CORAM

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Chidi Nwaoma Uwa JCA

Mohammed Baba Idris JCA

Muslim Sule Hassan JCA

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PARTIES

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USMAN SHEHU BASHIR

APPELLANTS 

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 THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

Usman Shehu Bashir was accused of raping one Fatima Zakariyya (a two years 9 months old girl) on or about the 23rd day of March, 2015 at Hayin Ojo Sabon Gari, in Sabon-Gari Local Government Area of Kaduna State, and causing her death.  He was charged under Section 221 of the Penal Code.

At the hearing, the Appellant pleaded not guilty to the charge. In his defence, the Appellant denied knowing anything about the allegation made against him but that he was threatened to be beaten and in fact, he was beaten so he had to write down his confessional statement, confessing to the crime. The Court conducted a trial within trial to ascertain whether the confessional statement was voluntarily made. The learned trial judge delivered his ruling and overruled the objection to the admissibility of the two statements in English language and the Hausa translation. The said confessional statements were admitted in evidence.

The learned trial judge delivered judgment in the case and convicted the Appellant and he was sentenced to death by hanging.

Dissatisfied with the judgment of the trial Court and determined to prove his innocence, the Appellant filed the instant appeal.

 

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HELD

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Appeal dismissed.

 

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ISSUES

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1. Whether or not the lower Court was right in convicting and sentencing the Appellant to death by hanging until certified dead placing reliance of Exhibits P1(a) & (b) and Exhibit P2(a) & (b) and Exhibit 4 without same being corroborated by an independent evidence?

2. Whether or not the lower Court was right in convicting and sentencing the Appellant to death by hanging until certified dead when the guilt of the Appellant was not proved beyond reasonable doubt?

3. Whether or not the judgment of the lower Court when it convicted and sentenced to death by hanging until pronounced dead relying on the testimonies of PW1, PW2, PW3, PW4 and PW5 which was contradictory in nature?

 

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RATIONES DECIDENDI

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CONFESSIONAL STATEMENT – WHERE A CONFESSIONAL STATEMENT IS NOT TAKEN IN THE PRESENCE OF A LEGAL PRACTITIONER

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In the case of AKINWANDE VS. STATE (2019) LPELR – 48378 (CA) (PP. 17 – 18 PARAS. B), this Court held per Talba, JCA that:

“The Appellant counsel argued and submitted that there is no evidence before the trial Court that the procedure adopted by the police to obtain the confessional statement of the Appellant was transparent. It was not obtained in the presence of his solicitor or legal practitioner to prove that the confession was voluntary. I am bold to say that there is no decision of this Court or the Apex Court which states that any confessional statement not made in the presence of a legal practitioner must be rejected. However, if the voluntariness of a confessional statement is in issue. And the said statement was obtained in the absence of a legal practitioner, then the Court will take that into consideration in determining the weight to attach to such a statement. See Ajiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430 at 452.”

In the case of TIJANI VS. C. O. P. (2022) LPELR – 58173 (CA) (PP. 14 PARAS. C), it was held per Williams-Dawodu, JCA:

“As the laudable objective of Section 17 (2) of the ACJA cannot be trivialized, one agrees with the position of this Court as expressed in the case of F.R.N. V. MAMU supra thus: “It is illogical to contend that where there is failure to record an accused’s statement in the presence of a legal practitioner … the Court should on those grounds alone throw away a confessional statement which had … been found to have been voluntarily made in a ruling … Where there was no objection and the confessional statement was duly admitted and marked as exhibit according to the Evidence Act, it cannot be discarded on the basis that it was not recorded in the presence of a legal practitioner.” – Per M. B. Idris, JCA

 

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OBITER DICTUM – MEANING OF OBITER DICTUM – THE EFFECT OF OBITER DICTUM

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I have read the Supreme Court case of OWHORUKE VS. COMMISSIONER OF POLICE (2015) ALL FWLR (PT. 801) PAGE 1401 cited by the learned counsel for the Appellant and I can clearly see that the portion of the judgment cited is an obiter dictum of the learned jurist and it cannot be binding on any other Court neither can it be relied on as a judicial precedence.

In the Supreme Court case of BUHARI & ORS VS. OBASANJO & ORS (2003) LPELR – 813 (SC) (PP. 59 – 60 PARAS. G), it was held per Tobi, JSC that:

“A statement by a judge, either by way of a ratio decidendi or an obiter dictum is determined in the context of the facts of the case before the Court. A ratio or an obiter cannot be determined outside the facts of the case or in vacuo. And in that exercise, a Court will be able to determine whether what the Judge said is a ratio or a dictum. While a ratio of a Superior Court is binding, an obiter of a Superior Court is generally not binding on inferior Courts. An obiter of the Supreme Court is not binding on that Court. The only binding pronouncement is the ratio.”

In the case of ONAGORUWA VS. STATE (1993) LPELR – 43436 (CA) (PP. 75 – 77 PARAS. E), this Court held per Tobi, JCA:

“An obiter dictum is what the judge says by the way, that is, it is a statement the judge makes in the course of the decision or judgment. It is in most cases a mere casual and passing expression of the judge. It is mostly a statement of an illustrative nature or based on hypothetical facts. It could be an observation made by the judge on issues which do not fall for determination, considering the live issues before the Court, either of first instance or of appeal. Obiter dictum at times lends some romance and relaxation to the law and judges resort to it in relevant instances. Let the judges be allowed to express their minds in such instances. Such pronouncement at times embellish the law and that is good. Let them not be castigated in such instances. Without going into any details, learned counsel for the respondent was not quite fair to us in the way he attacked us in the respondent’s brief. I believe that he can afford to be more polite in his language. I have always known him to be a good counsel. Let remain so. As opposed to general impression, it is not every obiter dictum that exposes the judge as talkative or exploring areas which are not before him. While too much obiter dictum, like too much of everything, is bad, a judge should not always receive the axe of the profession or counsel when he makes a pronouncement, obiter. And this is more so, when it is good law that an obiter dictum of a Superior Court, particularly the Supreme Court, can with time, ripen into a ratio desidendi. There is yet another aspect of the matter as it relates to the critiques of judges on what they always regard as obiter dictum. Most critiques do not appreciate the difference between obiter dictum and judicial dictum. While obiter dictum is the irrelevant statement made by the judge in the case, judicial dictum is that relevant statement made by the judge to some collateral matter but not forming part of the ratio. While I concede the point that the distinction is not a popular and easy one to make, it nevertheless exists. It is my view that judicial dictum would carry more weight than obiter dictum as it is midway between obiter dictum and ratio decidendi.” – Per M. B. Idris, JCA

 

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GUILT – WAYS OF PROVING THE GUILT OF AN ACCUSED

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The cases of IBRAHIM MUSA VS. THE STATE (2017) 5 NWLR (PT. 1557) PAGE 43 AT PAGE 48 and ALIYU VS. STATE (2015) 2 NWLR (PT. 1442) PAGE 51 AT PAGE 58 were cited by the Appellant’s counsel to buttress his argument that there must be some independent evidence outside the confessional statement in order for the Court to convict an accused person solely on it. I think the learned counsel for the Appellant is failing to understand that in order to prove the guilt of the Appellant, there are three major ways of doing so.

In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 @ 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are:

“(a) through a voluntary confessional statement of the accused person; and/or

(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or

(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.” – Per M. B. Idris, JCA

 

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MEDICAL EVIDENCE – WHETHER HAVING MEDICAL EVIDENCE IS VITAL IN PROVING CAUSE OF DEATH

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Since there is a plethora of cases that state that lack of medical evidence is not fundamental in proving cause of death, its unavailability is not crucial in proving the guilt of the Appellant.

In the case of OGBU & ANOR VS. STATE (2007) LPELR – 2289 (SC) (PP. 30 PARAS. A), the Supreme Court held per Ogbuagu, JSC that:

“…it is now fully established that where there is other evidence upon which the cause of death can be inferred, it is not vital to have resort to medical report. See the case of Liman v. The State (1976) 6 UILR (Pt. 11) 248. A Court can also, in the absence of a medical report, properly infer the cause of death from the evidence and circumstances of the case (as in the instant case). See the cases of Adamu v. Kano N. A. (1956) 1 FSC 25; (1956) SCNLR 65, Bakori v. The State (1980) 8 – 11 S. C. 81, Eric Uyo v. Attorney-General Bendel State (1986) 1 NWLR (Pt. 17) 418, Oforlete v. The State (2000) 7 SCNJ 162; (2000) 12 NWLR (Pt. 681) 415 – per Kalgo, JSC and Alarape & 3 Ors v. The State (2001) 2 SCNJ 162 at 189; (2001) 5 NWLR (Pt. 705) 79.” – Per M. B. Idris, JCA

 

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CAUSE OF DEATH – HOW CAUSE OF DEATH CAN BE PROVED

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In case of SANSANI VS. STATE (2022) LPELR – 57954 (SC) (PP. 24 – 25 PARAS. E), the Supreme Court held per Peter Odili, JSC that:

“The cause of death can be proved by direct or circumstantial evidence. The direct evidence required to prove the cause of death must be clear as to connect the deceased person with the act of the accused. The circumstantial evidence that will meet the requirements of the law of onus of proof, is the evidence that fixes the accused to the crime with sufficient cogency which excluded that someone else had committed the crime.” – Per M. B. Idris, JCA

 

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CORROBORATION – MEANING OF CORROBORATION

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In the case of STATE VS. YAHAYA (2019) LPELR – 47611 (SC) (PP. 31 – 32 PARAS. E), the Supreme Court held per Peter Odili, JSC that:

“On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission. See State v. Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626, Edhigere v. The State (1996) 8 NWLR (Pt. 464) 1 at 8, Durugo v. State (1992) 7 NWLR (Pt. 255) 525 at 541.” – Per M. B. Idris, JCA

 

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EVIDENCE – WHERE THERE ARE MINOR DISCREPANCIES IN THE EVIDENCE OF WITNESSES

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In the Supreme Court case of OGU VS. COP (2017) LPELR-43832(SC) (PP. 34 PARAS. C), the Apex Court held per Kekere-Ekun, JSC that:

“Minor discrepancies in the evidence of witnesses would not result in a conviction being set aside. It is only substantial contradictions on material facts, which create doubt in the mind of the Court that would result in an acquittal. See Okashetu v. The State (2016) 15 NWLR (Pt. 1534) 126 @ 160, Afolabi v. The State (2010) All FWLR (Pt. 538) 812 @ 820, Ikemson vs. The State (supra).”  – Per M. B. Idris, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Evidence Act 2011

2. Penal Code

 

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