case of Uhara Vs The State (2021) LPELR – 55512 CA, Solomon Manger Vs C.O.P. FCT (2021) LPELR – 53466 (CA).” – Per I. G. Mbaba, JCA

CULPABLE HOMICIDE – THE INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE

The law also requires the prosecution to establish the ingredients of the offence, charged, before it can be said to have proved the commission of the offence, and that proof must be beyond reasonable doubt. See Sections 131 and 135 of the Evidence Act, 2011.

And for culpable Homicide, it must be established that there was death of the victim (deceased); that the act or omission of the accused person cause the death, that the act/omission was done with the intention of causing death or grievous bodily harm. See the case of Yamusa Vs The State (2022) LPELR – 57094 (CA), where we founded on other cases, to hold as follows:

See the case of Polycap Vs The State(2020) LPELR – 49631 (CA) and Enweremadu Vs State (2017) LPELR – 42488 (CA), where it was held: “Counsel, on both sides, had stated the legal ingredients of the offence of murder, that there must be evidence of death (of the deceased); that the death of the deceased resulted from the act/omission of the accused person(s), and that the said act/omission of the accused person intended the death of the deceased, or to cause him grievous bodily harm, that is, the accused did the act/omission intentionally with the knowledge that death or grievous bodily harm would be its probable consequence. See Omotola Vs The State (2009) 7 NWLR (pt.1139) 148; (2009) LPELR – 26635 SC, Ndukwe Vs The State (2009) 37 NSCQR 425 at 459 – 460, Nwachukwu Vs The State (2002) 3 FWLR (pt.123) 321, Obasi Vs The State (2014) LPELR – 24013 (CA), Sule Vs State (2009) 19 NWLR (pt.1169) 33, Akpa Vs State (2008) 14 NWLR (pt.1106) 72, Musa Vs The State (2014) 1 LPELR – 22192 (CA). – Per I. G. Mbaba, JCA

ORAL CONFESSION – MEANING OF ORAL CONFESSION – PRACTICE AND APPLICATION OF THE JUDGES RULE

I think the learned trial Judge had greatly confused and misconstrued the meaning of oral confession. Oral confession can only be made by an accused person directly to the Court, not to an I.P.O. (Investigating Police Officer). The law stipulates that, where an accused person volunteers a confession to the Police, in the course of investigation, the Police must reduce the statement into writing and the same made to pass through some protocols of authentication and verification before a Superior Police Officer, that the accused person truly made the confessional statement, and intended to rely on the same at the trial. See the case of the Queen Vs Obiasa (1962) LPELR – 40991 (SC), where it was held:

“The Court would like the Police witnesses in this case, as well as the other members of the Police to bear in mind that they have a duty to test the truth of the facts stated in a confession as far as they can, and should not be rest satisfied when it is made.”

That usually leads to what is often termed as the Judges Rule, to authenticate that an accused person, actually and intentionally made the confessional statement sought to be relied on. See the case of Agbanimu Vs FRN (2018) LPELR – 43924 (CA), where my Lord, Otisi JCA, reviewed the practice and application of the Judges Rule, as follows:

“Controversies associated with methods used by law enforcement agents in the interrogation of suspected persons and the value of evidence obtained thereby has always been a source of judicial and societal concern. In an attempt to achieve a balance between the need to ensure that law enforcement agents are enabled to investigate crimes thoroughly and the need to ensure the protection of the innocent as well as the rights of the suspect, Judges in England developed what was known as, Judges Rules, meant to guide the police on how far they should go when interrogating or taking statements from suspects or prisoners. These Rules were not rules of law but more in the nature of rules of caution. They, in effect provided a code of behaviour for the guidance of the police in investigation. The purpose of the Rules was to ensure, as far as possible, that all statements admitted in evidence, more so if confessional in nature, were obtained freely and voluntarily. Nevertheless, failure to observe the Rules would not, ipso facto, render the statement inadmissible, as long as the statement in issue was made freely and voluntarily. The fact that the police have adhered to these Rules in their investigation of a crime would guide the Judge in determining the weight to be attached to any confessional statement made by the accused.

On the application of the Judges’ Rules in Nigeria, the Supreme Court, per Oputa, JSC in Ojegele v The State (1988) NWLR (Pt 71) 414, (1988) LPELR-2370(SC), at pages 15 – 16 of the E-Report elucidated:

“The Judges, Rules are rules made by English Judges for the guidance of English police officers. Nobody, however, disputes the wisdom behind those Rules. But having said that, it is necessary to add that the Rules are not rules of law but merely rules of administrative practice. They are rules made for the more efficient and effective administration of justice and therefore should never be used to defeat justice. Even in England, the Court of Appeal felt bound to observe that “the Court must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth” R- v. Richardson (1971) 2 Q.R 484 at p. 490: (1971) 2 All E.R 777.

Here in Nigeria there is a consensus of judicial opinion that the practice set out in the Judges Rules “accords with prudence and that where it is practicable, especially in serious cases of felony, where the only material evidence against an accused person is his confession contained in his statement made to a junior police officer that practice should be followed.” But the Federal Supreme Court in Nwigboko & Ors v. The Queen (1959) 4 F.S.C. 101 at P. 102 resolutely held:

“We do not however agree with the Judge that where the practice is not followed, the Statement should necessarily be viewed with suspicion… We are not prepared to go to the length of laying down as a general rule that where it (the practice) is not observed the statement should be viewed with suspicion.”

The aim of the Judges’ Rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt.”

See also Eyop v State (2012) LPELR-20210 (CA), Babarinde v The State (2012) LPELR-8367(CA). – Per I. G. Mbaba, JCA

CONFESSION – CONDUCT OF AN INVESTIGATING POLICE OFFICER IN REGARDS TO ALLEGED CONFESSION

Common sense would suggest that the PW1 (I.P.O.) would have reduced the alleged confession by Appellant into writing and cause it to comply with the Judges Rule and tender same in evidence, as confessional statement of Appellant before the Court can give regard to it. – Per I. G. Mbaba, JCA

WITHHOLDING EVIDENCE – THE PRINCIPLE OF WITHHOLDING EVIDENCE

See also Oduoye & Anor Vs Ajayi & Ors (2015) LPELR – 40527 CA, where the condition of Section 167 (d) of the Evidence Act were stated as follows: By Danjuma JCA: "Be that as it may, the principle of withholding of evidence relates only to parties in a case and specifically operates against a person who seeks to succeed on a claim or on the basis of a piece of evidence but fails to produce or tender such evidence, to such a party, the presumption of law under S. 167 (d) of the Evidence Act is that if the evidence had been produced, it would be unfavourable to him. See Igbeke Vs. Emordi (2010) 11 NWLR (Pt. 1204) 1d at 35 par SC – D.” The Prosecution is not however obligated to call every witness listed on the information, to succeed, but failure to call a material or vital witness in a case, can be fatal to the case of the prosecution. See Ochiba Vs The State (2011) LPELR – 8245 (SC): "A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution's case. In other words, a witness who knows something significant about a matter is a vital witness." Per ADEKEYE, JSC (P. 37, paras. C-D) – Per I. G. Mbaba, JCA

EVIDENCE – EVIDENCE OF AN INVESTIGATING POLICE OFFICER

After the above brilliant findings, the trial Court, in my view, relapsed into great error, when he said:

“The law is now settled that the evidence of an IPO is direct evidence which the Court can act upon in determining the guilt of an accused person; it is not hearsay evidence. There is a huge body of case law affirming this position. See Olaoye Vs The State (2018) LPELR – 43601 (SC), Kamila Vs The State (2018) LPELR – 43603 (SC), Anyasodor Vs The State (2018) LPELR – 43720 (SC) …." The above statement of the law is not wholly correct, as only the testimony of an IPO, which is predicated on his direct findings in the course of investigation, can be said to qualify as his direct evidence and findings. That cannot extend to what, he claims the accused person told him, as the accused person should say it himself, in the Court, with his own mouth, or as per his statement to the Police! The IPO cannot be the mouth-piece of an accused person, standing trial in Court, that the accused person admitted commission of the offence, before him, when the accused person is denying the offence, in Court. No Court should take such hearsay evidence, or rely on it to convict the accused person. That cannot qualify as confessional statement on which a Court can convict an accused person. The trial Judge was therefore in grave error to convict Appellant on the alleged confession by Appellant to the I.P.O. (PW1). – Per I. G. Mbaba, JCA

HEARSAY EVIDENCE – WHEN INVESTIGATING POLICE OOFFICER’S EVIDENCE IS HEARSAY EVIDENCE

The trial Court has relied heavily on the evidence of the Investigation Police Officer (IPO) who testified as PW1 that the accused person (Appellant) confessed to him that he committed the offence for which he was charged. No confessional statement of the accused was tendered by him even as the Investigating Officer. Certainly, PW1, is not qualified to give evidence of oral confession of the accused Appellant hence the trial Court wrongly relied on that evidence to send the Accused/Appellant to the gallows, being hearsay evidence. Hearsay evidence is not admissible under the law. Refer to Section 37 and 38 of the Evidence Act, 2011. The evidence of PW1 on record is a re-statement of the alleged confession made to him by the Appellant. That statement or evidence not being direct evidence is similarly not admissible under Section 126 (b) of the Evidence Act. – Per S. T. Hussein, JCA