Legalpedia Citation: (2023-05) Legalpedia 84521 (CA)

In the Court of Appeal

Holden at Kaduna

Fri May 26, 2023

Suit Number: CA/K/250/C/2020

CORAM

AMINA AUDI WAMBAI JUSTICE, COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEAL

MUSLIM SULE HASSAN JUSTICE, COURT OF APPEAL

PARTIES

IBRAHIM SALISU ………………………………… APPELLANT

 

 

APPELLANTS

THE STATE ………………………………………. RESPONDENT

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

 

SUMMARY OF FACTS

Ibrahim Salisu (the Appellant) was accused on 2 counts. First was mischief by fire by setting the room of one Binta Muhammad on fire while she was inside which led to her death which is the basis of the second charge – culpable homicide punishable with death. The entire house was said to have burnt down on or about the 11th day of December, 2010 at Kamfani Doka, Village Birnin Gwari, Local Government Area of Kaduna state. 

He was declared guilty by the trial court. Aggrieved by the decision he lodged the instant appeal.

 

HELD

Appeal allowed

ISSUES

• Whether the court below was right in holding that the prosecution had proved its case for the offence of mischief by fire and culpable homicide against the Appellant beyond reasonable doubt?

 

RATIONES DECIDENDI

MISCHIEF BY FIRE – ELEMENTS/INGREDIENTS OF THE OFFENCE OF MISCHIEF BY FIRE

In the case of SALAU VS. STATE (2019) LPELR – 48114 (SC) (PP. 4 PARAS. C) the Supreme Court per Abba-Aji, JSC held that:

“For the charge of mischief by fire, the prosecution must prove that the accused committed the mischief, the mischief was committed by fire or an explosive substance and the mischief destroyed and damaged a building or property, which must be a place of worship, human dwelling or a place for the custody of property. See Section 337 of the Penal Code.”

In the case of AGBANYI VS. STATE (1994) LPELR – 14108 (CA) (PP. 23 – 25 PARAS. G), it was held per Orah JSC that:

“In a charge under Section 337 of the Penal Code, the prosecution must prove the following essential ingredients of the offence viz:

(i.) That the accused committed mischief (S.326).

(ii.) That the mischief was committed by fire or explosive substance.

(iii.) That it destroyed/damaged a building and

(iv.) That the building was originally used either as a place of worship or a human dwelling house or a place for the custody of property.

The date of the offence is not an ingredient of the offence which must be proved by the prosecution in accordance with the Penal Code. It is therefore submitted by the respondent, that the date is not an essential element of the charge. Notwithstanding this proposition, it is my view, that where the only defence to a charge of mischief by fire under Section 337 of the Penal Code is one of alibi, not only the time but also the date, the offence was committed, both become, vital elements of the charge. This is so, given the three dimensions of human existence and movement, except one be a magician, no one can be in more than one place at a time and date at the same time. But there is nothing mystical or esoteric about a plea of alibi except that one is elsewhere from the scene of crime at the time of the offence.”

From the above cited cases, it is clear that the ingredients of mischief by fire are:

(1) The accused committed a mischief.

(2) The mischief was committed by fire or explosive substance.

(3) It resulted in the destruction of a building/property.

(4) The place destroyed must have been a place of worship, human dwelling or custody or property. – Per M. B. Idris, JCA

 

CONFESSIONAL STATEMENT – WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

This brings me to these questions: can the court convict the Appellant in this case solely on the confessional statement? Is the confessional statement of the Appellant direct, positive and unequivocal?

In the case of OKPAKO VS. STATE (2018) LPELR – 43875 (SC), it was held per Aka’ahs, JSC thus:

“The law is now settled that an accused can be convicted solely on his confessional statement. It is however desirable to have outside a confession, some evidence of circumstances which make it probable that the confession was true.”

Also, the Supreme Court in the case of PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751) PAGE 1620 PARA B, held per Onnoghen, JSC that:

“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved.”

In the case of ISAH VS. STATE (2017) LPELR – 43472 (SC), it was held per Bage, JSC that:

“Confession in criminal procedure is the strongest evidence of guilt on the art of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In other words, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the court is satisfied as to the truth of the confession.” – Per M. B. Idris, JCA

 

CONFESSIONAL STATEMENT – TESTS TO CORROBORATE AN ACCUSED’S CONFESSIONAL STATEMENT

Before the Appellant can be said to be convicted based on his confessional statement, the Respondent must have proved the ingredients of the offence for which he was charged. In the Supreme Court case of OZARE UBIERHO VS. STATE (2005) 7 MJSC 168, the Court enumerated certain litmus tests which could corroborate the accused’s confessional statement for the purpose of conviction thus:

“The tests are: 1) Is there anything outside the confessional statement to show that it is true?

2) Is it corroborated?

3) Are the relevant statements of facts made in it most likely to be true as far as they can be tested?

4) Is his confession possible?

5) Is it consistent with other facts which have been proved?" Before a confessional statement can be a ground for conviction, it must be independently corroborated. See the case of ALAO VS. THE STATE (2019) 17 NWLR (PT. 1702) 501. – Per M. B.Idris, JCA

CONFESSIONAL STATEMENT – WHEN CONFESSIONAL STATEMENT IS RETRACTED

In this instant appeal, the Respondent have argued that the fact that the Appellant retracted the confessional statement cannot affect its admissibility. In case of MOHAMMED VS. STATE (2014) LPELR – 22916 (SC) PG. 54 – 55, PARAS. E – B, it was held that: "It must be restated that the confessional statement of an accused person where same is found to be voluntary and unequivocal provides the best evidence of the person's guilt. Resiling from the statement does not make it unreliable. The Court can still admit and convict on a retracted confession if satisfied that the statement was indeed made by the accused person and the circumstances under which the statement was made guarantee the credibility of the content of the confessional statement. This Court has, as part of the very principle, insisted that before the trial Court convicts purely on the basis of a retracted confessional statement it ensures that some corroborative evidence outside the confession abides making the truth in the content of the retracted confession probable. See OGUDO V. THE STATE (2011) 12 SC (PT. 1) 71 AND STEPHEN HARUNA V. THE ATTORNEY GENERAL OF THE FEDERATION (2012) 3 SC (PT. IV) 40." –Per M. B. Idris, JCA

CONFESSIONAL STATEMENT – WHERE AN INTERPRETER WAS USED IN RECORDING CONFESSIONAL STATEMENT

What is the position of the law in respect of a situation like this? In the case of KALIMBO VS. STATE & ANOR (2020) LPELR – 50540 (CA) (PP. 19 – 23 PARAS. E) it was held that:

“On the propriety or otherwise of the interpretation of the confession from Hausa language to English language by the same police officer who recorded the confession, this court cannot help but hold that as a general rule, it has to be said that, where an interpreter was used in recording a confessional statement and a court decides to rely on the truth of such a confessional statement in convicting an accused, the court can only do so when the interpreter has been called to testify in order to confirm the veracity of his interpretation. Where that is not done, the confessional statement is inadmissible. See NWAEZE V. THE STATE (1996) 2 NWLR PART 428 P.1 AT P.20.”

In the case of FRN VS. USMAN (2012) 8 NWLR (PT. 1301) P. 141 AT 159 – 151, the Supreme Court held: "The law is that where an interpreter had to be used in taking down of a cautioned statement of an accused person, that statement remains inadmissible unless and until the person who served as interpreter in taking down the statement is called as a witness as well as the person who wrote down the statement. Sgt Akinola Israel who was the interpreter did not testify before the lower court. In the circumstances, the confessional statement Exhibit A and A1 is inadmissible in evidence." I have read through the two cited Supreme Court cases and it is clear that the failure of the Prosecution to call the interpreter who translated and recorded the testimony of the Appellant from Hausa to English is very fatal to their case. It is a mandatory condition that must be satisfied. – Per M. B. Idris, JCA

PROSECUTION – DUTY OF THE PROSECUTION

It is heart wrenching when I see a Prosecution hastily bring a charge against an accused but pay little or shabby attention to details. This is not a case of stealing mango from a tree, rather this is a case of culpable homicide which attracts the capital punishment of death. It is expected that the Prosecution undertake thorough investigation, tender credible evidences, call vital and credible witnesses and destroy the defence of the accused under cross examination. – Per M. B. Idris, JCA

VITAL WITNESS – MEANING OF A VITAL WITNESS

It is trite law that no party is obligated to call all witnesses. However, the failure to call all vital witnesses is fatal to the prosecution’s case. In the case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) PAGE 663 AT 696 PARAS A – B, it was held that:

“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.”

In the case of STATE VS. NNOLIM & ANOR (1994) LPELR – 3222 (SC), it was held per Adio, JSC that:

“The question is: who is a vital witness? A vital witness is a witness whose evidence may determine a case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.” – Per M. B. Idris, JCA

CASES CITED

STATUTES REFERRED TO

1. Penal Code Laws of Kaduna State
2. Evidence Act

 

CLICK HERE TO READ FULL JUDGMENT