CORAM

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ITA G. MBABA (PJ), OFR JUSTICE, COURT OF APPEAL

PATRICIA A. MAHMOUD JUSTICE, COURT OF APPEAL

PETER O. AFFEN, JUCTICE, COURT OF APPEAL

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PARTIES

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MOHAMMED MOH’D MAGAJI

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, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

At the trial court, the appellant, Mohammed Mohammed Magaji, was accused of killing one Umar Abubakar on or about the 16th day of November 2019 at Mararaban, Donga Local Government Area of Taraba State. He allegedly did this by stabbing his victim with a knife in the stomach, thereby causing a serious injury. The victim was then rushed to the hospital, where he later died.

The prosecution called only two witnesses, who were police officers at the State CID (Police Headquarters), where the appellant’s case was allegedly transferred to from the Mararraba Police Station.

There is no evidence anywhere as to who lodged the complaint or report of the alleged stabbing of the deceased by the appellant at the Mararraba Police Station and how or when the case was transferred to the State CID (Police Headquarters, Jalingo).

The trial court found in favor of the prosecution and convicted the accused to death by hanging. Aggrieved, the accused made the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Whether, from the evidence before the Court, the trial Court was right to rely on Exhibit A (the alleged confessional statement of Appellant) to convict Appellant and sentence him to death, by hanging?

 

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RATIONES DECIDENDI

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JUDGES – DUTY OF JUDICIAL OFFICERS IN ADJUDICATION

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I normally warn that a judge can be complicit in judicial murder where such a verdict is executed. See Ajakaiye vs. State (2014) LPELR – 24098 CA:

The demand for a judge to be circumspect and act within the confines of the strict rules of law in the appraisal and application of the evidence and the law to reach his conclusion becomes much more crucial in a criminal trial where the liberty and/or life of the accused person is at stake. A little error or mistake can be fatal. I think where an accused person, in a murder case, is tried and convicted wrongly due to carelessness or mischief of the trial judge, it translates to a judicial murder for which the judge may stand accountable, especially where there is no judicial process to review and correct the error, as in this case.

Such concern or awareness should always play on the mind of a judge as he sits in judgment over his fellow mortal. In the case of Garba vs. State (2011) 14 NWLR (Pt.1266) 98 at 124, this court held: “A heavy burden is placed on judicial officers, that is, the responsibility of determining the fate of another human being. In a criminal trial, a court, before conviction, must ensure that the prosecution has discharged the burden of proof beyond reasonable doubt placed on it by law. Where any doubt exists, it must be resolved in favor of the accused person… The work of a judge is a very delicate and sacred job, especially as he is sometimes vested with the power to play God in determining the fate of his fellowmen. The office must be exercised in deep humility and utmost care and deference to the rule of law and the fear of God, such that if it becomes inevitable to pronounce on the death (or any punishment) of an accused person arraigned before him after due trial, the evidence adduced and the law will stand to vindicate him in his decision.” – Per I. G. Mbaba, JCA

 

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CONFESSIONAL STATEMENT – WHETHER AN ACCUSED PERSON CAN BE CONVICTED BASED ON A CONFESSIONAL STATEMENT ALONE

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The law is, however, trite that an accused person can be convicted on the basis of his confessional statement alone once it is adjudged by the court to have been made voluntarily by the accused person to admit the offense. Authorities on this are replete. See NUHU VS. STATE (2022) LPELR – 58946 (CA); SAMAILA VS. THE STATE (2023) LPELR-59348 (CA). See also ADISA VS. STATE (2023) LPELR – 59765 (SC), where it was held:

As demonstrated in the leading judgment, the credible and purgent evidence that met and satisfied the above standard of proof was in the appellant’s free, voluntary, and proved confession by which he expressly admitted committing the offense in concert with his co-travelers in crime/accused persons, which was compellingly supported by the unchallenged evidence of PW1. Such proved, unequivocal, positive, voluntary, and direct confession is alone in law sufficient to ground the conviction of the appellant by the trial court. See Udedibia v. The State (2016) 11 SC (Reprint) 74, Udofia v. The State (1984) LPELR – 3306 (SC), Akpan v. The State (1992) 7 SCNJ, 22, Ikemson v. The State (1989) 3 NWLR (pt. 110) 530, Edamine v. The State (1996) 3 NWLR (pt. 438) 530, Ubierho v. The State (2005) 5 NWLR (pt. 919) 644. Per GARBA, JSC (Pp. 27-28, paras. C-A). – Per I. G. Mbaba, JCA

 

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CONFESSIONAL STATEMENT – CONDUCT OF COURTS WHERE A CONFESSIONAL STATEMENT WAS INDUCED OR GRAFTED BY THE POLICE – CONDITIONS TO BE SATISFIED TO QUALIFY A CONFESSIONAL STATEMENT AS WORTHY OF BELIEF TO SECURE A CONVICTION

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A conviction cannot lie on an induced or grafted confessional statement by the police, meant to circumscribe diligent and effective investigation of a case, just to fast-track the conviction and sentence of hapless traumatized victims of police brutality.

It has become evident that a confessional statement is sometimes induced and used by the police and other security agencies as a shortcut to attaining quick conviction where they cannot undertake discreet investigation of a case. They employ unorthodox and unlawful measures to procure a confession, using torture and deceit, in the belief that self-incrimination is the surest way to get the conviction of the accused person.

This is both sad and wicked, especially where the offense carries capital punishment! This was noted in the case of MONDAY CHRISTOPHER VS. THE STATE: (2023) LPELR 61563 CA, delivered in Kano, where this court held: “But strangely, it appears some bad elements in the police decided to turn the case against the appellant and opted to torture the appellant to accept the crime by forcing him to sign incriminating distorted statements (three of them), which statements bore no reference at all to a football match and the mob fight that resulted in the stabbing and killing of the deceased!

Apparently, upon accomplishing the wicked act of forcing the appellant to sign the alleged confessional statements, the police then worked on PW1 to change the earlier account he gave to the police in Exhibit MM1 (wherein he clearly did not mention the appellant as the person who stabbed his brother and never said he witnessed when his brother was stabbed). They made him claim, quite unintelligibly, that he saw the appellant stabbing his brother consistently over a period of 5 minutes!

And yet the same appellant whom PW1 alleged threatened to stab him (PW1) too (if he came close) turned out to be the one that helped him (PW1) to take the deceased to the hospitals – three hospitals, in search of life and medical attention for the deceased!

I am deeply appalled that a Court of law gave credence to such awkward evidence to convict and sentence a friend who obviously stood by his friend to help to death!

This calls for a trial court to be more vigilant and look beyond mere production of confessional statements as a basis to found the conviction of an accused person. And that’s where the Apex Court and this Court have stated several times the conditions to be satisfied to qualify an alleged confessional statement as worthy of belief to lie conviction. See the case of THE STATE VS. SHONTO (2019) LPELR – 47431 (SC): For a confession to form the basis of a conviction, it must be direct, positive, and unequivocal as to the commission of the offense by the accused person. It must also contain some or all of the elements of the offense with which the accused person is charged. It must also have been voluntarily made. See: Adeyemi Vs The State (2014) 13 NWLR (Pt. 1423) 132; Gira Vs The State (1996) 4 NWLR (Pt. 443) 375; Bassey Vs The State (2012) 12 NWLR (Pt. 1314) 209.”

Per KEKERE-EKUN, JSC (Pp. 41-42, paras. D-A)

In the case of AFOLABI VS. THE STATE (2016) LPELR – 40300 (SC), the Supreme Court held:

“It is, however, not a general rule that a confession relieves the prosecution of its duty of proving its case beyond reasonable doubt. Therefore, for a confession to form the basis of a conviction, it has to be shown to be free and voluntary, positive and proved to be true. See Joseph Okoro Abasi v. The State (1992) NWLR (Pt. 260) 383.”

Per OKORO, JSC (P. 11, paras. C-D)

In the case of OGUDO VS. STATE (2011) 18 NWLR (PT. 1278) 1, the Supreme Court identified certain basic questions to be asked to test the acceptability of a confessional statement whether the same is credible and worthy of reliance by the court to convict, as follows:

This court explained that in determining the weight to be attached to a confessional statement, retracted or not, the court must ask itself the following: Is there anything outside the confession which shows that it may be true? – Is it corroborated in any way? – Are the relevant statements of fact made in it most likely true as far as they can be listed? – Did the accused have an opportunity to commit the offense? – Is the confession possible? – Is the confession consistent with other facts which have been ascertained and established? In effect, although the court can convict only on the extra-judicial confessional statement of the accused person, it is desirable to find independent evidence, that is to say, to have some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true.

See also AMOS VS. THE STATE (2020) LPELR – 49663 (CA); and STATE VS. SA’IDU (2019) LPELR – 47397 (SC):

“A confessional statement, to be properly so called, must be clear, precise, and unequivocal, and in considering whether a statement qualifies as a confessional statement, a trial Judge must examine the totality of the statement. It must be shown to be direct, positive, and should relate to the accused person’s own acts, knowledge, or intention, stating or suggesting the inference that he committed the offense charged. See Akpan v The State (1992) 7 SCNJ 22, Magaji v The Nigerian Army (2008) 8 NWLR (pt 1089) 338, Nweze v The State (2017) LPELR – 42344 (SC), Gbadamosi v The State (1992) 9 NWLR (pt 266) 465; Adebayo v The State (2014) LPELR – 22988 (SC). A confessional statement, where voluntarily made, is the best evidence that the accused committed the offense and the trial Court is well-positioned to convict on it. In fact, it can be solely relied upon to convict an accused person. See Yesufu v the State (1976) 6 SC. Page 167, Osuagwu v The State (2013) 1 – 2 SC 194 and Adebayo v The State (supra).

However, more often than not, accused persons as in this case resile or retract from their confession during the trial. Be that as it may, the position of the law is that where an extra-judicial confession has been proved and established to have been made voluntarily, and it is positive and unequivocal and amounts to an admission of guilt, such a confession will suffice to ground a finding of fact regardless of the fact that the maker resiles therefrom or retracts it altogether at the trial. See Ntaha v The State (1972) 4 SC 1, Egboghonome v The State (1993) 7 NWLR (pt 307) 383, Galadima v The State (2012) 18 NWLR (pt 1333) 610, Mohammed v The State (2014) 12 NWLR (pt 1421) 387, Gira v The State (1996) 4 NWLR (pt 443) 375; Bature v The State (1994) 1 NWLR (pt 320) 267. Where an accused person resiles from a confessional statement made by him, the statement may still remain voluntary. His conviction upon the said statement will depend on the following conditions: 1. Whether there is anything outside the confession to show that the statement is true, 2. Whether it is corroborated, 3. Whether the statement made in it of fact are true as far as they can be tested. 4. Whether the accused had the opportunity to commit the offense. 5. Whether it is consistent with other facts which have been ascertained and have been proved. See Kareem v Federal Republic of Nigeria (2002) 8 NWLR (pt 770) 664 at 683. I made this point in Charles Kingsley Joe Isong v The State (2016) LPELR -40609 (SC) at page 32-33 paragraphs F – D when I held as follows:- “Let me state clearly that it is settled law that the fact that an accused has retracted a confessional statement does not mean that the Court cannot act upon it. More often than not, it is very usual for an accused person to retract, deny, or resile during his trial in the Court from the extra-judicial statement he had earlier made to the police immediately after the event giving rise to the charge or arraignment against him. In such a situation, it behooves the accused to impeach his earlier statement and the Court is to test the veracity of that statement with other facts and circumstance outside the statement in order to see whether they support, confirm, or correspond with the said statement. See Hassan v State (2001) 15 NWLR (pt 735) 184, Onwumere v State (1991) 4 NWLR (pt 186) 428, Ubierho v State (2005) 5 NWLR (pt 919) 644.”

See again the case of CHRISTOPHER VS. THE STATE (2023) LPELR – 61563 (CA).

The provisions of Section 9(3), 17(2), and 15(4) of the Administration of Criminal Justice Act (2015) (ACJA) came to being because of this mischief, to demand the confessional statements of the suspect or accused to be audio or video recorded, in the presence of counsel for the accused. See also Charles Vs State of Lagos 2023 LPELR – 60632 (SC). See also the Administration of Criminal Justice Law of Taraba State, 2021, which has the same principle.

Per I. G. Mbaba, JCA

 

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STATEMENT – WHERE THE CONFESSIONAL STATEMENT OF THE ACCUSED IS RECORDED IN VERNACULAR

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Of course, by law, where a statement of the accused is recorded in vernacular (like Hausa Language) and later translated into English language, the two versions have to be produced as exhibits before the court. See the case of THE STATE VS. EMMANUEL (2023) LPELR – 60562 (CA):

It is the law that where a defendant does not understand English, his statement must be recorded in the language he understands and later translated into English. See Section 36(6) of the Constitution of the Federal Republic of Nigeria (as amended). The original language in which the statement of the respondent was volunteered is Hausa language. The Hausa language version of the statement was not tendered in evidence. It is trite law that where a statement is volunteered in a language other than English language and then translated into English language, the two statements must be tendered in evidence in order for the onus of proof beyond reasonable doubt to be discharged. Where, as in the instant case, only the English version of the statement was tendered, it attracts no probative value. See OLANIPEKUN VS. THE STATE (2016) 13 NWLR (PT 1528) 100 at 117 and ADAMU VS. THE STATE (2019) LPELR (46902) 1 at 38-48. In ADAMU VS. STATE (2019) LPELR-46902(SC), his lordship KEKERE-EKUN, JSC at PAGE 12 PARAS. A-F held as follows:

“In the instant case, it is argued on behalf of the appellant that being illiterate in English Language, for his confessional statement to have been properly before the court for consideration, both the English and Hausa versions ought to have been tendered. In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in court. It affords the accused person the opportunity to challenge in court if the need arises, his statement as originally recorded or its translation. It enables the court to be satisfied that it is his true statement.”

Per I. G. Mbaba, JCA

 

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CROSS-EXAMINATION – THE EFFECT OF THE FAILURE TO CROSS-EXAMINE A WITNESS UPON A PARTICULAR MATTER

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The failure of the prosecution to cross-examine or challenge the evidence of the DW1 (appellant) was also damaging to the case of the prosecution. See the case of GAJI & ORS. VS. PAYE (2003) LPELR – 1300 (SC):

“It has been said that the effect of failure to cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. Oforlete v. State (2000) 12 NWLR (Pt. 681) 415 at 436. In the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt.70) 325, (1988) 2 SCNJ 146, this court held that it is not proper for a defendant not to cross-examine a plaintiff’s witness on a material point and to call evidence on the matter after the plaintiff had closed his case.”

Per EDOZIE, JSC (P. 20, paras. B-D)

See also Kofi & Anor vs Dolari (2017) LPELR -43186 (CA); Onwuke & Anor vs Obasi & Ors (2019) LPELR -47577(CA); APC VS Jega & Ors (2023) LPELR -59866 (SC) Aliyu vs State (2016) All FWLR (Part 852) 1543 at 1544.”

Per I. G. Mbaba, JCA

 

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CULPABLE HOMICIDE – HOW TO PROVE THE OFFENCE OF CULPABLE HOMICIDE – INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE

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The law is trite on how to prove the offense of Culpable Homicide, and generally, how to establish the commission of an offense. See the case of POLYCAP VS. THE STATE (2020) LPELR – 49361 (CA).

Counsel, on both sides, had stated the legal ingredients of the offense of murder. 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. 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). It is also the law that the offense of murder can be established by any one of the following 3 ways:

By positive, direct evidence of an eyewitness of the murder. See Chukwunyere Vs The State (2014) LPELR – 23779 (CA); Galadima Vs The State (2013) LPELR – 20402.

By cogent circumstantial evidence which points directly, unmistakably, and conclusively at the Accused person, as the one from whom the guilt for the murder can be inferred. See Nasiru Vs The State (1999) 2 NWLR (pt.589) 82; Chiokwe Vs The State (2005) NWLR (pt.918) 424; Obasi Vs The State (2014) LPELR – 24013 (CA).

By the confessional statement of the accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it. See Haruna Vs A.G. of the Federation (2012) (2009) LRCN 70 at 96; (2012) 32 WRN 1; (2012) 9 NWLR (pt.1306) 419; Obasi Vs The State supra.

See also Wowem Vs State (2021) LPELR – 53384 (SC), where my Lord, Okoro, JSC, held:

“To successfully establish the offense of murder against an accused person, the prosecution must prove the following ingredients beyond reasonable doubt:

(a) That the deceased is dead.

(b) That the act of the accused person caused the death of the deceased.

(c) That the act was done with the intention of causing death or grievous bodily harm.

For the first ingredient, it is not in doubt that the deceased, Evans Chinwo is dead. Learned counsel to the Appellant dissipated so much energy in an attempt to convince this Court that the Court below and the trial Court both erred in their concurrent findings that the Respondent proved the second and third ingredients of the offense of murder against the Appellant beyond reasonable doubt as required by law. That is to say that the Respondent failed to prove that the appellant intentionally and unlawfully killed Mr. Evans Chinwo. It is trite law that in proof of the above ingredients, the prosecution could rely on either direct evidence also known as evidence of an eyewitness or witnesses, confessional statement of the accused, or circumstantial evidence.”

Per I. G. Mbaba, JCA

 

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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, Laws of Taraba State

3. Evidence Act 2011

4. Administration of Criminal Justice Act, 2015 (ACJA)

5. Administration of Criminal Justice Law of Taraba State, 2021

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