CORAM
RABIU DANLAMI MUHAMMED JUSTICE, COURT OF APPEAL (Presided)
RABIU DANLAMI MUHAMMED JUSTICE, COURT OF APPEAL (Presided)
PARTIES
BASIL AKPA
APPELLANTS
THE STATE
RESPONDENTS
AREA(S) OF LAW
APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
Ibrahim Sanni (PW1 P.C.) testified that a case of culpable homicide was referred to him at S.I.I.B. Katsina. He and one Sgt. Dauda Madawaki went to Jibia to investigate. In the course of their investigation, they recovered a human head in a refuse dump. They also recovered a human torso without legs, arms and neck. The recovered body parts were taken to the mortuary. Photographs of the head and torso were admitted in evidence. According to PW2, Sgt. Dauda Madawaki, the brother of the deceased identified first, the head and later the legs they recovered as belonging to his brother, Ikechukwu Njoku. Also in the course of their investigation, they learnt that one Ikechukwu Njoku visited the appellant at Jibia and did not return home. Based on this information, a search was conducted in the appellant’s home and shop. Nothing incriminating was found in his house. However they found the floor of the inner room of his shop soaked with blood. They also found a mattress in the same room soaked with blood. They found bloodstains by the hole of a pit toilet attached to the inner room and noticed an unusual odour emanating from it. When the toilet was opened with the help of health officials, two human legs were found. According to PW2, the brothers of the deceased were present when the legs were recovered and they identified them as belonging to their brother. The legs were also taken to the mortuary. A post-mortem report was obtained.
The appellant was subsequently arrested. PW1 testified that he volunteered a statement under caution. An objection was raised to the tendering of the statement on the ground that the signature thereon was not the appellant’s and that he was seeing the document for the first time. The learned trial Judge ordered a trial within trial. At the conclusion of the trial within trial, the statement was admitted in evidence as exhibit 3. In his defence, the appellant denied any knowledge of the incident. He also stated that he did not know the deceased.
The trial Judge convicted the accused. Aggrieved by the decision, the accused filed the instant appeal
HELD
Appeal dismissed
ISSUES
Whether the guilt of the appellant was proved and established beyond reasonable doubt having regard to the evidence adduced before the trial Court?
RATIONES DECIDENDI
GROUND OF APPEAL – WHERE NO ISSUE IS FORMULATED IN RESPECT OF A GROUND OF APPEAL
Before going into the merit of the appeal, it is worthy of note that no issue was formulated in respect of ground 5 of the amended notice of appeal. That ground is deemed abandoned and it is accordingly struck out. See: Atunrase v. Phillips (1996) 1 NWLR (Pt. 427) 637. – Per K. M. O. Kekere-Ekun, JCA
CULPABLE HOMICIDE PUNISHABLE WITH DEATH – INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH
The appellant in this case was charged under Section 221 of the Penal Code, which provides:
“221. Except in the circumstances mentioned in Section 222 culpable homicide shall be punishable with death –
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act of any bodily injury which the act was intended to cause.”
The ingredients of the offence of culpable homicide punishable with death are:
(a) that the death of a human being actually took place;
(b) that such death was caused by the accused;
(c) that the act of the accused that caused the death was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
All the ingredients must be proved or co-exist before a conviction could be secured. Failure to establish any of the ingredients would result in an acquittal. See: Adava v. State (2006) 9 NWLR (Pt. 984) 152 at 167 F-H and 171 B-D. – Per K. M. O. Kekere-Ekun, JCA
STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – MEANING OF PROOF BEYOND REASONABLE DOUBT
By virtue of Section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 the standard of proof of the commission of a crime is proof beyond reasonable doubt. The evidential burden of proof rests squarely on the prosecution and does not shift throughout the proceedings. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt and therefore if the Court, based on the evidence before it, entertains no doubt that the accused person committed the offence, the burden would have been discharged and the conviction of the accused person will be upheld even on the evidence of a single witness. See: Obiakor & Anor. v. The State (2002) 10 NWLR (Pt. 776) 612; State v. Musa Danjuma (1997) 5 NWLR (Pt. 506) 512; Bolanle v. State (2005) 7 NWLR (Pt. 925) 431; Alonge v. I.G.P. (1959) SCNLR 516 – Per K. M. O. Kekere-Ekun, JCA
CONTRADICTION – WHETHER EVERY CONTRADICTION IN THE PROSECUTIONS CASE WOULD WARRANT THE ACQUITTAL OF AN ACCUSED
The law is settled that it is not every contradiction or inconsistency in the prosecution’s case that would warrant the acquittal of an accused person. The contradiction or inconsistency must be substantial and fundamental to the main issue before the Court. Where the alleged contradiction in evidence is not material to the facts in issue, and therefore does not raise a doubt in the mind of the Court, no explanation is required for them and the accused would not be entitled to benefit therefrom See: Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 at 474 G – H; 475 C; 479 G-H; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139 A-B; Okonji v. State (1987) 1 NWLR (Pt. 52) 659.
Material evidence has been described as evidence, which on account of its logical nexus with the issue, tends to influence decisively the establishment of the fact in issue. See: Ikemson v. State (supra) at 474 H. – Per K. M. O. Kekere-Ekun, JCA
CONTRADICTION AND DISCREPANCY – THE DISTINCTION BETWEEN CONTRADICTIOON AND DISCREPANCY
There is also a distinction between contradiction and discrepancy in evidence. In the case of Agbo v. State (2006) 6 NWLR (Pt. 977) 545 at 564 C-F the Supreme Court cited with approval its earlier decision in: Ayo Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 at 468-469 per Nnaemeka-Agu, JSC inter alia thus:
” … A piece of evidence contradicts another when it affirms the opposite of what the other evidence has stated, not when there is just a minor discrepancy between them … Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor difference in details.” – Per K. M. O. Kekere-Ekun, JCA
‘ON OR ABOUT’ – THE USE AND EFFECT OF THE PHRASE ON OR ABOUT
It has been held that when the phrase “on or about” is used in a charge, it expresses some amount of uncertainty. While the word “or” introduces an alternative, the word “about” means “a little more or less than”, “a little before or a little after.” Thus when the phrase “on or about” is used in a charge it is not necessary to prove the precise date the alleged offence was committed. See: Awopejo v. State (2000) 6 NWLR (Pt. 659) 1 at 13 F-G; Rex v. Eronini 14 WACA 366. – Per K. M. O. Kekere-Ekun, JCA
CONTRADICTIONS – WHERE THERE ARE CONTRADICTIONS BETWEEN THE EVIDENCE OF TWO OR MORE WITNESSES
I have read the authority of State v. Musa Danjuma (supra) relied upon by learned counsel for the appellant and find that it is distinguishable from the facts of the present case. In that case the Supreme Court per U. Mohammed, JSC at pages 133 lines 38-39; 134, lines 41-135 line 1; and 137 lines 3-6 found that there were material contradictions between the evidence of the two principal witnesses because they gave different versions of what happened on the day of the incident. The Court found that the contradictions cast reasonable doubt upon the guilt of the accused and that the trial Court rightly gave him the benefit of the doubt. – Per K. M. O. Kekere-Ekun, JCA
CONFESSION – MEANING OF A CONFESSION – WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT ALONE
Section 27(1) and (2) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 provides: “27(1) A confession is a statement made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.
(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”
The law is settled that an accused person can be convicted on his confessional statement alone. See Ikemson v. State (supra) at 476 C; Ntaha v. State (1982) 4 SC 1. In the case of Edhigere v. State (1996) 8 NWLR (Pt. 464) 1 at 10 B-C the Supreme Court held:
“As had been decided in a long line of decided cases by this Court, it is trite law that a free and voluntary confession of guilt made by a prisoner whether under examination by a Magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily prove, is sufficient to warrant conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. See Jimoh Yesufu v. The State (1976) 6 SC 167; and Edet Obosi v. The State (1965) NMLR 119. It has also been laid down that it is desirable however to have outside a defence’s confession to the police some evidence, be it slight of the circumstances which make it probable that the confession is true vide Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307; and Onuoha v. The State (1987) 4 NWLR (Pt. 65) 331.”
A voluntary confession of guilt, if it is fully consistent and probable is usually regarded as evidence of the highest and most satisfactory nature if there is independent proof that a criminal act has in fact been committed by someone, that the accused had the opportunity of committing the offence and that the confession was consistent with the other facts that had been ascertained and proved. See: Rabiu v. The State (2005) 7 NWLR (Pt. 925) 491 at 513 B – G; Phillip Kanu & Anor. v. R (1952) 14 WACA 30 at 32; R v. Chukwuji Obiasa (1962) 2 SCNLR 402, (1962) NNLR 354; R v. Sykes (1913) 8 CAR 233. – Per K. M. O. Kekere-Ekun, JCA
CONFESSIONAL STATEMENT – TEST BEFORE A TRIAL COURT CAN RELY ON A CONFESSIONAL STATEMENT TO CONVICT AN ACCUSED
The law is well settled, that before a trial Court can rely on a confessional statement to convict an accused person, it must test it by closely examining it in the light of the other evidence to determine the underlisted questions:
(a) Is there anything outside it to show that it is true?
(b) Is it corroborated?
(c) Are the facts stated in it true as far as can be tested?
(d) Did the accused person have an opportunity of committing the offence?
(e) Is the accused person’s confession possible?
(f) Is the confession consistent with other facts which have been ascertained and proved?
See Udofia v. The State (1984) 12 SC 139; Dawa v. The State (1980) 8 – 11 SC 236; Ojegele v. The State (supra). – Per Amiru Sanusi, JCA
EVIDENCE – WHERE DISPARITY IN EVIDENCE IS NOT MATERIAL – THE EFFECT OF THE PHRASE ‘…ON OR ABOUT
I am of the view that the disparity in the dates of the commission of the offence given by the PW1 and that contained in the charge or medical/report is a minor one and not material or substantial to the main issue before the trial Court. This is more so, if one considers the fact that the phrase used in the charge is “on or about the 3rd day of December, 1989”. The lengthy period between those days and the date and time the witness testified also account for the disparity or mistake. The alleged contradiction or disparity to my mind could not be said to have raised any doubt in the mind of the trial Court as would have called for any explanation at all. See Okonji v. State (1987) 1 NWLR (Pt.52) 659. As the law stands, when there exists some minor discrepancies between a previous written statement and subsequent testimony in Court (as in this case), such discrepancy or disparity would not destroy the credibility of the witness. See Uyo v. A.-G., Bendel State (1986) 1 NWLR (Pt. 17) 418; Asariyu v. The State (1987) 12 SC 62; or (1987) 4 NWLR (Pt. 67) 709; Gabriel v. The State (1990) IMBLR 28; or (1989) 5 NWLR (Pt. 122) 457 at 468 – 469. – Per Amiru Sanusi, JCA
CASES CITED
STATUTES REFERRED TO
1. Penal Code
2. Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990