JIMOH SALAWU V THE STATE

Legalpedia Citation: (2009-06) Legalpedia 28200 (CA)

In the Court of Appeal

Holden At Abuja

Thu Jun 18, 2009

Suit Number: CA/A/255/C/08

CORAM

Rabiu Danlami Muhammad Justice, Court of Appeal

Abdu Aboki Justice, Court of Appeal

Ayobode Olujimi Lokulo-Sodipe Justice, Court of Appeal

PARTIES

JIMOH SALAWU

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, JUDGMENT

SUMMARY OF FACTS

The Prosecution witnesses, who were Policemen, claimed that at about 8.45 p.m. on 6/10/2003 while patrolling along Okene-Auchi Road, they saw a motorbike by the roadside and called out to whoever was in the bushes to come out else they open fire. They claim the Appellant emerged from the bush with a torchlight in his hand, sweating and covered with dust while his motorcycle (a Vespa) was parked by the roadside and that when the Appellant could not satisfactorily explain his presence at such a deserted place and at such time of the night, the policemen took him to the Police Station at Okene and detained him for the night. The following morning, the policemen went back and searched the area where the Appellant was arrested, and their search yielded the naked corpse of a young woman, a knife, invitation cards for a wedding with the picture of the dead woman and a man on it, a lady’s handbag, and the sum of N10,000.00. They reported their discovery to the Police Area Commander. The accused denied this and claimed innocence. The trial Court found the accused guilty of culpable homicide punishable with death. Aggrieved by the decision, the Appellant filed the instant appeal.

HELD

Appeal allowed

ISSUES

1. Whether the prosecution had proved a case of Culpable Homicide punishable with death against the Appellant?
2. Whether the purported confessional statements (Exhibits 1, 2 and 3) were rightly admitted in evidence and rightly utilized by the learned trial Judge?
3. Whether the decision of the learned trial Judge was based on a proper evaluation of the evidence adduced at the trial?

RATIONES DECIDENDI

CULPABLE HOMICIDE – THE INGREDIENTS OF THE OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

The ingredients of the offence of Culpable homicide punishable with death under Section 221 of the Penal Code are:

(a) That the death of a human being has actually taken place.

(b) That such death has been caused by the accused.

(c) That the act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury, as

(i) The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act or

(ii) That the accused knew or had reason to know that death could be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.

All the ingredients must be proved or must co-exist before a conviction could be secured.

Failure to establish any of the ingredients would result in an acquittal.

Where there is no evidence to prove that the accused had anything to do with the death of the deceased no conviction can stand, and where the medical evidence does not show that the deceased met with a violent death no charge of culpable homicide punishable with death can be brought.

The onus of proof is on the prosecution throughout the trial and does not shift. See Adava v. State (2006) 9 NWLR Pt. 984 page 152 at 167.

It is the duty of the prosecution to prove the guilt of the accused and rebut the presumption of innocence.

The standard of proof required to discharge this burden is to prove the commission of the offence by the accused beyond reasonable doubt. See Section 138(1) of the Evidence Act.

The standard of proof is not proof beyond all doubt or proof beyond a shadow of doubt but proof beyond all reasonable doubt.

The doubt must be reasonable and it is not sufficient to raise an improbable doubt or a slight doubt or an unlikely doubt or a doubt which is not supported by credible evidence in the case.

In Bakare v. The State (l987) NSCC 267 at 273 Oputa JSC said:-

“Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt, No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt. Fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the surrounding circumstances of the case.”

Section 141(3) (a) of the Evidence Act requires that the prosecution has an obligation to re-establish by evidence according to law any acts, omissions, or intentions which are legally necessary to constitute the offence. – Per Abdu Aboki, JCA

CULPABLE HOMICIDE – THE REQUIREMENTS TO SECURE A CONVICTIO ON A CHARGE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH

In order to secure a conviction on a charge of culpable homicide punishable with death, the prosecution, as I have stated earlier in this judgment, must prove, inter alia:

(a) that the death of a human being has occurred.

(b) That it resulted from the acts of the Accused person.

(c) That the act was intentional with knowledge that death or grievous bodily harm was its probable consequence. See: Adava v. State (2006) 9 NWLR Pt. 984 page 155; Igabele v. State (2006) 6 NWLR Pt. 975 page 100; Ubani v. State (2003) 18 NWLR Pt. 851 page 224; Uguru v. State (2002) 9 NWLR Pt. 771 page 90.

The first ingredient of the offence of culpable homicide punishable with death to be established by the prosecution is ‘that the death of a human being actually took place’. – Per Abdu Aboki, JCA

PROSECUTION – DUTY OF THE PROSECUTION TO LINK THE DEATH OF THE DECEASED TO THE ACT OR OMISSION OF THE ACCUSED – STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

The burden of linking the cause of death of the deceased to the Accused person is not discharged by leading evidence to say that the Accused confessed to committing the crime. It is necessary for the prosecution to also prove beyond reasonable doubt what caused the death and not just the fact of death alone. See Pius Odock & Ors. v. State (2007) 7 NWLR Pt. 1033 page 369.

Where the cause of death is ascertained, the next hurdle is to link the cause of death with the act or omission of the Accused persons alleged to have caused it. The prosecution must lead evidence to prove those facts before a conviction for the offence of culpable homicide can be secured. See: Oforlete v. State (2000) 12 NWLR Pt. 631 page 415; Oche v. State (1007) 5 NWLR Pt. 1027 page 214.

In a situation where there is no direct evidence of the event leading to the death of the deceased, medical evidence may be of assistance to the case of the prosecution in establishing the cause of death and providing the necessary link between the death of the deceased and the act of the Accused. See Obierho v. State (2005) 5 NWLR Pt. 919 page 644.

It may be possible that an Accused person may admit causing the death of the deceased, but in actual fact unknown to him the deceased might have died of another cause unknown to the accused person.

In order to avoid such a scenario, it becomes imperative that the prosecution is required to prove beyond reasonable doubt not only that the act of the Accused person could have caused the death of the deceased but that it actually did. If there is a possibility that the deceased died from other causes than the act of the Accused, the prosecution has not established the case against the Accused person. See: Audu v. State (2003) 7 NWLR Pt. 820 page 51; Uguru v State (2000)9 NWLR Pt. 771 page 90. – Per Abdu Aboki, JC

CONTRADICTIONS – WHERE THERE IS DOUBT IN THE MIND OF THE COURT IN A CRIMINAL MATTER

These inconsistencies or contradictions are substantial and fundamental to the main issues in question before the trial Court and are capable of creating some doubt in the mind of the Court. I am of the opinion that the 1st Accused/Appellant should be entitled to the benefit of these doubts.

In Okonji v. The State (1987) NSCC 291 at 302, the Supreme Court per Nnamani JSC said thus: “It is trite law that where there is doubt in the mind of the Court in a criminal matter, it ought to be resolved in favor of the accused person.” See also Chukwu v. State (1996) 7 NWLR Pt. 463 Page 686. – Per Abdu Aboki, JCA

COURTS – CONDUCT OF COURTS WHERE THE REQUIRED DEGREE OF CERTAINTY FOR CONVICTION IN CRIMINAL CASES IS NOT MET

In Alarape v. The State (2001) 4 SCNJ 162 at 180, the Supreme Court held that: “It is better that 10 guilty ones are allowed to escape that that one innocent man is made to suffer. Therefore to place upon an accused the responsibility for a crime, there must be that degree of certainty which the law requires in all criminal cases and conclusions based on possibilities and probabilities must be excluded." – Per Abdu Aboki, JCA

CONFESSION – WHETHER AN ACCUSED CAN BE CONVICTED BASED ON HIS CONFESSIONAL STATEMENT ALONE

It is trite that there is no evidence as weighty as a person’s own admission or confession. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See: Dibie v. State (2007) 9 NWLR Pt. 1038 page 30.

A free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without inviting any corroborative evidence, so long as the Court is satisfied with its truth. It is the duty of the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court. See: Solola v. State (2005) 11 NWLR Pt. 937 page 460; Akinmoju v. The State (2000) 4 SC Pt. 1 page 64. – Per Abdu Aboki, JCA

CONFESSION – WHETHER A CONFESSION OBTAINED THROUGH QUESTIONS AND ANSWERS CAN BE SAID TO BE VOLUNTARY

In the present case, from the evidence in chief of PW1 reproduced above, the confession associated with the 1st Accused/Appellant was recorded from questions and answers prompted by the Police.

A confession obtained through questions and answers cannot be said to be voluntary. I am of the opinion that such statements alleged to have been made by the 1st Accused/Appellant to the Police (PW1) have not satisfied the provisions of Section 21(1) of the Evidence Act, which requires that a confession made by an accused person must be voluntary before it can be admissible in evidence. See: Okonkwo v. The State.

In Namsoh v. The State (1993) 6 SCNJ Pt. 1 pages 55 at 67-77 Kutigi JSC (as he then was) observed:

“…. both PW7 and the Appellant in their testimonies made it abundantly clear that Exhibit H was a product of the ‘question and answer’ session between the two of them. The Police recorder (PW7) was putting questions already prepared by his superior on a sheet of paper to the Appellant, which he PW7 also recorded the answers. This procedure is already wrong…I cannot see how a statement such as Exhibit H herein would be regarded as free and voluntary when it is evident that the so-called statement was as a result of questions selected and put to the accused by the Police Officer himself.” – Per Abdu Aboki, JCA

PROSECUTION – DUTY OF THE PROSECUTION TO PRESENT ALL RELEVANT EVIDENCE AT ITS POSSESSION TO THE COURT

It is the duty of the prosecution to present all relevant evidence at its possession to the Court in order to assist it in arriving at a just and proper decision of the case. See Ibrahim Abdul- Rahaman v. Commissioner of Police (1971) NNLR 24. – Per Abdu Aboki, JCA

JUDGMENT – QUALITY OF A GOOD JUDGMENT IN CRIMINAL PROCEEDINGS

I am of the opinion that the decision of the trial Court was not based on a proper evaluation of the evidence presented to it. In Ndidi v The State (2007) 5 SCNJ 274 at 292, Mohammed JSC held that:

“A judgment which will send a man to the gallows to await the hangman to execute him at any single minute must be punctuated by logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inferences are carefully drawn ….” – Per Abdu Aboki, JCA

CASES CITED

STATUTES REFERRED TO

1. Penal Code
2. Criminal Procedure Code.
3. Evidence Act, 2011

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