CORAM

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JOHN INYANG OKORO JUSTICE OF THE SUPREME COURT OF NIGERIA

UWANI MUSA ABBA AJI JUSTICE OF THE SUPREME COURT OF NIGERIA

IBRAHIM MOHAMMED MUSA SAULAWA JUSTICE OF THE SUPREME COURT OF NIGERIA

ADAMU JAURO JUSTICE OF THE SUPREME COURT OF NIGERIA

EMMANUEL AKOMAYE AGIM JUSTICE OF THE SUPREME COURT OF NIGERIA

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PARTIES

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AISHA MAHMUDA

 

APPELLANTS 

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THE STATE

 

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

The Appellant, Aisha Mahmuda, a woman of 20 years old, at Mandaragrau village of Biu Local Government Area was accused of committing the offence of culpable homicide punishable with death by stabbing one Mahmuda Adamu on his stomach leading to his death.

The confessional statement reveals the accused admitting her guilt and the same was the case in court where she admitted her guilt when the charge was read to her. The Accused/Appellant later claimed that the confessional stamen and plea was only as a result of a promise that she would be released. The Appellant’s counsel however claimed that his client was charged under the wrong law and so there was no valid charge against her. The prosecution took the cue and amended the charge amidst objections by the Appellant.

The trial Court found Aisha Mahmuda guilty as charged and accordingly convicted her for the offence of culpable homicide under to (sic) Section 221(b) of the Panel Code Law Cap 102 Laws of Borno State of Nigeria 1994. The Court of Appeal reaffirmed the decision of the trial Court.

Aggrieved by the decision, the Appellant filed the instant appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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1.  Was the lower Court right when it held in its judgment that the Appellant who expressly pleaded guilty to the amended charge of culpable homicide punishable with death under Section 211(sic) of the Penal Code cannot be heard to challenge her conviction for the offence?

2.  Was the lower Court right when it upheld the decision of the trial Court despite the absence of evidence that the Appellant understood the amended charge when read to her?

3.  Was the lower Court right when it dismissed the appeal and affirmed the decision of the trial Court that the prosecution proved the ingredients of the offence of culpable homicide punishable with death?

 

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RATIONES DECIDENDI

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CHARGE – WHERE A CHARGE IS AMENDED

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Indeed, the law is settled, that where a charge upon which the accused person is being tried is amended by the prosecution in the course of the trial, the trial Court must ask the accused to once again plead to the amended charge. The reason being that the amended charge constitutes a fresh charge which must equally be pleaded thereto. Undoubtedly, under Section 208 of the Criminal Procedure Code (CPC) of Borno State, the trial Court is cloaked with discretionary power to alter, add, or frame a new charge by way of an amendment prior to judgment. However, once a charge is amended, it must once again be read and explained to the accused person. See DOMINIC PRINCENT VS. THE STATE (2002) 18 NWLR (PT. 798), wherein this Court aptly held:

I think the point must be stressed that the vital consideration which governs the amendment of a charge whether suo motu by the Court or on the application of the prosecution after addresses by counsel but before judgment is that such amendment may be made without injustice to the accused. In this regard the various sections of Criminal Procedure Act Cap. So laws of the Federation of Nigeria 1990, such as Sections 164 and 165, and those of the Criminal Procedure Code laws of Northern Nigeria such as Sections 208 (2), 206, 210, and 211, an of which prescribe the necessary procedure a Court shall adopt on granting the amendment of a charge must be strictly complied with.

Per Iguh, JSC @ 58 paragraphs G – H and 69 paragraphs A – G, respectively. – Per I. M. M. Saulawa, JSC

 

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CHARGE – THE FUNDAMENTAL CONSIDERATION GOVERNING THE AMENDMENT TO A CHARGE

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The fundamental consideration governing the amendment to a charge, whether suo motu by the trial Court or upon an application of the Prosecution on address by counsel but prior to judgment, is that such amendment may be made without prejudice to the Accused person. As aptly reiterated by this Court in DOMONIC PRINCENT VS. THE STATE (2002) LPELR – 2925 (SC): However, once the charge is amended, a host of rights inure to the accused as carefully laid down in Sections 208(2), 209, 210, and 211 of the Criminal Procedure Code. These rights, it seems to me, are inbuilt safeguards with a view to ensuring that an accused person, by virtue of an amendment, that no injustice is occasioned to him and that his constitutional right to fair hearing pursuant to the provisions of the Constitution is fully reserved.

Per Iguh JSC @ 19 paragraphs A – D. – Per I. M. M. Saulawa, JSC

 

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ARRAIGNMENT – MEANING OF ARRAIGNMENT – THE PROCESS OF ARRAIGNMENT

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The term ‘arraignment’ simply denotes the initial step taken by the prosecution in a criminal proceeding, whereby the (accused) is brought before the trial Court to hear the charge and enter a plea thereto. See BLACK’S LAW DICTIONARY, 11th edition 2019 @ 134. An arraignment comprises the charging of the defendant thereby reading over and explaining the charge thereto in the language understood by him, followed by taking his plea. See SUNDAY KAJUBO VS. THE STATE (1988) NWLR (PT. 73) 721; (1988) LPELR – 1646 (SC) @ 8-9 PARAGRAPHS C- B; OYEDIRAN VS. THE REPUBLIC (1967) NMLR 122; GODWIN JOSIAH VS. THE STATE (1985), 1 SC 406 @ 416.

It is indeed trite, that the defendant arraigned for trial upon any charge or information must be unfettered unless the trial Court shall deem otherwise to so order. It was aptly reiterated by this Court in ANDREW IDEMUDIA VS. THE STATE (1999) LPELR-1418(SC):

(T)he charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court and such person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has been duly served therewith.

Per KATSINA -ALU, JSC (as he then was) @ 18 -19 paragraph C – F; EYOROKOROMO VS. THE STATE (1979) 6 – 9 SC; KAJUBO VS. THE STATE (1988) 1 (pt.73) 721. – Per I. M. M. Saulawa, JSC

 

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CHARGE – WHERE A CHARGE IS AMENDED AFTER THE COMMENCEMENT OF A TRIAL

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The law is settled, that at any material time, a charge is amended after the commencement of trial, the accused has every right under the law to seek to recall witnesses who had already testified prior to the amendment for further cross-examination. The accused reserves the right to equally call further witnesses that the Court may deem material or necessary in the light of the amendment in question. See DOMINIC PRINCENT VS. THE STATE (supra) per Iguh, JSC @ 21 – 22 paragraphs G – A. – Per I. M. M. Saulawa, JSC

 

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CULPABLE HOMICIDE – INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

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Under Section 221 of the Penal Code, CAP 42 Laws of Borno State 1994, it provided:

Except in the circumstances mentioned in Section 222 culpable homicide shall be punished with death-

(a) If the act which the death is caused is done with intention of causing death; or

(b) If the doer of the act knew or had reasons to know that death will be the probable and not

only a likely consequence of the act or any bodily injury which the act was intended to cause.

Thus, against the backdrop of the foregoing provisions of Section 221 of the Penal Code (supra), for the prosecution to secure a conviction against the Appellant, there are at least three fundamental ingredients that must have been duly proved beyond reasonable doubt by the Prosecution.

Indeed, the ingredients for the offence of culpable homicide punishable with death, which must be proved beyond reasonable doubt by the prosecution, are not at all far-fetched! They are:

1. That the death of a human being has actually taken place.

2. That such death was caused by the accused.

3. That the act was done with the intention of causing death.

4.That the accused knew or had reason to know that death would be the probable and not only the likely consequence of his act. The bottom line is that if it is found that the man died, the death of the deceased must be directly traceable to the act of the, accused person”.

See GAMBO MUSA VS. THE STATE (supra) Per Fabiyi, JSC @ 11 – 12 paragraphs B-A. See also USMAN KAZA VS. THE STATE (2008) 7 NWLR (pt. 1085) 125 @ 163; GEORGE VS. THE STATE (1993) 6 NWLR (pt. 297) 41; (1993) 6 SCNJ 249; OGBA VS. THE STATE (1992) 2 NWLR (pt. 422) 104; NWANZE VS. NLR (pt. 428) 1; GIRA VS. THE STATE (1996) 4 NWLR (pt. 443) 375. – Per I. M. M. Saulawa, JSC

 

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CONFESSIONAL STATEMENT – WHERE THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON IS SHOWN TO BE VOLUNTARILY MADE

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I have deemed it expedient to reiterate the trite fundamental doctrine, that where the extra- judicial confessional statement of an accused person is proved to have been made voluntarily and it’s positive, unequivocal thereby amounting to an admission of guilt (as in the instant case), it would be appropriate and safe for the trial Court to convict upon it, even in the absence of corroboration. See STEPHEN VS. THE STATE (2013) 8 NWLR (pt. 1355) 135; @ 167 paragraphs C – D; ABASI V. THE STATE (1992) 8 NWLR (pt. 260) 383; ACHABUA VS. THE STATE (1976) 12 SC 63; AREMU VS. THE STATE (1984) 6 SC 85; AKINFE VS. THE STATE (1988) 3 NWLR (pt. 85) 729; YESUFU VS. THE STATE (1976) 6 SC 167.

​Thus, as long-established a positive doctrine of Criminal Law in Nigeria, once the statement of an accused person is shown to have been voluntarily made, it is admissible in evidence against him. To use the words of Obaseki, JSC:

The principle is as old as the laws received from England and in England, the principle is as old as Hale … The evidence value of confession if true is very great indeed. It is very much sought after by police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses in cases where there are no or very few eye witnesses. A confession can support a conviction if proved to be made and true.

See INUSA SAIDU VS. THE STATE (1982) LLJR – SC per Obaseki, JSC; JAMES OBIACHABUA VS THE STATE (1976) 12 SC 63 @ 68; REG VS. CHATWOOD (1980) 1 WLR 874; DAWA VS. THE STATE (1980) 8 – 11 SC 236 @ 258; IKPASA VS. THE STATE (1981) 9 SC 7 @ 29; IBRAHIM VS. R (1914) AC 559 @ 609. – Per I. M. M. Saulawa, JSC

 

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COURTS – CONDUCT OF COURTS IN CRIMINAL ADJUDICATION

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At this crucial stage, I have deemed it appropriate to reiterate the trite fundamental doctrine, that no Court of law is bound to speculate upon what possible defence can be open to an accused person before it. However, wherein a trial for homicide (murder) or any criminal trial for that matter, the evidence suggests a line of defence, the Court has an onerous duty to, critically albeit dispassionately, consider and deal with that defence “whether or not the accused or his counsel expressly raised the defence by the legal terminology ascribed to it by lawyers”. See KARUWA TAKODIA VS. THE STATE (1969) 1 ALL NLR 270; NAFIU RABIU VS. KANO STATE (1980) LPELR – 2936 (SC) per Idigbe, JSC @ 6 paragraphs D G. – Per I. M. M. Saulawa, JSC

 

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TRIAL COURTS – DUTY OF TRIAL COURTS TO EVALUATE PRIMARY FACTS

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The concurrent findings of the Court below were predicated upon the findings of the trial Court, which were based on primary facts and conclusions drawn therefrom. It’s trite and well settled doctrine, that primary facts are basically facts which are observed by the witness and proved by evidence. Thus, conclusions drawn from these facts are inferences deduced vide a process of reasoning therefrom. This explains the hypothesis, that the determination of primary facts is always a question of fact. Fundamentally, it is a matter exclusively for the trial Court(Tribunal) who sees the witness to assess their credibility and decide the primary facts dependent thereupon. The conclusions drawn from those facts can sometimes be of fact or law. Thus, an appellate Court would only interfere with such decision of trial Court if the conclusions reached therein cannot reasonably and justitiably be drawn from the primary facts adduced at the trial.

See BRACEGIRDLE VS. OXLEY (1947) 1 ALL ER 126 @ 130 paragraphs D – F; KINGMAN VS. SEAGER (1938) IKB 397; DURNELL VS. SCOTT (1939) 1 ALL ER 83; NAFIU RABIU VS. KANO STATE (supra) per Idigbe, JSC @ 57 – 59 paragraphs A – E. Most particularly, in the locus classicus – BRACEGIRDLE VS. OXLEY (supra), it was aptly held by the English Court of Appeal (a decision of five justices):

It is, of course, said that we are bound by the findings of facts set out in the case by the justices and it is perfectly true that this Court does sit as a general Court of Appeal against justices’ decisions in the same way as quarter sessions, for instance, sit as a Court of Appeal against the decisions of Courts of summary jurisdiction. In this Court we only sit to review the justices’ decisions on points of law being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.

Per Lord Goddard, LCJ. – Per I. M. M. Saulawa, JSC

 

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STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL ADJUDICATION

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It’s trite, that in our criminal adjudicatory process, the guilt of an accused person must be proved beyond reasonable doubt, otherwise, he should be entitled to an acquittal and discharge. However, the mens rea (malice afore-thought) no longer governs the criminal responsibility of the accused person (contrary to what obtains under the common law concepts). Equally, motive is said to be irrelevant except that if is duly established, it reinforces the prosecution’s case. See ADEKUNLE VS. THE STATE (2006) 10 – 11 SCM 147; NWALI VS. THE STATE (1991) 5 SCN 14; ABDULLAHI UMAR VS. THE STATE (2014) LPELR-23190 (SC) per Ariwoola, JSC (as then was) @ 65 paragraphs A-C.

​It’s a trite hypothesis, that justice would cease to be just if considered only from end of the culprit (accused). Indeed, there must equally be justice from the end of the victim (the wronged). As once aptly strongly admonished by this Court more than four decades ago: It so often happens that in murder cases the defence usually talks of justice only in relation to the accused person. Very often justice as it affects the victim of the murder charge is either forgotten or ignored by the defence. But just as it is essential that justice be done to the prisoner, so must also be done to the deceased who, even in the lonely depths of his grave, cries out loudly for the circumstances of his death to be justly examined and justice meted to him.

See OKEGBU VS. THE STATE (1979) 11 SC 56 per Aniagolu, JSC @ 68; NAFIU RABIU VS. KANO STATE (supra). – Per I. M. M. Saulawa, JSC

 

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AMENDMENT – WHERE A CHARGE IS AMENDED BEFORE JUDGMENT

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My understanding of the law on the subject of amendment of a charge before judgment is that the amended charge would replace the original charge and shall be read and explained to the accused after which he shall be called upon to plead to the amended charge and say whether he is ready to be tried on the amended charge, either of the prosecution and the accused reserves the right to re-call or re-summon any witness who may have been previously examined for examination or cross-examination. See Adisa Vs. Attorney-General Western Nigeria (1965) LPELR-25274 (SC); Ogudo vs. The State (2011) LPELR-860 (SC); Nigerian Air Force vs. Ex-Wing Commander LD James (2002) LPELR-3191 (SC). – Per J. I. Okoro, JSC

 

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LAW – THE MAIN END OF THE LAW

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The main end of the law, its spirit and purpose is to do justice to all concerned. – Per U. M. Abba-Aji, JSC

 

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CHARGE – WHERE A CHARGE IS ERRONEOUSLY BROUGHT UNDER A WRONG OR REPEALED SECTION OF LAW

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​”Where an offence known to law… in a charge and the penalty for the offence is prescribed in a written existing law and the charge is erroneously brought under a wrong section of an existing law or under a law which has been repealed or has ceased to exist, and both the accused and his counsel are not misled and no objection is raised to the defective charge, a conviction for the offence disclosed in the charge will not be set aside on appeal if there has been no miscarriage of justice". See Per ABOKI, J.S.C, in MOHAMMED V. STATE (2022) LPELR-S7830 (SC) (PP. 75 PARAS. B). Similarly, Per AKA&39;AHS, J.S.C, in OLATUNBOSUN V. STATE (2013) LPELR- 20939(SC) (PP. 32 PARAS. A) held:

The bone of contention in the dissenting judgment by Denton West, JCA is anchored on the view that the appellant was charged under the punishment Section and not the Section that created the offence. That argument will hold water only if the offence for which the appellant was convicted is not known to law. If the facts on which an appellant was convicted are known to law the fact that the accused was charged under a wrong law or section of the law, will not lead to his acquittal. – Per U. M. Abba-Aji, JSC

 

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CONFESSIONAL STATEMENT – WHERE THE ACCUSED FAILS TO OBJECT TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

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Failure to object to the admissibility of a confessional serves is conclusive evidence of the voluntariness of that confessional statement. A Court before which such a statement is tendered, is at liberty to ascribe probative value thereto and can rely solely on it to convict the accused person. See OSSAI V. PEOPLE OF LAGOS STATE(2022) LPELR – 57297 (SC); SMART V. STATE (2016) LPELR – 40827 (SC); AJIBADE V. STATE (2013) 6 NWLR (PT. 1349) 25. – Per Adamu Jauro, JSC

 

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COURTS – CONDUCT OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS OF THE TWO LOWER COURTS

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It should also be borne in mind that this appeal is against concurrent findings of facts made by the trial Court and the Court below. The attitude of this Court is not to interfere with such findings, except they have been shown to be perverse, thereby occasioning a miscarriage of justice or where there was a violation of some principle of law. The Appellant has not convinced this Court that these situations exist in this appeal, thus there is no ground to interfere with the aforesaid concurrent findings. See ILA ENTERPRISES LTD & ANOR V. UMAR ALI & CO. (NIG) LTD (2022) LPELR – 58067 (SC); AHMED & ORS V. REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH (2019) LPELR – 46414 (SC); THE ADMIN. & EXEC. OF THE ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR – 3152 (SC). – Per Adamu Jauro, JSC

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Penal Code CAP 102 Laws of Borno State, 1994

3. Evidence Act, 2011

 

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