Legalpedia Citation: (2023-05) Legalpedia 20556 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISION

Thu May 25, 2023

Suit Number: CA/K/322A/C/2020

CORAM

AMINA AUDI WAMBAI JCA

Mohammed Baba Idris JCA

MUSLIM SULE HASSAN JCA

PARTIES

SUNDAY SAMUEL

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The Prosecution at the trial court presented two witnesses and one of them (PW2) was the victim. PW2 in his testimony stated that on the 24th November 2019, he was stopped at Goska by the Appellant and the co-defendants, to lift them to Ungwan fari. Enroute to ungwan Maikaya, he realized that a wire had been hanged round his neck. As he struggled to stop the bike with the wire still hanged around his neck, they all fell from the bike in different directions. He attempted to raise the motorcycle but was chased off with a knife by the one of them. The Appellant and two co-defendants were later handed over to the police, after the two others were identified by the Respondent and confessed to the commission of the crime at the village head palace and they in turn later brought out the DW2, after they were subjected to series of questions.

The Appellant claims he was in his house the night the offence was committed and that he met DW2 and DW3 for the first time at the village square. He was invited by the youth chairman in the morning to the village square and he was accused alongside two others on the issue of a motorcycle theft. He and the two co-defendants denied the allegation; despite the beating they were given. They were later handed over to the police. At the police station the Appellant was taken into a room wherein the police asked him some question on his particulars and he answered. This was done in the absence of any relation of his and lawyer. He was then asked the language he understands and nothing more.

Judgment was delivered in favor of the Respondents and the Appellant was aggrieved by the decision hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Ø In the circumstances of the confessional statement of the Appellant Exhibit A, D and D1 whether the trial court was right to convict the Appellant based on the Exhibits pointing to different date of commission of the offence, which was not binding on the parties and the court?

Ø Whether having regard to the intendment and purpose of Administration of Criminal Justice Law, 2017, Section 39(1) (2) (3) (ACJA) The learned trial judge was right to rely on the confessional statement taken in the absence of Appellant’s legal practitioner , or relative as the case may be?

RATIONES DECIDENDI

INCONSISTENCY – INCONSISTENCY IN STATING THE PRECISE DATE OF THE COMMISSION OF THE OFFENCE

The position of the law is that an inconsistency or error in stating the precise date of the commission of the offence on the charge sheet is immaterial or inconsequential error which has no effect on the trial or on the judgment of the trial Court. See SAGIRU ATTAHIRU V. THE STATE (2020) LPELR-51092 (CA) Pages 30-33. Per ABIRU, JCA. In this case the question is whether the discrepancy as to date has occasioned miscarriage of justice. 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, except where the defendant could show that he was misled, the error regarding the failure of prosecution to state the precise date in the charge will not be fatal to the prosecution’s case. – Per M. S. Hassan, JCA

STATEMENT – STATEMENT TAKEN WHEN COUNSEL IS NOT IN ATTENDANCE

Section 39 (1) of the Kaduna State Administration of Criminal Justice Law 2017…

This Court faced with the interpretation of the above Section in the recent case of THE STATE v. DAVID MUSA (2020) LPELR-51302 (CA) Per HUSSAINI, JCA at pages 26-33, paragraphs A-B said: ‘’The use of the word ‘’may’’ in Section 39 (b) of the law can only be interpreted as permissive in the sense that any request by an accused person who volunteers to make a statement to the Police only in the presence of his counsel, should not be lightly refused. On the other hand the body or authority whose statutory duty it is to record the statement of accused persons cannot be held to ransom in the discharge of its duties merely because counsel was not in attendance at the time when the accused volunteered to make a statement. Such a statement is not rendered invalid on that account. That is not the purport of the provision of Section 39 (b) of the Kaduna State Administration of Criminal Justice Law, 2017. The word ‘’may’’ should be given its ordinary and natural meaning and should be so interpreted.’’

It is pertinent to state that the decision of NNAJIOFOR V FRN (Supra) relied upon by the Appellant was decided earlier. The case of THE STATE v. MUSA (Supra) is the current authority on the matter. – Per M. S. Hassan, JCA

STATEMENT – WHEN COUNSEL IS NOT PRESENT DURING THE TAKING OF AN ACCUSED’S STATEMENT

While it is desirable and encouraged to have counsel present when an accused is making a statement with the police, particularly voluntary confessions, his absence does not by itself vitiate the statement unless the statement was obtained in the circumstances established that are not voluntary. – Per M. S. Hassan, JCA

DECISION – CONDUCT OF AN APPELLATE COURT IN REGARD TO A TRIAL COURT’S DECISION

The trite position of the law is that where a trial Court has carried out its assignment satisfactory, an appeal Court shall be left with no option but to affirm such a decision. See ALI V. STATE (2015) 10 NWLR (Pt. 1466) Page 1 at 31 Per Ogunbiyi, JSC. – Per M. S. Hassan, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Robbery and Firearms (Special Provision) Act, 2004
3. Kaduna State Administration of Criminal Justice Law, 2017

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