SULEIMAN SAMAILA V THE STATE

Legalpedia Citation: (2023-07) Legalpedia 32796 (CA)

In the Supreme Court of Nigeria

Holden At Abuja

Fri Jul 7, 2023

Suit Number: SC.1158C/2019

CORAM

John Inyang Okoro Justice, Supreme Court

Uwani Musa Abba Aji Justice, Supreme Court

Ibrahim Mohammed Musa Saulawa Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Emmanuel Akomaye Agim Justice, Supreme Court

PARTIES

SULEIMAN SAMAILA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The Appellant was charged with culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code Law of Borno State. It was alleged that the Appellant on 30/9/2011 caused the death of one Ibrahim Lawal by stabbing him with a knife in four different places on his body at New GRA, Maiduguri, Borno State, with knowledge that death was a probable consequence of his act.

After the trial, the trial Court convicted and sentenced the Appellant to death by hanging. On appeal, the judgment was affirmed, hence this appeal.

HELD

Appeal dismissed

ISSUES

1. Whether the prosecution has proved the ingredients of the offence of culpable homicide punishable with death under Section 221(b) of the Penal Code Law?
2. Whether the trial Judge was right in admitting the confessional statement as that of the Accused/Appellant?

RATIONES DECIDENDI

CULPABLE HOMICIDE – THE REQUIREMENTS FOR PROVING CULPABLE HOMICIDE PUNISHABLE WITH DEATH

Proving culpable homicide punishable with death contrary to Section 221 (b) of the Penal Code Law of Borno State, the offence which the Appellant was charged with, will entail that the prosecution must go beyond reasonable doubt to establish that; 1. The deceased died; 2. The death of the deceased resulted from the act of the Accused; and 3. The Accused caused the death of the deceased intentionally or with knowledge that death or grievous bodily harm was its probable consequence. See Per AMINA ADAMU AUGIE, JSC, in SANI V. STATE (2017) LPELR-43475 (SC) (P. 5, PARAS. C-G). – Per U. M. Abba-Aji, JSC

EVIDENCE – CONDUCT OF THE COURT WHEN THE ACCUSED CONTRADICTS IN COURT HIS STATEMENT TO THE POLICE

Although the Appellant sang a new song in his testimony or evidence in Court as revealed at pages 12 to 13 of the record, wherein he denied committing the offence and stated that he admitted it in his confessional statement because of beatings meted to him by both the police and soldiers while in their custody, the law must be followed in this regard. Per PETER-ODILI, JSC, in BERENDE V. FRN (2021) LPELR-54993(SC) (PP. 55-56 PARAS. C) held that, “where witness’ statement to the Police contradicts his evidence in Court, the Court should regard him as an unreliable witness and discountenance his testimony in Court.” – Per U. M. Abba-Aji, JSC

EVIDENCE – WHERE THE EVIDENCE OF AN ACCUSED CONTRADICTS HIS EXTRA-JUDICIAL CONFESSIONAL STATEMENT

Per MUHAMMAD, JSC, in AGU V. STATE (2017) LPELR-41664 (SC) (PP. 35 PARAS. C) held that, “the fact that an accused person’s evidence in Court contradicts his extra judicial confessional statement does not deprive the Court from convicting the accused on the basis of the confessional statement alone once the confession has been found to be voluntary and true. It is only desirable but not mandatory for the trial Court to identify such corroborative evidence outside the confessional statement before convicting the accused”. – Per U. M. Abba-Aji, JSC

CONFESSIONAL STATEMENT – THE APPROPRIATE POINT TO RAISE THE INVOLUNTARINESS OF A CONFESSIONAL STATEMENT

The appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence so that voluntariness or otherwise would be determined before it is admitted in evidence or rejected. See Per GALINJE, JSC, in EKPO V. STATE (2018) LPELR-43843(SC) (PP. 12-13 PARAS. F). This is what would have necessitated the trial within trial that the Appellant’s learned Counsel is clamouring for in vain. It is noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have been admitted in evidence. See Per OGUNDARE, JSC, in OLALEKAN V. STATE (2001) LPELR-2561(SC) (PP. 14-15 PARAS. E). – Per U. M. Abba-Aji, JSC

TRIAL WITHIN TRIAL – WHEN A TRIAL WITHIN TRIAL WITHIN TRIAL IS CONDUCTED

Where the prosecution seeks to tender an extra judicial confessional statement of an accused person and it is challenged on the ground that it was not made voluntary, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntary or whether the confessions were beaten out of the accused person. See Per RHODES-VIVOUR, JSC, in IBEME V. STATE (2013) LPELR-20138(SC) (PP. 31 PARAS. B).

To object to the admissibility of Exhibits A1-A3 on “non est factum” and lack of interpreter is contradictory and antithetical to stating later in the defence that it was not voluntarily obtained. One cannot approbate and reprobate at the same time. Substantial contradiction in the evidence of the accused person just as in the prosecution’s, is liable to affect the case of the accused person to make it unreliable and untenable. See also Per CHIMA CENTUS NWEZE, JSC, in ETIM V. AKPAN & ORS (2023) LPELR-44904(SC) (PP. 35-37, PARAS. C-B). – Per U. M. Abba-Aji, JSC

EVIDENCE – DUTY OF A COURT TO CONSIDER THE QUALITY OF EVIDENCE ADDUCED BEFORE THE COURT

To insist on calling the doctor or others to testify when the prosecution has been able to prove and establish its case is to exacerbate the matter. Where the quality of evidence led is conclusive and final, the quantity of it does not matter anymore. A Court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side to succeed. What is primarily relevant is the quality of the evidence adduced before the Court. Accordingly, no particular number of witnesses is required for the proof of any fact in issue and a person may be convicted of an offence on the evidence on oath of a single adult witness where no corroboration is prescribed. See Per IGUH, JSC, in OGUONZEE V. STATE (1998) LPELR- 2357(SC) (PP. 32 PARAS. C). – Per U. M. Abba-Aji, JSC

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

The law has been well espoused on this issue and well settled that an accused person can safely be convicted on his retracted confessional statement if the Court finds the confessional statement to be satisfactorily proved. See Ogudo Vs. The State (2011) LPELR-860(SC); (2011)18 NWLR (Pt.1278)I; Mathew Vs. State (2018) LPELR-43716(SC). It is however desirable that before a conviction can properly be based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confessional statement is true.

See Umar Vs. State (2018) LPELR-43719 (SC);Okoh Vs. State (2014) I NWLR (Pt.1410)502; Uluebeka Vs. The State (2000) 7NWLR (Pt.665)404. – Per J. I. Okoro, JSC

CULPABLE HOMICIDE – DUTY OF THE PROSECUTION IN A CHARGE OF CULPABLE HOMICIDE

Under Section 220 of the Penal Code (supra), it is provided:

220. Whoever causes death:

(a) By doing an act with the intention of causing death or such bodily injury as is likely to cause death; or

(b) By doing an act with the knowledge that he is likely by such act to cause death; or

(c) By doing a rash or negligent act, commits the offence of culpable homicide.

Likewise, it’s provided under Section 221(a) & (b) of the Penal Code: 221 (a) if the act by which the death is caused is done with the intention oof 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 or of any bodily injury which the act was intended to cause.

For a charge of culpable homicide, the prosecution is a under an onerous duty to prove beyond reasonable doubt –

(a) The death of the deceased person;

(b) That the act or omission of the Defendant (Accused) actually caused the death oof the deceased;

(c) That the act or omission in-question was intentional or with the knowledge that death or grievous bodily harm (injury) would be the probable consequence of the act or omission thereof.

SeeMICHAEL VS THE STATE (2008) 13 NWLR (pt. 1104) 361; (2008) 34 NSCQR (pt.11) 700; (2008) LPELR -1874 (SC) per Mukhtar, JSC (as the was) @ 20 paragraphs C – E. – Per I. M. M. Saulawa, JSC

ACCUSED – WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON

A fortiori, the guilt of an accused person can be established beyond reasonable doubt by any or all of the following means:

(i) An eye witness or direct evidence; or

(ii) A confessional statement of the accused person; or

(iii) Circumstantial evidence.

See ADEKOYA VS THE STATE (2012) 7 NCC3; MBOANG VS. THE STATE (2017) 7 NWLR (pt. 1194) 43, @ 452. – Per I. M. M. Saulawa, JSC

PROOF – MEANING OF PROOF BEYOND REASONABLE DOUBT

The burden of establishing proof beyond reasonable double is not merely attained by number of witnesses fielded by the prosecution. Indeed, it depends fundamentally on the quality of the evidence addended at the trial by the prosecution. In the classicus, MILLER VS. MINISTER OF PENSIONS (1947) 2 ALL ER 372, it was aptly held by English Court that:

Proof beyond reasonable doubt does not mean proof beyond all shadow doubt and if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence; “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.

See also MICHAEL VS. THE STATE (supra) per Mukhtar, JSC (as than was) @ 23 paragraphs A – C. – Per I. M. M. Saulawa, JSC

CONFESSION – MEANING OF CONFESSION – CONDUCT OF COURTS IN REGARD TO CONFESSIONAL STATEMENTS

Invariably, the term ‘confession’ means an admission made by an accused person suggesting the inference that he has committed an offence (crime). See Section 28 of the Evidence Act; ITU VS. THE STATE (2014) ALL FWLR (pt. 750) 1245 @ 1283 – 1284 paragraphs H-A; per Saulawa, JCA (as then was).

The provision of Section 29 (1) of the Evidence Act (supra) is to effect, that in any criminal proceeding, a confession made by an accused person may be admitted and used against him, in so far as it is relevant to any matter in issue therein. However, when objection is raised by defence to the evidence of confession sought to be adduced on the grounds that the alleged confession was procured by (a) oppression of the maker thereof; or (b) in consequence of anything said or done, which is likely to render unreliable any such confession, it behooves the trial Court to decline to allow the confession to be admitted in evidence; except in so far as the prosecution proves beyond reasonable doubt that the confession (though likely to be true) was not obtained by oppression of the maker thereof, or in consequence of anything said or done likely to render unreliable the confession in-question. See ITU VS. THE STATE (supra) @ 1284 paragraphs A-C. – Per I. M. M. Saulawa, JSC

CONFESSIONAL STATEMENT – RIGHT OF THE ACCUSED TO OBJECT TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

Of course, it’s trite, that in any given criminal trial such as the instant case, the accused person is cloaked with every right to object to the admissibility of a confessional statement sought to be tendered by the prosecution. Such an objection can be made by the accused in either of two ways, first, the accused may retract the purported confession or (even) deny out rightly ever making any confessional statement, at all! Second, the accused may also opt to admit having made or signed the statement, but that he did so involuntarily. See ITU VS. THE STATE (supra) @ 1284 paragraphs, D-E. – Per I. M. M. Saulawa, JSC

CONFESSIONAL STATEMENT – THE TIME TO OBJECT TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT

It is well known that this Court will not interfere with concurrent findings of the two lower Courts unless they are shown to be perverse or to have occasioned a miscarriage of justice. See AKALAZU V. STATE (2022) 13 NWLR (PT. 1848) 453; MTN (NIG.) COMM. LTD. V. CORPORATE COMM. INV. LTD (2019) 9 NWLR (PT. 1678) 427; NWANKWO V. E.D.C.S.U.A. (2007) 5 NWLR (PT. 1027) 377; TIZA V. BEGHA (2005) 15 NWLR (PT. 949) 616.  – Per Adamu Jauro, JSC

CONCURRENT FINDINGS – CONDUCT OF COURTS TO CONCURRENT FINDINGS OF COURTS

It is well known that this Court will not interfere with concurrent findings of the two lower Courts unless they are shown to be perverse or to have occasioned a miscarriage of justice. See AKALAZU V. STATE (2022) 13 NWLR (PT. 1848) 453; MTN (NIG.) COMM. LTD. V. CORPORATE COMM. INV. LTD (2019) 9 NWLR (PT. 1678) 427; NWANKWO V. E.D.C.S.U.A. (2007) 5 NWLR (PT. 1027) 377; TIZA V. BEGHA (2005) 15 NWLR (PT. 949) 616.  – Per Adamu Jauro, JSC

CONCURRENT FINDINGS – POWERS AND CONDUCT OF THE SUPREME COURT REGARDING CONCURRENT FINDINGS

The power of this Court in an appeal against concurrent findings of facts is very narrow as it is restricted to considering only whether the concurrent findings of facts are perverse or not supported by evidence or whether there was improper or no evaluation of evidence that has caused a miscarriage of justice. This Court has no power to go outside the above periscope to consider alternative views that can be reached from the evidence. This Court has in a long line of its decisions laid down the approach to be adopted by this Court and the scope of the appellate power of this Court. For example, in Eholor V Osayande (1992) 7 SCNJ 217, this Court had restated thusly “This brings me to the question of concurrent findings on the point. This Court usually approaches such findings from the premises, that following from the fact that making of findings on primary facts is a matter pre-eminently within the province of the Court of trial which has the opportunity of seeing and hearing the witnesses testify, a judge’s conclusion on the facts is presumed to be correct. So, that presumption must be displaced by the person seeking to upset the judgment on facts”.

In Bamgboye v University of Ilorin & Anor (1999) 6 SC (Pt 11) 72 it held that it is trite law that findings of primary facts are matters peculiarly within the competence of the Court of trial. The assessment, evaluation, appraisal of evidence therefrom and the ascription of probative values thereto, being primarily and pre-eminently that of the trial Court, any interference by an appeal Court therewith is by law, confined to narrow and limited dimensions.

In Bamgboye & Ors V Olarewaju (1991) 5 SCNJ 88, this Court held that “the occasions whereby the appellate Court will interfere are those where the findings of facts do not relate to the evidence or are not even in evidence which case the Court relied on facts not in evidence before it”.

In Osho & Anor V Foreign Finance Corporation & Anor (1991) 5SC59 this Court repeated that “Concurrent findings cannot be interfered with by the Supreme Court unless they are not justified by the evidence and have occasioned miscarriage of justice”. See also Amadi V Nwosu (1992) 6 SCNJ59 and Jimoh & Ors v. Akande & Anor. (2009) LPELR 8087 (SC).

With the acceptance of the findings of fact of the trial Court by the justices of the Court below, there is in existence two concurrent findings of facts of the two lower Courts which, in the absence of a substantial error shown, the Court will not make it a policy to disturb them unless there is a substantial error apparent on the record of proceedings or where there is some miscarriage of justice or a violation of some principle of law or procedure or the findings shown to be perverse.

It is also trite law that it is not part of the function of an appeal Court to substitute its own views for those of the trial Court particularly where the issue turns on the credibility of witnesses.

In the light of the foregoing, the only appeal that can validly lie against the findings of facts by the Court of Appeal concurring with the finding of facts by a trial High Court is an appeal complaining that the findings are perverse or violate some principle of law or procedure, which violation has caused a miscarriage of justice or that the concurrent findings are defeated by a substantial error that is apparent on the face of the proceedings and which error has occasioned a miscarriage of justice. Any appeal against the concurrent findings of the two Courts below on grounds outside the ones listed above is not valid for consideration by this Court. The appellate power of this Court does not extend to the consideration of such appeal. An appeal against concurrent findings of facts cannot lie to complain that the prosecution did not prove its case beyond reasonable doubt as this would involve a review and re-evaluation of the totality of the evidence. It is for this reason that such an appeal cannot lie on a general ground. Such an appeal cannot lie to merely canvass an alternative view on the evidence. – Per E. A. Agim, JSC

APPEAL – POWERS OF THE SUPREME COURT IN AN APPEAL CHALLENGING CONCURRENT FINDINGS OF THE LOWER COURTS

In an appeal against the decision of the Court of Appeal affirming the trial Court’s conviction of the appellant, which decision result from the findings of the Court of Appeal concurring with the trial Court’s findings of facts on specific issues, this Court’s appellate power cannot be extended to consider whether the prosecution proved the ingredients of the offence and whether the trial Court was right in admitting a confessional statement. It cannot validly exercise its appellate powers to consider these questions.

As I have earlier held herein its appellate power in such an appeal is restricted to considering only complains that the findings are not supported by any evidence or are contrary to a written law and have thereby caused miscarriage of justice. – Per E. A. Agim, JSC

CASES CITED

STATUTES REFERRED TO

1. Penal Code CAP 102 Laws of Borno State 1994

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