CORAM

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John Inyang Okoro – Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju – Justice of the Supreme Court of Nigeria

Jummai Hannatu Sankey – Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya – Justice of the Supreme Court of Nigeria

Stephen Jonah Adah -Justice of the Supreme Court of Nigeria

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PARTIES

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HASSAN WAKILI

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW AND PROCEDURE, CULPABLE HOMICIDE, PENAL CODE, BURDEN OF PROOF, STANDARD OF PROOF, CONFESSIONAL STATEMENT, RETRACTION OF CONFESSIONAL STATEMENT, CORROBORATION, HEARSAY EVIDENCE, MEDICAL EVIDENCE, CAUSE OF DEATH, CONTRADICTIONS IN EVIDENCE, ALIBI, APPEAL

 

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SUMMARY OF FACTS

The Appellant, Hassan Wakili, was alleged to have, on 3rd July 2008, at Musari Village, Guri Local Government Area of Jigawa State, unlawfully caused the death of one Jummai Sa’idu by inflicting several injuries on various parts of her body with a long-curved knife locally called “Gariyo.” The case arose out of the Appellant’s belief that the deceased was a witch responsible for his wife’s illness.

The Appellant was arraigned before the High Court sitting at Hadejia, Jigawa State, on a lone count charge of culpable homicide punishable with death, contrary to Section 221(b) of the Penal Code. He pleaded not guilty. The prosecution called three witnesses — PW1 (Dahiru Mohammed, the deceased’s senior brother who found her at the scene in a critical condition and heard her narrate the attack), PW2 (the investigating police officer), and PW3 (another prosecution witness) — and tendered five exhibits including the Appellant’s extra-judicial confessional statement (Exhibits 2A and 2B) and the weapon used.

In his confessional statement to the police, the Appellant admitted going to the deceased’s house at about 2:00 a.m. on 3rd July 2008 after his wife’s illness worsened and she again called out the deceased’s name, and inflicting injuries on the deceased with his curved knife, leaving her “half alive.” He stated he knew he had committed the offence of homicide and was not denying it.

At trial, the Appellant retracted his confessional statement and set up a defence of alibi, claiming he was elsewhere at the time of the incident, but provided no particulars of his location, companions, or activities. The trial court found him guilty and sentenced him to death by hanging. The Court of Appeal affirmed the conviction and sentence on 26th February 2015. The Appellant further appealed to the Supreme Court on six grounds.

 

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HELD

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The appeal was dismissed and the concurrent decisions of the courts below were affirmed. The Supreme Court held that all three ingredients of culpable homicide punishable with death under Section 221 of the Penal Code were established beyond reasonable doubt: the deceased died; the death was caused by the act of the Appellant; and the Appellant knew or had reason to know that death would be the probable consequence of his act.

The court held that the evidence of PW1 was not hearsay — PW1 testified as to what he heard directly from the deceased at the scene of crime, which establishes the fact that the statement was made, not the truth of a matter at second hand. The retracted confessional statement in Exhibits 2A and 2B was found to be direct, positive, and voluntary, and was corroborated by the evidence of PW1, PW2 and PW3. The discrepancy in the name given to the weapon (PW1 calling it “Gario” and PW3 calling it “Barandami”) was a mere minor discrepancy, not a material contradiction, as both witnesses described it similarly as a long-curved knife. The Appellant’s alibi defence was dismissed as an afterthought for lack of particulars. Medical evidence was held not to be a sine qua non where cogent evidence otherwise establishes the cause of death, especially where the Appellant himself admitted the deceased died. The appeal was dismissed.

 

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ISSUES

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1. Whether the prosecution proved the case against the Appellant beyond reasonable doubt, having regard to the evidence adduced at trial?

2. Whether, in the circumstances of this case, the fact that the death of the deceased was not instantaneous renders medical evidence non-essential in proving the cause of death, and whether the medical report tendered at trial sufficiently established the cause of death?

 

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RATIONES DECIDENDI

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INGREDIENTS OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH — THREE INGREDIENTS MUST ALL BE PROVED BEYOND REASONABLE DOUBT

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“For the prosecution to secure a conviction and for the conviction to be sustained by this Court, the prosecution must establish the following ingredients of the offence beyond reasonable doubt: a. That there was death of a human being; b. That the death was caused by the act of the accused person; c. That the accused knew that death had reason to know that death would be the probable consequence of the act of the accused or did not care whether the death of deceased will result therefrom.” — Per Stephen Jonah Adah, JSC.

 

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TESTIMONY OF WITNESS AS TO WHAT HE HEARD FROM DECEASED AT SCENE OF CRIME — NOT HEARSAY WHERE PURPOSE IS TO ESTABLISH FACT THAT STATEMENT WAS MADE AND NOT THE TRUTH THEREOF

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“In the instant case, what the PW1 said is not to prove the truth but to act as a lead to the foundation of the ingredients of the offence charged. So, it is obviously not hearsay evidence. Hearsay is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” — Per Stephen Jonah Adah, JSC.

 

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RETRACTED CONFESSIONAL STATEMENT — COURT MAY CONVICT THEREON WHERE STATEMENT IS DIRECT, VOLUNTARY AND POSITIVE AND THERE IS CORROBORATIVE EVIDENCE OUTSIDE THE CONFESSION

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“It is now fully settled that a free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to sustain his conviction without any corroboration as long as the Court is satisfied with the truth of the said confession. But where the maker resiles from it or retracts his statement, the Court is enjoined to ensure that there is clear evidence outside the confessional statement to support or corroborate the said retracted statement.” — Per Stephen Jonah Adah, JSC.

 

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DEFENCE OF ALIBI WITHOUT PARTICULARS — TREATED AS AFTERTHOUGHT WHERE ACCUSED FAILS TO FURNISH DETAILS OF EXACT LOCATION, COMPANIONS AND ACTIVITIES

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“The appellant later in his testimony before the Court retracted the statement and half-heartedly, made out a defence of alibi. He said he was somewhere else at the time of the incident but he did not give any particulars to indicate his exact location or with whom he was or particulars of what he was doing at the said place and at that particular time. This defence was correctly found by the lower Courts as afterthought.” — Per Stephen Jonah Adah, JSC.

 

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MEDICAL REPORT NOT SINE QUA NON IN ESTABLISHING CAUSE OF DEATH — WHERE COGENT EVIDENCE OTHERWISE LINKS ACCUSED TO DEATH AND ACCUSED HIMSELF ADMITS DECEASED DIED

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“Where the fact of death is not in issue, the evidence of a medical report is dispensable. This is especially where there are cogent pieces of evidence pointing to the fact that it is the act of the accused that led to the death of the deceased. In such a case, a medical report is not a sine qua non in establishing death and/or the cause of death. The unimpeached testimony of the PW1, PW2 and PW3 resolutely established the death of the deceased, and also that the Appellant was linked to the death of the deceased.” — Per Jummai Hannatu Sankey, JSC.

 

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DISTINCTION BETWEEN CONTRADICTION AND DISCREPANCY IN EVIDENCE — ONLY MATERIAL CONTRADICTIONS THAT CAST DOUBT ON THE PROSECUTION’S CASE ARE FATAL

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“A discrepancy is found in evidence where there is a variation or slight difference in the details of the testimonies of witnesses; whereas a contradiction in evidence is where witnesses give divergent accounts of the same event which cannot be reconciled. They would tell a story which would be diametrically opposed such that it would cast a doubt on the case presented by the prosecution. This Court has been consistent in holding that it is not every discrepancy in the evidence of witnesses that would suffice to vitiate the judgment of a trial Court. Any contradiction alleged must be shown to be material in nature and of such gravity that the Court would doubt the veracity of the witnesses.” — Per Jummai Hannatu Sankey, JSC.

 

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CORROBORATION OF RETRACTED CONFESSION DESIRABLE BUT NOT MANDATORY — DIRECT AND VOLUNTARY CONFESSION MAY SUSTAIN CONVICTION

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“The position of the law has not changed. It is that while corroboration in such a circumstance is desirable, it is not mandatory. Notwithstanding this, the evidence of PW1, PW2, and PW3 firmly corroborate the vital points in the confession. In particular, the unimpeached evidence of PW1 who found the deceased in a critical state is significant.” — Per Jummai Hannatu Sankey, JSC.

 

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EVIDENCE OF WITNESS AS TO WHAT HE SAW AND HEARD FROM DECEASED AT SCENE OF CRIME — SETTLED THAT SUCH EVIDENCE DOES NOT CONSTITUTE HEARSAY

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“The settled posture of the law is that a piece of evidence proffered by a witness which represents what he saw and heard from a deceased at the scene of crime does not constitute hearsay evidence. Thus, the pieces of evidence offered by the PW1, which he collated, via his senses, from the deceased at the locus in quo, were not marooned in the murky ocean of hearsay as to compel the lower Courts to ostracise them from the pan of the imaginery scale that warehoused the respondent’s evidence.” — Per Obande Festus Ogbuinya, JSC.

 

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INTENTIONAL INFLICTION OF FATAL INJURIES — NATURE OF WEAPON AND BODY PARTS TARGETED IRRESISTIBLY SHOW KNOWLEDGE THAT DEATH WAS PROBABLE CONSEQUENCE

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“From the facts and the circumstances of this case, it is clear that the appellant’s act was intentional and he knew that death was its likely consequence. There is therefore, no other conclusion to reach than what the lower Courts found, that the appellant is truly guilty of the offence for which he had been convicted and sentenced.” — Per Stephen Jonah Adah, JSC.

 

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DISCREPANCY IN NAME GIVEN TO MURDER WEAPON BY DIFFERENT WITNESSES — MINOR DISCREPANCY NOT MATERIAL WHERE BOTH WITNESSES GIVE SIMILAR GRAPHIC DESCRIPTIONS OF WEAPON

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“The Appellant has contended that there is an inconsistency in the identification of the weapon used in the commission of the offence. That whereas PW1 described the weapon used as ‘Gario’, PW3 described the weapon as ‘Barandami’. However, they proceeded to give graphic and vivid descriptions of the weapon as being a long-curved knife. In this regard, their descriptions were similar. It is the law that only material contradictions in evidence that are fatal to the case. For a contradiction to be fatal, it must not be a mere discrepancy in the evidence, but must be of such gravity that it negatively affects one of the crucial elements of the offence.” — Per Jummai Hannatu Sankey, JSC.

 

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CONFESSION DIRECT, POSITIVE AND POINTING IRRESISTIBLY TO GUILT — COURT CAN SAFELY CONVICT THEREON

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“Once the confessional statement of an accused person is proved and shown to have been made voluntarily by him, is positive, direct and points irresistibly to an admission of guilt, the Court can safely convict thereupon.” — Per Jummai Hannatu Sankey, JSC.

 

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NARRATION BY DECEASED TO WITNESS BEFORE DEATH — NOT A DYING DECLARATION IN STRICT SENSE WHERE EXACT WORDS NOT RECORDED BUT TESTIMONY OF WITNESS REMAINS UNASSAILABLE

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“The unimpeached evidence of PW1 who found the deceased in a critical state is significant. At this very intense period and notwithstanding the deceased’s injuries which subsequently proved to be fatal, the deceased narrated to him the events leading to her injuries and life-threatening condition. Although such narration fell short of a dying declaration because the exact words were not recorded, the testimony of the witness, PW1, remained unassailable.” — Per Jummai Hannatu Sankey, JSC.

 

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CONCURRENT FINDINGS OF GUILT BY TWO LOWER COURTS — SUPREME COURT WILL NOT DISTURB WHERE PROSECUTION HAS PROVED ALL INGREDIENTS BEYOND REASONABLE DOUBT

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“There was the concurrent decision of the lower Court on the evidence adduced by the prosecution. It was well-proved that the deceased Jummai died from the wound inflicted on her by the appellant. The appellant was clearly proved to be the person who deliberately inflicted the injuries on the deceased. All the ingredients of the offence of culpable homicide punishable with death were duly established beyond reasonable doubt in the case. Evidence showed indisputably that the Appellant intentionally inflicted fatal injuries on the deceased using his long knife called ‘Gariyo’. He knew that death or grievous bodily injuries was the likely consequence of his act.” — Per John Inyang Okoro, JSC.

 

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CASES CITED

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STATUTES REFERRED TO

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Penal Code — Section 221(b)

Evidence Act 2011 — Sections 37, 132, 135(1) and 167(d)

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1.  A.L. YUSUF, Esq.For Appellant(s)

2.  HUWAILA MUHAMMED IBRAHIM, Esq., holding the Brief of the Attorney General of Jigawa StateFor Respondent(s)