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IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 30TH DAY OF JANUARY, 2015
BEFORE THEIR LORDSHIPS
ABDU ABOKI, JCA
ISAIAH OLUFEMI AKEJU, JCA
HABEEB ADEWALE OLUMUYIWA ABIRU, JCA
HUSSAINI SAMA’ILA – Appellant(s)
THE STATE – Respondent(s)
Nassir Abdu Dangiri – For Appellant
Yakubu A. H. Ruba Esq. – For Respondent
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):
At the Jigawa State High Court holden at Gumel the appellant was in charge No. JDU/9C/2010 dated 8/5/10 charged for the offences of kidnapping and culpable homicide punishable with death as follows:
“FIRST HEAD OF CHARGE
That you Hussaini Sama’ila on the 22nd day of October, 2009 at about 1600 hrs. in Hadeja Town, Hadeja Local Government Area within the Jigawa Judicial Division committed an illegal act to wit, you enticed and took one Hadiza Tanimu Muhammad, a 6 years old girl out of custody and consent, you thereby committed an offence of kidnapping punishable under Section 273 of the Penal Code Cap 107 Laws of Jigawa State, 1998.
SECOND HEAD OF THE CHARGE
That you Hussaini Sama’ila on the 22nd day of October, 2009 at about 1600 hrs. committed Culpable Homicide punishable with death by causing the death of Hadiza Tanimu Muhammad 6 years old girl at Hadeja Local Government Area and thereby committed an offence punishable under Section 221(a) of the penal Code Cap 107 Laws of Jigawa State, 1998″.
Upon the plea of not guilty by the appellant, the prosecution called five witnesses in proof of the charge, while the appellant testified in his own defence. At the conclusion of the oral and documentary evidence of the witnesses, and after the learned Counsel for the parties had been heard, the High Court of Jigawa state (the trial court) found the appellant guilty of the two offences, convicted and sentenced him to ten years imprisonment with a fine of N10,000.00 for kidnapping, and to death by hanging for the offence of culpable homicide respectively.
As the expression of his dissatisfaction with the decision of the trial Court, the appellant, filed a Notice of Appeal with thirteen grounds of appeal after seeking and obtaining the order of this court to file out of time. The appellant subsequently filed the Appellant’s Brief of Argument on 21/4/14 which was settled by Nassir Abdu Dangiri while the Respondent’s Brief of Argument settled by Yakubu A. H. Ruba Esq., the Hon. Attorney-General Jigawa State was filed on 14/7/14. The Briefs were adopted and relied upon by the respective learned Counsel at the hearing of this appeal.
From the grounds of appeal,the appellant formulated two issues for determination as follows:
From the respondent, the lone issue for determination is formulated as follows:
Whether the learned trial judge was right in convicting the appellant for the offence charged having regard to the evidence adduced by the respondent at the trial.
In my view the lone issue raised by the respondent has covered the two issues formulated by the appellant, and I adopt the said respondent’s, issue for the consideration, and determination of this appeal.
Considering his two issues to be interwoven, the appellant’s Counsel argued them together.
The learned counsel contended that the trial court placed reliance on part of the evidence of PW4 which the Court wrongly picked and chose even when the Court believed that there was element of hearsay in the testimony of that witness. This, according to learned Counsel has occasioned a miscarriage of justice against the appellant.
It was submitted that it was not for the Court to pick and choose from the evidence of a witness more so in this case that the learned trial judge had held that there was some elements of hearsay in the testimony of that witness, i.e. the PW4. The Court ought not to have relied on that witness since it is a fundamental rule of evidence that hearsay evidence is inadmissible; KASA v. THE STATE (1994) 6 SCNJ (incomplete); BUHARI v. OBASANJO (2005) 9 SCMI; UTTEH v. THE STATE (1992) 2 SCNJ 183; CHIMA v. THE STATE (2001) SCM 107.
The learned Counsel contended that without the evidence of the PW4 which the trial Court relied upon it might be difficult to convict the appellant for the two offences prepared against him, so the Court did not properly evaluate the evidence of the PW4. Though he conceded that the extra-judicial statement of the appellant admitted as Exhibit C is confessional in nature and he could safely be convicted based there upon, the appellant’s Counsel contended that the conviction was not based on that extra-judicial statement, but the Court went to pick and choose from the testimony of the PW4 which the Court considered as containing elements of hearsay evidence.
For the respondent, it was submitted that the prosecution is required to establish the ingredients of the offences of kidnapping and culpable homicide punishable with death.
According to the learned Counsel, for the offence of kidnapping punishable under Section 273 of the Penal Code, the essential ingredients to be proved beyond reasonable doubt as laid in Section 271 Penal Code are that;
(a) the person kidnapped was a minor under 14 years or 16 years if male or female respectively or that such a person was of unsound mind.
(b) the minor or person of unsound mind was lawfully entrusted to the keeping of a guardian.
(c) the accused took or enticed the minor or person of unsound mind out of the keeping of the guardian without the consent of the guardian.
The learned Counsel contended that the evidence of the five prosecution witnesses proved that the appellant actually kidnapped the deceased, and this the appellant also admitted in his extra-judicial statement admitted as Exhibits A and B. It was contended that the evidence of the PW1-PW4 corroborate that of the PW5 and the confessional statement of the appellant thus proving the ingredients of kidnapping against the appellant.
It was submitted that the learned trial judge was right to have acted on the unchallenged and uncontradicted evidence of the prosecution witnesses which is credible in convicting the appellant; MOGAJI v. NIGERIAN ARMY (2008) 8 NWLR (Pt. 1089) 393; OFORLETE v. STATE (2000) 12 NWLR (Pt. 681) 415.
On the offence of culpable homicide punishable with death under Section 221(a) of the Penal Code, the respondent submitted that the ingredients of that offence which must be proved beyond reasonable doubt are stated in the case of USMAN v. STATE (2011) 3 NWLR (Pt. 1233) 1 to be the following:
(a) that the deceased, a human being died.
(b) That the death of the deceased was caused by the accused person.
(c) That the accused caused the death of the deceased intentionally or with knowledge that death was a probable consequence of his act. The cases of SULE v. STATE (2009) 19 NWLR (Pt. 1169) 33; AKPAN v. STATE (2008) 14 NWLR (Pt. 1106) 90 were also cited.
According to learned Counsel, the first and second ingredients were proved through the testimony of the PW1, PW2, PW3 and PW4 as well as the confessional statement of the appellant (Exhibits A and B) and the medical report (Exhibit C) while the third ingredient was proved through the unchallenged evidence of the PW1, PW2, and PW3 that they rescued the deceased hale and hearty and handed her over to the appellant. It was argued that where there is evidence that the deceased person was hale and hearty up to the occurrence of an act and death is instantaneous without any break in the chain of events from the time of the act that caused injury to the deceased to the time of the death, the death will be attributed to the act.
According to the respondent, the third ingredient was further proved with the testimony of the PW5 and Exhibits A and B, the extra-judicial statement of the appellant wherein he stated the way and manner he killed the deceased with knowledge that death would be the probable consequence of his act. It was submitted that the appellant’s confessional statement was free and voluntary and he could be convicted on it; NWACHUKWU v. STATE (2007) 17 NWLR (Pt. 1062) 65; EMEKA v. STATE (2001) 5 MJSC 62.
The respondent contended that the learned trial judge relied not only on evidence of the PW4 as argued by the appellant but on the entire evidence of the witnesses and exhibits tendered, and the testimony of the witnesses being unchallenged, it was proper to rely and act on it; CBN v. IGWILLO (2007) 14 NWLR (Pt. 1054) 393. It was also submitted that a challenge to the evidence of the prosecution witnesses must relate to material facts and not to inconsequential matters before it can affect the case of the prosecution; OSETOLA v. STATE (2012) 17 NWLR (Pt. 1329) 251; OSUNG v. STATE (2012) 18 NWLR (Pt. 1332) 256.
The established principle in our administration of criminal justice is that the burden of proving the commission of crime rests squarely on the prosecution and does not shift except in recognized cases. The prosecution must establish all the ingredients of the crime beyond reasonable doubt. See YONGO v. C.O.P. (1992) 4 SCNJ 118; OGUNDIYAN v. THE STATE (1991) 3 NWLR (Pt. 181) 1519; BABUGA v. THE STATE (1996) 7 NWLR (Pt. 460) 279; WOOLINGTON v. D.P.P. (1935) AC 426; AMADI v. F.R.N. (2008) 12. SC (Pt. 111) 55; NWEKA v. THE STATE (2001) 2 SC 9.
In the instant case, the appellant was alleged of two offences; kidnapping contrary to Section 273 and culpable homicide punishable with death under Section 221(a) respectively of the Penal code, cap 107 Laws of Jigawa State 1998 in that he (appellant) kidnapped one Hadiza Tanimu Mohammad a girl of 6 years of age and caused her death, offences that were allegedly committed on 22nd October, 2009.
To establish the charge, the prosecution called the PW1, PW2 and PW3 whose evidence briefly is that one girl was rescued by the PW1 and saved from drowning in a river while the appellant was standing by the side of the river and the girl was handed over to the appellant who claimed that she was his daughter. The appellant took the girl away hale and hearty. The PW4 testified that the girl that was rescued and taken away by the appellant was his daughter, Hadiza who was sent to grind millet but was since not seen again. The PW5 was the prosecuting Police Officer who investigated the case and tendered the extra-judicial statement of the appellant obtained by him as exhibits A and B as well as the medical report of the death of Hadiza as exhibit C.
The appellant who had earlier denied making any statement to Police as well as his signature on Exhibits A and B later testified in his own defence and said the statement was obtained by beating him.
The learned trial judge found as follows at pages 65-66 of the record of appeal;
“I have found from the totality of the evidence before me without doubt that the accused person caused the death of the victim (Hadiza Hussaini) as described in Exhibit C. From the cause of death described therein and the state of the corpse, I believe the accused knew that death would be the probable consequences of his act when he plucked out the victim’s eyes, heart and other body organs with a nail. All the ingredients of the offence of culpable homicide along with ingredients for the proof of offence of kidnapping have been proved by the prosecution. It has been proved that the deceased (victim) was a minor who the accused lured away from the custody of PW4 her father (guardian) without his consent before he killed her afterwards.
I am therefore convinced beyond reasonable doubt that the accused person committed the offence of culpable homicide and kidnapping contrary to section 221(b) and Section 273 of the Penal Code Cap 107 Laws of Jigawa State respectively”.
The ingredients of the two offences for which the appellant was charged are stated in Sections 277 and 221(b) of the Penal Code respectively. Thus to sustain a conviction on the charge of kidnapping, the prosecution has the burden to show that;
(1) The person allegedly kidnapped is a minor (under 16 years for a female as in the instant case) or a person of unsound mind.
(2) The minor or person of unsound mind was lawfully in keeping or custody of a guardian, and
(3) The accused enticed the victim without the consent of the guardian.
I find no difficulty in agreeing with these ingredients as stated by the learned trial judge on pages 47-48 of the record of appeal.
For the offence of culpable homicide punishable with death, under Section 221 of Penal Code to be proved, the prosecution must show by credible evidence the following ingredients or elements;
(1) That the death of a person, a human being has occurred.
(2) That the death was caused by the accused person
(3) That the accused person intentionally caused the death of the deceased, or that the accused knew that death would be the probable result of his act.
See OCHIBA v. THE STATE (2011) 12 MJSC (Pt. 111) 162; USMAN v. STATE (2013) vol. 5-7 MJSC (Pt. IV) 1.
From the proceedings at the trial Court, there was available to the Court the oral testimony of the five prosecution witnesses and the documentary evidence tendered by the PW5 as exhibits A, B and C being the Hausa and English versions of the appellant’s extra-judicial statement, and the medical report of death of the victim allegedly kidnapped and killed by the appellant.
I should again state here that there was no objection to the admissibility of exhibit C, the medical report. In respect of the extra judicial statement of the appellant the learned Counsel for appellant merely stated when the statement was offered as exhibit that the accused person said he did not sign it and did not give any statement. The statement was admitted. It was in his own defence after the statement had been admitted as Exhibits A and B that the appellant said “they then beat me up to a state of making a confession” and went ahead to give a version of the events that differs from that contained in his extra-judicial statement.
Thus there was no objection to the admissibility of the statements at the time they were tendered. It is the law that the proper time to object to the admissibility of a document is that time when it is tendered as evidence. See LAWSON-JACK v. SHELL PET. DEV. CO. (NIG.) LTD. (2002) 13 NWLR (Pt. 783) 180. In OSENI v. STATE (2012) VOL. 2 MJSC (Pt. 11) 123 it was held that the question of voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. It was held further per Mohammad, JSC (as he then was) at page 164 that;
“It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is always taken to be an after thought. See R v. STATE (1961) ALL NLR 462; ALARAPE v. THE STATE (2001) FWLR (Pt. 41) 1872”.See also the cases of OLAYINKA v. STATE (2007) 9 NWLR (Pt. 1040) 561; OGUDO v. STATE (2011) VOL. 202 LRCN 1.
Now a confession is an admission made by a person charged with a crime at any time stating or suggesting by inference that he committed the crime. See GIRA v. STATE (1996) 4 NWLR (Pt. 443) 375. A confession, is regarded as coming from the ‘mouth of the horse’ and is therefore the strongest type of evidence and where it is free, voluntary, direct and positive can sustain a conviction so long as the Court is satisfied with the truth thereof. See SOLALA v. STATE (2005) 11 NWLR (Pt. 937) 460; IDOWU v. STATE (2000) 7 SC (Pt. II) 50; IHUEBEKA v. THE STATE (2000) 4 SC (Pt. 1) 203.
From the foregoing and the clear content thereof, I am not in any doubt that the extra judicial statement of the appellant admitted as Exhibits A and B amounts to a confession notwithstanding the retraction thereof by the appellant.
It is also pertinent to state here that the duty of the Court where a confessional statement has been retracted is to test the truthfulness and veracity of the statement by examining it with other credible evidence before the Court. In that regard, the Court is to ask whether;
(a) There is any thing outside the confession showing that it is true.
(b) The confession is corroborated.
(c) The facts stated therein are true as far as can be tested.
(d) The accused had the opportunity of committing the offence.
(e) The confession is itself possible.
(f) The confession is consistent with the other facts as curtained and proved at the trial.
See OSETOLA v. STATE (2012) 6-7 MJSC (Pt. 11) 41; ADESINA v. STATE (2012) 5-7 MJSC (Pt. 11) 80.
It is noted that the learned trial judge comprehensively carried out this duty from page 51 to page 60 where it was concluded that, “Having gone through other evidence tendered through PW1, PW2, PW3, PW4 and exhibit C which have all corroborated substantially facts stated in the accused confession in exhibit B, I believe there is enough weight to conclude that exhibit B is a true confession of the accused person”.
It is also worthy of note that even in the Appellant’s Brief in this appeal there has been no challenge to the legality of exhibits A and B or to the fact that the extra judicial statement is confessional. These have been conceded by the appellant’s Counsel in his following words at paragraph 4.05 of the brief;
“We concede that the extra-judicial statement of the appellant is confessional in nature and the Court can safely convict based on that solitary evidence”.
Thus the prosecution placed before the trial Court the oral testimony of five witnesses as well as the confessional statement of the appellant, Exhibits A and B.
It is the law that the guilt of an accused person may be proved through any or a combination of the following;
i.e. (a) the confessional statement of the accused person.
(b) the testimony of persons who gave account of the crime,
(c) circumstantial evidence.
See IGABELE v. STATE (2006) 6 NWLR (Pt. 975) 100.
As I earlier stated in this judgment the PW1, PW2 and PW3 gave account of how the PW1 rescued a girl from the river and handed her to the appellant who claimed to be the father of the girl. The girl who was last seen with the appellant hale and hearty was later found dead with her body mutilated. The PW4 testified that the deceased girl was his daughter named Hadiza who was sent on an errand to grind millet but was not seen again. The confessional statement of the appellant contains the account of how he picked Hadiza and took her on his motorcycle and told her that he would take her home, but on the way Hadiza fell into the river and he (appellant) sought the help of one Yakubu, a fisherman (PW1) who removed her and handed her over to him (appellant). The appellant continued;
“I took her to the bush and killed, removed her two eyes and went away, I removed her eyes with a knell (sic); on the same date at about 1930 hrs. I went and inform Ado Roki, I took him to the scene on my motorcycle he use a knell (sic) also and cut her stomach and removed her heart and some part …”
This statement of the appellant, clearly coincides with the evidence of the PW1, PW2 and PW3 that they handed Hadiza over to the appellant alive and hearty. She was therefore last seen with the appellant.
The law is that the person last seen with a deceased person has the onus to offer an explanation of what he knows about the death of the deceased. See OKORO v. THE STATE (1964) 1 ALL NLR 423; IGABELE v. THE STATE (2005) 6 NWLR (Pt. 975) 100.
It is quite clear that the appellant has not considered the totality of the evidence of the PW4 as hearsay, as that will be completely against the guiding principle of hearsay evidence as laid down by the Judicial Committee of the Privy Council in the popular case of SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969, that evidence of a statement made to a person by a person who is himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. See OJO v. GHARORO (2006) ALL FWLR (Pt. 316) 197, where the Supreme Court further explained at page 219 that “In most cases, hearsay evidence is to the following or like effect: “I was told by xyz that, or xyz told me that, or I heard that xyz told ABC that, or I made inquiries and I was told that”. See also AROGUNDADE v. THE STATE (2009) 6 NWLR (Pt. 1136) 165.
The PW4 fully participated in the whole scenario of this case, he as the father of the missing and later deceased girl lodged complaint to the Police and identified the corpse of the deceased when she was eventually brought from where she was killed. On all those aspects his evidence of what he witnessed himself cannot amount to hearsay, and the learned trial judge showed full consciousness of the type of evidence of the PW4.
What the appellant’s Counsel has emphasized in this appeal on the evidence of the PW4 is not the decision of the trial Court but a comment by the learned trial judge. The argument of the learned Counsel does not relate to ultimate decision of the Court. The duty of the appellate Court is to determine whether the decision of the trial Court was right, and not whether the reasons for the decision are right. See NKADO v. OBIANO (1997) 5 NWLR (Pt. 503) 31.
The records of this appeal show convincingly that the learned trial judge gave thorough consideration to the evidence of the witnesses before him, the confessional statement of the appellant, and his being the last person seen with the deceased before arriving at the conclusion that the prosecution proved its case beyond reasonable doubt. I find no reason to fault the reasoning and conclusion of the learned trial judge.
In sum I hold that this appeal has no merit and I dismiss it accordingly. I uphold the decision of the High Court of Jigawa State including the conviction and sentence of the appellant.
ABDU ABOKI, J.C.A.:
I had the privilege of reading a draft of the judgment delivered by my learned brother ISAIAH OLUFEMI AKEJU, JCA. I agree with him that this appeal lacks merit.
A trial court is in the best position to assess the credibility of witness, having seen and watched the demeanor of the witness. Once inconsistent and contradictory finding of the trial court are not based on demeanor of the witness, this court is in good position as the trial court to evaluate evidence before it. See; ODINAKA v. MOGHALU (1992) 4 NWLR (Pt. 233) PG. 1, LAGGA v. SARLUMA (2008) 16 NWLR (Pt. 1114) PG. 427.
As rightly observed in the lead judgment there is no reason to fault the reasoning and evaluation of evidence of the trial judge.
I also dismiss the appeal and abide by the consequential orders contained in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:
I have had the privilege of reading before now the lead judgment delivered by my learned brother, Isaiah Olufemi Akeju, J.C.A. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree will the reasoning and abide the conclusions reached therein. I have nothing useful to add.