CORAM

---

Ita George Mbaba JCA

Uchechukwu Onyemenam JCA

Usman Alhaji Musale JCA

---

PARTIES

---

UMAR YAKUBU (Alias BABAN MAGE)

APPELLANTS 

---

KANO STATE

RESPONDENTS 

---

AREA(S) OF LAW

---

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

 

---

SUMMARY OF FACTS

The Appellant had an altercation with one Ibrahim Adam Khalil (now late). Appellant, as per eye witness account, later attacked the said Ibrahim Adam Khalil and stabbed him with scissors which led to his death, almost at the spot of the attack, as he was pronounced dead when he was rushed to the hospital. Appellant was arrested two days after the attack, but the PW3 (IPO) tendered Exhibit C, which suggested that Appellant made statement to the Police on 29/6/2018, the date of the incident, contradicting the assertion that Appellant was arrested 2 days after the incident.

In his defence, Appellant said a group of people, including PW1, accosted him and beat him up and he lost consciousness and was taken to the hospital and he, thereafter, found himself in the Court. He denied making confessional statement and sought to move the Court to allow him to adduce evidence of defence of alibi. The trial Court convicted him, based on the eye witnesses account and his confessional statement.

Aggrieved by the decision, the Appellant filed the instant appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

Whether the trial Court was right to convict and sentence Appellant for offence of culpable Homicide in the face of the evidence adduced in Court, and whether Appellant was properly identified as accused person?

Whether the refusal of the trial Court to further adjourn the case for Appellant to call a witness, and the use of Respondent’s final address by the trial Court (after Appellant had elected not to file address) amounted to denial of fair hearing to Appellant?

 

---

RATIONES DECIDENDI

---

CULPABLE HOMICIDE – THE INGREDIENTS OF THE OFFENSE OF CULPABLE HOMICIDE

---

The law relating to proof of the offence of Culpable Homicide, like murder, has since been fairly settled by myriads of judicial decisions, that there must be evidence of:

(1) The death of the victim (deceased);

(2) That it was the accused person that caused the death and;

(3) That the accused person knew that his act would result in the death, or capable of that result, as the probable consequence of this said act. See the case of The State Vs Danjuma (1997) LPELR – 3216 (SC); Galadima Vs The State (2017) LPELR – 43469 (SC); Olanrewaju Vs State (2023) LPELR – 59947 (SC); and Joji Vs C.O.P. (2023) LPELR – 60379 (CA), where we said:

“And for culpable Homicide, it must be established that there was death of the victim (deceased); that the act or omission of the accused person cause the death, that the act/omission was done with the intention of causing death or grievous bodily harm. See the case of Yamusa Vs The State (2022) LPELR – 57094 (CA), where we founded on other cases, to hold as follows: See the case of Polycap Vs The State(2020) LPELR – 49631 (CA) and Enweremadu Vs State (2017) LPELR – 42488 (CA), where it was held: Counsel, on both sides, had stated the legal ingredients of the offence of murder, that 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, that is, the accused did the act/omission intentionally with the knowledge that death or grievous bodily harm would be its probable consequence. 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)”. – Per I. G. Mbaba, JCA

 

---

PROOF – WAYS OF PROVING THE COMMISSION OF AN OFFENCE

---

The Prosecution can establish the offence and the said ingredients by any of the three ways, namely:

(1) By evidence of an eye witness;

(2) By confessional statement of accused person adjudged to have been voluntarily made, admitting the offence;

(3) By circumstantial evidence, pointing directly, conclusively and positively at the accused person as the one to bear the guilt for the crime.

See Hassan Vs The State (2021) LPELR – 56572 (CA); Ugboji Vs The State (2017) LPELR – 43427 (SC); Asekere Vs The State (2022) LPELR – 56863 (SC); Suleiman Vs The State (2023) LPELR – 60049 (CA).

It is also the law that two or more ways of establishing the commission of offence sometimes overlap or coalesce, making it difficult for accused person to riggle out of the web. See Hassan Vs The State (supra), where it was held:

“It is also the law, that where the various ways of proving the commission of offence coalesce or are established in a given case, it becomes difficult for the accused (Appellant) to get out of the entrapment. Thus, where evidence of eye witness account combines with a confessional statement and perhaps with strong circumstantial revelations to give effect to a conviction, Appellant will have serious difficulties impeaching the conviction. See the case of Uhara Vs The State (2021) LPELR – 55512 CA; Solomon Manger Vs C.O.P. FCT (2021) LPELR – 53466 (CA)”. Per MBABA, JCA (Pp. 15-16, paras. F-B) – Per I. G. Mbaba, JCA

 

---

CONFESSIONAL STATEMENT – WHERE AN ACCUSED DENIES MAKING A CONFESSIONAL STATEMENT

---

Of course, denial of confessional statement by Appellant, in Court, does discount from the probative value to be attached thereto, especially where Appellant did not contest the validity of the confessional statement when it was tendered. See the case of Hamza Vs Kano State (2022) LPELR – 58165 (CA), where we held:

“In the case of Bala Vs Kano State (2022) LPELR – 57475 (CA), we discussed extensively, when Appellant can raise objection to tendering of confessional statement, as follows: “The law is trite, that upon denying making the confessional statement (Exhibit A1-A2), the Appellant lacked the vires to contest the facts and content of the document, as to whether, or not it was properly recorded, signed and/or admitted. Having denied making the statement, Appellant had distanced himself from it (the document) and it should not therefore bother him what the Court does with it. But the Court is competent to look at it (the statement) and admit it, if relevant to the case, and where the Court finds cause to believe that Appellant made the statement, then that would defeat the entire pretentious defence. In the recent case of YAMUSA Vs THE STATE (2022) LPELR-57094 (CA), delivered on 18/3/2022, we said: “One who asserts that he did not make any confessional statement to the Police is therefore not contesting the voluntariness of the statement produced by the Prosecution as made by him, and so there cannot be any call for trial within-trial on the status or voluntariness of the statement”. See also Akwuobi Vs The State (2016) LPELR-41389 (SC), where it was held: “In this instant appeal, there is a confessional statement made by the appellant voluntarily which was tendered and admitted in evidence at the trial and marked Exhibit 4. Although the appellant denied making such statement or signing same, the trial Court rightfully in my view, did not bother to conduct a trial within trial since the appellant did not say that he made it under duress, torture, promise or any influence. This is because mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See Okwesi vs. State (1995) NWLR 119; Igago vs. The State (1999) 14 NWLR (pt.637)1. Also where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within trial. See Madjemu v The State (2001) 5 SCNJ 59”. Per SANUSI, JSC See also Ofordike Vs The State (2019) LPELR-46411(SC), where my Lord Okoro JSC said: “The learned counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:- “In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing, a trial within trial is unnecessary and the trial Court was right in its judgment”.

See also Habibu Vs State (2023) LPELR – 60361 (SC).

At the time the Prosecution applied to tender the confessional statements of the Appellant, his Counsel said:

“We have no objection as the Accused said he did not make a statement at both Sheka and State CID.” (See Page 16 of the Records of Appeal) I think the above was a reckless statement by Appellant’s Counsel, as it cannot be imagined an accused person can be arraigned in Court where the Police did not obtain statement from him after arresting him! Of course, having claimed that Appellant did not make any statement to the Police, Appellant lacked the competence to challenge the veracity and content of what the prosecution produced as his statement. See C.O.P Vs Saidu & Ors (2023) LPELR – 60377 (CA):

“It is settled that the appropriate time to object to a confessional statement is when it is sought to be tendered. At the time of tendering the statements, the only ground of the Appellant’s objection was that of signature. The Appellant did not challenge its admissibility on the ground of involuntariness. An accused person will not be permitted to challenge the admissibility of a confessional statement even at the trial Court after same has been tendered. See YELLI V. STATE (2022) LPELR-57865 (SC), AKINKUNMI V. STATE (2022) LPELR – 57285 (SC), USMAN V. STATE (2019) LPELR – 47396 (SC). Accordingly, this issue raised by the Appellant has no chance of success before this Court." Per JAURO, JSC (P. 31, paras. C-F) – Per I. G. Mbaba, JCA

 

---

APPEAL – WHERE FINDINGS AND RULINGS ARE NOT APPEALED

---

As earlier stated in this Judgment, none of those findings and ruling of the trial Court was appealed against by Appellant and so they remain binding and conclusive. See the case of Ezerioha & Ors Mgbeajulu & Ors (2018) LPELR – 43811 (CA); Dabup Vs Kolo (1993) LPELR – 905 (SC); Ichita & Anor Vs Ichita (2017) LPELR – 42074 (CA); Elechi & Ors Vs Abia State Govt. & Ors – CA/OW/359A/2012 delivered on 17/3/2017; Nnaji & Anor Vs Alozie (2014) LPELR – 24014. – Per I. G. Mbaba, JCA

 

---

FAIR HEARING – WHETHER FAILURE TO FILE A FINAL ADDRESS AMOUNTS TO DENIAL OF FAIR HEARING

---

Final address by Counsel is only meant to assist the Court articulate the case of the parties. Failure to address the Court cannot amount to denial of fair hearing, where the parties (or party) elected not to address the Court, in my opinion. See the case of Ekara Vs Takim (1995) 5 NWLR (Pt.394) 242 at 252, where it was held:

“It is trite law that address of Counsel is designed to assist the Court. Where therefore, a Counsel deliberately fails to avail himself of the opportunity of delivering his address or the argument is unanswerable, the fact that Counsel did not address the Court cannot be denial of fair hearing which could vitiate the judgment.”

See also Haruna Vs University of Agriculture Makurdi (2006) FWLR (Pt.304) 432, where the apex Court held:

“A final address after trial, is to help the trial Judge appreciate the case of the parties and whether an address is delivered by a party or not, is important, but it is not of major implication provided the party has not been denied the right to address as part of his constitutional right of fair hearing.” – Per I. G. Mbaba, JCA

 

---

DOCUMENTS – AUTHORITY OF COURTS TO EXAMINE ALL DOCUMENTS PROPERLY BEFORE THEM

---

Where a document is formally filed in Court as ordered by the Court, the Court is free and entitled to use it and it can always refer to its records and apply whatever evidence, or material is before it, needed to do justice in a case. See the case of Hope Olusegun Aroke Vs FRN (2017) LPELR – 50139 CA:

“The law is trite that a Court has the authority to examine documents that are properly before it. This was why the Apex Court in the case of Agbareh v. Mimra (2008) NWLR (Pt. 1071) held that a Court is entitled to look at the contents of its file or Records and refer to it in consideration of any matter before it. See: Abubakar V. Chuks (2007) 18 NWLR (Pt. 1066); Cameroon Airlines V Otutuizu (2011) LPELR – 827 (SC); West African Provincial Insurance Co. Ltd. v. Nigerian Tobacco Co. Ltd. (1987) 2 NWLR (Pt. 56) 299 at 306: Osafile v. Odi (1990) 3 NWLR (Pt. 137) 130; Chief Agbaisi & Ors. v. Ebikorefe & Ors. (1997) 4 NWLR (Pt. 502) 630 at 648; and Agbahomovo & 2 Ors. v. Eduyegbe & 6 Ors. (1999) 3 NWLR (Pt. 594) 170”. Per TUKUR, JCA (P. 31, paras. A-E) – Per I. G. Mbaba, JCA

 

---

EVIDENCE – WHETHER MEDICAL EVIDENCE IS NECESSARY WHERE CAUSE OF DEATH IS OBVIOUS

---

See the case of Fulani Vs The State (2018) LPELR – 45195 (SC) and Patrick Vs The State (2018) LPELR – 43862 (SC), where it was held:

“The law says that where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity – see Ben V. State (supra), Oforlete V. State (supra), and Babuga v. State (supra), cited by the Respondent, where Onu, JSC, observed- Be it noted that it is not an immutable requirement of the law that the cause of death must be proved by medical evidence. …All that is required to be proved is that the death of the deceased – – was the direct result of the act of the Accused to the exclusion of all other reasonable causes. See also Ben Vs State (2006) LPELR – 770 (SC), which held:

“The position of the law in this respect had been stated in numerous cases. It is that in cases where a man was attacked with lethal weapon and he died on the spot, cause of death can properly be inferred that the wound inflicted caused the death. Put in another form, where the cause of death is obvious, medical evidence ceases to be of any practical or legal necessity in homicide case. Such a situation arises where death was instantaneous or nearly so. See Tonara Bakuri v. The State (1965) NMLR 163 at 164, per Ademola, CJN: Eric Uyo v. Attorney-General of Bendel State (1986) 1 NWLR (Pt. 17) 418; Onwumere v. The State (1991) 4 NWLR (Pt. 186) 428 and Nwachukwu v. The State (2002) 12 NWLR (Pt. 782) 543”. Per AKINTAN, JSC (Pp. 12-13, paras. F-B) – Per I. G. Mbaba, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Penal Code

3. Evidence Act, 2011

 

CLICK HERE TO READ FULL JUDGMENT